Annotate this Case

270 A.2d 833 (1970)

UNION MUTUAL LIFE INSURANCE COMPANY, a corporation of the State of Maine, Plaintiff, v. Frederick W. DEWEY, and Delaware State News, Inc., a corporation of the State of Delaware, Defendants and Cross-Claimants, v. Grover A. BIDDLE, Cross-Claimee.

Superior Court of Delaware, New Castle.

July 28, 1970.

Ralph F. Keil (of Keil & Keil), Wilmington, for plaintiff.

Steven Rothschild (of Prickett, Ward, Burt & Sanders), Wilmington, for crossclaimee.

STIFTEL, President Judge.

The issue is whether there should be separate trials. The movant claims that Union's action for declaratory judgment against Delaware State News, Inc. and Frederick W. Dewey, the employee, involves only an issue of "coverage" under the contract of insurance with News. On the other hand, he claims that the action on the crossclaim against Biddle by the defendants is in the nature of an action for "negligent misrepresentation".

The decision for separate trials lies in the discretion of the Court.[1] Container Co. v. Carpenter Container Corp., 9 F.R.D. 89 (D.C.Del.1949). Should I exercise that discretion in favor of separate trials ? I think not. This is why:

Paragraph 7 of the News and Dewey answer admits paragraph 7 of Union's complaint but suggests an agreement for coverage nevertheless because of statements made by people involved during the contract negotiations. Technically, then, the declaratory judgment matter goes beyond simple construction of contract language. As a consequence, it is reasonable to contemplate that several witnesses, such as Fullerton, Biddle, Milbier, Smyth, Beech and Sidell, may testify. On the issue of coverage, regardless of the language of the *834 contract, it is likely that these same witnesses may testify in the cross-claim against Biddle for negligent misrepresentation. Consequently, many of the same facts would be brought out in both cases by the same witnesses. Also, documents in both cases would be the same.

Separation of the cases for trial would require duplication, double expense and would not be conductive to the expedition of the trial and economy.

Motion for separate trials denied.

It is so ordered.


[1] Rule 42(b) of the Superior Court Civil Rules, Del.C.Ann., reads as follows:

"(b) Separate trials. The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, crossclaim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims or issues * * *".