Johnson v. Kelly Services Ireland, Ltd., et al.

Annotate this Case

Download PDF

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY HOWARD M. JOHNSON Plaintiff v. KEL LY SE RVIC ES IRE LAN D, LTD ., and XEROX CORPORATION Defend ants ) ) ) ) ) ) ) ) ) CIVIL ACTION NUMBER 00C-06-110-JOH Submitted: January 21, 2003 Decided: February 6, 2003 MEMORANDUM OPINION Upon M otion of Defend ants for Rearg ument - DENIED Edward T. Ciconte, Esquire, Ciconte Roseman & Wasserman, Wilmington, Delaware, attorney for plaintiff Colleen D. Shields, E squire, Elzufon Austin Rea rdon Tarlov & Mo ndell, P.A., Wilm ington, D elaware , attorney for defen dants HERLIHY, Judge Defend ants Kelly Services, Ltd., and Xero x Corp oration m ove to rea rgue this Court s earlier decision denying their motion for a set-off. They sought a set-off of a pretrial payment from a third defendant to the plaintiff Howard Johnson. This C ourt held that the agreement signed with that defendant w as a joint tort-feasor release but that these defendants motion was untimely.1 Briefly restated, Johnson was driving his vehicle when a Kenneth Ard struck him. Ard was driving his personal car but was on business for Kelly and Xerox. Prior to a damages only trial, Johnson settled with Ard and his personal carrier for $16,666.67. Johnson signed an agreement with Ard which was written in an attempt to avoid the consequences of the statute governing joint tort-feasors. 2 The trial proceeded against Kelly and Xerox only. A jury awarded Johnson $25,000 on July 16, 20 02. Kelly and Xerox, ho wever, did n ot file their motion for se t-off until September 18, 2002. Over Johnson s objection, this Court held th e agree ment was, despite lawyer-like efforts to avoid it, a joint tort-feasor release. But since the motion for set-off was filed two months later, this Court held it to be untimely. In reaching that conclusion, the Court held the motion to be one to alter or amend a judgm ent as pro vided in Superior Court Civil Rule 59(d). That Rule requires that such motion s must b e filed with in ten day s of the en try of judg ment. 1 Johnson v. Kelly Services Ireland, Ltd., Del. Super. C.A. No. 00C-06-115, Herlihy, J. (January 8, 2003). 2 10 Del.C. §6304. 1 Kelly and Xerox now argue that this Court used the incorrect rule. Instead, they argue, the Court sho uld have utilized C ivil Rule 60(b)(5). 3 They offer several reasons for their positio n. First, R ule 59(d) does no t cover the ir situation. S econd, to enforce R ule 59(d) s time limit puts a joint tort-feasor seeking credit/set-off in an untenable position. Third, Rule 60(b)(5) has no time limit and avoids the straight jacket of Rule 59(d). As such, they contend, utilizing Rule 60(b)(5) is more consistent with giv ing prote ction to joint tort-feasors such as themselves which they assert the law provides. The points which Kelly and Xerox offer in reargument raise nothing new. Reconsideration of issues already presented and dec ided rare ly serves the parties inte rests or the public s interest. 4 To be successful, the movant must dem onstrate that the Court has overlooked a decision or principle of law that would have a controlling effect or the Court has misapprehended the law or the facts so that the outcome of the decision would be affected. 5 The original motion for set-off does not and did not fit within the provision s of Rule 3 Rule 60. Relief from judgment or order. Mistake; inadvertence; excusable neglect; newly discovered evidence; fraud, etc. On motion and upon such terms as are just, the Court may relieve a party or a party s legal representative from a final judgment, order, or proceeding for the reasons... (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application... 4 Mainiero v. Microbyx Corp., 699 A.2d 320, 321 (Del. Ch. 1996). 5 Stein v. Orloff, Del. Ch., C.A. No. 7276-NC, Hartnett, V.C. (September 26, 1985) at 3, 1985 Del. Ch. LEXIS 540 at *5. 2 60(b)(5). It meets none of the conditions for the relief it sought. Nor can the actions of anyone fit within the preconditions of the italicized part of Rule 60(b) even though that list is not exclusive. R ule 60(b)(5) is to be u sed only in ex traordinary circum stances. 6 The case of Saienni v. Anderson7 provides some guidance. There, by a post-trial motion for remittitur, a claimed joint tort-feasor sought credit for pretrial payments made to another party in the case. The Supreme Court affirmed this Court s ruling that that paym ent was not tort-ba sed and that there w as to be n o joint tort-fe asor cred it. The instructive nature of Saienni is that the motion was one for remittitur, which is a motion governed by Rule 59(d). Whether it is or is not was not an issue in Saienni, but Rule 59 (d) is the ve hicle used in this Court fo r such m otions. K elly and Xerox did not seek remittitur, but their m otion was as c lose as one can get to it. The res ult, if granted, would have been to reduce Johnson s $25,000 verdict by $16, 666.67. The straight-jacket-timing argument is unavailing, too. Kelly and Xerox knew of Johnson s settleme nt with A rd. Wh ether the k new pr ior to trial or before the jury s verdict, they could easily have moved for set-off prior to the expiration of ten days. The amou nt, even if unknown when they filed such a motion, would have to be made known to them and the verdict adjusted accordingly. 6 Dixon v. Delaware Olds, Inc., 405 A.2d 117, 119 (Del. 1977)( To allow relief under 60(b) in these circumstances would encourage parties to disregard the procedures and time limits provided for elsewhere in the Superior Court Rules.... Relief under Rule 60(b) is an extraordinary remedy and requires a showing of extraordinary circumstances. ). 7 669 A.2d 23 (Del. 1995). 3 Conclusion For the reasons stated herein the motion for reargument of defendants Kelly Services Ireland, Ltd., and Xerox Co rporation is DENIED. IT IS SO ORDERED. J. 4

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.