IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

PAMELA I. MONTGOMERY, )

Individually and as Administrator )

of the Estate of )

THOMAS J. MONTGOMERY, )

THOMAS K. MONTGOMERY, )

JEREMY MONTGOMERY, and )

HARRY I. MONTGOMERY, )

 )

Plaintiffs, ) C.A. No. N11C-11-047 AML

 )

v. )

 )

WILLIAM MOORE AGENCY, INC., )

LYNN M. HITCHENS, and )

MID-STATE INSURANCE, INC., )

 )

Defendants. )

Date Submitted: March 7, 2016

Date Decided: March 31, 2016

MEMORANDUM OPINION

Upon Defendants’ Motion for Summary Judgment

DENIED

Timothy E. Lengkeek, Esq., Young Conaway Stargatt & Taylor, LLP, Wilmington, 

Delaware, Attorney for Plaintiffs. 

Thomas P. Leff, Esq., Casarino Christman Shalk Ransom & Doss, P.A., 

Wilmington, Delaware, Attorney for Defendant William Moore Agency 

Krista R. Samis, Esq., Eckert Seamans Cherin & Mellott, LLC., Attorney for 

Defendant Mid-State Insurance, Inc. 

LEGROW, J. 
1

In their motion for summary judgment presently before the Court, 

Defendants contend that a stipulation assigning to Plaintiffs certain claims for 

negligence is either (1) unenforceable because the stipulation released the 

assignors from liability for damages, thereby extinguishing any negligence claim, 

or (2) void as the product of collusion. For the reasons set forth below, I conclude 

Defendants are incorrect on both counts. Plaintiffs are entitled to pursue the 

assigned claims in a jury trial scheduled to begin in a matter of weeks. 

Background

The following facts are drawn from the record currently before the Court, 

viewed in the light most favorable to the non-moving party. Mr. and Mrs. Poynter 

(the “Poynters”) own two businesses: Poynter’s Tree Farm (“PTF”) and Christmas 

Shop, Inc. (“CSI” and collectively with PTF, “PTF/CSI”). Their daughter, Robin 

Achenbach, and her husband, Mark Achenbach (“Achenbach” and collectively 

with Robin, the “Achenbachs”) own property leased by the Poynters from which 

the Poynters grow Christmas trees to supply their business. The Achenbachs also 

worked at CSI during the holiday season. 

On June 28, 2004, Achenbach used his personal vehicle to drive an 

exterminator to and from the leased property in order to obtain an estimate for 

spraying bug-infested trees with insecticides. On the way back to the 

exterminator’s office, Achenbach drove directly in the path of a motorcycle driven 
2

by Thomas J. Montgomery (“Montgomery”) at the intersection of Woodyard Road 

and Route 13 in Harrington, Delaware. Montgomery attempted to avoid 

Achenbach’s vehicle but was thrown into the air. After living in a vegetative state 

for six years, Montgomery died on July 25, 2010. 

On November 30, 2004, Montgomery’s wife filed a personal injury suit, 

which later became a wrongful death suit, against the Achenbachs, Poynters, and 

PTF/CSI. In 2008, PTF/CSI filed cross-motions for summary judgment on the 

issue of whether Achenbach was an agent of PTF/CSI. On January 23, 2009, this 

Court granted PTF/CSI’s motion for summary judgment (the “2009 Summary 

Judgment Decision”), reasoning that no employment relationship existed between 

Achenbach and PTF/CSI, and there was no evidence that Achenbach had express, 

implied, or apparent authority to bind PTF/CSI.

1 On February 18, 2009, the 

Montgomerys petitioned the Delaware Supreme Court for an interlocutory review 

of the 2009 Summary Judgment Decision.2 That interlocutory appeal was denied 

on February 20, 2009.3

 On January 10, 2011, shortly after the Montgomerys hired

new counsel, the Montgomerys, Poynters, and Achenbachs entered into a 

stipulation to submit to binding arbitration the issue of damages (the 

“Stipulation”).4

 

 1 Montgomery v. Achenbach, 2009 WL 406810 (Del. Super. Jan. 23, 2009).

2 Montgomery v. Achenbach, 966 A.2d 348 (Del. 2009) (TABLE).

3 Id.

4 A copy of the Stipulation is attached to Defs.’ Mot. Summ. J. as Ex. E. (“Stip.”).
3

In the Stipulation, the parties agreed there was no dispute as to liability, 

causation, or agency. The only issue before the arbitrator, therefore, was a 

determination and award of damages to the Montgomerys. The Montgomerys, 

however, agreed not to “execute, garnish, or otherwise collect on the Judgment 

from [the Achenbachs, Poynters, or PTF/CSI] beyond available insurance 

coverage, to include coverage under assigned claims.”5

 The Stipulation further 

provided that, regardless of the arbitrator’s decision, the Achenbachs, Poynters, 

and PTF/CSI would face no personal exposure to damages. The parties also 

agreed to assign to the Montgomerys “any and all of [the Poynters’, the 

Achenbachs’, and PTF/CSI’s] rights to pursue collection of the Judgment from any 

and all sources other than [the assignors], and agree to cooperate in [the 

Montgomerys’] collection efforts.”6

 Additionally, the parties agreed to seek 

vacatur of the 2009 Summary Judgment Decision.

On February 14, 2011, this Court signed the Stipulation and vacated the 

2009 Summary Judgment Decision. Meanwhile, the parties engaged in arbitration 

on January 11, 2011, which resulted in a damages award to the Montgomerys 

against the Achenbachs, Poynters, and PTF/CSI.7

 

 5 Stip. ¶ 3. 6 Id. at ¶ 5. 7 A copy of the arbitration decision, dated February 3, 2011, is attached as Ex. C to Pls.’ Resp. 

Mot. Summ. J. 
4

In the action presently pending before me, based on the assignment of rights 

in the Stipulation, the Montgomerys (“Plaintiffs”) have brought a negligence claim 

against the William Moore Agency, Lynn Hitchens, and Mid-State Insurance, Inc. 

(“Defendants”). In their complaint, Plaintiffs allege Defendants breached the 

standard of care by failing to provide the correct insurance coverage for CSI. After 

discovery, Defendants now have moved for summary judgment on the basis that 

the assignment in the Stipulation is not enforceable.8

 

The Stipulation contains a concession of liability and agency coupled with 

an agreement not to execute and an assignment. Defendants do not contend that

this type of agreement is void per se under Delaware law. The vast majority of 

states permit agreements such as this one, absent specific evidence of collusion

between the parties.

9

 Moreover, Defendants do not argue that the language of this 

agreement is invalid. Rather, Defendants contend that the facts surrounding this 

agreement make it unreasonable and collusive. 

Specifically, Defendants argue that the Stipulation released the Poynters and 

PTF/CSI from liability and, as a result, no negligence action can lie against 

 8 On December 27, 2013, Defendants previously moved for summary judgment on a different 

basis. On February 27, 2015, this Court granted Lynn Hitchens’ unopposed motion for summary 

judgment and denied William Moore Agency’s motion for summary judgment. Montgomery v. 

William Moore Agency, 2015 WL 1056326 (Del. Super. Feb. 27, 2015) (reargument denied April 

14, 2015). 

9 Associated Ins. Serv., Inc. v. Garcia, 307 S.W.3d 58, 64-65 (Ky. 2010); Stateline Steel 

Erectors, Inc., 837 A.2d 285, 288 (N. H. 2003) (“The majority of jurisdictions have found such 

assignments valid.”); Kobbeman v. Oleson, 574 N.W.2d 633, 637 (S.D. 1998); Red Giant Oil Co. 

v. Lawlor, 528 N.W.2d 524 (Iowa 1995).
5

Defendants because no damages were suffered. Defendants argue in the 

alternative that the agreement was collusive. Defendants contend that because 

PTF/CSI had been dismissed from the action two years before stipulating to 

agency, PTF/CSI voluntarily incurred damages those entities would not have 

suffered without the Stipulation. In other words, Defendants argue that, by 

stipulating to agency and asking this Court to vacate the 2009 Summary Judgment 

Decision, the parties created a cause of action that did not exist. This conduct, 

Defendants insist, amounted to collusion. 

Plaintiffs respond that the Stipulation was not a release, but rather a 

covenant not to execute, and the assignment, coupled with the damages award, 

therefore was sufficient to give rise to a cause of action against Defendants. As to 

the issue of collusion, Plaintiffs contend that the evidence of agency presented a 

strong likelihood that the 2009 Summary Judgment Decision would have been 

reversed on appeal. Plaintiffs further argue that both the language and the 

circumstances surrounding the Stipulation show it is valid and reasonable. 

Plaintiffs explain away the two-year gap by a change of counsel, which occurred in 

August 2010. 
6

Analysis

Summary judgment may be granted when there is no genuine issue of fact 

and the moving party is entitled to judgment as a matter of law.

10 If the moving 

party sustains the initial burden, the burden then shifts to the non-moving party to 

demonstrate there are material issues of fact for resolution by the ultimate factfinder.11

The Court must view the evidence in the light most favorable to the nonmoving party.12 It will accept “as established all undisputed factual assertions . . . 

and accept the non-movant’s version of any disputed facts. From those accepted 

facts[,] the court will draw all rational inferences which favor the non-moving 

party.”13

There are two questions presented by Defendants’ motion. The first such 

question is whether the Stipulation was a “release,” which would have the effect of 

extinguishing any damages claim against the Poynters and PTF/CSI, such that no 

negligence claim could be asserted against Defendants. The second question the 

motion raises is whether – even if the Stipulation is not a release – it is void 

because of collusion. 

 10 E. I. du Pont de Nemours & Co. v. Stonewall Ins. Co., 2009 WL 1915212 (Del. Super. June 

30, 2009).

11 Brzoska v. Olsen, 668 A.2d 1355, 1363 (Del. 1995). 

12 Id. at 1364. 13 Marro v. Gopez, 1994 WL 45338 (Del. Super. Jan. 18, 1998) (citing Merril, 606 A.2d at 99-

100).
7

A. The Stipulation is not a release that extinguished liability at the time 

it was executed.

Although Defendants argue there is no Delaware case on point regarding 

whether the Stipulation was a release, the Court of Chancery’s decision in Starr v.

Nationwide Mutual Insurance Co. indicates the Stipulation was a covenant not to 

execute or a “conditional release.”14 In Starr, the passenger in an auto accident 

obtained a judgment against the driver of a van that collided with the car in which 

the passenger was riding.15 Attempting to collect the entire judgment, the 

passenger sued the van driver’s insurance carrier.

16 To do that, the passenger

entered into an “assignment agreement” under which the van driver “assigned her 

claims against [her] [i]nsurance [carrier] to [the passenger] in exchange for 

[passenger’s] promise to accept the assignment as full payment and satisfaction of

any claims against [the driver].”17

In Starr, Vice Chancellor Hartnett concluded the assignment agreement was 

not a present release, explaining that a valid release may be drafted so that it 

becomes operative in the future, which is known as a “conditional release.”18 The 

Court reasoned the release at issue in Starr was conditional because it was subject 

to a condition precedent: termination of the passenger’s litigation against the 

 14 548 A.2d 22 (Del. Ch. 1988).

15 Id. at 24. 16 Id. 17 Id. 18 Id. at 25-26.
8

insurance carrier.19 Vice Chancellor Hartnett therefore concluded the release 

would not become effective until that condition was met, and the driver remained 

legally obligated on the judgment until that time.20

Defendants attempt to distinguish Starr on the basis of factual differences –

Starr involved statutorily required insurance and a jury verdict – and also pointed

out that the Supreme Court did not affirm Starr on “those grounds” (the 

conditional release) specifically.21 These differences are not material distinctions, 

however, and Defendants concede that the pertinent language in the agreement in

Starr is “very similar” to the assignment in this case.22 

The weight of authority in other jurisdictions also supports the conclusion 

that the Stipulation was not a presently operative release.

23 For example, in 

Stateline Steel Erectors, Inc. v. Shields, the Supreme Court of New Hampshire 

analyzed an agreement where Stateline Steel Erectors, Inc. stipulated to liability for 

a substantial judgment upon contractors’ indemnification claims and assigned to 

the contractors “any claims it had for liability arising from the employee’s 

accident, including any claims regarding the provision of insurance coverage to 

 19 Id. at 26.

20 Id. at 26.

21 Montgomery v. Achenbach, C.A. No.: N11C-11-047 AML, at 17 (Mar. 7, 2016) 

(TRANSCRIPT) (“Tr.”); see Nationwide Mut. Ins. Co. v. Starr, 575 A.2d 1083 (Del. 1990) 

(holding: (1) insurance policy did not give insurer a right of subrogation with respect to 

uninsured motorist coverage, and (2) action for reformation of policy to include underinsured 

coverage was not barred by laches).

22 Tr. 17.

23 Stateline Steel Erectors, Inc., 837 A.2d 285 at 287; Kobbeman, 574 N.W.2d at 637.
9

Stateline.”24 “In exchange, the contractors agreed ‘not to attempt to satisfy the 

remainder of the stipulated judgment in any way against Stateline’ or its insurer”

25

and to satisfy the judgment “only through payment from Stateline’s insurer and the 

prosecution of the assigned claims.”26 Stateline agreed to a payment “by its 

insurance carrier in full satisfaction of the judgment.”27 

The court found that Stateline was damaged “because of the settlement 

agreement,” concluding Stateline “must still endure the adversity of litigation and 

might suffer diminishment of its credit rating, among other intangible harms.”28 

The Supreme Court of New Hampshire further found that “[a]ccording to the plain 

meaning of its terms, the agreement was a covenant not to sue or execute the 

judgment against Stateline, not a release” and that the assignment of the claims

therefore was valid.29

Similarly, the Supreme Court of South Dakota examined an assignment in 

which a plaintiff agreed not to execute on a judgment.

30 In Kobbeman v. Oleson, 

the Kobbemans “agree[d] and covenant[ed] not to execute on any judgment 

obtained against the Daniels” in exchange for an assignment of claims.31 The court

agreed “with those courts upholding assignments of a cause of action in exchange 

 24 Stateline Steel Erectors, Inc., 837 A.2d at 287. 25 Id. 26 Id. 27 Id. 28 Id. at 290.

29 Id. at 291.

30 See Kobbeman, 574 N.W.2d 633. 31 Id. at 636.
10

for a covenant not to execute in instances of failure to procure requested 

insurance.”32 The Supreme Court of South Dakota concluded: “We fail to see why 

legally it should make any difference who sues the insurer–the insured or the 

insured’s assignee.”33

Here, although the Montgomerys agreed not to execute or collect on the 

judgment, the fact of the judgment itself has consequences. For example, potential 

creditors will be able to discover the existence of the judgment. The Poynters will 

not be released from the judgment until all efforts are exhausted to collect from the 

various insurers or agencies. The fact that the Montgomerys will not execute on 

that judgment does not alter those consequences. Under Starr, and similar cases, I 

find that the Stipulation created a conditional release or a covenant not to execute, 

not a present, operative release.

B. The Defendants have not demonstrated by a preponderance of the 

evidence that the Stipulation was unreasonable or the product of bad 

faith. 

As a preliminary matter, it first is necessary to resolve the burden of proof 

underlying the question of whether the agreement is unreasonable or collusive. 

Although it was not raised in the briefs, the parties agreed on the standard during 

oral argument: Plaintiff bears the burden of producing evidence that the agreement

 32 Id. 33 Id. at 637 (citing Red Giant Oil Co. v. Lawlor, 528 N.W.2d 524 (Iowa 1995)).
11

is “prima facie reasonable.”34 The burden then shifts to the insurer to show, by a 

preponderance of the evidence, that the agreement was “neither reasonable nor 

reached in good faith.”35 Several other courts have adopted that standard and, 

since it was agreed upon by the parties, I will apply it here. In my view, Plaintiffs 

have established that the Stipulation is “prima facie reasonable.” Defendants have 

not produced evidence of unreasonableness. 

It is evident, as Defendants reluctantly acknowledge, that the Poynters 

continued to face the prospect of liability even after the 2009 Summary Judgment 

Decision due to the possibility that decision would be reversed on appeal.

36 Given 

the Montgomerys’ efforts to pursue an interlocutory appeal, it is reasonable to 

conclude an appeal of the 2009 decision would have been filed after a final order 

was entered in that litigation. It also is reasonable to conclude there was at least a 

fair prospect that appeal would have succeeded. As this Court explained in its 

February 27, 2015 decision denying Defendants’ motion for summary judgment, 

“there is substantial evidence from which a jury could conclude that Achenbach 

was the Christmas Shop’s employee or agent.”37 This prospect of liability renders 

 34 Ayers v. C & D Gen. Contractors, 269 F.Supp.2d 911 (W.D. Ky. 2003) (citing Griggs v. 

Bertram, 443 A.2d 163, 173-74 (1082)).

35 Ayers, 269 F.Supp.2d at 916. 36 During oral argument, Defendants’ counsel acknowledged that the Poynters’ surrendered 

defense – the summary judgment decision - was not “absolutely winning;” see Midwestern

Indem. Co. v. Laikin, 119 F.Supp.2d 831, 845 (S.D. Ind. 2000) (finding an “absolute defense” 

was not surrendered but agreeing that where an insured surrenders “an obviously winning 

defense to all liability, that surrender would be evidence of bad faith or collusion”).

37 Montgomery v. William Moore Agency, 2015 WL 1056326 (Del. Super. Feb. 27, 2015).
12

reasonable the Poynters’ and PTF/CSI’s decision to enter into the Stipulation. The 

burden thus shifts to Defendants, who have failed to establish by a preponderance 

of the evidence that the Poynters’ and PTF/CSI’s concession of liability and 

assignment of their claims in exchange for the conditional release was either 

unreasonable or the product of bad faith. Defendants’ evidence of collusion is: (1) 

the fact that summary judgment was granted to the Poynters and PTF/CSI; (2) the 

familial relationship between the Poynters and Achenbachs; and (3) the two-year 

window between the 2009 Summary Judgment Decision and the Stipulation. 

The Poynters may well have wanted to shield their daughter and son-in-law 

from liability, but little discovery was taken on the issue and the Defendants 

adduced no evidence of collusion from the discovery they did take. For example,

Defendants deposed the Poynters’ personal counsel, who negotiated the 

Stipulation, but Defendants point to no evidence of collusion from that deposition. 

It appears the two-year delay between 2009 and 2011 was attributable to the

Montgomerys’ change in counsel, rather than any collusive intent by the parties to 

the Stipulation. It also is significant that the concession of agency by the 

Achenbachs, Poynters, and PTF/CSI is not binding on Defendants and will not be 

offered into evidence at trial by the Montgomerys. Thus, Defendants remain free 
13

to contest agency at trial, an issue this Court already has determined is a disputed 

fact that must be submitted to the jury.38 

Contrary to Defendants’ argument, my conclusion that the Stipulation and 

assignment are valid and enforceable does not contravene public policy. Public 

policy favors allowing insured parties to act in their best interest.39 An insured 

“must be allowed to consider all available options-particularly if the possibility 

exists that the insurer will be absolved from providing coverage.”40 Facing the 

possibility that the 2009 Summary Judgment Decision would be overturned on 

appeal and they would be left with a substantial judgment against them, the 

Poynters behaved rationally. Defendants are in no worse position by the Poynters’

decision than Defendants would have faced if the summary judgment decision had 

been overturned on appeal. 

 38 Id. 39 See Miller v. Shugart, 316 N.W.2d 729, 733-34 (Minn. 1982) (“If as here, the insurers are 

offered a settlement that effectively relieves them of any personal liability, at a time when their 

insurance coverage is in doubt, surely it cannot be said that it is not in their best interests to 

accept the offer. Nor, do we think, can the insurer who is disputing coverage compel the 

insureds to forego a settlement which is in their best interests.”).

40 Ayers, 269 F.Supp.2d at 915 (citing Miller, 316 N.W.2d 729).
14

Conclusion

In conclusion, the Stipulation is a conditional release and the Defendants 

have failed to show it is more likely than not that the Stipulation is a collusive 

agreement. For the foregoing reasons, Defendants’ Motion for Summary 

Judgment is DENIED.

__/s/ Abigail M. LeGrow__

 Abigail M. LeGrow, Judge

Original to Prothonotary

cc: Timpthy E. Lengkeek, Esquire

 Thomas P. Leff, Esquire

 Krista R. Samis, Esquire