IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

THOMAS J. VERBITSKI and )

MAUREEN T. VERBITSKI, his wife, )

)

Plaintiffs, )

)

v. ) C.A. No. N18C-08-045 ALR

)

DIAMOND STATE PORT )

CORPORATION, )

)

Defendant/ )

Third-Party Plaintiff, )

)

v. )

)

PACIFIC TRELLIS FRUIT, INC., )

)

Third-Party Defendant. )

Submitted: February 11, 2019

Decided: April 4, 2019

Upon Third-Party Defendant’s Motion to Dismiss

GRANTED

MEMORANDUM OPINION

Joseph J. Rhoades, Esquire, Rhoades & Morrow, Attorneys at Law, Wilmington, 

Delaware, Attorney for Plaintiffs.

David Primack, Esquire, McElroy Deutsch Mulvaney & Carpenter LLP, 

Wilmington, Delaware, Attorney for Defendant.

Marc Sposato, Esquire, Marks, O’Neill, O’Brien, Doherty & Kelly, P.C., 

Wilmington, Delaware, Attorneys for Third-Party Defendant.

Rocanelli, J.
1

This case involves an employee’s claims of personal injury arising out of a 

workplace accident which require the Court to address whether an employer can be 

required to indemnify the employer’s landlord for the landlord’s own negligence. 

The employer has filed a motion to dismiss the third-party complaint brought by the 

employer’s landlord, asserting that the action is precluded by the workers’ 

compensation exclusivity doctrine. This is the Court’s decision on the employer’s 

motion to dismiss the third-party complaint.

FACTUAL AND PROCEDURAL BACKGROUND

Thomas Verbitski (“Employee”) was injured at work and received workers’ 

compensation benefits from his employer Pacific Trellis Fruit, Inc. (“Employer”). 

Employee’s workplace injury took place in the parking lot at the property leased by 

Employer.1 Employee and his spouse filed a lawsuit against the owner of the 

property, Diamond State Port Corporation (“Landlord”), alleging that Employee’s 

injury was the result of negligence by Landlord because Employee fell when his foot 

caught on an uncovered open pipe in the parking lot. 

Landlord filed a third-party complaint for indemnity against Employer as 

tenant on the grounds that Employer’s lease (“Lease”) requires Employer to 

indemnify and defend Landlord. Employer requests dismissal of the third-party 

 

1 For the purposes of the pending motion, there is no dispute that Employee was 

injured in the parking lot at his workplace.
2

claim by Landlord on the grounds that workers’ compensation benefits were 

provided to Employee and therefore any claims against Employer are barred by the 

exclusivity doctrine (“Workers’ Compensation Exclusivity Doctrine”). Landlord 

responds that its claims are not barred because the Lease provides an express 

provision for indemnity and the Lease imposes on Employer, not Landlord, an 

obligation to maintain the parking lot. According to Landlord, Employer’s 

contractual agreement to indemnify is an exception to the Workers’ Compensation 

Exclusivity Doctrine.

STANDARD OF REVIEW

In deciding a motion to dismiss for failure to state a claim upon which relief 

can be granted under Superior Court Rule of Civil Procedure 12(b)(6), the Court 

shall accept all well-pleaded allegations as true and make all reasonable inferences 

in favor of the non-moving party.2 Factual allegations, even if vague, are well 

pleaded if they provide notice of the claim to the other party.3 The Court should 

deny the motion if the claimant “may recover under any reasonably conceivable set 

of circumstances susceptible of proof.”4

 

2 Ramunno v. Cawley, 705 A.2d 1029, 1034 (Del. 1998); Spence v. Funk, 396 A.2d 

967, 968 (Del. 1978).

3 Spence, 396 A.2d at 968.

4

Id.
3

DISCUSSION

It is well established that an employer who provides worker’s compensation 

to its employees cannot be sued for negligence.5 The Workers’ Compensation 

Exclusivity Doctrine provides that workers’ compensation constitutes the sole 

remedy for personal injury “by accident arising out of and in the course of 

employment.”

6

Delaware has recognized an exception to the Workers’ Compensation 

Exclusivity Doctrine when an employer has contracted to indemnify another.7 In

other words, an employer may expressly agree to indemnify another even when the 

employer cannot be sued directly by its employee. In Bar Steel Const. Corp. v. Read, 

an employee of a general contractor was killed and the employee’s widow was paid 

workers’ compensation benefits.8 The widow and the workers’ compensation 

insurance company sued the subcontractor who was responsible for erecting the steel 

structure upon which the employee was killed, arguing that the subcontractor was 

negligent.9 The Delaware Supreme Court held that the indemnification agreement 

between the negligent subcontractor and the employer required the subcontractor to 

 

5 Kofron v. Amoco Chemicals Corp., 441 A.2d 226, 231 (Del. 1982).

6 19 Del. C. § 2304.

7 Bar Steel Const. Corp. v. Read, 227 A.2d 678, 680 (Del. 1971).

8

Id. at 679.

9

Id.
4

indemnify for the workers’ compensation benefits paid.10 The Court emphasized 

that contract law, and not workers’ compensation law, directed the result, and

because the widow still recovered the benefits to which she was entitled, the 

indemnification provision was not contrary to public policy.11

In Precision Air, Inc. v. Standard Chlorine of Del., the Delaware Supreme 

Court again focused on an employer’s contractual agreement to indemnify to defeat 

the protections that would otherwise be available under the Workers’ Compensation 

Exclusivity Doctrine.

12 The Court clarified that public policy is not violated by such 

indemnity agreements as long as the indemnity is based on the employer’s own 

negligence.13 The Court held “[a]n employer cannot be held liable for 

indemnification, however, where there is no allegation that the employer acted 

improperly, for in such a scenario an indemnification obligation predicated on such 

improper conduct never becomes applicable.”14

Therefore, in the case before the Court, Employer may be required to 

indemnify Landlord per the Lease, but only if Employer is responsible for 

 

10 Id.

11 Id.

12 654 A.2d 403, 407-08 (Del. 1995) (“[T]he purposes of [the Workers’ 

Compensation Exclusivity Doctrine]...include eliminating the employer’s risk of 

being held liable for a tort-based judgment after having paid compensation 

benefits.”).

13 Id. at 407.

14 Id. at 408 (citations omitted).
5

maintaining the parking lot where Employee’s injury took place. On the other hand, 

if the Lease provides that it is Landlord’s responsibility to maintain the parking lot, 

then public policy underlying the Workers’ Compensation Exclusivity Doctrine 

prevents Landlord from requiring indemnity from Employer for Landlord’s own 

negligence. An employer who provides workers’ compensation benefits and is not 

negligent cannot be required to indemnify a negligent party even when the employer 

has expressly agreed to indemnify.15 Rather, only when the employer itself is 

negligent will contractual indemnity defeat the Workers’ Compensation Exclusivity 

Doctrine.16

This Court looks to the Lease to determine whether maintenance of the 

parking lot was the responsibility of the Landlord or the Employer. Section 8 of the 

Lease addresses “Maintenance, Repair and Alteration” and sets forth the respective 

obligations of Employer and Landlord. Section 8.1(a) specifies Employer’s 

obligations in relevant part, as follows: 

[E]xcept for that portion of the Premises to be maintained by Landlord 

as provided in Section 8.2, Tenant shall, at Tenant’s expense, maintain 

in good repair, order and serviceable condition the Premises and every 

part thereof excluding plumbing, ventilation, heating, air conditioning 

and electrical systems, exterior doors, and all walkways, driveways, 

parking lots, landscaping, fences and signs which are on or adjacent to 

the Premises.17

 

15 Id. at 407.

16 Id. at 408.

17 Pl. Ex. C at 5 (emphasis added).
6

Accordingly, maintenance of the parking lot is not the responsibility of the 

Employer.18

If Employer has no duty to maintain the parking lot, then any dangerous 

condition existing in the parking lot cannot be attributed to Employer’s negligence.19

Therefore, even though Employer contracted to indemnify Landlord, public policy 

demands that said indemnity provision is not applicable to claims made by Employee

against Landlord and which are not attributed to Employer’s negligence. Having 

provided worker’s compensation benefits to Employee, Employer is entitled to the 

protections of the Workers’ Compensation Exclusivity Doctrine. Landlord has 

failed to state a claim upon which relief can be granted as Employer is not obligated 

to indemnify Landlord for Landlord’s negligence. Therefore, the third-party 

complaint by Landlord against Employer must be dismissed.

 

18 Employer is one of several tenants in the building leased by Landlord. Exhibit A 

to the Lease is a schematic diagram of the leased premises and depicts that Employer 

is one of the two tenants with the smallest square footage on the premises.

19 Fritz v. Yeager, 790 A.2d 469, 471 (Del. 2002) (“In order to be held liable in 

negligence, a defendant must have been under a legal obligation—a duty—to protect 

the plaintiff from the risk of harm which caused his injuries.”).
7

NOW, THEREFORE, the Motion to Dismiss by Third-Party Defendant, 

Pacific Trellis Fruit, Inc. is hereby GRANTED. The Third-Party Complaint is 

hereby DISMISSED.

IT IS SO ORDERED. 

 Andrea L. Rocanelli

______________________________________________________

The Honorable Andrea L. Rocanelli