SUPERIOR COURT

OF THE

STATE OF DELAWARE

Sussex County Courthouse

ROBERT H. ROBINSON, JR. 1 The Circle, Suite 2

 JUDGE Georgetown, DE 19947

Telephone: (302) 856-5264

Submitted: June 15, 2022

Decided: September 15, 2022

Robert C. McDonald, Esquire

Jeffrey S. Friedman, Esquire

Silverman, McDonald & Friedman

1010 North Bancroft Parkway, Ste. 22

Wilmington, Delaware 19805

Attorneys for Plaintiff

Mark H. Riesenfeld, Esquire

Smith & Cohen Law Group

1528 Walnut Street, Suite 400

Philadelphia, Pennsylvania 19102

Attorneys pro hac vice for Plaintiff

Marissa D. White, Esquire

Wade A. Adams, III, Esquire

Law Offices of Wade A. Adams, III

Christiana Executive Campus

111 Continental Drive, Suite 309

Newark, Delaware 19713

Attorneys for Defendants

Re: Donegal Insurance Group v. Sathiyaselvam Thangavel and Sasikala 

Muthusamy

C.A. No.: S21C-08-013 RHR

Dear Counsel: 

Defendants Sathiyaselvam Thangavel and Sasikala Muthusamy (collectively 

“Defendants”) were lessees of an apartment owned and managed by Seaford 

Apartment Ventures, LLC (“Seaford Apartments”). On December 28, 2019, a fire 

suppression sprinkler was activated in Defendants’ apartment—allegedly after a 

drone aircraft they were operating inside the apartment damaged the sprinkler—that
2

caused extensive water damage. Seaford Apartments filed a claim with its insurance 

company, Donegal Insurance Group (“Donegal” or “Plaintiff”), which paid 

$77,704.06 to repair the damage. Donegal filed this complaint, as subrogee of 

Seaford Apartments, against Defendants, seeking to recover the cost of the repairs. 

Defendants have moved for summary judgment. For the following reasons, the 

motion for summary judgment is GRANTED.

A. The Parties’ Contentions

Defendants argue that they are entitled to summary judgment under the 

Delaware Superior Court’s holding in Lexington Insurance Company v. Raboin,

1

which adopted the reasoning of Sutton v. Jondahl.

2 Sutton and Lexington hold that 

insurance obtained by a landlord is for the mutual benefit of the landlord and tenant,

and that therefore the parties should be considered co-insureds. Unless there is an 

express agreement or provision in the lease that would place liability on the tenant, 

the landlord’s insurance carrier cannot obtain subrogation against the tenant

(commonly referred to as the “Sutton Rule.”)3

Plaintiff contends that the Sutton Rule does not apply to the present case. 

Plaintiff argues that the lease between the Defendants and Seaford Apartments (the 

“Lease”) constitutes an express agreement between Seaford Apartments and 

1

712 A.2d 1011 (Del. Super. Ct. 1998).

2

532 P.2d 478 (Okla. Civ. App. 1975).

3 Deloach v. Houser, 2018 WL 5899080, at *2 (Del. Super. Ct. Nov. 9, 2018).
3

Defendants that makes Defendants liable under the Lease. Plaintiff cites to the 

following provision:

12. NO LIABILITY FOR LOSS OR DAMAGE TO TENANTS’ PERSONS 

OR PROPERTY; INDEMNITY TO LANDLORD. 

(a) Tenants agree to be solely responsible for all loss or damages to 

Tenants or their property or to any other person which may be situated 

in the Rental Unit and storage area; gross negligence of Landlord, its 

servant, agents or employees excepted; In addition, Tenants agree to 

indemnify and save Landlord harmless from any and all loss occasioned 

by the tenant’s breach of any of the covenants, terms and conditions of

the Agreement, or caused by the tenant(s) family, guests, visitors, 

agents or employees. See § 5309.

(b) Tenant agrees to procure and maintain adequate content and liability 

insurance in an amount not less than $300,000.00 to afford protection 

against the risks herein assumed....

4

The Court requested further argument from the parties as to their interpretation of 

another provision in the Lease:

29. TENANT RESPONSIBLE FOR DAMAGES.

Tenant by accepting this agreement covenants and agrees that tenant 

will be responsible for all damages accidentally, maliciously, 

intentionally, or negligently caused by the tenant, tenant’s family, 

guests or invitees to any of the property of the landlord. 5

Plaintiff argues this provision further supports its position. Finally, Plaintiff argues 

that, at the very least, the Lease’s language creates ambiguity and a question of fact 

that precludes the entry of summary judgment.

4 Defs.’ Mot. Summ. J. Ex. A (the “Lease”).

5

Id.
4

B. Standard of Review

Summary judgment may be granted only if, when viewing the facts in the light 

most favorable to the non-moving party, there is no genuine issue of fact and the 

moving party is entitled to relief as a matter of law.6 When considering a motion for 

summary judgment, the Court’s role is to examine the record to determine whether 

genuine issues of material fact exist “but not to decide such issues.”7 This Court 

“will accept as established all undisputed factual assertions, made by either party, 

and accept the non-movant’s version of any disputed facts.”8“The proper 

construction of any contract ... is purely a question of law.”

9 Delaware courts adhere 

“to an objective theory of contracts, the contract’s construction should be that which 

would be understood by an objective, reasonable third party.”10 Summary judgment 

is appropriate in contract disputes where the language at issue is clear and 

unambiguous and not subject to multiple interpretations.11 Ambiguity exists only if 

the disputed language is “fairly or reasonably susceptible to more than one 

6 Moore v. Sizemore, 405 A.2d 679 (Del. 1979); Super. Ct. Civ. R. 56. 

7 Merrill v. Crothall-Am., Inc., 606 A.2d 96, 99-100 (Del. 1992).

8

Id. 

9 Rhone-Poulenc Basic Chemicals Co. v. Am. Motorists Ins. Co., 616 A.2d 1192, 1195 (Del. 1992).

10 Leaf Invenergy Co. v. Invenergy Renewables LLC, 210 A.3d 688, 696 (Del. 2019); see also

GMG Cap. Inv., LLC v. Athenian Venture P’rs I, L.P., 36 A.3d 776, 780 (Del. 2012) (“Contract 

terms themselves will be controlling when they establish the parties’ common meaning so that a 

reasonable person in the position of either party would have no expectations inconsistent with the 

contract language”).

11 GMG Cap. Inv., LLC, 36 A.3d at 783.
5

meaning.”12 The Court’s function in construing a lease is to ascertain and give effect 

to the mutual intention of the parties as manifested by its terms.

13 As with all 

contracts, this Court should give effect to all of its provisions if possible.

14

C. Discussion

I find that the language in Paragraphs 12 and 29 of the Lease is substantially 

the same as the language of the leases considered in Lexington,

15 Deloach v. 

Houser,

16 and State Farm Fire & Casualty Company v. Lambert.17 In each of these 

cases, the trial court rejected the insurer’s argument that the lease contained an 

express agreement placing liability for damage on the tenant and found that the 

Sutton Rule controls. 

In the present matter, the Lease must be considered in its entirety and 

particular provisions should not be considered in isolation. As in Lexington, the 

12 Alta Berkeley VI C.V. v. Omneon, Inc., 41 A.3d 381, 385 (Del. 2012).

13 Schwartzman v. Weiner, 319 A.2d 48, 51–52 (Del. Super. Ct. 1974).

14 Roffman v. Wilm. Hous. Auth., 179 A.2d 99, 102 (Del. 1962).

15 The court quoted the lease as follows: “Resident agrees to indemnify and save Owner harmless 

from any and all loss occasioned by Resident’s breach of the covenants, terms and conditions of 

this general agreement or caused by his family, guests, visitors, agents or employees. Resident is 

required to furnish insurance coverage on all personal property within the leased premises and 

public areas of this community, at the expense of the Resident.” 712 A.2d 1011, 1013 (Del. Super. 

Ct. 1998).

16 “To distinguish the Lexington holding, [Plaintiff] directs the Court to various lease provisions 

concerning the tenant’s obligation to return the property in good condition, to pay for damages in 

excess of normal wear and tear, and to pay for any damages to the landlord’s property caused by 

the tenant or his relatives or guests.” 2018 WL 5899080, at *1 (Del. Super. Ct. Nov. 9, 2018).

17 The court noted the following language in the lease: “[T]he tenant will be responsible for 

damages to the unit and premises, other than normal wear and tear” and “repair of tenant-caused 

damages must be completed by the owner at the expense of the tenant.” 2017 WL 5593784, at *3 

(D. Del. Nov. 21, 2017). 
6

Lease contemplates an allocation of risk between the landlord and tenant. The Lease 

requires the tenant to pay a security deposit and to obtain and maintain insurance for 

personal property and liability of at least $300,000.00. In Lexington, the Superior 

Court expressly addressed whether a tenant is an implied co-insured under the 

landlord’s fire insurance policy for purposes of a subrogation action by the 

landlord’s insurance carrier against a residential tenant.18 The Superior Court

determined that, absent some clearly expressed intent in the lease to the contrary, 

tenants are considered co-insureds for the purposes of preventing subrogation even 

where the tenant’s alleged negligent conduct caused the loss.19 There is no ambiguity 

in the language of the Lease.

I note that the important policy considerations underlying the Sutton Rule

apply in the present case. For example, the Lexington decision referenced the 

landlord’s “generally dominant relationship over the residential tenant, the typical 

assignment of risk of loss for fire, the practical effect that rental payments contribute 

to the cost of the landlord’s fire insurance premiums, the mutual benefits derived by 

the parties from dividing respective liabilities, and the efficiency of not carrying 

duplicative insurance coverage on the same property.”20 Here, the possible damage 

caused by fire and water are similar in nature, such that the Sutton Rule can be 

18 712 A.2d at 1014.

19 Id. at 1017. See also Deloach, 2018 WL 5899080, at *1.

20 712 A.2d at 1016.
7

extended to water damage. Those policy considerations are echoed in Deloach, 

where the Superior Court noted the following important policy considerations: “each 

tenant cannot reasonably be expected to purchase their own insurance for damage to 

a multi-million dollar apartment complex, the tenant’s only insurable interest being 

in his own apartment, and landlords are better able to insure the whole premises and 

pass the cost of such insurance on to all tenants in rent.”21

I find the language of the Lease in the present case is substantially similar to 

the language of the leases in Lexington, Deloach, and Lambert, and that the Sutton

Rule applies. Plaintiffs have not cited—and cannot cite—to language in the Lease 

that differentiates this Lease from the leases in similar Delaware cases. Therefore, 

Defendants’ Motion for Summary Judgment is GRANTED. 

IT IS SO ORDERED. 

Sincerely, 

Robert H. Robinson, Jr.

Judge

21 2018 WL 5899080, at *1.