1

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

JOSHUA GAGE and SARAH GAGE,

Plaintiffs,

v.

TOM NYAGAKA NYABIOSI, TRINITY FREIGHT LOGISTICS, INC. and PENSKE TRUCK LEASING CO., L.P.,

Defendants. ) ) ) ) ) ) C.A. No. N19C

- 10

- 268 CLS ) ) ) ) ) )

Date Submitted: January 11, 2022 Date Decided: March 2 , 2022

Upon Plaintiffs’ Motion for Reconsideration/Clarification. DENIED

.

ORDER

Jimmy Chong, Esquire, Chong Law Firm, Wilmington, Delaware, 19808, Attorney for Plaintiffs, Joshua and Sarah Gage.

Daniel P. Bennett, Esquire, Mintzer, Sarowitz, Zeris, Ledva & Meyers, LLP, Wilmington, Delaware, 19801, Attorney for Defendants Tom Nyagaka Nyabiosi, Trinity Freight Logistics, Inc., and Penske Truck Leasing Co., L.P.

SCOTT, J.2

Dear Counsel:
The Court has reviewed Plaintiffs’ Joshua and Sarah Gage’s Motion for

Reconsideration/Clarification and Defendant s Tom Nyagaka Nyabiosi, Trinity

Freight Logistics, Inc., and Penske Truck Leasing Co., L.P. ’s (“Defendants”)

Opposition thereto. For the reasons stated herein, the Motion for Reconsideration is

DENIED.

On October 31, 2019, Plaintiffs filed the original Complaint seeking damages

for an automobile accident between Mr. Nyabiosi and Mr. and Ms. Gage. Mr.

Nyabiosi was driving a company commercial vehicle for his employer, Trinity, who

rented the commercial vehicle from Penske. Count I of the complaint was

Negligence claim, Count II was Loss of Consortium, Count III was Negligent

Entrustment, and Count IV was Vicarious Liability/ Respondent Superior.

On July 26, 2021, Plaintiffs moved to amend the Complaint to add new c ounts

stem ming from t he original cause of action due to additional evidence retained

through discovery relating to Mr. Nyabiosi’s “competency and fitness to be a

commercial driver” and Trinity’s hiring and employment practices. Defendants

opposed the amendment on ground it wo uld unfairly prejudice the defendants as they

would have to defend “baseless” allegations. The Court denied the Motion to

Amend without prejudice on August 16, 2021.3

On November 30, 2021, Plaintiffs moved to amend the Complaint again to

include a cause o f action for recklessness and negligence per se in Count I, expand

Count III to include claims for negligent hiring and retention

– which is already

contained within the original complaint , with a demand for punitive damages for

claims in Counts I, III, an d IV. Plaintiffs’ reasoning for amendment primarily rested

,
again, on additional evidence retained through discovery relating to Mr. Nyabiosi’s

“competency and fitness to be a commercial driver” and Trinity’s hiring and

employment practices. The Court reviewed the Motion to Amend and Defendants’

opposition and denied the Motion to Amend on December 9 , 2021.

In a Motion to Amend, Superior Court Civil Procedure Rule 15(a) states that,

after responsive pleadings are filed, a party may amend a p arty's pleading “only by

leave of court or by written consent of the adverse party; and leave shall be freely

given when justice so requires.” 1 Therefore, the trial court has broad discretion in

permitting or refusing an amendment to a complaint. Genera lly, absent a showing

of substantial prejudice or legal insufficiency, the court “must exercise its discretion

in favor of granting leave to amend.” 2

1 Super. Ct. Civ. R. 15(a).

2 E.I. Du Pont De Nemours & Co. v. Allstate Ins. Co. , 2008 WL 555919, at *1 (Del.Super.Feb.29, 2008). Several factors the court can consider in determining whether to permit amendments to pleadings are: [T]he legal sufficiency of an order concerning an amendment if obvious on the face of the pleading; whether the proposed claim is4

Additionally, the proposed amendment must be legally sufficient, meaning,

that it must survive a motion t o dismiss under Rule 12(b)(6). 3 Therefore, “all the

allegations in the amended complaint must be accepted as true, and the proposed

amendment will not be dismissed unless the plaintiff would not be entitled to recover

under any reasonably conceivable set of circumstances susceptible of proof.”

In Plaintiffs’ Motion to Amend, p unitive damages would be a valid remedy if

Plaintiffs alleged a prima facie case that Mr. Nyabiosi driving exhibited willful and

wanton disregard of others' safety. 4 Inadvertence, mistake, or errors of judgment are

considered acts of mere negligence and do not rise to the level required for claims

of punitive damages. 5 Punitive damages are awarded to punish outrageous conduct

and to deter such conduct in the future. 6 To survive a 12(b)(6) motion to dismiss,

Plaintiffs must allege Mr. Nyabiosi behavior reflected a “conscious indifference” or

“I don't care” attitude. 7 Where the evidence supports a reasonable inference th e

narrow; the delay in presentation; whether the amendment will add to the complexity of the trial; and ... whether there will be undue prejudice to the nonmoving party. Timblin v. Kent Gen. Hosp. , 1995 WL 44250, at *1 (Del.Super.Feb.1, 1995).

3 E.I. Du Pont De Nemours & Co. , 2008 WL 555919, at *1.

4 Porter v. Turner , 954 A.2d 308, 312 (Del.2007).

5 Jardel Co. v. Hughes , 523 A.2d 518, 529 (Del. 1987) citing Restatement (Second) of Torts § 908, comment b (1979).

6 Id.

7 Cloroben Chem. Corp. v. Comegys , 464 A.2d 887, 891 (Del.1983) (quoting Eustice v. Rupert , 460 A.2d 507, 509 (Del.1983)).5

conduct meets the standard for recovering pu nitive damages, the question of punitive

damages is typically for the trier of fact. The Plaintiffs did not allege such a claim

and therefore are not entitled to punitive damages.

On December 16, 2021, Joshua and Sarah Gage filed their Motion for

Reconsi deration/Clarification (“Motion”) pursuant to Superior Court Civil Rule

59(e). Their sole argument in their Motion is the “Court misapprehended the fact

that there was no assertion by Defendants that the other amendments , most

particularly those contained in Count III, somehow failed to meet the requirements

of Super. Ct. Civ. R. 15 or were in any other way improper or prejudicial to

Defendants.” Ultimately the argument mainly hinges on the Motion to Amend being

unoppose d, so according to Plaintiffs the C ourt should have granted the amendment.

On January 11, 2022, the court heard argument on Plaintiffs’ Motion.

The case law regarding Rule 59(e) is well

- established. A proper M otion for

Reconsideration will establish that the Court “overlooked a controlling precedent or

legal principles, or the Court has misapprehended the law or facts such as would

have changed the outcome of the underlying decision.” 8 A “motion for

reconsideration or reargument is not an opportunity to rehash arguments already

8 Bd. of Managers of the Del. Criminal Justice Info. Sys. v. Gannet Co. , 2003 WL 1579170, at *1 (Del. Super. Jan. 17, 2003).6

decided by the Court, or to present new arguments that were not previously raised.” 9

Pursuant to Rule 59(e), the “movant must demonstrate newly discovered evidence,

a change in the law, or manifest injustice.” 10

Plaintiffs ha ve not demonstrated that the Court overlooked controlling

precedent or legal principles or misapprehended the law or the facts. Plaintiffs have

only claimed, inaccurately, that amendment should have been granted because there

was no opposition from Defendants. Rule 15 give s discretion to this Court on the

granting of an amendment after amendment as of right has been time

- barred.

Plaintiffs also failed to demonstrate newly discovered evidence, a change in the law,

or manifest injustice. Additi onally

, Plaintiffs failed to demonstrate newly discovered

evidence, a change in the law, or manifest injustice pursuant to Rule 59(e).

NOW THEREFORE , for the foregoing reasons, the Plaintiffs’ Motion for

Reconsideration is DENIED.

IT IS SO ORDERED.



### /s/ Cal vin L. Scott Judge Calvin L. Scott

9 Patterson

- Woods & Associates, LLC v. Independence Mall, Inc. , 2019 WL 6329069, at *1 (Del. Super. Nov. 26, 2019) (ci tations omitted)

10 Id. (citation omitted)