IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

JOHN HENRY and DARLENE )

HENRY, )

Plaintiffs, )

)

v. ) C.A. No. N18C-03-092 ALR

)

THE CINCINNATI INSURANCE )

COMPANYand STATE FARM )

MUTUAL AUTOMOBILE )

INSURANCE COMPANY, )

Defendants. )

Submitted: May 10, 2021

Decided: May 13, 2021

Upon Application for Certification of Interlocutory Appeal by

Horizon Services, Inc. and Eastern Alliance Insurance Company

DENIED

ORDER

This Court issued a Memorandum Opinion on April 19, 2021 denying the 

Motion to Intervene filed by Horizon Services, Inc. and Eastern Alliance Insurance 

Company. Specifically, this Court found that there is no statutory right of recovery 

for a worker’s compensation lien against UIM insurance coverage; that a worker’s 

compensation carrier has no right to intervene pursuant to Rule 24(a); and that 

where, as here, there is no right to recovery, intervention would be futile and 

distracting.

The third parties who sought intervention, Horizon Services, Inc. and Eastern 

Alliance Insurance Company, filed a timely application for certification of 
2

interlocutory appeal on April 29, 2021 (“Application”). The Application is opposed 

by the parties in this lawsuit,1 who also opposed intervention. Upon consideration 

of the facts, arguments, and legal authorities set forth by the parties; decisional law; 

the Superior Court Rules of Civil Procedure; the Rules of the Delaware Supreme 

Court; and the entire record in this case, the Court hereby finds as follows:

1. Supreme Court Rule 42 (“Rule 42”) governs the certification of 

interlocutory appeals. Rule 42 states that “[n]o interlocutory appeal will be certified 

by the trial court or accepted by this Court unless the order of the trial court decides 

a substantial issue of material importance that merits appellate review before a final 

judgment.”2 Rule 42 also provides that “[i]nterlocutory appeals should be 

exceptional, not routine, because they disrupt the normal procession of litigation, 

cause delay, and can threaten to exhaust scarce party and judicial resources.”3

1 Rule 42(c)(ii) of the Delaware Supreme Court Rules requires that any response to 

a request for certification be filed within ten days unless a shorter response time is 

set by the trial court. See Supr. Ct. R. 42(c)(ii). This Court requested any responses 

within ten days. Plaintiffs and Defendant State Farm Automobile Insurance 

Company filed timely responses in opposition. The Cincinnati Insurance Company 

joined both responses in opposition; however, the response was not filed within ten 

days. Therefore, the Court did not consider the untimely response filed by The 

Cincinnati Insurance Company.

2 Supr. Ct. R. 42(b)(i). 

3 Supr. Ct. R. 42(b)(ii).
3

Furthermore, “[t]he decision to grant interlocutory review is discretionary and highly 

case-specific.”4

2. Rule 42(b)(iii) requires consideration of several factors for the Court in 

determining whether to certify an interlocutory appeal. These factors are, as follows: 

(A) The interlocutory order involves a question of law resolved for 

the first time in this State;

(B) The decisions of the trial courts are conflicting upon the question 

of law;

(C) The question of law relates to the constitutionality, construction, 

or application of a statute of this State, which has not been, but 

should be, settled by this Court in advance of an appeal from a final 

order;

(D) The interlocutory order has sustained the controverted 

jurisdiction of the trial court;

(E) The interlocutory order has reversed or set aside a prior decision 

of the trial court, a jury, or an administrative agency from which an 

appeal was taken to the trial court which had decided a significant 

issue and a review of the interlocutory order may terminate the 

litigation, substantially reduce further litigation, or otherwise serve 

considerations of justice;

(F) The interlocutory order has vacated or opened a judgment of the 

trial court;

(G) Review of the interlocutory order may terminate the litigation; 

or

4 E.I. du Pont de Nemours & Co. v. Allstate Ins. Co., 686 A.2d 1015, 1016 (Del. 

1997). 
4

(H) Review of the interlocutory order may serve considerations of 

justice.5

Additionally, the Court is to consider the most efficient and just schedule to resolve 

the case, and whether the likely benefits of interlocutory review outweigh the 

probable costs such that interlocutory review is in the interest of justice.6 If the 

“balance of the Court’s analysis is uncertain,” the Court should not certify the 

interlocutory appeal.7

3. The Court finds that appellate review is not merited at this time. A 

substantial issue of material importance was not addressed by this Court’s April 19 

Memorandum Opinion. The costs and delay of interlocutory appeal will be 

substantial and disruptive. In addition, consideration of the factors set forth in Rule 

42(b)(iii) weigh against certification, as follows:

(A) This Court’s April 19 Memorandum Opinion did not involve a question 

of law resolved for the first time in this State.8 Indeed, this Court’s April 19 

Memorandum Opinion applied well-settled decisional law that a workers’ 

5 Supr. Ct. R. 42(b)(iii)(A)–(H).

6 Supr. Ct. R. 42(b)(iii). 

7

Id.

8 Super. Ct. R. 42(b)(iii)(A).
5

compensation carrier does not have a lien against proceeds recovered for UIM 

benefits.

9

 

(B) There are no conflicting trial court opinions about the question of law 

addressed in this Court’s April 19 Memorandum Opinion.10

(C) The question of law addressed in this Court’s April 19 Memorandum 

Opinion does not relate to the constitutionality of a statute of this State. While 

this Court’s April 19 Memorandum Opinion addressed statutory construction

and application, it is not necessary for the Delaware Supreme Court to address 

the legal issues which are the subject of this Court’s April 19 Memorandum 

Opinion in advance of an appeal from a final order.11 

(D) This Court’s April 19 Memorandum Opinion did not sustain the 

controverted jurisdiction of the Court.12 Neither the parties nor the third 

parties who sought intervention challenged the jurisdiction of this Court. 

(E) This Court’s April 19 Memorandum Opinion did not set aside a prior 

decision of a trial court, jury, or administrative agency.13 

9 See Adams v. Delmarva Power & Light Co., 575 A.2d 1103 (Del. 1990); 

Simendinger v. Nat’l Union Fire Ins. Co., 74 A.3d 609 (Del. 2013).

10 Super. Ct. R. 42(b)(iii)(B).

11 Super. Ct. R. 42(b)(iii)(C).

12 Super. Ct. R. 42(b)(iii)(D).

13 Super. Ct. R. 42(b)(iii)(E).
6

(F) This Court’s April 19 Memorandum Opinion did not vacate or open a prior 

judgment of the trial court.14 

(G) Review by the Delaware Supreme Court of this Court’s April 19 

Memorandum Opinion will not terminate the litigation.

15 Rather, 

interlocutory review of this Court’s April 19 Memorandum Opinion would 

instead further complicate this litigation. 

(H) This Court does not find that the likely benefits of interlocutory review of 

this Court’s April 19 Memorandum Opinion outweigh the probable costs. 

Therefore, interlocutory review by the Delaware Supreme Court of this 

Court’s April 19 Memorandum Opinion would not serve considerations of 

justice.16 

4. Upon consideration of the criteria set forth under Rule 42, this Court 

finds that there are no exceptional circumstances to warrant interlocutory review.17

Further, review of this Court’s April 19 Memorandum Opinion will not terminate 

the litigation, substantially reduce further litigation, or otherwise serve 

14 Super. Ct. R. 42(b)(iii)(F).

15 Super. Ct. R. 42(b)(iii)(G).

16 Super. Ct. R. 42(b)(iii)(H).

17 Supr. Ct. R. 42(b)(ii). See also Harrison v. Div. of Youth & Fam. Servs., 2003 WL 

22669344, at *1 (Del. Nov. 10, 2003) (TABLE) (“Applications for interlocutory 

review are addressed to the sound discretion of this Court and are granted only in 

extraordinary cases.”).
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considerations of justice.18 To the contrary, interlocutory review of this Court’s 

April 19 Memorandum Opinion would substantially increase the costs and burden 

of litigation. 

5. Moreover, there are other avenues of relief for Horizon Services, Inc. 

and Eastern Alliance Insurance Company other than intervening in this litigation.

For example, pursuing a separate declaratory judgment action will be less 

burdensome to the parties in this action.

6. Accordingly, the Court concludes that application for certification of 

interlocutory appeal filed by Horizon Services, Inc. and Eastern Alliance Insurance 

Company should be denied.

NOW, THEREFORE, this 13th day of May 2021, the Application for 

Certification of Interlocutory Appeal filed by Horizon Services, Inc. and 

Eastern Alliance Insurance Company is hereby DENIED.

IT IS SO ORDERED.

Andrea L. Rocanelli

__________________________________ 

The Honorable Andrea L. Rocanelli 

 

18 Super. Ct. R. 42(b)(iii)(E).