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 )
COMPANY and STATE FARM )
MUTUAL AUTOMOBILE ) INSURANCE COMPANY, )

Defendant s

. )

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 f ound that there is no statutory right of recovery

for a worker’s compensa tion 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 so ught intervention, Horizon Services, Inc. and Eastern

Alliance Insurance Company

, filed a timely a pplication for c ertification of2

i nterlocutory a

ppeal 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, th e 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 l itigation,

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

1 Rule 4 2 (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 timel y responses in opposition. The Cincinnati Insurance Company joined both responses in opposition; however, th e response was not filed within ten days. Therefore, t he 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 conflicti ng 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 interlo cutory order may terminate the litigation, substantially reduce further litigation, or otherwise serve considerations of justice;

(F) The interlocutory order has vacated or opened a j udgment of the trial court;

(G) Review of the interlocutory orde r 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 c ertify the

interlocutory appeal. 7

3. T he 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 wi ll 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 th is 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 t rial 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 r eview 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

Fu rther, 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) (“Application s for interlocutory review are addressed to the sound discretion of this Court and are granted only in extraordinary cases.”).7

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 a pplication for c ertification of

i nterlocutory a

ppeal filed by Horizon Services, Inc. and Eastern Alliance Insurance

Company should be denied.

NOW, THEREFORE, this 13 th day of May 20 21 , 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. Ro canelli

__________________________________ The Honorable Andrea L. Rocanelli

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