SUPERIOR COURT

OF THE

STATE OF DELAWARE

Jeffrey J Clark Kent County Courthouse

Judge 38 The Green

 Dover, DE 19901

 302-735-2111

March 29, 2017

Mr. Chandra J. Williams, Esq. Joshua Meyeroff, Esq.

Rhodunda & Williams Morris James, LLP

1220 Market Street, Suite 700 500 Delaware Avenue, Suite 1500

Wilmington, DE 19899 Wilmington, DE 19899

Lorenza Wolhar, Esq.

Marshall, Dennehey, Warner, Coleman & Goggin

1220 Market Street, 5th Floor

Wilmington, DE 19899-8888

RE: Greenwald, et al. v. Caballero-Goehringer, M.D., et al. 

C.A. No. K14C-04-027 JJC

Submitted: March 21, 2017

Decided: March 29, 2017

Counsel:

This matter involves the requested approval of a minor tort claim settlement. 

The Court denied Plaintiffs’ Third Petition for Approval of Settlement, without 

prejudice to refile with proof of an annuity ready for purchase that adequately 

protects the Minor’s interests. Plaintiffs move for reargument or reconsideration of 

the Court’s decision. This letter sets forth the Court’s reasoning for denial of 

Plaintiffs’ motion for reargument. 

From the Court’s perspective, it provided clear guidance regarding the 

appropriate process. Nevertheless, the Plaintiffs continue to request reconsideration 
2

and exception from the Court’s direction. Accordingly, before setting forth the 

Court’s reasoning, a discussion of the background of this matter is appropriate. 

Petitioner Colleen Greenwald (hereinafter “Petitioner”) is the guardian ad litem

for the now five year old Kiley Ann Greenwald (hereinafter the “Minor”). In 2014, 

Petitioners sued the Minor’s pediatrician for health care negligence allegedly causing

the then-infant Minor to fall from an examination table in the doctor’s office and 

fracture her skull. In addition to the Minor’s claims, Petitioner and the Minor’s 

father, Gary Greenwald, joined the Minor’s lawsuit, making a claim for their mental 

anguish and emotional distress, despite suffering no injury and their being no 

allegation of intentional infliction of emotional distress. Litigation commenced and 

after mediation, the parties agreed to settle the claims for a gross amount, to be 

allocated pursuant to Court approval.

At that point, Petitioner’s approach deviated from the best interest of the Minor 

when Plaintiffs filed a petition seeking Court approval of the settlement pursuant to 

Superior Court Civil Rule 133. In the initial petition, the Petitioner alleged that “in 

the interest of fairness, the plaintiffs should receive an equal share of the net 

settlement amount.” In other words, although the Minor was the only Plaintiff 

suffering injury or that had any cognizable claim in the matter, the Minor’s parents

requested to receive twice as much of the net settlement proceeds as the injured

Minor. 

The Court held a hearing on February 19, 2016. After the hearing, the Court 

held that it would not approve a settlement where the Petitioner received any less than 

the full net amount of the settlement. The Court determined that any less would not 

be a fair and equitable settlement of the Minor’s claims. 

Thereafter, the Petitioner filed an amended petition seeking amounts to be 

placed in a Delaware Uniform Transfers to Minors Account (hereinafter “UTMA”) in 

part, or in the alternative providing for the placement of funds in an annuity. The 
3

revised petition, however, did not provide for any terms for an annuity that the Court 

could review and consider. At that time, it was evident that no work toward that end 

was completed. The Court became further concerned that based on the parent’s initial 

vigor (1) to divert funds to them that in fairness belonged solely to the Minor, and (2) 

a continued effort to provide for parental access to the Minor’s funds (albeit through a 

UTMA), it was in the Minor’s best interest to require all net proceeds to be placed in 

a structured settlement where the parents would not have access.

1

 By Letter Order on 

November 23, 2016, the Court denied the Second Petition. In that Order, the Court 

held that the gross settlement amount and the net present value of the settlement was 

fair and in the best interest of the Minor, provided all net amounts are applied for the 

benefit of the Minor. The Court also directed the Prothonotary to provide the 

structured settlement check list to the Petitioner, long used and available, setting forth 

the requirements for approval of the settlement. In other words, the Petitioner was 

instructed to file a revised petition proposing the purchase of a suitable annuity to 

protect the Minor’s interests.

Thereafter, the Petitioner submitted a Third Petition not meeting the 

requirements of the checklist. It included the proposed purchase of a receivable 

purchase agreement. The proposed “structured settlement” was described in the Third 

Petition as a structure to be purchased through a third party to be facilitated by a 

Houston, Texas law firm. The “annuity” proposed by the Petitioner was in fact a 

“receivable purchase agreement” which involved purchase of the rights of payment of 

a structured personal injury settlement from a California injured party having nothing 

to do with this case. In other words, the annuitant in the proposed plan facilitated by 

 

1 The parents alternatively proposed a reduction in their net share to fifteen percent of the net proceeds, and that all 

remaining net proceeds be placed in a UTMA for the Minor. In continuing to argue that the parents were due funds 

directly, the Second Petition cited the Restatement (Second) of Torts provision regarding claims for intentional infliction 

of emotional distress. In Delaware, claims for intentional infliction of emotional distress do not require accompanying 

physical injury. In this case, however, the parent plaintiffs never alleged a claim of intentional infliction of emotional 

distress. The complaint is devoid of any such claim. 
4

the Texas law firm was the California claimant, not the Minor. Furthermore, despite 

the Petitioner describing The Hartford as providing the annuity, the seller of the 

receivable purchase agreement was GenexCapital. No rating was provided for that 

entity in the petition. The Court denied the Third Petition, without prejudice. 

Thereafter, Petitioner moves for reargument pursuant to Superior Court Civil 

Rule 59(e). Petitioner alleges that the proposed mechanism for payment qualifies as a 

structured settlement and the Court misapprehended that fact. The two settling 

defendants opposed the Third Petition on the basis that the Petitioner did not propose 

a true structured settlement. Defendant Linda Cabellera-Goehringer also filed a 

separate response in opposition to the Petitioner’s motion for reargument. Both 

defendants argued that the proposed payment mechanism was not in the best interest 

of the Minor. The Court agrees and also finds that there is no basis for Petitioner’s 

motion for reargument in this case. 

The standard for granting reargument under Superior Court Civil Rule 59(e) 

provides that such motions be denied 

unless the Court has overlooked precedent or legal principles that would 

have controlling effect, or misapprehended the law or the facts such as 

would affect the outcome of the decision. Motions for reargument 

should not be used merely to rehash the arguments already decided by 

the Court, or present new arguments not previously raised. Such tactics 

frustrate the efficient use of judicial resources, place the opposing party 

in an unfair position, and stymie “the orderly process of reaching closure 

on the issues.”

2

Here, Petitioner does not demonstrate that the Court overlooked controlling 

legal precedent, or misapprehended the law or the facts. 

The Court has the obligation to review proposed settlements of minors’ claims 

to ensure they are in the best interest of the injured minors. In reviewing such a 

petition pursuant to Superior Court Civil Rule 133, the Court has two options: either 

 

2

 Medical Depot, Inc. v. RSUI Indemnity Co., 2017 WL 76999, at *1 (Del. Super. Ct. Jan. 6, 2017) (citations omitted).
5

approve or reject the settlement petition.3 Considerable deference from the Court is

appropriate for the negotiated resolution of claims by counsel. Namely, counsel are 

the most familiar with the claims and defenses in such actions, not the Court. 

However, under the very unusual circumstances of this case, the Petitioner still 

does not present a proposed settlement that is in the best interest of the Minor. For 

that reason, and the Petitioner’s failure to provide a basis for reargument or 

reconsideration of the Court’s prior decision, Petitioner’s motion for reargument is

DENIED. 

IT IS SO ORDERED.

/s/Jeffrey J Clark

 

3 Barlow v. Finger, 76 A.3d 803, 807 (Del. 2013).