IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

ROBERT M. DUNCAN, :

: Plaintiff, : K20M

- 11

- 022 JJC

:

v. :

: SHAWN M. GARVIN, in his official :

c apacity, and DELAWARE :

DEPARTMENT OF NATURAL :

RESOURCES AND : ENVIRONMENTAL CONTROL, : an agency of the executive b ranch of : the State of Delaware, :

:

Defendants. :

Submitted: August 23, 2024

Decided: September 2 5 , 2024

On this 2 5 th day of September 2024, having heard and considered Plaintiff

Robert Duncan’s motion for reconsideration of the Court’s July 31, 2024

,

Memorandum Opinion and Order (the “July decision ” ), it appears that:

1. Mr. Duncan asks the Court to reconsider its decision to dismiss Mr.

Duncan’s claim against DNREC for tortious interference with contract (“tortious

interference”). 1 As the Court explained in its July decision, Mr. Duncan’s request to

add a new tortious interference claim against Mr. Ratsep was futile because the statute

1 See Duncan v. Garvin, et al., 2024 WL 3596138, at *7 (Del. Super July 31, 2024) ( finding futile

Mr. Duncan’s claim against DNREC for tortious interference with contract based upon his

concession that the futility of his claim against Mr. Ratsep would make the claim against DNREC

futile). For the reasons explained in the July 2024 Opinion, Mr. Duncan’s claims against DNREC

employee Timothy Ratsep were futile because they did not relate back and were therefore barred

by the applicable statute of limitations. Id.2

of limitations barred it

. 2 The Court also denied Mr. Duncan’s tortious interference

claim against DNRE C

. 3 It based that decision on the following written concession

by Mr. Duncan in the briefin g :

Plaintiff acknowledges that the respondeat superior claim against

DNREC only survives if the tortious interference with contract claim

against Ratsep survives. 4

2. In Mr. Duncan’s motion for reargument, he requests that the court permit

him to retain his tortious interference claim against DNREC. He contends that a

respondeat superior claim against an employer exists independently of whether an

employee

, alleged to be the servant

, is a party to the suit. Namely, Mr. Duncan

requests that the Court reconsider its decision and “[a]llow him to pursue his

respondeat superior claim against [DNREC] based upon Timothy Ratsep’s tort of

intentional interference with contract. ” He does so notwithstanding his prior written

concession.

3. In support of his motion, Mr. Duncan cites additional authority that he

did not provide in his three prior written submissions : the Delaware Supreme Court’s

decision in Verrastro v. Bayhospitalists, LLC

. 5 There, the Delaware Supreme Court

recognized that, under the principles of respondeat superior

, a claim against a

principal remains notwithstanding the servant’s absence as a party. 6

4. Mr. Duncan had a full opportunity to brief th is issue and others prior to the

July decision , however

. A motion for reargument is not the proper mechanism to

raise issues or identify authority for the first time

. 7 On the contrary , the orderly

2 Id

. 3 Id. at 14.

4 D.I

. 98 at 11.

5 Verrastro v. Bayhospitalists, LLC , 208 A.3d 720 (Del. 2019)

. 6 Id. at 725.

7 Aranda v. Philip Morris USA Inc. , 183 A.3d 1245 , 1255 (Del. 2018) ; see also State v. Brinkley

, 132 A.3d 839 , 842 (Del. Super. Ct. 2016)

.3

disposition of matters in litigation make s it essential for a c ourt to rely on concessions

by the parties. The Court relied on Mr. Duncan’s concession in this instance, and the

newly cited authority does not justify revisiting the issue.

5. A part from Mr. Duncan’s concession lies the issue of sovereign

immunity

. That doctrine separately bars Mr. Duncan’s claim against DNREC for

t ortious interferen ce

. Notably, the Court declined to address DNREC’s sovereign

immunity defense in its July 2024 decision because Mr. Duncan’s concession made

it unnecessary. Nevertheless, Mr. Duncan identified no basis to avoid the doctrine in

his briefing. Rather, he incorrectly contended that the State could waive sovereign

immunity by simply meeting the requirements of the State Tort Claims Act found in

10 Del. C. § 40 01. Meeting those elements alone does no t equate to a waiver. T here

must also be a separate demonstration that the General Assembly inten ded to waive

sovereign immunity

. 8 Namely, the General Assembly must do so by statute or by the

State’s separate procurement of insurance coverage

. 9

6. DNREC included an affidavit from Ms. Debra Lawhead, the

Administrator for the State Insurance Coverage Program , when opposing Mr.

Duncan’s motion to amend

. 10 She attested in the affidavit that the State of Delaware

has no insurance coverage for this matter. 11 The court recognizes that Superior Court

Rule 12(b)(6) standards apply when considering the futility of a proposed

8 See Smith v. Bunkley, 171 A.3d 1118, 1125 (Del. Super. 2016)

, aff’d

, 171 A.3d 1117 (Del. 2017)

(citing Pauley v. Reinoehl , 848 A.2d 569, 573 (Del. 2004) ( recognizing that a plaintiff must

demonstrate that the State has separately waived the defense of sovereign immunity in addition to

proving that the State Tort Claims Act does not bar the claim)).

9 J.L. v. Barnes , 33 A.3d 902 , 913 (Del. Super. Ct. 2011) (citing Doe v. Cates , 499 A.2d 1175

, 1177 (Del. 1985) ).

10 D.I. 96 Ex. A; s ee also 18 Del. C. § 65 11 (recognizing that “[t]he defense of sovereignty is waived

and cannot and will not be asserted as to any risk or loss covered by the state insurance coverage

program.”)

. 11 D.I. 96 Ex. A.4

amendment. 12 For that reason

, the denial of a motion to amend based on futility does

not typically turn on extrinsic evidence. Mr. Duncan , however, does not identify any

separate mechanism demonstrating the State’s intent to waive the defense of

sovereign immunity

— other than his reliance on the State Tort Claims Act which

alone cannot demonstrate a waiver. Accordingly, his proposed amendment to add a

tortious interference claim against DNREC is futile for this additional reason

.

WHEREFORE , for the aforementioned reasons, Mr. Duncan’s motion for

reargument is DENIED

.

IT IS SO ORDERED.

/s/Jeffrey J Clark

Resident Judge

12 Clark v. State Farm Mutual Auto. Ins. Co ., 131 A.3d 806, 811

– 12 (Del. 2016).