Kivell v. Air Products and Chemicals, Inc. ( 2017 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
SANDRA KIVELL, individually and as )
Personal Representative of the Estate of )
Milton J. Kivell, deceased, )
)
Plaintiff )
) CA. NO. N15C-07-093 ASB
v. )
)
AIR PRODUCTS AND CHEMICALS, )
INC, et al, )
Defendants.
Decided: December 15, 2017
On Plaintiff’s Motion for Reargument.
DENIED.
ORDER
On this 15th day of December, 2017, and upon Plaintiff’s, Sandra Kivell,
individually and as representative of the Estate of Milton J. Kivell, deceased, Motion
for Reargument, it appears to the Court that:
1. The Court granted summary judgment on August 30, 2017 in favor of
Defendant Air Products and Chemicals Inc. The Court granted Defendant’s
motion for summary judgment based on Louisiana case law including the
United States District Court for Western District of Louisiana’s decision in
Roach v. Air Liquide America.
2. Plaintiff argues that the Courts decision mirrored the arguments presented in
Defendant’s Reply Brief as opposed to its Opening Brief, and that the Roach
decision relied on by the Court does not overrule the Smith and Thomas
decisions. Defendant contends that its Reply responded to arguments
addressed buy Plaintiff’s Reply and reinforced arguments presented in its
initial Motion.
3. On a motion for reargument under Superior Court Civil Rule 59(e), the only
issue is whether the Court overlooked something that would have changed the
outcome of the underlying decision.1 Thus, the motion will be granted only
if “the Court has 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.”2 A motion for reargument is not an
opportunity for a party to rehash the arguments already decided by the Court
or to present new arguments not previously raised.3 A party seeking to have
the Court reconsider the earlier ruling must “demonstrate newly discovered
1
Brenner v. Vill. Green, Inc., 2000 WL 972649, at *1 (Del. Super. May 23, 2000)
aff'd, 763 A.2d 90 (Del. 2000).
2
Kennedy v. Invacare, Inc., 2006 WL 488590, at *1 (Del. Super. Jan. 31, 2006).
3
Id.2
evidence, a change in the law, or manifest injustice.”4 “Delaware law places
a heavy burden on a [party] seeking relief pursuant to Rule 59.”5
4. The Court finds that Plaintiff has not presented that the Court has 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. The Court’s Order was based on the arguments presented in
Defendants Opening Brief, Plaintiff’s Response, and Defendant’s Reply to
Plaintiff’s Response. Based on Louisiana law, the Court found that Defendant
did not owe Plaintiff a duty. Therefore, Plaintiff’s Motion for Reargument is
hereby DENIED.
IT IS SO ORDERED.
/s/ Calvin L. Scott
The Honorable Calvin L. Scott, Jr.
4
Brenner, 2000 WL 972649, at *1.
5
Newborn v. Christiana Psychiatric Serv., P.A., 2017 WL 394096, at *2 (Del. Super.
Jan. 25, 2017)(citing Kostyshyn v. Comm’rs of Bellefonte, 2007 WL 1241875, at *1
(Del. Super. Apr. 27, 2007)).
3