Walton, Sr. v. Cole ( 2020 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
JAMES DEAN WALTON, SR.,
LINDA JANE MCGEE, NICHOLAS
CAVNAR as personal representatives for
the estate of JAMES D. WALTON, JR.,
and KENNETH A. BRYANT, III as
personal representative of the estate of
RICHARD GREGORY CHITTICK,
C.A. No. N18C-04-314 FWW
Plaintiffs,
V.
ROGER LOUIE COLE,
Nee Nee ee ees ee ee ee ee Oe ee ae
Defendant.
Submitted: September 3, 2020
Decided: September 10, 2020
ORDER DENYING LEAVE TO APPEAL FROM INTERLOCUTORY
ORDER
Lawrance Spiller Kimmel, Esquire and Brian S. Legum, Esquire, Kimmel, Carter,
Roman, Peltz, & O’Neill, P.A., Plaza 273, 56 West Main Street, 4° Floor, Christiana,
Delaware 19702, Attorneys for Plaintiffs.
Daniel P. Bennett, Esquire, and Kiadii S. Harmon, Esquire, Mintzer, Saraowitz,
Zeris, Ledva & Meyers, LLP, Citizens Bank Center, 919 North Market Street, Suite
200, Wilmington, Delaware 19801, Attorneys for Defendant.
WHARTON, J.
This 10th day of September, 2020, after having considered Plaintiffs’
application under Rule 42 of the Supreme Court for an order certifying an appeal
from the interlocutory order of this Court dated August 17, 2020; Defendant Roger
Louie Cole’s opposition; and the record in this case, the Court finds that such order
does not determine a substantial issue of material importance that merits appellate
review before a final judgment and denies the application. In making this
determination, the Court has considered the following criteria of Supreme Court
Rule 42(b)(iii), and has concluded as follows as to each criteria:
Ml Rule 42(b)(iii)(A). The Plaintiffs have not argued this portion of Rule
42, and the Court finds it not relevant.
2. Rule 42(b)(iii)(B). In their application Plaintiffs argue that the
interlocutory order conflicts with the Delaware Supreme Court’s decision in
Lutzkovitz v. Murray' in which that court held that a sudden medical emergency
occurs “where a driver of a vehicle suddenly becomes physically or mentally
incapacitated without warning.” This Court does not perceive its decision to be in
conflict with Lutzkovitz. Rather, it is consistent with Lutzkovitz. This Court denied
summary judgment in part because it found that there was a genuine issue of material
fact as to whether the accident was avoidable. There was a period of approximately
one minute between when the Defendant first began experiencing a medical event
1339 A.2d 64 (Del. 1975).
and the fatal accident. During that time the Defendant appeared to be in control of
his vehicle, and arguably could have pulled over to the side of the road, thereby
avoiding the crash. In other words, the Court denied summary judgment for that
period of time when there was a genuine issue of material fact as to whether the
Defendant had a warning of the impending medical event. The Court granted
summary judgment in part because the Defendant otherwise had no warning that he
would experience a sudden medical emergency. Thus, the Court perceives no
conflict with Lutzkovitz.
3. Rules 42(b)(iii)(C)-(G). Plaintiffs have not argued these portions of
Rule 42 and the Court finds them not relevant.
4. Rule 42(b)(iii)(H). The other ground Plaintiffs offer in support of their
application is that interlocutory review will serve considerations of justice in that
Plaintiffs will be permitted to submit questions of fact to the jury and substantially
reduce further litigation and avoid unnecessary litigation costs and delay. But, this
rationale only holds if Plaintiffs are correct. Otherwise, an interlocutory appeal will
have the opposite effect of increasing the amount of litigation and associated costs.
By Plaintiffs logic, interlocutory appeals should certified in all cases where summary
judgment is granted in part and denied in part. The Court does not subscribe to that
position.
THEREFORE, IT IS ORDERED that Plaintiffs’ Application for
Certification of Interlocutory Appeal to the Supreme Court in accordance with Rule
pag
Fer fp . Wharton, J.
42 of that Court is DENIED.