Opinion
C.A. No. 98C-02-019 SCD, CONSOLIDATED WITH C.A. No. 98C-02-020 JOH.
Submitted: March 3, 2000.
Decided: March 13, 2000.
Upon Defendant's Motion to Dismiss
ORDER
This 13th day of March, 2000, upon consideration of Defendant's Motion to Dismiss, it appears that:
(1) Plaintiff Department of Labor ("DOL") is seeking wages allegedly owed to certain current and/or former employees of Defendant Red Rose Roofing ("Red Rose") arising out of construction projects. Two of the actions have been consolidated.
(2) Red Rose has filed a motion to dismiss the first of two consolidated actions on the grounds that the action was brought after the applicable statutes of limitations had expired. The DOL agrees that the action was brought after the expiration of the statute of limitations, however, the DOL contends that Red Rose waived the statute of limitations and is now estopped from asserting it as a defense. Therefore, the only issue before the Court is whether Defendant can waive the statute of limitations.
The applicable statutes of limitations are 10 Del. C. § 8111 and 29 Del. C. § 6960 (h).
(3) In support of its argument, the DOL relies on a letter from Red Rose's counsel, which states in relevant part:
This will also confirm that we are willing to further extend the statute of limitations which ran in September (and was previously extended until November 30, 1996), as necessary to provide the DOL with sufficient time to review and reconcile the benefit calculations and thus avoid the unnecessary filing of a lawsuit. (Emphasis added).
(4) In response, Red Rose's counsel admits writing the letter, but argues that an agreement to lengthen the statute of limitations violates the public policy of the state and should not be enforced. In support of this argument, Red Rose relies on Shaw v. Aetna Life Insurance Co. Shaw stands for the proposition that the statute of limitations cannot be lengthened by contract, in anticipation of a breach.
Del. Super, 395 A.2d 384 (1978).
(5) The statute of limitations is a defense which is personal to the defendant and can be waived.
Cheswold Volunteer Fire Co. v. Lambertson Construction Co., Del. Supr., 489 A.2d 413, 421 (1985) (distinguishing a statute of repose, which cannot be waived, from a statute of limitations, stating "[t]he statute of limitations is therefore a procedural mechanism, which may be waived."); Leavy v. Saunders, Del. Super., 319 A.2d 44, 47 (1974) (citations omitted).
(6) In this case, Red Rose provided the DOL with a written, open ended waiver of the statute of limitations for the purpose of attempting to reach an amicable resolution. At no time was the waiver withdrawn. Red Rose's reliance on Shaw is misplaced. Shaw involved a lengthening of the statute of limitations by contract which is distinguishable from the facts in this case. By its letter, Red Rose waived the statute of limitations, and is now precluded from asserting it as a defense.
(7) For the foregoing reasons, Defendant's motion to dismiss is DENIED.
IT IS SO ORDERED.