Opinion
C.A. No. 02-03-107 RRC
Submitted: November 10, 2003
Decided: November 20, 2003
Upon Defendant/Third-Party Plaintiff T.C. Simons's Motion in Limine "Requesting the Court to Construe the Joint-Tortfeasor's Release." GRANTED.
Jeffrey K. Martin, Esquire, Harvey, Pennington, Cabot, Griffith Renneisen, Ltd., Wilmington, Delaware. Attorney for Plaintiff
B. Wilson Redfearn, Esquire, Tybout, Redfearn Pell. Wilmington, Delaware. Attorney for Defendant/Third-Party Plaintiff T. C. Simons, Inc.
William J. Cattie, III, Esquire, Cattie and Fruehauf. Wilmington, Delaware. Attorney for Third-Party Defendant Utiliquest, L.L.C.
Dear Counsel:
Suit was brought by Verizon against T.C. Simons as a result of an incident occurring on March 15, 2000 within the State of Delaware. While installing a water main and/or storm drain as part of an ongoing road construction project, T.C. Simons struck a fiber optic cable line belonging to Verizon, resulting in damages of approximately $84,000. T.C. Simons thereafter filed a third-party complaint against Utiliquest, alleging that the accident was due to that entity's negligence in failing to properly locate and mark the utility line that T.C. Simons had struck.
Six days before Verizon had filed its Complaint against T.C. Simons, Verizon entered into a "Joint Tortfeasor Release" with Utiliquest, which release has been provided to the Court as an exhibit to T.C. Simons's motion. In pertinent part, the release provides that Verizon, for a sum certain, did thereby:
release, acquit and discharge UTILIQUEST . . . from any and all claims and demands of whatever nature, actions and causes of action, damages, costs, punitive damages, expenses and compensation on account of or in any way growing out of or relating to the released incidents whether such claims relate to damages now known, or discovered in the future.
Release Between Verizon and Utiliquest of 3/6/02 at 2 (Ex. "A" to Def. T.C. Simons's Mot.).
The "released incidents" referenced therein appear to be contained in the introductory paragraph of the release itself, as follows:
WHEREAS, VERIZON . . . has made claims for damages against UTILIQUEST, L.L.C . . . arising out of any and all incidents in which VERIZON claims now and in the future that its facilities were allegedly damaged through the fault of UTILIQUEST prior to January 1, 2001. . . .
Id. at 1.
Apparently, the release contemplated a specific number of incidents between Verizon and Utiliquest, as the release provides, in pertinent part, that:
this Joint Tortfeasor Release is a global release representing approximately 250 matters. . . .
Id. at 2.
The release does not identify those "approximately 250 matters." The release does however specifically exempt two "items" from the scope of its coverage:
any matters currently in litigation involving both parties to this agreement, and any claims for contribution or indemnification which VERIZON may have in any litigation brought by a third party against VERIZON. . . .
Id. at 1.
Lastly, the release, which states that it is "taken and given" pursuant to Maryland law, provides that:
It is the intention of the parties . . . to relieve UTILIQUEST . . . from any liability to pay contribution to any other person, firm, organization, corporation or entity in relation to the released incidents.
Id. at 3.
No party has argued, however, that Maryland law should be applied in determining whether the current suit is within the scope of the release.
The parties have taken different positions as to whether the release applies to this litigation, in that T.C. Simons and Utiliquest contend that the release does apply, while Verizon argues that it does not. Citing Medical Center of Delaware. Inc. v. Mullins, T.C. Simons argues that the release does in fact apply to it, insofar as it is entitled to "the full benefit of the credit provided for in the release." T.C. Simons urges the Court to choose between three proffered possible constructions, specifically:
637 A.2d 6 (Del. 1994) (holding that the statutory credit provided under Delaware's version of the Uniform Contribution Law in favor of any nonsettling defendants for amounts paid by settling defendants applies exclusively to joint tortfeasors).
Def T.C. Simons's Mot. ¶ 5.
First, the release provides a credit to T.C. Simons in the amount of the total consideration. . . . Thus . . . [Verizon]'s demand for damages would be satisfied. The second construction would be a credit of 50% of the damages to T.C. Simon. The third construction would be a credit for the degree of fault of Third-Party Defendant Utiliquest.
Id ¶ 2.
T.C. Simons makes its arguments despite an acknowledgment that it was not a signatory to the release.
Utiliquest, like T.C. Simons, contends that the release applies to this litigation, as it "is clear that the incident involved . . . falls within the definition of `released incidents'. . . and not within any . . . excluded categories." To that end, Utiliquest attaches a letter dated September 29, 2000 sent to it by Verizon stating, in pertinent part, that "We have been advised that Verizon . . . facilities were damaged during the [above-]captioned incident" and that Verizon's investigation revealed "that Utiliquest is responsible." Additionally, Utiliquest points out that, according to the terms of the release, aside from claims for contribution/indemnification that Verizon may have, the release exempted for purposes of litigation only matters "currently in litigation involving both [Verizon and Utiliquest]"; Utiliquest (correctly) argues that were it not for T.C. Simons's third-party complaint, Utiliquest would not now be a party to this litigation, and, accordingly, this current litigation is within the terms of the release as not being an exempted action involving both parties.
Third-Party Def. Utiliquest's Reply ¶ 3.
Letter from Verizon to Utiliquest of 9/29/00 (Ex. "2" to Third-Party Def. Utiliquest's Reply).
Third-Party Def. Utiliquest's Reply ¶ 7.
In contrast, Verizon argues that the release does not apply here, as "the Joint Tortfeasor Release . . . does not cover, control or govern the case at bar, arising out of [T.C. Simons]'s negligent damaging of . . . underground cables on [March 15, 2000]." Verizon contends that the September 29, 2000 letter was merely a "form" letter and highlights that it filed no claim against Utiliquest subsequent to the letter; because of that fact, Verizon argues that, at the time of the release, the incident referred to in that letter was not a matter "currently in litigation" and thus does not fall within the terms of the release.
Pl.'s Resp. to Def. T.C. Simons's Mot. at 5.
Construing the plain language of the release, the Court agrees with Verizon that that document does not apply to the litigation currently proceeding in this Court. As the release itself states, in addition to covering only acts where Verizon had made claims against Utiliquest, the intention of the parties vis-à-vis "released incidents" represented some 250 matters that apparently were then-pending or had already been identified. The instant action was filed some six days after Verizon and Utiliquest had executed the Joint-Tortfeasor Release, and was an action brought by Verizon against T.C. Simons (as opposed to Utiliquest itself). And at least one of the three possible constructions of the release suggested by T.C. Simons requires the current litigation to go forward before any potential application of that document: "The third construction would be a credit for the degree of fault of Third-Party Defendant Utiliquest."
See, e.g. City Investing Co. Liquidating Trust v. Continental Cas. Co., 642 A.2d 1191, 1198 (Del. 1993) (stating that "if a writing is plain and clear on its face, i.e., its language conveys an unmistakable meaning, the writing itself is the sole source for gaining an understanding of intent") (citation omitted); Shuttleworth v. Abramo, 1997 WL 349131, at *4 (Del.Ch. June 13, 1997) (stating that "[o]nly evidence of a clearly manifested intention that [a] release have a different meaning c[an] be sufficient to avoid the literal meaning of th[at] release").
Def. T.C. Simon's Mot. ¶ 2.
The Court agrees with counsel for Verizon's representation that the September 29, 2000 letter that Verizon had sent out to Utiliquest was a "form" letter (much of the letter is "fill in the blank") and that any action taken based upon the incident referred to in that letter (apparently there was none) was not a matter "currently in litigation" as of the date of execution of the release. Given this reading, the Court need not determine whether any "exceptions" to the release apply, including the exception that specifically provides that then-pending litigation involving both Verizon and Utiliquest was outside the scope of the release. Nor does the Court need to divine the intent of the signatories to the release insofar as any thought was given to relieve Utiliquest from future contribution responsibilities. Put simply, the release does not apply to this case, as this case was not contemplated by the terms of the release. The effect of this ruling is that Verizon proceeds against T.C. Simons who in turn proceeds against Utiliquest as if there were never any release at all.
Accordingly, the Court GRANTS T.C. Simons's Motion in Limine "Requesting the Court to Construe the Joint-Tortfeasor's Release."
IT IS SO ORDERED.