Duncan v. Garvin

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

ROBERT M. DUNCAN, :
:
Plaintiff, : K20M-11-022 JJC
:
v. :
:
SHAWN M. GARVIN, in his official :
capacity, and DELAWARE :
DEPARTMENT OF NATURAL :
RESOURCES AND :
ENVIRONMENTAL CONTROL, :
an agency of the executive branch of :
the State of Delaware, :
:
Defendants. :

Submitted: August 23, 2024
Decided: September 25, 2024

On this 25th 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.
of limitations barred it.2 The Court also denied Mr. Duncan’s tortious interference
claim against DNREC.3 It based that decision on the following written concession
by Mr. Duncan in the briefing:
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 this 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).
2
disposition of matters in litigation makes it essential for a court 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. Apart from Mr. Duncan’s concession lies the issue of sovereign
immunity. That doctrine separately bars Mr. Duncan’s claim against DNREC for
tortious interference. 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. § 4001. Meeting those elements alone does not equate to a waiver. There
must also be a separate demonstration that the General Assembly intended 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; see also 18 Del. C. § 6511 (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.
3
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).
4