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McDuffy v. Lumbermen's Mutual Casualty Company12/17/2001
Submitted: October 12, 2001
ORDER
This 17th day of December 2001, upon consideration of the briefs on appeal and the record below, it appears to the Court that:
(1) The plaintiffs-appellants, Brenda McDuffy and Louis McDuffy (jointly, the "McDuffys"), filed this appeal from the May 31, 2001 order of the Superior Court dismissing their complaint against the defendant-appellee, Lumbermen's Mutual Casualty Company ("Lumbermen's"). We find no merit to the appeal. Accordingly, we AFFIRM in C.A. No. 99C-10-139 and REMAND in C.A. No. 98C-11-213.
(2) In this appeal, the McDuffys claim that the Superior Court erred in granting the motion of Lumbermen's to dismiss their complaint on the ground that it constituted an untimely appeal from the decision of an automobile arbitration panel and that it duplicated claims they had asserted previously in a separate pending case. The McDuffys also claim that the Superior Court should not have dismissed their complaint because they did not have an opportunity to fully litigate their claims before the automobile arbitration panel.
(3) In October 1998 Brenda McDuffy filed a claim for Personal Injury Protection ("PIP") benefits with the Delaware Department of Insurance. A hearing before an arbitration panel took place on October 20, 1998. The "State of Delaware Automobile Arbitration Panel Award" form, which was issued following the hearing, reflects that both Brenda McDuffy and "Kemper," the named defendant, were represented by counsel at the hearing. The form also reflects that Brenda McDuffy was awarded no money because she "failed to satisfy the burden of proof." The form, finally, reflects a "Date of Award" of October 23, 1998 and contains the following notice: "This award may be appealed by either side provided an appeal is filed with Superior Court within 30 days of the date of this award."
(4) On November 20, 1998, within the prescribed appeal period, the McDuffys filed a complaint in the Superior Court (C.A. No. 98C-11-213) (the "first complaint"). The "Superior Court Civil Case Information Statement" or "CIS" indicates that this complaint was filed as an appeal from the decision of the arbitration panel. The complaint itself, however, does not refer to that decision and consists solely of tort claims against Louis Marsico, the driver of the vehicle involved in the automobile accident with the McDuffys in 1997, and Joseph Schorah, the driver of the vehicle involved in the automobile accident with Brenda McDuffy in 1998. Attached to the first complaint were certified copies of the Automobile Arbitration Panel forms and a handwritten note signed by Brenda McDuffy stating that the transcript of the arbitration hearing had been requested. The record reflects that, on at least one occasion, the Prothonotary's Office treated the first complaint as an appeal to the Superior Court from the decision of the Automobile Arbitration Panel.
(5) On April 15, 1999, the McDuffys filed a motion to amend the first complaint to add as defendants an additional driver involved in the 1998 accident and "Kemper" and to add claims of bad faith, racial discrimination, fraud and emotional distress against Kemper and a claim for punitive damages against Louis Marsico. On June 10, 1999, the Superior Court denied the McDuffys' motion to amend.
(6) On October 14, 1999, the McDuffys filed another complaint in the Superior Court (C.A. No. 99C-10-139) (the "second complaint"). The second complaint contained the same claims asserted in the first complaint and also asserted the additional claims the McDuffys had sought to add in their motion to amend. It is the second complaint that was dismissed by the
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