Kivell v. Air Products and Chemicals, Inc.
N15C-07-093 ASB
| Del. Super. Ct. | Dec 15, 2017Background
- Plaintiff Sandra Kivell, individually and as personal representative of Milton J. Kivell’s estate, moved for reargument after the court granted summary judgment to Air Products and Chemicals, Inc. on August 30, 2017.
- The court’s summary judgment ruling was grounded on Louisiana law and relied in part on the Western District of Louisiana decision in Roach v. Air Liquide America.
- Plaintiff argued the court relied on Defendant’s reply brief rather than the opening brief and contended Roach does not overrule prior decisions cited by plaintiff (Smith and Thomas).
- Defendant maintained its reply brief merely responded to plaintiff’s arguments and reinforced points from its opening brief.
- The motion for reargument was brought under Superior Court Civil Rule 59(e); reargument is limited to showing the court overlooked controlling precedent, misapprehended law or facts, newly discovered evidence, a change in law, or manifest injustice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Court based its decision on Defendant’s Reply rather than its Opening brief | Court improperly mirrored Defendant’s Reply; relied on arguments not in opening brief | Reply merely answered Plaintiff and reinforced opening brief | Denied — Court considered opening brief, plaintiff’s response, and defendant’s reply; no improper reliance on reply alone |
| Whether Roach was incorrectly applied or conflicts with Smith and Thomas | Roach does not overrule Smith and Thomas; court erred in relying on Roach | Roach is persuasive and supports Defendant’s position under Louisiana law | Denied — court’s reliance on Roach was appropriate; plaintiff failed to show controlling precedent was overlooked |
| Whether Defendant owed a duty to Plaintiff under applicable law | Kivell asserts a duty existed | Air Products argued under Louisiana law no duty was owed | Denied — court found under Louisiana law Defendant did not owe a duty |
| Whether Plaintiff met the standard for reargument under Rule 59(e) | Plaintiff urged reconsideration based on alleged oversight and legal error | Defendant argued plaintiff merely rehashed prior arguments and did not meet the heavy burden for reargument | Denied — plaintiff failed to show overlooked controlling precedent, misapprehension of law/facts, new evidence, change in law, or manifest injustice |
Key Cases Cited
- No officially reported (Bluebook-citable) authorities appear in this order; the opinion primarily cites unpublished or Westlaw decisions and Superior Court Rule 59(e) precedent.