Sherman v. State of Delaware &, 133 A.3d 971

Background

In March 2009 Delaware State Police Officer Joshua Giddings arrested Jane D.W. Doe for shoplifting, drove her in his police car, threatened incarceration unless she performed oral sex, and then returned her home. Giddings later admitted sex occurred but claimed consent; he was criminally charged and committed suicide shortly after arrest.
Doe sued the State of Delaware (asserting respondeat superior) and Giddings's Estate for assault, battery, and rape; Giddings died in May 2009 and the estate was later sued in August 2010.
The Superior Court initially granted summary judgment to the State; this Court reversed in 2013, holding scope-of-employment is fact-specific and generally a jury question, and remanded for limited discovery.
On remand the State moved for summary judgment based on sovereign immunity, arguing the State's self-insurance Policy did not cover the alleged intentional criminal act; Doe moved for partial summary judgment on respondeat superior liability.
The Superior Court granted the State's sovereign immunity motion and denied Doe's partial summary judgment; it later granted Giddings's Estate's motion to dismiss under 12 Del. C. § 2102(a) (claims against an estate arising before death must be presented within eight months).
The Supreme Court: (1) held the State waived sovereign immunity because the self-insurance Policy insures the State for employee intentional acts under Exclusion B’s exception; (2) affirmed that respondeat superior remains a jury question; and (3) affirmed dismissal of claims against the estate under § 2102 as a non-claim statute that cannot be waived.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the State waived sovereign immunity under 18 Del. C. § 6511 because its self-insurance Policy covers the alleged conduct	The Policy's Exclusion B excludes intentional actor but the "however" exception applies to the entire exclusion, so the named Insured (the State) remains covered for employee willful penal-code violations	Exclusion B removes coverage for willful penal-code violations and the exception only preserves coverage for fraud-related items (not criminal acts), so the State retained immunity	Reversed Superior Court: Policy's "however" exception modifies the entire Exclusion B; the State is insured for the alleged crime and waived sovereign immunity
Whether Doe was entitled to partial summary judgment on respondeat superior (scope of employment)	After limited discovery facts are undisputed and all four Restatement §228 factors are met, so no jury question remains and State is vicariously liable	Scope-of-employment is fact-specific; prior Supreme Court ruling makes it ordinarily a jury question; remand discovery did not eliminate factual issues	Affirmed Superior Court: respondeat superior remains a jury question; denial of partial summary judgment was proper
Whether Exclusion B should be parsed into separate exclusions or read as one exclusion with an exception protecting the named Insured	Exclusion B is a single exclusion (penal code violations and fraud listed together); the exception preserves coverage for the named Insured/non-actor even for criminal acts by an employee	Exclusion B should be read to exclude penal-code violations from coverage without applying the "however" exception; thus State not covered	Held the exception applies to the entire Exclusion B; reasonable interpretation preserves coverage for the named Insured
Whether 12 Del. C. § 2102(a) is waivable or functions as a statute of limitations (bar to claims against an estate)	The estate waived the defense by delayed motion; § 2102 functions like a statute of limitations and can be waived	§ 2102 is a non-claim statute that terminates an estate's capacity to be sued after eight months and cannot be waived	Affirmed Superior Court: § 2102 is a non-claim statute; claims not presented within eight months are forever barred against the estate

Key Cases Cited

ConAgra Foods, Inc. v. Lexington Ins. Co., 21 A.3d 62 (Del. 2011) (standard of review for summary judgment)
O'Brien v. Progressive N. Ins. Co., 785 A.2d 281 (Del. 2001) (insurance policy interpretation reviewed de novo)
Pauley v. Reinoehl, 848 A.2d 569 (Del. 2004) (overview of sovereign immunity and waiver principles)
Doe v. State, 76 A.3d 774 (Del. 2013) (scope-of-employment is fact-specific and ordinarily for jury)
Draper v. Olivere Paving & Constr. Co., 181 A.2d 565 (Del. 1962) (Restatement §228 four-factor scope-of-employment test)