147 F. Supp. 429 | D. Del. | 1956
This is a motion of defendant for summary judgment. The action was instituted in the Superior Court of the State of Delaware and removed to this Court on the ground of diversity of citizenship. The action was brought by the widow against a third party tortfeasor for negligence resulting in the death of the plaintiff’s husband. A motion to dismiss the complaint was considered at an earlier stage
The pertinent Delaware Act
“Whenever an injury for which compensation is payable under this chapter is sustained under circumstances creating in some person other than the employer, a legal liability to pay damages in respect thereto, the injured employee may, at his option, either claim compensation under this chapter or obtain damages from, or proceed at law against such other person to recover damages, but he shall not proceed against both.”
The present matter presents the narrow question as to when a widow, seeking compensation for the death of her husband due to the alleged negligence of a third party, has so definitely exercised
The accident happened October 11, 1954. A claim was filed before the Industrial Accident Board under the Delaware Workmen’s Compensation Act on September 20, 1955. No proceedings have been had on this claim and there has been no hearing or award. The present suit was filed in the Superior Court of the State of Delaware on October 28, 1955.
The defendant contends that the mere filing of the claim with the Industrial Accident Board on September 28, 1955 and unaccompanied by any further proceedings or award, constituted, under the Delaware Act, an election of alternative remedies and prevented the valid institution of this suit by the plaintiff on October 28, 1955. This is controverted by the plaintiff and constitutes the question for decision.
That the cases under the various Workmen’s Compensation Acts are not harmonious even when the Acts are very similar or strongly analogous seems entirely clear.
The defendant relies upon cases in Massachusetts and in Michigan (cited in the footnote),
Upon the contrary, other cases hold that the provisions of Workmen’s Compensation Acts are framed for the benefit of an injured workman or his dependents and that the rights of subrogation given to the employer of the injured person, where such employer has paid or become liable for compensation, are for the protection of the employer and to prevent the employee from receiving double pay for the same injury. In no case has it been held that the Workmen’s Compensation Act or the rights given under it have been framed with a view of conferring any benefits upon a third party tortfeasor responsible for the death or injury.
Cases such as Canadian Pacific Ry. Co. v. Morin, 2 Cir., 54 F.2d 246, reach a conclusion opposed to the cases in Massachusetts and Michigan, cited by the defendant, and hold that a mere filing of a claim for compensation under a Workmen’s Compensation Act and unaccompanied with other proceedings on the claim and no award thereon does not prevent the institution of a suit at law against the third party tortfeasor. The Morin case was determined under the then law of Vermont.
The pertinent laws of Vermont, Massachusetts, Michigan and Delaware have much in common. They all provide that where an injury for which compensation is payable was caused under circumstances creating a legal liability in some person other than the employer or insured to pay damages in respect thereof, the injured employee may, at his option, either proceed at law against the person causing the injury or to claim compensation under the Workmen’s Compensation Act. The only material difference, to which my attention is called, is that in the Massachusetts, G.L.(Ter. Ed.), c. 152, § 15, Michigan, Comp.Laws 1948, § 413.15 and Delaware Acts, but not in the Vermont Act, U.S. § 8078, appear the words “but not against both” as in the Massachusetts Act or “but he shall not proceed against both” as found in the Delaware Act.
It is not entirely clear that the difference in verbiage is entitled to the full measure of consideration contended for
The discussion of the various cases will not be continued. This Court is not free to adopt that one of the divergent rules as to it may seem proper.
This is a diversity action originally brought in the Superior Court of the State of Delaware and removed to this Court. It is based upon a Delaware statute, viz. the Delaware Workmen’s Compensation Act. The right of action to recover under the Delaware Workmen’s Compensation Act is peculiarly a matter which, by Erie R. Co. v. Tompkins,
The exact situation here considered was determined by a Delaware Court in McGonigal v. Ward Baking Co., 6 Terry 55, 45 Del. 55, 67 A.2d 61, 62. In the case last cited the precise question as posed by the Court was:
“The sole question here raised is this: May an injured employee, who has filed and withdrawn a claim for Workmen’s Compensation against his employer, thereafter sue an alleged third party tortfeasor for damages on account of his injuries?”
It will be noted that the only difference between the cited case and the case at bar is the fact that in the cited case the claim for Workmen’s Compensation, antecedently filed, had been withdrawn without award and in the present case the claim had been antecedently filed and no proceedings had been had thereon but such claim has not been actually withdrawn. As will be seen this distinction is without merit.
The Delaware Court expressly considered the Massachusetts cases cited by the defendant, supra, and refused to follow them; it expressly cited Canadian Pacific Ry. Co. v. Morin, supra, and adopted its reasoning.
That a Federal Court in a diversity case, removed- to it from a State Court, must accept the pertinent rulings of a State Court is abundantly clear and is the law of this District. Lake Shore Nat. Bank v. Bellanca Aircraft Corporation, D.C., 83 F.Supp. 795. In Fidelity Union Trust Co. v. Field, 311 U.S. 169, 179, 180, 61 S.Ct. 176, 85 L.Ed. 109, it is said that a Federal Court was not at liberty to reject a pertinent State decision because it did not agree with the reasoning of the State Court or whether it believed the decision to be sound or unsound. To the same effect is the law of this Third Circuit.
The case of McGonigal v. Ward Baking Co., supra, was a judgment of the Superior Court of the State of Delaware. That a Federal Court in Delaware must accept the ruling of the Superior Court of the State of Delaware was expressly
It is true that the Delaware Court in McGonigal v. Ward Baking Co., (supra) commented on the fact that the claim for compensation had been withdrawn and that, by limitation of time, no additional claim for compensation could be filed. This fact must be without weight. Either the election was complete upon the first filing or it was not complete without other proceedings or award. No additional filing or passage of time preventing such filing can be material. Even the Sciacia’s Case, 262 Mass. 531, 160 N.E. 310, relied upon by the defendant, expressly held that the discontinuance of existing proceedings at law before proceeding under the statute was not material.
Because a Delaware Court has expressly passed upon the question here involved and adversely to the contention of the defendant, the motion for summary judgment must be denied.
. D.C., 141 F.Supp. 565.
. 19 Del.C. § 2363(a).
. Sciacia’s Case, 262 Mass. 531, 160 N.E. 310; Tocci’s Case, 269 Mass. 221, 168 N.E. 744, 67 A.L.R. 236; Furlong v. Cronan, 305 Mass. 464, 26 N.E.2d 382; Miller v. Richards, 305 Mass. 424, 26 N.E.2d 380; McDonald v. Employers’ Liability Assur. Corp., 288 Mass. 170, 192 N.E. 608; Graham v. Michigan Motor Freight Lines, 304 Mich. 136, 7 N.W.2d 246; Nichols v. Ford Motor Co., 306 Mich. 268, 10 N.W.2d 852.
. 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487.
. McLouth Steel Corp. v. Mesta Machine Co., 3 Cir., 214 F.2d 608, 610, certiorari denied, Hartford Acc. & Indemnity Co. v. Foster, 348 U.S. 873, 75 S.Ct. 109, 99 L.Ed. 687.