Opinions Digested in Delaware Law Weekly for the Issue of
APPEALS Procedure • Failure to Prosecute • Dismissal of Appeal Abili v. Gemcraft Homes Delaware, Inc. DeFAX Case No. D63311 (Del. Supr. July 2, 2008).
The Supreme Court dismissed the instant appeal for failure to prosecute where appellants filed the appeal more than six months ago but took no further action to prosecute the appeal. Appeal dismissed.
FAMILY LAW Parental Rights • Termination • Mother's Circumstances Harper v. Division of Family Services DeFAX Case No. D63308 (Del. Supr. June 30, 2008).
Termination of mother's parental rights was proper where the record supported the Family Court's conclusion that mother's financial and cognitive limitations prevented her from protecting and providing for the child on a permanent and independent basis. Affirmed.
LANDLORD/TENANT LAW Commercial Leases • Renewal • No-Waiver Provision • Past Defaults Rehoboth Mall Limited Partnership v. NPC International, Inc. DeFAX Case No. D63312 (Del. Supr. July 2, 2008).
Given the prospective language used in the no-waiver provision of the lease, landlord could not deny tenant a second renewal of the lease where the tenant had committed no defaults during the first renewal period and where the defaults at issue happened during the initial lease term. Affirmed.
CIVIL PRACTICE Dismissal • Failure to Prosecute • Previous Neglect • 'Lemon Law' Case Gregory v. Hyundai Motor America DeFAX Case No. D63313 (Del. Super. July 2, 2008).
Despite evidence of plaintiff's previous neglect, the Superior Court declined to dismiss this "Lemon Law" case at this time because Delaware favors giving the litigant his day in court, defendant did not suffer prejudice as the result of plaintiff's neglect and plaintiff had more recently shown diligence in pursuing the matter. Motion to dismiss denied.
INSURANCE LAW Coverage • Excess D&O Policy • Fraud Exclusion • Applicability AT&T v. Clarendon America Ins. Co. DeFAX Case No. D63307 (Del. Super. June 25, 2008).
Concluding that New York law applied in this dispute over an excess D&O policy's coverage for payment of the defense costs and settlement of securities litigation, the Superior Court determined that insurer was liable since the applicable fraud exclusion pertained only to adjudicated fraud. Motion for partial summary judgment granted.
WORKERS' COMPENSATION Causation • Carpal Tunnel Syndrome • Repetitive Stress • Medical Evidence Schavelin v. Green Acres Health DeFAX Case No. D63309 (IAB April 23, 2008).
Claimant, a certified nursing assistant, failed to satisfy her burden of proof on causation where employer's expert gave persuasive testimony that he was familiar with claimant's job duties and that such duties could not have caused her carpal tunnel syndrome. Petition to determine compensation due denied.
WORKERS' COMPENSATION Scope of Employment • Going-and-Coming Rule • Exception • Injury • Parking Lot Russ v. Eagle Transportation DeFAX Case No. D63310 (IAB April 18, 2008).
Claimant's injury, suffered 20 minutes before her shift while in a parking lot technically owned by a business that leased space to employer, who condoned its employees' use of the lot, occurred during the course of claimant's employment since the premises- rule exception to the going-and-coming rule applied. Decision on course and scope of employment issued.
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