IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY ) ) ) ) ) ) ) ) ) ) )

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1 IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY COLVIN FIELDS, Individually and as guardian ad litem of ATIBA FIELDS, a minor, v. Plaintiffs, DOMATHER FRAZIER, Defendant. C.A. No. 05C MMJ Submitted: September 16, 2005 Decided: November 21, 2005 Upon Consideration of Defendant s Motion to Dismiss DENIED MEMORANDUM OPINION Daniel D. Martin, Esquire, Brown, Mayhart, Martin & Schindler, Wilmington, Delaware, Attorneys for Plaintiff Edward F. Kafader, Esquire, Ferry, Joseph & Pearce, P.A., Attorneys for Defendant JOHNSTON, Judge

2 Colvin Fields ( Fields and Domather Frazier ( Frazier were involved in an automobile accident occurring on August 30, 2003 at the intersection of Route 896 and Summit Bridge Road. Fields and Fields minor child have asserted claims for injuries that they allegedly sustained in the August 30 accident. Frazier has moved that the claim asserted against her by Fields be dismissed pursuant to Superior Court Civil Rule 12(b(6. The Parties Contentions In a case captioned Frazier v. Fields, 1 Frazier also asserted a claim for injuries sustained in the August 30, 2003 accident, Fields did not file any counterclaim. Fields and Frazier stipulated to dismissal of Frazier v. Fields. In the instant case, however, Fields contends that he and his minor child are entitled to relief because the arbitrator s award in Frazier was not reduced to a judgment. Superior Court Civil Rule 13(a bars the assertion of a compulsory counterclaim arising from the same subject matter of an earlier action, only where the prior action resulted in a judgment on the merits. 2 Frazier v. Fields was settled by stipulation of dismissal filed by the parties following an arbitrator s award in favor of Frazier. The arbitrator s award in Frazier v. Fields was not reduced to a judgment. 1 C.A. No. 04C Brady v. C.F. Schwartz Motor Co., Inc., 723 F. Supp (D. Del. 1989; see also Scott v. Bey, Del. Super., C.A. No. 83C-SE-127, Moore, J. (April 28,

3 Frazier argues that Fields present claim for injuries, as a result of the accident occurring on August 30, 2003, arises out of the same transaction or occurrence as the claim asserted by Frazier in Frazier v. Fields. Therefore, in accordance with Superior Court Civil Rule 13(a, Fields was required to assert his claim for injuries as a counterclaim. Because Fields failed to file the necessary counterclaim for his injuries in Frazier v. Fields, Fields now is barred from attempting to assert a claim for injuries in the instant case. 3 Frazier requests that this court enter an order dismissing the claim asserted by Fields for injuries as a result of August 30, 2003 accident involving him and Frazier. In the alternative, Fields asserts that proceedings which occurred in Frazier v. Fields should be analyzed under an estoppel theory. Fields automobile insurer, not Fields himself, made the decision to settle Frazier v. Fields rather than appeal the case. Pursuant to Superior Court Civil Rule 16.1(k(11(F, awards entered in Rule 16.1 arbitration proceedings cannot have collateral estoppel effect in any other judicial proceedings. Consequently, under an estoppel analysis, the proceedings in Frazier v. Fields should not prevent Fields from proceeding in the case at bar. 3 See Mother African Union First Colored Methodist Protestant Church v. The Conference of African Union First Colored Methodist Protestant Church, 1995 WL , at *6 (Del. Ch

4 Frazier asserts that according to Superior Court Civil Rule 13(a, a party shall state as a counterclaim any claim which he has against the opposing party if the claim arises out of the same transaction or occurrence as the opposing party s claim. Fields claim for injuries was a compulsory counterclaim and Fields failed to file a counterclaim for his injuries in Frazier v. Fields. Therefore, Frazier contends, Fields now is barred from attempting to assert a claim for injuries in the instant matter. Analysis When deciding a motion to dismiss a complaint for failure to state a claim, the Court must accept all well-pleaded allegations as true. If a plaintiff may recover under any reasonably conceivable set of circumstances susceptible of proof under the complaint, the motion should be denied. 4 Delaware Superior Court Civil Rule 13(a states in relevant part: A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party s claim and does not require for its adjudication the presence of third parties of whom the Court cannot acquire jurisdiction. If the subject matter of the lawsuit has been litigated, the claim is deemed a compulsory counterclaim and cannot be relitigated in another action. 5 The question 4 Spence v. Funk, 396 A.2d 967, 968 (Del. 1978; Laventhol, Krekstein, Horwath & Horwath v. Tuckman, 372 A.2d 168, 169 (Del Leoncavallo v. Evans, 109 A.2d 395, 395 (Del

5 in this case is whether the stipulation of dismissal agreed to by the parties in Frazier v. Fields was an adjudication on the merits in this action. As a general rule, a dismissal with prejudice has the effect of a final adjudication on the merits. 6 If the parties voluntarily dismissed the action, knowing that they either received the full relief to which they were legally entitled, or that they waived their rights to seek further relief, the dismissal is tantamount to a judgment on the merits. The facts in this case present an issue of apparent first impression in Delaware. In Frazier v. Fields, the defendant Fields was represented through his insurance company. The nature of such representation is that the insurer will not prosecute a counterclaim on behalf of an injured defendant. Fields retained separate counsel for the purpose of pursuing his personal injury claims. Frazier v. Fields proceeded through arbitration. Following the arbitrator s award in favor of Frazier, the parties settled the case instead of either party requesting a trial de novo. At the time the stipulation of dismissal was filed in Frazier v. Fields, Fields private counsel was in the process of negotiating a settlement with Frazier s insurance carrier on a parallel track. Fields private counsel was not aware that the arbitration had prompted settlement and the case was dismissed without counsel s knowledge. The decision to settle Frazier v. Fields was made by the insurer, not 6 See Salavaara v. SSP Advisors, I.P., 2003 WL (Del. Ch.. 5

6 Fields individually. As a lay person, there is no indication that Fields was aware that he might be foreclosing his right to prosecute his claim for personal injuries by agreeing, upon request of his insurance company, to settlement of the first action. There is no evidence that Fields was advised of any obligation, or even the opportunity, to file a counterclaim for personal injuries in Frazier v. Fields. CONCLUSION Under these specific facts, the stipulation of dismissal with prejudice of Frazier v. Fields is not an adjudication on the merits of the claims made by Fields in this case. Therefore, Fields has not waived his right to bring a cause of action for personal injuries allegedly resulting from the August 30, 2003 automobile accident. Additionally, Fields is not estopped from asserting in this subsequent action a claim that could have been deemed a compulsory counterclaim in a previously-filed action. Because there was no adjudication on the merits of the instant claims, res judicata does not operate to bar Fields claim for personal injuries in this case. THEREFORE, Defendant s Motion to Dismiss the claim asserted against her by Plaintiff Colvin Fields is hereby DENIED. IT IS SO ORDERED. 6

7 The Honorable Mary M. Johnston oc: Prothonotary 7