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Ferguson v. Valero Energy Corp.

April 24, 2009

KENNETH L. FERGUSON, ET AL.
v.
VALERO ENERGY CORP., ET AL.



The opinion of the court was delivered by: McLaughlin, J.

MEMORANDUM

This is a wrongful death and survivorship action brought under the Court's diversity jurisdiction concerning the death of John Jerry Ferguson, Jr. Mr. Ferguson was killed in an accident at the Delaware City Refinery, near Wilmington, Delaware, on the night of November 5, 2005. Mr. Ferguson was twenty-nine years old. He had never married and had no children. Mr. Ferguson was survived by two brothers, Kenneth and Michael Ferguson, and his father, John Jerry Ferguson, Sr.

The plaintiffs in this suit are Kenneth Ferguson and John Jerry Ferguson, Sr. Kenneth Ferguson brings claims under the Delaware Survivor's Act, 10 Del. Code § 3701, as administrator of his brother's estate and on behalf of any statutory beneficiaries. Am. Compl. ¶ 3. John Jerry Ferguson, Sr., brings claims under the Delaware Wrongful Death Act, 10 Del. Code § 3724, in his own right and as the primary beneficiary under the statute. Am. Compl. ¶ 2. After this suit was filed, John Jerry Ferguson, Sr., passed away on April 22, 2006, less than six months after the accident that killed his son.

The defendants here are two companies that owned and operated the Delaware City Refinery: Valero Energy Corporation and Premcor Refining Group, Inc. The defendants have moved for partial summary judgment on several of the plaintiffs' damage claims, arguing that some of the damages which the plaintiffs seek to recover cannot be awarded under the Delaware Wrongful Death Act or the Delaware Survivor's Act. They also seek to limit some of the damages that can be awarded under the statutes. The Court will grant the motion in part and deny it in part.

I. The Statutes at Issue

A. The Wrongful Death Act

The Delaware Wrongful Death statute, 10 Del. Code § 3724, permits specified relatives to bring an action to compensate them for the harm they have suffered from the decedent's death. The statute states that, in fixing the amount of damages under the statute, the factfinder shall "consider all facts and circumstances" and fix a sum "as will fairly compensate for the injury resulting from the death." § 3724(d).

In determining the amount of the award, the factfinder "may consider" five specified items of damage. These five items are: 1) deprivation of the expectation of pecuniary benefits to the beneficiary or beneficiaries that would have resulted from the continued life of the deceased; 2) loss of contributions for support; 3) loss of parental, marital and household services; 4) reasonable funeral expenses not to exceed $7,000 (or an amount specified in the law governing pensions for state employees and not applicable here); and 5) mental anguish. § 3724(d)(1)-(5). The wrongful death statute specifically restricts recovery of mental anguish damages to the decedent's surviving spouse, children, and persons to whom the deceased was in loco parentis. If there are no such persons, then mental anguish damages may be recovered by parents and persons in loco parentis to the deceased. If there are still no such persons, then such damages may be recovered by siblings. § 3724(d)(5).

Because the Wrongful Death Act is in derogation of the common law, it is to be strictly construed. Magee v. Rose, 405 A.2d 143, 146 (Del. Super. Ct. 1979).

B. The Survivor's Act

The Delaware Survivor's Act, 10 Del. C. § 3701, permits a decedent's estate to bring claims on behalf of the decedent. The statute provides that a decedent's causes of action shall survive his or her death and may be prosecuted by the executors or administrators of the estate:

All causes of action, except actions for defamation, malicious prosecution, or upon penal statutes, shall survive to and against the executors or administrators of the person to, or against whom, the cause of action accrued. Accordingly, all actions, so surviving, may be instituted or prosecuted by or against the executors or administrators of the person to or against whom the cause of action accrued. . . .

10 Del. Code § 3701.

Like the Wrongful Death statute, the Survivor's Act, being in derogation of the common law, is to be strictly construed. Magee, 405 A.2d at 146.

II. Analysis of the Damages Challenged by the Defendants

The plaintiffs' amended complaint lists eight items of damage sought by John Jerry Ferguson, Sr., under the Delaware Wrongful Death Act and five items of damage sought by Kenneth Ferguson under the Delaware Survivor's Act as administrator of his brother's estate. The defendants challenge most of these items, either in whole or in part. The Court will discuss first those items of damage sought under the Wrongful Death Act and then those sought under the Survivor's Act. In evaluating whether summary judgment is appropriate, the Court will view the record in the light most favorable to the plaintiffs and draw all inferences in the plaintiffs' favor. U.S. ex rel. Kosenske v. Carlisle HMA, Inc., 554 F.3d 88, 94 (3d Cir. 2009).

A. The Plaintiffs' Claims under the Wrongful Death Act for Loss of the Decedent's Contributions to Support

John Jerry Ferguson, Sr., seeks several items of damage related to the loss of his son's support. These include claims for "loss of the value of household services that [John Jerry Ferguson, Jr.,] would have contributed to his father" and "loss of contributions for support incurred by the family" as a result ...


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