In 2015, Claimant sustained a thoracic spine injury while employed for Belvedere Fire Company. He was compensated for thoracic spine permanency. He voluntarily closed the claim by global commutation in 2018. In 2023, while working for the City of Wilmington, climbing stairs with a pack of gear during a call, he felt pain in his thoracic spine area, missed several weeks from work, and received conservative care to the thoracic spine area. Claimant filed a Petition seeking acknowledgement of the 2023 injury, relying on the opinion of claimant’s family physician. Employer denied the claim based upon the factual circumstances of the event, and medical opinion of Dr. Samuel Matz. Board Hearing was held. The Board issued a Decision accepting Employer’s position that the successive workers’ compensation carrier standard set forth in Nally v. Standard Distributing, 630 A.2d 640 (Del. 1993), applied, denying the Petition, as claimant failed to satisfy that there was both (1) an untoward event, that (2) was the proximate cause of a new injury.

Claimant appealed to the Superior Court, arguing Nally does not apply when the first work injury claim is resolved by global commutation, and in the alternative, asserting that if Nally applies, the Board applied it incorrectly. The Superior Court rejected both arguments.

Claimant appealed to the Delaware Supreme Court. On 12/4/25, the Court issued a Decision affirming the Board’s ruling. The Court was clear that Nally assigns liability between successive insurance carriers in cases where an employee seeks compensation for a work-related injury that is causally related to an injury compensated by a previous employer or carrier. In order to shift liability, Nally requires an (1) untoward event and (2) new injury. The question of whether Nally was correctly applied was not a close one. As Dr. Matz testified, the injury was to the same area of the spine, and diagnoses very similar. The nuance of claimant’s first claim being commuted does not mean that the Board applied the wrong standard. The fact that there was no record evidence of symptoms for several years pre-2023 injury also did not change the standard, especially considering claimant’s acceptance of compensation for a permanent injury associated with the 2015 claim, which presupposes that the injury had not healed.

Should you have any questions regarding this Decision, please contact Greg Skolnik, or any other attorney in our Workers’ Compensation Department.

Corey Ferrell v. City of Wilmington, No. 152, 2025 (Del. Dec. 4, 2025).

EMPLOYMENT LAW UPDATE

Superior Court Affirms Board Decision Finding Just Cause for Claimant’s Termination for Hostile Behavior

On August 9, 2024, Employer Bally’s terminated Claimant who had been working for Employer as a cashier. Claimant’s termination was within her “probationary training period” and was due to “hostile behavior toward coworkers.”

Claimant filed for unemployment insurance benefits and on or about September 30, 2024, she was deemed ineligible. Claimant appealed and a telephone hearing was held on December 9, 2024 after which Claimant was qualified for benefits.

On December 18, 2024, Employer appealed to the Board and at the board hearing presented witness testimony from multiple employee witnesses. Claimant “denied engaging in the disruptive conduct described by her supervisors” that included screaming at her trainer during training.

The Board reversed the Appeals Referee’s Decision in that the Employer had met its burden to prove that Claimant’s termination was with just cause.

On March 6, 2025, Claimant filed an appeal with the Delaware Superior Court explaining that anxiety and post-traumatic stress disorder was the explanation for the alleged workplace conduct. Among other things, the Claimant submitted medical records, which the Court could not consider because they were not part of the Board record.

Employer did not file a response to Claimant’s brief and so the Court ruled on the case on the papers submitted.

The Court affirmed the Board decision to disqualify Claimant because it was based on substantial evidence and free of legal error. Specifically, the Court recognized the Board’s ability to assess the credibility of the Employer’s witnesses at the Board hearing in favor of the Employer. Moreover, the Court reasoned that “Delaware courts consistently uphold Board determinations of just cause discharge where a claimant exhibits hostile or insubordinate behavior, even when the claimant asserts mitigating circumstances.” Ultimately, the Court did not classify Claimant’s alleged behavior as some kind of one-off lapse of comportment, “but rather, [it was] part of a pattern of confrontational behavior that undermined an affective workplace.”

If you have any questions about this case or have any questions about the Unemployment Insurance claims process in Delaware, please contact an attorney in our litigation department.

Latasha B. Newtown v. Unemployment Insurance Appeal Board and Bally’s; K25A-03-001 NEP (Nov. 24, 2025).

LITIGATION LAW UPDATE

De Facto Notice of Litigation is Not a Substitute for Timely Service of Process

Defendant Allstate Insurance filed this Motion to Dismiss on the basis that plaintiff failed to perfect service of the Complaint within the 120-day time limit set forth in Superior Court Civil Rule 4(j). The Court reviewed Rule 4(j) and agreed that service was untimely.

Superior Court Civil Rule 4(j) states that service of the summons and complaint must be “made upon a defendant within 120 days after filing the complaint” and the complaint may be dismissed without prejudice if plaintiff “cannot show good cause why service was not made within that period.” Here, the Complaint was filed on October 17, 2024, but service was not perfected until July 8, 2025, almost five months after the end of the 120-day service period.

The Court reasoned that “good cause” for delayed service requires a showing of “excusable neglect” which can be found by demonstrating “good faith on the part of the party seeking an enlargement and some reasonable basis for noncompliance within the time specified in the rules.” The Court reviewed prior case law and considered that a mistaken belief as to the status of service, and diligent attempts to locate a defendant constituted good faith, whereas extended periods of inaction by plaintiffs did not. Here, plaintiff had not attempted to serve Allstate for almost six months, but argued that the defendant driver had been timely served and that her insurance company, therefore, had de facto notice of the suit. However, the Court rejected that argument and instead reasoned that Allstate’s knowledge of suit did not cure the untimely service of process.

Allstate’s Motion to Dismiss was granted, without prejudice, as provided under Rule 4(j).

Bovell v. Allstate Insurance and Hernandez-Cuevas, C.A. No. N24C-10-240 CLS, December 8, 2025