IN THE SUPREME COURT OF THE STATE OF DELAWARE

DISCOVER PROPERTY AND § CASUALTY INSURANCE COMPANY, § Individually and a/s/o Access Labor § No. 421, 2015 Service, Inc. and Frank Layne, Jr., § § Plaintiff Below- § Appellant, § Court Below—Superior Court § of the State of Delaware, v. § in and for New Castle County § C.A. No. N12C-10-042 GAVILON GRAIN, LLC d/b/a Peavey § Company, § § Defendant Below- § Appellee.

Submitted: August 18, 2015 Decided: August 27, 2015

Before STRINE, Chief Justice; HOLLAND, and SEITZ, Justices.

ORDER

This 27th day of August 2015, it appears to the Court that:

(1) The plaintiff-appellant, Discover Property and Casualty

Insurance Company (“Discover”), as subrogee of Access Labor Service, Inc.

and Frank Layne, Jr. (“Layne”), has petitioned this Court under Supreme

Court Rule 42 to accept an appeal from an interlocutory order of the

Superior Court dated July 13, 2015, granting a motion for summary

judgment filed by Gavilon Grain, LLC (“Gavilon”). The Superior Court’s

opinion determined that Layne was a special employee of Gavilon and, therefore, Discover’s negligence claim against Gavilon was barred by the

exclusivity provision of the Delaware Workers’ Compensation Act.

(2) Discover filed the application for certification to take an

interlocutory appeal in the Superior Court on July 23, 2015. The Superior

Court denied the certification application on August 13, 2015. Although the

Superior Court analyzed Discover’s application for certification under the

former version of Supreme Court Rule 42, which was amended effective

May 15, 2015, it engaged in a thoughtful analysis under the old version that

remains relevant and we agree with its recommendation that certification

should be denied. As the Superior Court noted, its determination that Layne

was a special employee of Gavilon applied legal tests that are set out in prior

decisions of this Court.1 Moreover, interlocutory review of the Superior

Court’s ruling will not substantially reduce the pending litigation or

otherwise serve the considerations of justice.2

(3) Applications for interlocutory review are addressed to the

sound discretion of this Court. In the exercise of its discretion, this Court

1 See Porter v. Pathfinder Services, Inc., 683 A.2d 40 (Del. 1996); Lester C. Newton Trucking Co. v. Neal, 204 A.2d 393 (Del. 1964). 2 Del. Supr. Ct. R. 42(b)(iii)(G)-(H) (effective May 15, 2015).

2 has concluded that the application for interlocutory review does not meet the

requirements of Supreme Court Rule 42(b) and should be refused.

NOW, THEREFORE, IT IS HEREBY ORDERED that the within

interlocutory appeal is REFUSED.3

BY THE COURT: /s/ Leo E. Strine, Jr. Chief Justice

3 The Court is issuing a contemporaneous order refusing the interlocutory appeal filed in the companion case, Layne v. Gavilon Grain, LLC, No. 414, 2015.

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