Hsu v. Trinidad Navarro

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

LEE LIFENG HSU, )
)
Plaintiff, )
)
v. ) C.A. No. N25C-03-083 PAW
)
TRINDIDAD NAVARRO, in his )
official capacity as Delaware )
Insurance Commissioner, and in )
his individual capacity, )
GREGORY LANE, in his official )
capacity as Chief Information )
Officer of the Delaware )
Department of Technology and )
Information, and in his individual )
capacity, )
Defendants. )

Submitted: July 14, 2025
Decided: October 28, 2025

MEMORANDUM OPINION
Upon Consideration of Defendants’ Joint Motion for Summary Judgment;

GRANTED.

Lee Lifeng Hsu, Self-Represented Litigant.

Kathleen P. Makowski, Esq., of the Delaware Department of Justice, Attorneys for
Defendant Trinidad Navarro, Insurance Commissioner of the State of Delaware and
The Delaware Department of Insurance.

Eric H. Zubrow, Esq., of the Delaware Department of Justice, Attorneys for
Defendant Gregory Lane, Chief Information Officer Delaware Department of
Technology and Information.

WINSTON, J.
I. INTRODUCTION
This matter concerns Plaintiff’s unresolved insurance coverage litigation

against State Farm related to water damage to his home, and a denied Freedom of

Information Act request directed to the Delaware Department of Insurance.

On March 11, 2025, Plaintiff filed his Complaint seeking: (1) declarations that

the Commissioner of the Delaware Department of Insurance and the Chief

Information Officer of the Delaware Department of Technology and Information

violated the Delaware Public Records Law and the Delaware Freedom of

Information Act; (2) compensation from the Commissioner for court costs; and (3)

writs of mandamus against the Commissioner and Chief Information Officer.

Because Plaintiff’s Complaint addresses conduct solely taken in Defendants’

official capacity, and because the State has not waived sovereign immunity and the

State Tort Claims Act bars the action, the Court grants Defendants’ motion for

summary judgment.

II. FACTUAL AND PROCEDURAL BACKGROUND
In October 2023, Plaintiff Lee Lifeng Hsu experienced water damage to his

home.1 Hsu filed a consumer complaint with the Delaware Department of Insurance

(the “Department”) regarding State Farm’s handling of his claim.2 State Farm

1
Docket Item (“D.I.”) 1 (hereinafter “Compl.”) ¶ 10.
2
Compl. ¶ 10.
2
responded to the Department’s inquiry regarding Hsu’s complaint on September 4,

2024.3 Less than a week later, Hsu filed insurance coverage litigation against State

Farm in Civil No. N24C-09-020-CLS (the “State Farm Litigation”).4

Hsu submitted a Freedom of Information Act (“FOIA”) request to the

Department on December 11, 2024, which the Department denied the following

day.5 On December 20, 2024, Hsu submitted a revised FOIA request (the “Revised

FOIA Request”) to the Department requesting, among other materials: “the names

of all databases owned, used, or maintained by the Department” and “Metadata for

the databases related to insurance complaints, fraud, auto insurance, and homeowner

insurance.”6 The Department denied the Revised FOIA Request on January 9,

2025.7

Hsu appealed the Department’s denial of the Revised FOIA Request to the

Delaware Attorney General’s office.8 On February 28, 2025, the Attorney General’s

3
D.I. 7 (Defendants’ Joint Brief in Support of Motion for Summary Judgment
(hereinafter “Op. Br.”)) at 3-4; Compl., Ex. A at 1.
4
Compl. ¶ 11.
5
Compl., Ex. A at 14.
6
Compl., Ex. A at 19.
7
Compl., Ex. A at 23.
8
Compl., Ex. A at 5.
3
Office issued its decision on the FOIA Petition holding in favor of the Department.9

The Attorney General ultimately determined the Department did not violate FOIA

by denying access to the requested records, stating that “[t]he Department is not

obligated under FOIA to provide records it does not possess or control.”10 Hsu did

not appeal the Attorney General’s Decision to the Superior Court as was his right

under 29 Del. C. § 10005(b).11

Instead, Hsu initiated this litigation against Trinidad Navarro (“the

Commissioner”), the Insurance Commissioner of the Department, and Gregory Lane

(“Lane”), the Chief Information Officer of the Delaware Department of Technology

and Information (“DTI”).12 Hsu asserts claims against the Commissioner and Lane

“in both their official and individual capacities.”13 Hsu’s Complaint seeks: (1)

declarations that the Commissioner and Lane violated the Delaware Public Records

Law (“DPRL”); (2) compensation from the Commissioner for court costs; and (3)

writs of mandamus against the Commissioner and Lane.14

9
Lee Lifeng Hsu, Del. Atty. Gen., Opin. No. 25-IB13, 2025 WL 818782 (Feb. 28,
2025).
10
Id. at *2.
11
Op. Br. 5.
12
See Compl.
13
Compl. ¶ 1.
14
Compl. at 20.
4
In response, Defendants move for summary judgment on all claims asserted

in the Complaint on the grounds of sovereign immunity.15 An affidavit of the

Insurance Coverage Administrator for the State of Delaware is attached to the

motion.16 The affidavit states there is no insurance coverage known to her which is

applicable to the facts alleged in the Hsu’s Complaint.17

III. STANDARD OF REVIEW

Summary judgment is appropriate “when the record shows that there is no

genuine issue as to any material fact, and that the moving party is entitled to

judgment as a matter of law.”18 The moving party bears the burden of demonstrating

the undisputed facts entitle it to judgment as a matter of law.19 “If the movant

supports the motion with proper affidavits, the burden shifts to the non-moving party

to show, using support taken from the developed record or with opposing affidavits,

that a material issue of fact exists.”20

15
See Op. Br.
16
Op. Br., Ex. A (hereinafter “Lundy Affidavit”).
17
Lundy Affidavit 1-2.
18
Super. Ct. Civ. R. 56(c).
19
Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
20
Jackson v. State, 2000 WL 33115718, *1 (Del. Super. July 7, 2000) (citing Moore
v. Sizemore, 405 A.2d at 680).
5
IV. ANALYSIS

The Department, under the authority of the Commissioner, administers and

enforces Title 18 of the Delaware Code (the “Delaware Insurance Code”).21 The

Delaware Insurance Code authorizes the Commissioner to license and regulate

Delaware domestic insurance companies, by, among other prerogatives, reviewing

their financial health and statutory compliance through financial and market conduct

examinations and regular reporting requirements.22

DTI is the state agency which regulates oversight of Delaware state agencies’

information technology and security.23 The Chief Information Officer (“CIO”) for

DTI is appointed by the Governor under 29 Del. C. § 9007C(a), and the duties of the

CIO are set forth in 29 Del. C. § 9008C.

A. THERE IS NO DISPUTE OF MATERIAL FACT; HSU’S CLAIMS AGAINST
DEFENDANTS IN THEIR INDIVIDUAL CAPACITY ADDRESS CONDUCT
TAKEN IN THEIR OFFICIAL CAPACITY, ENTITLING DEFENDANTS TO
THE PROTECTION OF SOVEREIGN IMMUNITY, AND DEFENDANTS ARE
ENTITLED TO SUMMARY JUDGMENT IN THEIR FAVOR.

The Complaint asserts claims against the Commissioner and Lane in their

individual capacities.24 The question of whether a state official has been sued in an

individual or official capacity is determined with reference to the actions alleged,

21
18 Del. C. § 310.
22
See generally id. et seq.
23
29 Del. C. §§ 9002C-9004C.
24
Compl. ¶ 1.
6
rather than the language the complaint uses to describe the capacity in which the

official acted in.25 In other words, a plaintiff cannot use the phrase “individual

capacity” as magic words to bypass potential issues of immunity. The Court must

look to the substance of the complaint and the record to determine in which capacity

relief is truly sought, even if the complaint facially alleges that relief is sought in

both individual and official capacities. The Court considers “the nature of the

plaintiff’s claims, requests for compensatory or punitive damages, and the nature of

any defenses raised in response to the complaint, particularly claims of qualified

immunity.”26

Here, the claims asserted in the Complaint are premised on actions or

inactions taken by the Commissioner and Lane in connection with their official

duties, not in their individual capacities. The actions alleged—violations of the

Delaware Insurance Code, FOIA, DTI’s enabling statute, and the DPRL—were all

taken by the Commissioner and Lane under Delaware statutory and regulatory law

to administer their respective departments. Accordingly, all claims against the

Defendants are official capacity claims. “A suit against a governmental official in

25
Dollard v. Callery, 185 A.3d 694, 710 (Del. Super. Apr. 16, 2018) (internal
citations omitted) (“When it is unclear from a complaint whether a plaintiff intends
to sue a defendant in his individual or official capacity, the Third Circuit employs a
‘course of proceedings’ test.”).
26
Id. (quoting Moore v. City of Harriman, 272 F.3d 769, 772 n.1 (6th Cir. 2001)).
7
her official capacity is treated as a suit against the governmental entity itself.”27

Thus, the Complaint asserts claims against both the Department and DTI. The Court

must now determine whether sovereign immunity shields Defendants from liability.

State agencies, in the absence of a waiver of sovereign immunity or consent

to be sued, are immune from suit.28 “To overcome the bar of sovereign immunity,

[Hsu] must show [both] that: (1) the State has waived the defense of sovereign

immunity for the actions mentioned in the Complaint; and (2) the State Tort Claims

Act does not bar the action.”29 The General Assembly can waive sovereign

immunity granted to state agencies “by providing [them] the power to sue and be

sued.”30 Further, “while the General Assembly’s waiver of sovereign immunity does

not have to be explicit, it does need to be clear.”31

Hsu argues that the General Assembly has waived sovereign immunity in

contexts relevant to this lawsuit because Defendants are potentially capable of being

charged criminally under 29 Del. C. § 526.32 This argument is without merit. While

27
A.M. ex rel. J.M.K. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 580 (3d Cir.
2004).
28
Letke v. Sprenkle, et. al., 2025 WL 397744, at *2 (Del. Feb. 3, 2025)
29
Id.
30
Sandt v. Delaware Solid Waste Auth., 640 A.2d 1030, 1034 (Del. 1994).
31
Janowski v. Div. of State Police Dept., et al., 2009 WL 537051, at *2 (Del. Super.
Feb. 27, 2009).
32
D.I. 9 at 11 (hereinafter “Ans. Br.”).
8
Section 526 provides the State with authority to take criminal enforcement actions

for violations of the DPRL, it contains no language creating a private right of action

capable of being brought by a litigant in a civil suit.33 Based upon the unrebutted

affidavit of the Insurance Coverage Administrator, it appears that Section 526 is not

applicable to Hsu’s alleged loss and that sovereign immunity is not waived on that

basis.34

Even if Hsu had shown that the State had waived the defense of sovereign

immunity by providing Defendants the power to sue and be sued, the action would

still be barred by 10 Del. C. § 4001 of the State Tort Claims Act (“STCA”).35

“Pursuant to the STCA, there is a rebuttable presumption that an official’s actions

were: (1) discretionary; (2) undertaken in good faith and in the belief that the public

interest would best be served thereby; and (3) undertaken without gross or wanton

negligence. If the plaintiff can rebut one or more of these elements, the official is

not entitled to immunity under the STCA.”36

33
29 Del. C. § 526.
34
Lundy Affidavit 1-2; see Jackson v. State, 2000 WL 33115718, at *1 (Del. Super.
July 7, 2000) (holding that, in the context of sovereign immunity and the STCA,
dismissal of the case is appropriate where the non-moving party fails to rebut the
affidavit of the State that there is no insurance coverage for Plaintiff’s claims).
35
Jackson, 2000 WL 33115718, at *1.
36
In re COVID-Related Restrictions on Religious Servs., 302 A.3d 464, 487 (Del.
Super. Ct. Aug. 28, 2023) (internal citations omitted).
9
As articulated below in the context of Hsu’s petition for a writ of mandamus,

Hsu has failed to rebut the presumption that Defendants’ actions were discretionary.

Hsu failed to point to any Delaware statute or regulation preventing Defendants from

using third-party databases or otherwise compelling Defendants to preserve or gather

claims data in the manner Hsu would prefer they be preserved.

Hsu also fails to demonstrate gross or wanton negligence. Gross negligence

requires “an extreme departure from the ordinary standard of care.”37 Wanton

negligence requires the Defendants’ conduct to “reflect a ‘conscious indifference’

or ‘I don't care attitude.’”38 Again, as evidence of “gross negligence,” Hsu points to

the fact that the Department did not utilize a claims tracking database, which does

not by itself rise to the level of simple negligence, let alone constitute an extreme

departure from the ordinary standard of care. As Hsu himself recognizes, California

is the only state with a consumer claims tracker database.39

Hsu further alleges that Defendants did not act in good faith.40 Specifically,

Hsu cites to Dunlap v. State Farm41 as an authority on the distinction between a lack

37
Browne v. Robb, 583 A.2d 949, 953 (Del. 1990).
38
Hughes ex rel. Hughes, 2008 WL 2083150, at *3 (Del. 2008) (quoting Cloroben
Chem. Corp. v. Comegys, 464 A.2d 887, 891 (Del. 1983)).
39
Compl. ¶ 25.4.
40
Ans. Br. at 9.
41
878 A.2d 434 (Del. 2005).
10
of good faith and the presence of bad faith.42 But Dunlap has no applicability here.

Dunlap discussed good faith obligations in the context of the implied covenant of

good faith and fair dealing in contract law, not in the context of the application of

the STCA to state officials.

For a plaintiff to rebut the presumption that a public official acted in good

faith under the STCA, Delaware case law requires an affirmative showing of

“actions taken in bad faith.”43 “Bad faith ‘contemplates a state of mind affirmatively

operating with furtive design or ill will.’ It is not simply ‘bad judgment or

negligence, but rather it implies the conscious doing of a wrong because of dishonest

purpose or moral obliquity.’”44 Hsu does not allege that either of the Defendants

acted with this state of mind.

Because Hsu cannot demonstrate that the Department or DTI have waived

their sovereign immunity as state agencies, Defendants are entitled to summary

judgment in their favor as to Hsu’s claims against Defendants in their official

capacity.

42
Ans. Br. at 9.
43
Jackson v. Minner, 2013 WL 871784 at *6 (Del. Super. Mar. 1, 2013).
Id. at *7 (citing Brittingham v. Bd. of Adjustment of City of Rehoboth Beach,2005
44

WL 1653979, at *1 (Del. Super. Apr. 26, 2005)).
11
B. THERE IS NO DISPUTE OF MATERIAL FACT; HSU IS NOT ENTITLED TO A
WRIT OF MANDAMUS.

A writ of mandamus may be issued by the Superior Court to command a lower

court, agency, or public official to perform a duty to which the petitioner has

established a clear legal right.45 “Mandamus is an exceptional remedy that is not

available as a matter of right, but rather, is issued only according to the ‘sound

judicial discretion’ of the court in which mandamus is sought.”46 For the

performance of a duty to be clearly owed to a petitioner, it must be nondiscretionary

or ministerial, meaning that it is “prescribed with such precision and certainty that

nothing is left to discretion or judgment.”47 Here, the Complaint requests mandamus

against both the Department and DTI.48 Hsu requests that this Court order the

Department and DTI to “fully comply with DPRL.”49

The Superior Court has broad discretion to deny a petition for a writ of

mandamus where the legal duty is unclear or the petitioner has another remedy

45
Brittingham v. Town of Georgetown, 113 A.3d 519, 524 (Del. 2015) (citing Clough
v. State, 686 A.2d 158, 159 (Del.1996)).
46
Id. at 524 (citing Guy v. Greenhouse,1993 WL 557938, *1 (Del. Dec. 30, 1993)
and Clough v. State,686 A.2d 158, 159 (Del.1996)).
47
Id. (citing Guy v. Greenhouse, 1993 WL 557938, *1 (Del. Dec. 30, 1993)).
48
Compl. at 20-22.
49
Id.
12
available.50 Here, Hsu has failed to meet his burden of showing that mandamus is

appropriate. Hsu has neither demonstrated that Defendants violated a clear legal

right belonging to Hsu, nor has he shown that either Defendant failed to perform an

action they were required to perform without discretion.

Even if he had made such a showing, Hsu had another remedy to compel the

Departments to perform the duty he sought them to perform, which was to appeal

the Attorney General’s decision in his FOIA petition to the Superior Court, as

detailed in 29 Del. C. § 10005(b).51 Accordingly, Hsu cannot establish a clear legal

right to mandamus.

V. CONCLUSION

All claims in the Complaint are asserted against Defendants in their official

capacity, and Hsu cannot demonstrate that the Department or DTI have waived their

sovereign immunity as state agencies. Thus, Defendants are entitled to summary

judgment in their favor as to Hsu’s claims against them. Further, Hsu has failed to

demonstrate he has a clear legal right to the performance of a duty and, thus, is not

entitled to a writ of mandamus.

50
Brittingham, 113 A.3d at 524 (citing 2 Victor B. Woolley, Woolley on Delaware
Practice, § 1655 (1906)).
51
29 Del. C. § 10005(b) provides that “the petitioner . . . may appeal an adverse
decision on the record to the Superior Court within 60 days of the Attorney General’s
decision.”
13
For these reasons, Defendants’ Joint Motion for Summary Judgment is

GRANTED.

IT IS SO ORDERED.

/s/ Patricia A. Winston
Patricia A. Winston, Judge

14