Hsia v. KAPG Hockessin

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

The Estate of Shyuan Hsia, by and )
through Lynn Chao, Executrix and )
Personal Representative of the Estate )
of Shyuan Hsia, et al., )
)
Plaintiffs, )
v. ) C.A. N25C-04-270 FJJ
)
KAPG Hockessin Senior Housing )
Opco, LLC, d/b/a The Summit, )
Hockessin Senior Housing I, et al., )
)
Defendants. )
v. )
)
Kevin Kelly, Thomas Terranova, )
Timothy Terranova, et al., )
)
Third-Party Defendants., )

Submitted: March 11, 2026
Decided: March 24, 2026

OPINION AND ORDER
on Third Party Plaintiff, KAPG Hockessin Senior Housing, OPCO, LLC’s
Motion to Amend the Third Party Complaint and Third Party Defendants
Timothy and Thomas Terranova’s Motion for Judgment on the Pleadings
DENIED in part, GRANTED in part.

Timothy A. Dillon, Esquire, McCann, Dillon, Jaffee & Lamb, LLC, Wilmington,
Delaware, Attorney for Plaintiff.

Don Gouge, Esquire, Wilmington, Delaware, Attorney for Third Party Defendant
Kevin Kelly.
Kevin Buttery, Esquire, Wilmington, Delaware, Attorney for Defendant KAPG
Hockessin Senior Housing OPC, LLC

Randall S. MacTough, Esquire and Colleen Shields, Esquire, Eckert Seamans
Cherin & Mellott, LLC, Attorneys for Third Party Dr. Carolyn Ianni.

Maria Granaudo, Esquire, Burns and White, Wilmington, Delaware, Attorney for
Third Party Defendant Dr. Jennifer Christian.

Jennifer Sutton, Esquire, O’Hagan Meyer, Wilmington, Delaware, Attorney for
Defendant American Trust Senior Care, LLC, Virginia Gray, Hockessin Senior
Housing I.

Robert M. Greenberg, Esquire, Tybout, Redfearn & Pell, Wilmington, Delaware,
Attorney for Third-Party Defendant Timothy Terranova.

Maura L. Burke, Esquire and Carl Neff, Pierson Ferdinand, LLP, Wilmington,
Delaware, Attorneys for Defendant Discovery Senior Living, LLC.

John D. Balaguer, Esquire and Clair McCudden, Esquire, Balaguer, Milewski &
Imbrogno, Wilmington, Delaware, Attorneys for Third-Party Defendants Thomas
Terranova and Timothy M. Terranova.

Jones, J.

2
This matter arises from the fatal assault of Shyuan Hsia (“Hsia”) by Kevin

Kelly (“Kelly”) while Hsia was under the care of KAPG Hockessin Senior

Housing OPCO, LLC D/B/A The Summit (hereinafter referred to as “Summit”).

Summit is a licensed Assisted Living Facility that operates the Shine Memory Care

Unit (“MCU”) to care for residents with Alzheimer’s, dementia or other

mental/memory impairments. Kelly and Hsia were residents in Summit’s MCU.

It is alleged that on August 5, 2024, while both were under the care of Summit,

Kelly, who suffers from dementia, entered Hsia’s private room and assaulted her,

leading to her death. Hsia’s estate and beneficiaries filed suit against Summit

alleging that Summit’s negligence caused her death.

Timothy Terranova and Thomas Terranova are each the nephew and power

of attorney for Kelly. Timothy has power of attorney over medical decisions under

Delaware Code Title 16 Chapter 25 and both Timothy and Thomas have durable

personal power of attorney under Delaware Code Title 12, Chapter 49A.

Summit filed an original third-party complaint against a number of

defendants including Timothy and Thomas. 1 In its original third-party complaint,

Summit alleged that as POAs for Kelly, Timothy and Thomas, “were responsible

for making decisions necessary for Kevin Kelly’s health and wellbeing, as well as

arranging for and facilitating his personal and health care services not provided by

1
Docket Item (“D.I.”) 16.

3
the Summit.”2 Summit contended that Timothy and Thomas failed to fulfill these

duties while Kelly was a resident at Summit by poorly managing his medication

regiment in light of advancing mental deterioration and concerns of aggressive

behavior. Summit claims that Timothy and Thomas were negligent, in their

capacity as POAs which resulted in Kelly’s assault of Hsia and the subsequent

injuries and death for which plaintiffs allege damage in the underlying complaint.

Timothy and Thomas filed a motion for judgment on the pleadings.3 The

argument advanced by Timothy and Thomas was that they owed no duty to

Summit or Hsia and, as such, a claim based on negligence was not proper. At oral

argument on the motion for judgment on the pleadings, Summit requested that the

Court grant them leave to file an amended third-party complaint. Summit filed its

motion to file an amended third-party complaint and attached to the motion the

proposed amended third-party complaint.4 Timothy and Thomas have opposed

the motion. 5

In the proposed third-party complaint Summit realleges negligence claims

against Timothy and Thomas. In addition, Summit has alleged the following new

allegations:

22. Prior to Kevin Kelly’s admission to The Summit,
it is believed that he resided at home with family,

2
Id. at ¶12.
3
D.I. 92.
4
D.I. 157.
5
D.I. 164.

4
including Third-Party Defendants, Timothy Terranova
and Thomas Terranova.

23. Given that Third-Party Defendants, Timothy
Terranova and Thomas Terranova were appointed as
Kevin Kelly’s General Durable Powers of Attorney, and
Timothy Terranova was appointed as Kevin Kelly’s
Medical Power of Attorney, it is believed and averred
that these two Third Party Defendants were intimately
familiar with Kevin Kelly’s dementia-related behaviors
and aggression.

24. On August 15, 2023, an Application for
Residency was submitted to The Summit on behalf of
Kevin Kelly.

25. The August 15, 2023 Application for Residency
lists Thomas Terranova and Timothy Terranova as
powers of attorney.

26. It is unclear who signed Kevin Kelly’s
Application for Reidencey, but it is believed and
therefore averred that it was signed by either Thomas
Terranova or Timothy Terranova.

27. According to Kevin Kelly’s Application for
Residency, he had previously been hospitalized on
6/26/23 because “he took too many days of medicine”.

28. It is believed and therefore averred that the reason
Kevin Kelly’s 6/26/23 hospitalization was far more
serious than a simple medication error.

29. A more serious recent hospitalization would have
been pertinent information to The Summit in deciding
whether to admit Kevin Kelly as a resident.

30. It is believed and therefore averred that Timothy
Terranova and Thomas Terranova consciously and
intentionally concealed information from The Summit

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regarding Kevin Kelly’s 6/26/23 hospitalization as well
as his overall aggressive behaviors at home in order to
facilitate admission to The Summit.

31. Prio to August 6, 2024, the Third-Party
Defendants were advised that Kevin Kelly’s behavior
was becoming more aggressive, and that his medication
regiment should be adjusted.

32. Notwithstanding these warnings, the Third-Party
Defendants failed to timely address the concerns
surrounding Keinv Kelly’s aggressive behavior.

33. As a result, Kevin Kelly continued on inadequate
mediation for his advancing mental deterioration.

34. As a result of Kevin Kelly’s poorly managed
medication regiment, he assaulted Shyan Hsia on
August 6, 2024 causing the injuries for which the
Plaintiff now seek damages.

35. Third-Party Defendants’ negligence caused the
assault Shyuan Hsia on August 6, 2024 and the injuries
for which the Plaintiff now seek damages, not
Defendant/Third Party Plaintiff.6

Timothy and Thomas have renewed their motion for judgment on the pleadings

and have opposed the motion to amend the third-party complaint on the grounds

that the proposed third-party complaint does not state a valid claim for relief.

Further, they argue that to allow the amendment would be futile because on a

motion to dismiss or a motion for judgment on the pleadings, the Court would

grant such a motion.

6
D.I. 157, Ex. A, at 5-7.

6
STANDARD OF REVIEW

Delaware Superior Court Civil Rule 12(c) allows any party to move for

judgment on the pleadings “after the pleadings are closed but within such time as

not to delay the trial.” 7 The standard of review for a motion for judgment on the

pleadings is “almost identical” to that of a motion to dismiss.8 Thus, “the Court

must accept all the complaint’s well-pled facts as true and construe all reasonable

inferences in favor of the non-moving party.”9 A court will grant a motion for

judgment on the pleadings “where there are no disputed facts and the moving party

is entitled to judgment as a matter of law.”10

It is well established that leave to amend under Superior Court Rule 15(a)

should “be freely given when justice so requires.”11 “A motion to amend must be

denied, however, if the amended complaint would not survive a motion to

7
Del. Super. Ct. Civ. R. 12(c).
8
Intermec IP Corp. v. TransCore, LP, 2021 WL 3620435, at *8 (Del. Super. Ct., Aug. 16, 2021) (quoting Silver
Lake Off. Plaza, LLC v. Lanard & Axilbund, Inc., 2014 WL 595378, at *6 (Del. Super. Ct., Jan. 17, 2014)); see
also DuPont De Nemours, Inc. v. Hemlock Semiconductor Operations LLC, 2024 WL 3161799, at *6 (Del. Super.
Ct., June 10, 2024) (“The standard for a motion for judgment on the pleadings is almost identical to the standard
for a motion to dismiss.”).
9
Silver Lake Off. Plaza, LLC v. Lanard & Axilbund, Inc., 2014 WL 595378, at *6 (Del. Super. Ct., Jan. 17, 2014)
(quoting Blanco v. AMVAC Chem. Corp., 2012 WL 3194412, at *6 (Del. Super. Ct., Aug. 8, 2012)) (internal
quotations omitted).
10
Tibco Software Inc. v. Mediamath, Inc., 2019 WL 3034781, at *2 (Del. Super. Ct., July 10, 2019) (citing O'Leary
v. Telecom Res. Serv., LLC, 2011 WL 379300, at *3 (Del. Super. Ct., Jan. 14, 2011)); see also Silver Lake, 2014
WL 595378, at *6.
11
Del. Super. Ct. Civ. R. 15(a); see also Cook v. J & V Trucking Co., Inc., 2020 WL 5846630, at *2 (Del. Super.
Ct., Sept. 30, 2020); see also Mullen v. Alarmguard of Delmarva, Inc., 625 A.2d 258, 263 (Del. 1993).

7
dismiss.”12 Where the amendment would be futile, this Court MUST deny a

plaintiff’s application to amend the complaint. 13

ANALYSIS

I. The Negligence Claim Fails for Lack of Duty Owed.
Both the original and the potential amended third-party complaint contain a

claim for negligence against Timothy and Thomas.14 Due to a lack of duty, the

negligence claim fails.

At oral arguments on February 20, 2026, Summit admitted that their initial

pleading did not establish duty on the part of the Terranovas simply for holding

power of attorney over Kelly. 15 Summit further conceded they were not aware of

any authority that would support the proposition that a power of attorney could be

held liable for the negligent acts of a principal16 and their subsequent filings did

nothing to fill these gaps. The Court heard further oral argument on March 20,

2026. At that oral argument Summit again conceded that there was no authority

that would support a duty owed by Tom and Tim towards either it or Hsia.

12
Wilmer v. Ocwen Fin. Corp., 2016 WL 3366060, at *2 (Del. Super. Ct., May 31, 2016) (citing E.I. du Pont de
Nemours & Co. v. Allstate Ins. Co., 2008 WL 555919, at *1 (Del. Super. Ct., Feb 29, 2008)).
13
Clark v. State Farm Mut. Auto. Ins. Co., 131 A.3d 806, 811 (Del. 2016) (citing Cornell Glasgow LLC v. La
Grange Props., LLC, 2012 WL 2106945, at *12 n.134 (Del. Super. Ct., June 6, 2012)); see also Doe 30's Mother
v. Bradley, 58 A.3d 429, 446 (Del. Super. Ct., 2012) (“A motion to amend will not be granted, however, if the
amendment would be futile.”).
14
D.I, 16, at 6; D.I. 157, Ex. A, at 7.
15
D.I. 163, Transcript of Oral Argument on MJP, at 22:16 - 23:3.
16
Id. at 23:4-9.

8
Turning to the statutory powers at issue, Delaware Code Title 16 Chapter

25 discusses the duties and potential liabilities of agents. Section 2517 states that

an agent has a fiduciary duty to the principal. Section 2523 goes on to declare that

an agent “is not subject to civil or criminal liability … for a health-care decision

made in a good faith effort to comply with §2517 of this title.” Negligence is not

mentioned anywhere in Title 16, Chapter 25 and §2524, entitled “Prohibited

conduct; damages,” does not mention any claims that a healthcare provider or

facility would have against an agent. Delaware Code Title 12, Chapter 49A is the

same in that it establishes a fiduciary duty and fails to mention either negligence

or third-party actions such as the one asserted in this case.

Finally, the Court’s own research has not found any caselaw to support the

idea that an agent acting under a power of attorney can be held liable for the

negligent acts of the principal. More specific to the present case, a Connecticut

court recognized “a power of attorney does not create a fiduciary duty between the

agent and a hospital rendering medical care to the principal.”17

To the extent Summit is asking the Court to expand the liability of the holder

of a power of attorney, whether it is a general power of attorney or a durable

medical power of attorney, I decline to do so. Such a decision would have a

chilling effect on the willingness of people who are asked to assume the role of

17
Pyshnyi v. Connecticut Hospice, Inc., 2014 WL 929346, at *3 (Conn. Super. Ct., Feb. 3, 2014).

9
power of attorney from taking on that task. We live in an era where people are

living longer and the need for people to serve as powers of attorney has become

greater. In the absence of an existing duty that applies to holders of a power of

attorney, this Court declines to create liability where it does not presently exist.

To the extent that public policy requires that the holder of a power of attorney be

responsible in a situation such as the parties find themselves in the present case,

that is a decision for the General Assembly, not this Court. Accordingly, the third-

party negligence claim against the Terranovas fails as a matter of law for a lack of

duty owed to Summit.

II. Fraud Claim Fails for Lack of Specificity and Detrimental Reliance.

Under Delaware law, a party must allege the following elements to state a

claim for fraud:

(1) a false representation made by the defendant; (2) the
defendant knew or believed the representation was false
or was recklessly indifferent to its truth; (3) the
defendant intended to induce the plaintiff to act or
refrain from acting; (4) the plaintiff acted or refrained
from acting in justifiable reliance on the representation;
and (5) damage resulted from such reliance. 18

18
Valley Joist BD Holdings, LLC v. EBSCO Indus., Inc., 269 A.3d 984, 988 (Del. 2021) (citing Prairie Capital III,
L.P. v. Double E Hldg. Corp., 132 A.3d 35, 49 (Del. Ch. 2015)); see also to Matrix Parent, Inc. v. Audax Mgmt.
Co., LLC, 319 A.3d 909, 932 (Del. Super. Ct., 2024).

10
“Superior Court Civil Rule 9(b) heightens the pleading standard for fraud

claims” 19 and requires that “the circumstances constituting fraud … shall be stated

with particularity.” 20 “The factual circumstances that must be stated with

particularity refer to the time, place, and contents of the false representations; the

facts misrepresented; the identity of the person(s) making the misrepresentation;

and what that person(s) gained from making the misrepresentation.” 21 “While

knowledge may be pled generally, when a plaintiff pleads a claim of fraud that

charges that the defendants knew something, it must allege sufficient facts from

which it can reasonably be inferred that this ‘something’ was knowable and that

the defendants were in a position to know it.” 22

In Valley Joist BD Holdings, LLC v. EBSCO Indus., Inc., the Delaware

Supreme Court overruled a lower court’s holding “that [Plaintiff] failed to

demonstrate facts sufficient to support a reasonable inference that [Defendant]

knew the representations were false at the time they were made.” 23 There, the

Valley Joist Court examined specific timelines and quotes received by the parties

to determine whether the allegations were specific enough to satisfy Rule 9(b).24

19
Matrix Parent, Inc. v. Audax Mgmt. Co., LLC, 319 A.3d 909, 933 (Del. Super. Ct., 2024) (citing Valley Joist BD
Hldgs., LLC v. EBSCO Indus., Inc., 269 A.3d 984, 988 (Del. 2021)).
20
Del. Super. Ct. Civ. R. 9; see also Valley Joist, 269 A.3d at 988.
21
Valley Joist, 269 A.3d at 988 (citing Browne v. Robb, 583 A.2d 949, 955 (Del. 1990)).
22
Abry Partners V, L.P. v. F & W Acquisition LLC, 891 A.2d 1032, 1050 (Del. Ch., 2006) (citing H–M Wexford
LLC v. Encorp, Inc., 832 A.2d 129, 145 (Del. Ch., 2003)); see also Matrix, 319 A.3d at 934 (citing Valley Joist,
269 A.3d at 988)).
23
Valley Joist, 269 A.3d at 989.
24
Id. at 988-90.

11
The Court ultimately found “allegations that the [Defendant] transition employee,

Brasher, told Juedemann that [Defendant] knew of the structural damage at

Building #14 before closing and received quotes before closing estimating that

repairs would cost $3 to 4 million were sufficient to allege knowledge.”25

When viewed in this light, the present allegations do not contain enough

specificity to satisfy the Rule 9(b) particularity requirements. Here, the allegations

of something “knowable” and the fact that “defendants were in a position to know

it” are summed up below:

22. Prior to Kevin Kelly’s admission to The Summit, it
is believed that he resided at home with family,
including Third-Party Defendants, Timothy Terranova
and Thomas Terranova.

23. Given that Third-Party Defendants, Timothy
Terranova and Thomas Terranova were appointed as
Kevin Kelly’s General Durable Powers of Attorney, and
Timothy Terranova was appointed as Kevin Kelly’s
Medical Power of Attorney, it is believed and averred
that these two Third Party Defendants were intimately
familiar with Kevin Kelly’s dementia-related behaviors
and aggression.

24. On August 15, 2023, an Application for Residency
was submitted to The Summit on behalf of Kevin Kelly.

25. The August 15, 2023 Application for Residency lists
Thomas Terranova and Timothy Terranova as powers of
attorney.

25
Id. at 990.

12
26. It is unclear who signed Kevin Kelly’s Application
for Residency, but it is believed and therefore averred
that it was signed by either Thomas Terranova or
Timothy Terranova.

27. According to Kevin Kelly’s Application for
Residency, he had previously been hospitalized on
6/26/23 because “he took too many days of medicine”.

28. It is believed and therefore averred that the reason
for Kevin Kelly’s 6/26/23 hospitalization was far more
serious than a simple medication error.

29. A more serious recent hospitalization would have
been pertinent information to The Summit in deciding
whether to admit Kevin Kelly as a resident.

30. It is believed and therefore averred that Timothy
Terranova and Thomas Terranova consciously and
intentionally concealed information from The Summit
regarding Kevin Kelly’s 6/26/23 hospitalization as well
as his overall aggressive behaviors at home in order to
facilitate admission to The Summit.26

This is simply not comparable to the allegations laid out in Valley Joist.

At oral arguments on March 20, 2026, Summit indicated that the basis of

its fraud claim came from a nurse who worked at the facility who would testify

that she had a “sense” that the Terranovas knew more than they were letting on

about Kelly’s aggressive tendencies. A “sense” or suspicion is not enough to meet

the particularity standard. In short, there is nothing but a bare allegation that the

reason for Kelly’s hospitalization may not have been due to his medication. It

26
D.I. 157, Ex. A, at 5-7.

13
cannot reasonably be inferred from these allegations that the Terranovas

intentionally hid anything from Summit, and the particularity requirement is not

met.

Even if the allegations met the particularity requirement, there is still an

issue with the reliance element. As pointed out above, the elements of a fraud

claim include “(4) the plaintiff acted or refrained from acting in justifiable reliance

on the representation; and (5) damage resulted from such reliance.” 27 In NACCO

Indus., Inc. v. Applica Inc., the Delaware Court of Chancery explained how the

reliance and damages elements require causation in a claim for fraud:

To be actionable, a false statement must cause harm. H–
M Wexford LLC, 832 A.2d at 144–45. The necessary
causal connection has two dimensions. First, the false
statement must be a factual cause of the harm in the
sense that the harm would not have occurred but for the
false statement. Second, the false statement must be a
legal cause of the harm, meaning that the false statement
must be a sufficiently significant cause of the harm to
impose liability. Restatement (Second) of Torts §548A,
cmt. a-b; see 37 Am.Jur.2d Fraud and Deceit §281
(discussing requirements of but-for and proximate
cause). The second limitation recognizes that the harm
flowing from an event in the but-for sense at some point
becomes too attenuated to give rise to liability.28

27
Valley Joist, 269 A.3d at 988 (citing Prairie Capital III, L.P. v. Double E Hldg. Corp., 132 A.3d 35, 49 (Del. Ch.
2015)); see also to Matrix Parent, Inc. v. Audax Mgmt. Co., LLC, 319 A.3d 909, 932 (Del. Super. Ct. 2024).
28
NACCO Indus., Inc. v. Applica Inc., 997 A.2d 1, 32 (Del. Ch. 2009) (emphasis added); see also Vichi v.
Koninklijke Philips Elecs., N.V., 85 A.3d 725, 815–16 (Del. Ch. 2014); see also Yatra Online, Inc. v. Ebix, Inc.,
2021 WL 3855514, at *14, n.135 (Del. Ch. Aug. 30, 2021), aff'd, 276 A.3d 476 (Del. 2022) (citing In re Wayport,
Inc. Litig., 76 A.3d 296, 325 (Del. Ch. 2013)) (“The fifth element—that ‘the plaintiff was injured by its reliance’—
injects a causation inquiry into the fraud cause of action.”).

14
Thus, Summit must prove that Timothy and Thomas’s alleged fraudulent

statement was both the but-for and proximate cause of the deadly assault.

The assault that gave rise to this litigation occurred when Kelly had been in

the Summit care facility for 323 days – that’s more than ten months.29 Summit

had ample time to observe Kelly’s demeanor, the progression of his dementia and

his aggressive tendencies. During these ten months, Summit could have

discovered if he was too aggressive to stay in their care facilities or changed their

treatment to keep him away from the other members. 30 Summit’s housing and

observation of Kelly for such a period of time after the alleged false statement

presents a clear break in the reliance / causation element. Accordingly, the fraud

claim also fails.

III. Motion to Amend is Futile and Motion for Judgment on the
Pleadings is Granted.
Based on the above, the motion to amend is futile. “A motion for leave to

amend a complaint is futile where the amended complaint would be subject

to dismissal under Rule 12(b)(6) for failure to state a claim.” 31 As discussed supra,

29
D.I. 164, at 1.
30
In fact, it was revealed at oral arguments on March 20, 2026, that there were at least two prior incidents of
aggression / assault involving Kelly while he was living at Summit that occurred before the deadly assault on the
plaintiff and that Summit was aware of these incidents. This is enough to break the reliance element.
31
Clark v. State Farm Mut. Auto. Ins. Co., 131 A.3d 806, 811–12 (Del. 2016) (quoting Price v. E.I. DuPont de
Nemours & Co., 26 A.3d 162, 166 (Del. 2011)) (internal quotations omitted); see also Doe 30's Mother v. Bradley,
58 A.3d 429, 446 (Del. Super., Ct. 2012) (citing Cartanza v. LeBeau, 2006 WL 4804647, at *2 (Del. Ch., Mar. 28,
2006)); see also Wilmer v. Ocwen Fin. Corp., 2016 WL 3366060, at *2 (Del. Super. Ct., May 31, 2016) (citing E.I.
du Pont de Nemours & Co. v. Allstate Ins. Co., 2008 WL 555919, at *1 (Del. Super. Ct., Feb 29, 2008)) (“A motion
to amend must be denied, however, if the amended complaint would not survive a motion to dismiss.”).

15
the negligence claim fails due to a lack of duty between the parties, and the fraud

claim fails for both a lack of specificity and reliance. Accordingly, the motion to

amend is futile and therefore DENIED. With no further outstanding claims

against Tim and Thomas Terranova, the Motion for Judgment on the Pleadings is

GRANTED in its entirety.

IT IS SO ORDERED.

/s/ Francis J. Jones, Jr.
Francis J. Jones, Jr., Judge

cc: File&ServeXpress

16