Opinion
C.A. No. 05C-05-042 MMJ.
Submitted: April 4, 2008.
Decided: July 28, 2008.
Upon Defendant's Motion for Summary Judgment. DENIED.
Joseph J. Rhoades, Esquire, A. Dale Bowers, Esquire, Wilmington, DE, Attorneys for Plaintiff.
Michael I. Silverman, Esquire, Silverman, McDonald Friedman, Wilmington, DE, Attorney for Defendant.
OPINION
On May 14, 2003, Felicia C. Alston was injured by a motor vehicle during a carjacking. Alston, who did not own the vehicle, sought coverage under Progressive Northern Insurance Company's uninsured motorist plan. Progressive denied coverage. On May 4, 2005, Alston filed suit. This is the decision on Progressive's Motion for Summary Judgment. The insurance policy interpretation issues are of first impression in Delaware.
STATEMENT OF FACTS
On May 14, 2003, Alston was operating a motor vehicle with passenger Robin Garvin. Robin Garvin's mother, Joanne Garvin, owned the motor vehicle. The vehicle was insured by Progressive and had uninsured motorist coverage.
Garvin exited the vehicle. As Alston was collecting her belongings, an unknown man came up behind her and threw her to the ground. The assailant got into the vehicle and put it in reverse. Alston's leg was caught in between the door of the vehicle and the floor panel. Alston was dragged and sustained injuries.
Alston now is deceased. Her death is unrelated to the carjacking. Gloria A. Bryant is the personal representative of Alston's estate.
SUMMARY JUDGMENT STANDARD
This Court will grant summary judgment only when no material issues of fact exist. The moving party bears the burden of establishing the non-existence of material issues of fact. Once the moving party meets its burden, the burden shifts to the non-moving party to establish the existence of material issues of fact. Where the moving party produces an affidavit or other evidence sufficient under Superior Court Civil Rule 56 in support of its motion and the burden shifts, the non-moving party may not rest on its own pleadings, but must provide evidence showing a genuine issue of material fact for trial. If, after discovery, the non-moving party cannot make a sufficient showing of the existence of an essential element of the case, summary judgment must be granted.A court deciding a summary judgment motion must identify disputed factual issues whose resolution is necessary to decide the case, but the court must not decide those issues. The court must evaluate the facts in the light most favorable to the non-moving party. Summary judgment will not be granted under circumstances where the record reasonably indicates that a material fact is in dispute or if it seems desirable to inquire more thoroughly into the facts in order to clarify the application of law to the circumstances.
Merrill v. Crothall-American, Inc., 606 A.2d 96, 99 (Del. 1992).
Id.
Ebersole v. Lowengrub, 180 A.2d 467, 468-69 (Del. 1962).
ANALYSIS
Progressive denied uninsured motorist coverage to Alston, claiming that the uninsured driver was operating a vehicle owned by the policyholder. Progressive contends that the uninsured motorist coverage was not intended to cover persons injured by an insured vehicle.Progressive also argues that Alston is not eligible for uninsured motorist coverage, as defined under the policy, because: (a) Alston is a relative of the owner; (b) Alston's injury did not arise out of the ownership, maintenance or use of the vehicle; and (c) Alston was not occupying the car at the time of injury.
Although Alston referred to Joanne Garvin as her aunt, the parties agreed at oral argument that Alston and Garvin are not actually related. Therefore, argument (a) is moot.
"Uninsured Motor Vehicle"
The policy defines "uninsured motor vehicle" as a motor vehicle "to which no bodily injury liability bond or policy applies at the time of the accident." The carjacker was operating the Garvin vehicle without permission. Progressive denied liability coverage for the carjacker's conduct, which resulted in Alston's injury. Because Progressive denied liability coverage, the Court finds that the Garvin vehicle was an "uninsured motor vehicle" as defined in the policy. Additionally, the car is an uninsured vehicle pursuant to 18 Del. C. § 3902(a) and (b)."Arising out of the . . . use of an insured motor vehicle"
The policy provides uninsured coverage for bodily injuries "arising out of the ownership, maintenance, or use of an uninsured motor vehicle."
In Nationwide General Ins. Co. v. Royal, the Court outlined a three-part test to determine whether an injury arises "out of the operation, use or maintenance of a motor vehicle:"
(1) whether the vehicle was an "active accessory" in causing the injury — i.e., "something less than proximate cause in the tort sense and something more than the vehicle being the mere situs of the injury;"
(2) whether there was an act of independent significance that broke the causal link between the use of the vehicle and the injuries inflicted; and
(3) whether the vehicle was used for transportation purposes.
700 A.2d 130, 132 (Del.Super. 1997).
Id. (citing Continental Ins. Co. v. Klug, 415 N.W.2d 876, 878 (Minn. 1987)).
The purpose of the three-prong test is to provide a flexible framework that takes into the account the circumstances of the injury and promotes the protection of innocent persons from the negligence of unknown impecunious tortfeasors.
Nationwide, 700 A.2d at 132.
In this case, the use of the vehicle by the carjacker directly caused Alston's injuries. The assailant was driving the vehicle when Alston was injured. In other words, the vehicle was an "active accessory" to the injury sustained.
Because the car was being driven by the carjacker at the time of injury, the vehicle was being used for transportation purposes.
The Court further finds that the carjacking was an act of independent significance. Thus, the question arises — whether the carjacking broke the causal link between the use of the car and the injury. In State Farm Mutual Insurance Co. v. Buckingham, the Delaware Supreme Court found no causal link when a motorist left his car to assault another driver. The Court noted that
acts of leaving the vehicle and inflicting a battery were viewed as events of independent significance which broke the causal link between the "use" of the vehicle and the injuries inflicted. And this was so in spite of the fact that in each instance the subject auto was used to transport the tortfeasor(s) to the scene of the accident
919 A.2d 1111, 1112 (Del. 2007).
Id. at 1116.
For an injury to arise out of the use of an automobile there must be a causal relationship between use of the vehicle for transportation purposes and the injury. The Court finds the carjacking, although an act of independent significance, did not break the causal link between the injury and the vehicle. The injury arose out of the carjacker's act of driving the vehicle.
Meric v. Mid-Century Ins. Co., 343 N.W.2d 688, 690 (Minn.App. 1984.).
Occupying a Covered Vehicle
For purposes of uninsured motorist coverage, the policy defines an "insured person" as "any person occupying a covered vehicle." Alston contends that she was occupying the vehicle at the time of the injury and is therefore an insured person.
It is a settled principle that insurance contracts are liberally construed in favor of finding uninsured/underinsured coverage. Delaware Courts consistently have liberally interpreted the term "occupant." The policy defines "occupying" as "in, on entering, or exiting the vehicle." Under a liberal interpretation, persons are occupants if: (1) they are "within a reasonable geographic perimeter of the vehicle;" or (2) "engaged in a task related to the operation of the vehicle."
See Frank v. Horizon, 553 A.2d 1199, 1202 (Del. 1989); 18 Del. C. § 3902.
National Union Fire Ins. Co. of Pittsburgh v. Fisher, 692 A.2d 892, 896 (Del. 1997).
Id. (emphasis in original); Selective Ins. Co. v. Lyons and Allstate Ins. Co., 681 A.2d 1021, 1025 (Del. 1996).
Alston clearly meets the definition of occupant. Her foot was still inside the vehicle when the injury occurred. Therefore, Alston is an "insured person" under the uninsured motorist policy.
Section 3902 and Public Policy
Public policy considerations outlined in 18 Del. C. § 3902 compel uninsured motorist coverage in this case. The purpose of section 3902 is to protect innocent persons "from the negligence of unknown or impecunious tortfeasors." The Delaware Supreme Court has rejected efforts by insurance companies to contract "around" coverage, because doing so "weakens the statutory objective of encouraging full protection against uninsured and financially irresponsible motorists."
Frank v. Horizon, 553 A.2d 1199, 1202 (Del. 1989); 18 Del. C. § 3902.
Id.
Progressive's desired interpretation of its policy would permit it to declare the Garvin vehicle "uninsured" and deny coverage, based on the carjacker's unauthorized and unlawful use of the vehicle. Simultaneously, Progressive urges the Court to find the vehicle "insured" in order to deny Alston uninsured motorist coverage. Such a result is unfair, against public policy and contrary to the clear intention underlying section 3902.
CONCLUSION
The Court finds that the vehicle was uninsured, plaintiff's injuries arose out of the use of the uninsured vehicle, plaintiff was occupying the uninsured vehicle at the time of injury, and the carjacker's criminal conduct did not break the causal link between the use of the vehicle and injury.
THEREFORE, Progressive's Motion for Summary Judgment is hereby DENIED.
IT IS SO ORDERED.