Opinion
C.A. No. 07C-08-045 RRC.
Submitted: July 25, 2008.
Decided: August 28, 2008.
On Defendant's Motion for Summary Judgment. GRANTED.
Lee C. Goldstein, Esquire, Lee C. Goldstein, Attorney at Law, Wilmington, Delaware, Attorney for Plaintiff.
Kenneth M. Doss, Esquire, Sarah C. Brannan, Esquire, Casarino Christman Shalk Ranson Doss, P.A., Wilmington, Delaware, Attorneys for Defendant.
Dear Counsel:
This case arises from a motor vehicle accident that occurred on August 2, 2005. Plaintiff, Norma Lee Cooling, filed her complaint on August 6, 2007. Defendant, Jerry D. Smith, has moved for summary judgment, contending that the case should be dismissed as barred by the statute of limitations, 10 Del. C. § 8119. Plaintiff responds by asserting that State Farm Mutual Insurance Company ("State Farm"), Defendant's insurer, did not give adequate notice to Plaintiff of the expiration date of the statute of limitations, as it was required to do pursuant to 18 Del. C. § 3914, the "Claimant Notice Statute."
This was originally filed as a Motion to Dismiss; however, at oral argument on the motion the parties agreed that it had been converted into a Motion for Summary Judgment because of the development of the factual record. Super Ct. Civ. R. 12(b).
The issue before the Court is whether State Farm's communications to Plaintiff and/or her counsel prior to the filing of the complaint constituted "prompt and timely written notice" of the date of the statute of limitations, as required by 18 Del. C. § 3914.
The Court concludes that Defendant's insurer, under the particular facts of this case, complied with the statute. Plaintiff's complaint is DISMISSED.
I. FACTUAL AND PROCEDURAL BACKGROUND
The motor vehicle accident took place on August 2, 2005 in Townsend, Delaware. Prior to the expiration of the statute of limitations period, State Farm sent several letters and made several telephone calls to Lee C. Goldstein, Plaintiff's current counsel. These letters were dated: May 1, 2006 (requesting that Mr. Goldstein contact State Farm regarding Ms. Cooling's treatment); July 3, 2006 (informing Mr. Goldstein of the statute of limitations); July 6, 2006 (requesting that Mr. Goldstein provide a status report of Ms. Cooling's treatment, as well as copies of medical reports and bills); October 6, 2006 (again requesting medical reports and bills); and April 16, 2007 (requesting a letter confirming his representation from Mr. Goldstein, and informing him that if he did not respond within 45 days, then State Farm would contact Ms. Cooling directly.) Mr. Goldstein acknowledges his receipt of these letters. He responded to none of the letters and returned none of the telephone calls.
Def. Renewed Mot. to Dismiss, at Ex. E.
The July 3, 2006 letter informed Mr. Goldstein of the exact date of the expiration of the statute of limitations period for Plaintiff's claim. The letter provides:
Def. Renewed Mot. to Dismiss, at Ex. C.
Dear Mr. Goldstein:
This is to advise you that I am now handling the bodily injury portion of this claim. Please send all future correspondence to my attention at the above address.
The state of limitations will expire on this claim on 08-02-07. . . .
On June 7, 2007, State Farm, not having heard from Mr. Goldstein, wrote directly to Plaintiff and informed her that the statute of limitations period for filing her complaint was two years from the date of the accident. That letter stated:
Id. at Ex. D.
Dear Ms. Cooling:
We are required by Delaware law to inform you that the Statute of Limitations for filing a lawsuit in conjunction in with this accident is two years from the date of the accident. . . .
The Complaint was initially filed on August 3, 2007 (the day after the statute of limitations expired), but was rejected on August 6, 2007, having not been signed as required by Court rules. The Complaint was subsequently corrected and filed on August 6, 2007.
II. CONTENTIONS OF THE PARTIES
Defendant contends that it is entitled to summary judgment because the case is barred by the applicable statute of limitations. Defendant asserts that his insurer, State Farm, complied with the notice requirement of 18 Del. C. § 3914 in its July 3, 2006 letter to Mr. Goldstein and its June 7, 2007 letter to Plaintiff herself, especially when these two letters are viewed in the context of the other correspondence.
In response, Plaintiff's counsel acknowledges that Plaintiff's complaint was filed outside of the two year statute of limitations period, but asserts that State Farm failed to provide "prompt and timely written notice" of the claim, thus excusing her noncompliance. Plaintiff's counsel "does not deny that a relationship existed between [him] and Plaintiff at the time the letters" were written by State Farm, but Plaintiff's counsel asserts "that that relationship did not rise to a lawyer-client relationship in connection with the prosecution of the underlying liability case. . ." Instead, he asserts that he "met with Plaintiff only in an advisory and/or investigatory capacity." Plaintiff therefore maintains the July 3, 2006 letter was not legally effective. Furthermore, Plaintiff argues that the June 7, 2007 letter, filed less than two months before the expiration of the statute of limitations, did not constitute "prompt and timely" notice. Plaintiff additionally contends that there are genuine issues of material fact as to whether Plaintiff had adequate time after the June 7, 2007 letter to prepare her complaint, to retain new counsel, to retain an attorney or to proceed pro se, and whether retained counsel had time to investigate the case, among other claimed disputed material facts at issue.
Pl. Resp. to Def. Renewed Mot. to Dismiss, at 9.
Id. at 2.
III. STANDARD OF REVIEW
IV. DISCUSSION
Super. Ct. Civ. R. 56(c).
Mason v. United Servs. Auto. Ass'n, 697 A.2d 388, 392 (Del. 1997) ("a party moving for summary judgment concedes the absence of a factual issue and the truth of the nonmoving party's allegations only for purposes of its own motion, and does not waive its right to assert that there are disputed facts that preclude summary judgment in favor of the other party").
10 Del. C. § 8119 provides that "[n]o action for the recovery of damages upon a claim for alleged personal injuries shall be brought after the expiration of 2 years from the date upon which it is claimed that such alleged injuries were sustained . . ."
Eighteen Del. C. § 3914 provides:
An insurer shall be required during the pendency of any claim received pursuant to a casualty insurance policy to give prompt and timely written notice to claimant informing claimant of the applicable state statute of limitations regarding action for his/her damages.
What constitutes "prompt and timely" notice is not defined by the statute, and Delaware courts have not identified a bright-line rule for making such a determination; thus, a court is left to determine whether notice is "prompt and timely" in a given case. "Although the statute is intended to benefit claimants, it must be fairly applied to those who are subject to its notice requirement."
The Delaware Supreme Court has held that notice eight months prior to the expiration of the limitations period was "prompt and timely" for the purposes of 10 Del. C. § 8119. Vance v. Irwin, 619 A.2d 1163 (Del. 1993).
Id. at 1165.
Mr. Goldstein asserts that Plaintiff was not his client at the time of the July 3, 2006 letter, so that the July 3, 2006 letter to him from State Farm was legally ineffective. Plaintiff seeks to distance this case from the case of Vance v. Irwin, where the Delaware Supreme Court held that notice eight months prior to the expiration of statute of limitations was "prompt and timely," noting that "there was no question that an attorney-client relationship had been established by virtue of the attorney's written letter to the insurer . . . [indicating] that he had been retained by the plaintiff." Nonetheless, Mr. Goldstein is Plaintiff's current counsel, and of course was Plaintiff's counsel at the time the complaint was filed, and Mr. Goldstein acknowledges that "a relationship existed" between him and Plaintiff when State Farm sent numerous letters and made several telephone calls to Mr. Goldstein, which communications went unanswered.
Pl. Resp. to Def. Renewed Mot. to Dismiss, at 3 (citing Vance, 619 A.2d at 1165).
Thus, taking into account all of the facts of the case, the Court finds that State Farm's June 7, 2007 letter to Plaintiff herself constituted "prompt and timely written notice" under the particular facts of this case, thus fulfilling the requirements of 18 Del. C. § 3914. Holding otherwise would be unfair, as State Farm made every reasonable effort to discharge its statutory duty, and, indeed, did discharge its duty in its June 7, 2007 letter, if not also in its July 3, 2006 letter. The Court finds no basis for Plaintiff's contention that there are genuine issues of material fact that Plaintiff is entitled to litigate as to whether the June 7, 2007 gave Plaintiff adequate time to prepare to file her complaint.
Brzoska v. Olson, 668 A.2d 401, 404 (Del.Super.Ct. 1966) (holding that there must be a genuine issue of material fact). See also, Am Jur.2d Summary Judgment § 27, at 752 (1974) (noting that it is not enough to have a factual dispute; the issue must be one that the party is entitled to litigate).
Thus, this action is barred by the statute of limitations, and Defendant is entitled to judgment as a matter of law.
V. CONCLUSION
For the foregoing reasons, Defendant's Motion for Summary Judgment is GRANTED.