Summary
explaining how "the moving party bears the burden of establishing the non-existence of material issues of fact"
Summary of this case from Nationstar Mortg., LLC v. SearsOpinion
C.A. No. 05C-07-016-ESB.
Submitted: December 14, 2006.
May 2, 2007.
William D. Fletcher, Jr., Esquire, Schmittinger Rodriguez, P.A., Dover, DE.
Arthur D. Kuhl, Esquire, Reger, Rizzo, Kavulich Darnall, Wilmington, DE.
Letter Opinion
Dear Counsel:
This is my decision on the motions for summary judgment filed by Plaintiff Peter Gray ("Gray") and Defendant Allstate Insurance Company ("Allstate") in this dispute over Gray's claim for Personal Injury Protection ("PIP") benefits from Allstate.
STATEMENT OF FACTS
This dispute arises out of two motor vehicle crashes at the intersection of Route 13 and Lockmeath Way near Camden, Delaware, on October 31, 2004. It easier to understand the crashes by locating the vehicles just before the first crash. David Gissel ("Gissel") was the driver of a vehicle stopped at a stop sign in the left-hand lane of Route 13 Southbound. Gray was a passenger in a vehicle being driven by his wife that was stopped directly behind Gissel. Brandon Rossiter ("Rossiter") was driving a vehicle in the right-hand lane of Route 13 Northbound. Jay Scott ("Scott") was driving a motorcycle at a high rate of speed and weaving in and out of traffic on Route 13 Northbound. He was initially behind Rossiter. Scott later passed Rossiter sometime before arriving at the intersection of Route 13 and Lockmeath Way.
Gissel turned left onto Lockmeath Way and was crossing Route 13 Northbound when his vehicle was struck on the right side by Scott (the "First Crash"). Scott was thrown from his motorcycle. He landed in the left-hand lane of Route 13 Northbound. Gissel's vehicle spun around and came to rest in the right-hand shoulder of Lockmeath Way. Gray and the vehicle that he was riding in were not involved in the First Crash. After the First Crash, Gray got out of his vehicle and walked across the grass median separating the Northbound and Southbound lanes of Route 13 to check on Scott. Gray's wife pulled their vehicle into the left-hand lane of Route 13 Northbound to keep traffic from running over Scott. While Gray was standing near Scott and making an emergency call on his cell phone, Rossiter drove through the intersection of Route 13 and Lockmeath Way, swerved to miss Scott and instead ran into Gray (the "Second Crash"). Gray was seriously injured in the Second Crash.
Gissel's vehicle was insured by Allstate. Rossiter's vehicle was insured by Geico. Gray's vehicle was insured by State Farm. Gray recovered $15,000 from Rossiter's Geico PIP policy and $35,000 from his State Farm PIP policy. Gray has unpaid medical expenses and lost wages of $65,856.21. He filed a lawsuit against Allstate alleging that he is entitled to PIP Benefits from Allstate pursuant to 21 Del.C. § 2118(a)(2)(c). Allstate denies that Gray is entitled to such benefits. Gray and Allstate have filed cross-motions for summary judgment.
STANDARD OF REVIEW
Summary judgmen t may be granted only when no material issues of fact exist, and the moving party bears the burden of establishing the non-existence of material issues of fact. Once the moving party meets its burden, then 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, then 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 ex istence of an essential element of his case, then summary judgment must be granted. If, however, material issues of fact exist or if the Court determines that it does not have sufficient facts to enable it to apply the law to the facts before it, then summary judgment is inappropriate.
Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
Id. at 681.
Super. Ct. Civ. R. 56(3); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
Burkhart v. Davies, 602 A.2d 56, 59 (Del. 1991), cert. den., 112 S.Ct. 1946 (1992); Celotex Corp., 477 U.S. 317 (1986).
Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962).
DISCUSSION
Delaware's PIP statute, 21 Del. C. § 2118, provides, in pertinent part, that:
(a) No owner of a motor vehicle required to be registered in this State . . . shall operate or authorize any other person to operate such vehicle unless the owner has insurance on such motor vehicle providing the following minimum insurance coverage:
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(2) a. Compensation to injured persons for reasonable and necessary expenses incurred within 2 years from the date of the accident for:
1. Medical, hospital, dental, surgical, medicine, x-ray, ambulance, prosthetic services, professional nursing and funeral services.
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c. The coverage required by this paragraph shall be applicable to each person occupying such motor vehicle and to any other person injured in an accident involving such motor vehicle, other than an occupant of another motor vehicle. (Emphasis added).
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e. The coverage rquired in this paragraph shall apply to pedestrians only if they are injured by an accident with any motor vehicle within the State except as to named insureds or members of their households to the extent they must be covered pursuant to subparagraph d. of this paragraph. (Emphasis added).
21 Del.C. § 2118(a)(2)(e) arguably narrows the coverage for pedestrians by stating that the coverage for pedestrians shall apply to "pedestrians only if they are injured by an accident with any motor vehicle within the State. . . ." Frankly, I see little, if any, meaningful difference between "involving" or "with" in the context of this case. Gray would be entitled to PIP benefits under Gissel's Allstate insurance policy if (1) he was an occupant of Gissel's motor vehicle, or (2) he was injured in an accident with Gissel's motor vehicle, other than as an occupant of another motor vehicle.
Gray argues that his case fits exactly within the definition of "an accident involving such motor vehicle" as defined by the Delaware Courts, stating that his injuries were directly and proximately caused by Gissel's actions. Gray reasons that but for the First Crash, he would not have gotten out of his vehicle, walked over to check on Scott, and then been struck by Rossiter's vehicle. Allstate argues that Gray was not injured by an accident with Gissel's vehicle.
To constitute an "accident involving such motor vehicle," a causal connection is required between the use of the vehicle and the injury. The injury must originate from, be incidental to, or have some connection with the use of a motor vehicle. This Court has held that there is no burden on a plaintiff to prove that the injury was proximately caused by the use of the automobile. The plaintiff need onl y demons trate a caus al conn ection bet ween the use of t he v ehi cle and the inj ury. The injury must have occurred by virtue of the inherent nature of using the motor vehicle.
Wisnewski v. State Farm Mutual Automobile Insurance Company, 2005 WL 697945, at *1 (Del.Super.).
Id. See Gray v. Allstate Insurance Co., 668 A.2d 778, 780 (Del.Super. 1995).
Wisnewski, 2005 WL at *1.
Id.
Id.; Dickerson v. Continental Casualty Co., Del. Super., C.A. No. 82C-MR-8, Poppiti, J. (Sept. 1, 1983).
Under this test, in Gray v. Allstate Insurance Co., a bicycle rider who was hurt when he fell off of his bike after swerving to avoid a motor vehicle recovered PIP benefits. Similarly, in Wisnewski v. State Farm Mutual Auto Ins. Co., the occupant of a home recovered PIP benefits for injuries caused by a motor vehicle that hit her house even though the motor vehicle never actually hit her. In Wisnewski, the Court, when describing the accident, stated:
663 A.2d 778 (Del.Super. 1995).
2005 WL 967945 (Del.Super.).
"In this case, it is undisputed that the vehicle was traveling on a roadway, and as part of a continuous course of events, ran off the roadway and into the structure. Therefore, the Court finds that the accident allegedly causing injury to Plaintiff, involved a motor vehicle, occurred by virtue of the inherent nature of the use of the vehicle, and was causally connected to the use of the vehicle." (Emphasis added).
Id. at *2.
The ensuing crash injured the plaintiff even though the vehicle never actually struck her. However, she did sustain psychological injuries caused by the noise and shaking associated with the accident. In each of these cases there was only one motor vehicle, one crash, and one continuous course of events that caused the plaintiff's injuries.
This case is different. There were different crashes involving different vehicles that caused injuries to different people. Gissel and Scott were the only people involved in the First Crash. Scott's injuries were caused by his accident with Gissel's vehicle. Gray was not involved in any way whatsoever in the First Crash. Gray's vehicle was not struck by Gissel's vehicle. Gray was not injured by an accident with Gissel's vehicle. Gray was merely a witness to the First Crash. Moreover, he was the occupant of "another motor vehicle" at the time of the First Crash. As such, he is excluded by the plain language of § 2118(a)(2)(c). Thus, Gray can only recover from Allstate if he was a "pedestrian injured by an accident" with Gissel's vehicle.
Gray, as a pedestrian, and Rossiter were the only people involved in the Second Crash. Gray was struck by Rossiter's vehicle. Gray's injuries were caused by an accident with Rossiter's vehicle. Gray was, for the purposes of the PIP statute, a pedestrian injured by an accident with Rossiter's vehicle, not Gissel's vehicle. Moreover, unlike in Wisnewski, there was no continuous course of events beginning with Gissel's vehicle and ending with Gray's injuries. After the First Crash, Gray was sitting unharmed in his vehicle. It was only after Gray decided to get out of his vehicle and check on Scott that he was involved in and injured by an accident with a vehicle. However, that was Rossiter's vehicle, not Gissel's vehicle. The First Crash did not force or cause Gray to get out of his vehicle and walk over to check on Scott. Instead, it was Gray's unilateral decision to check on Scott that placed him in harm's way, not Gissel's crash with Scott. There is simply no causal connection between Gray's injuries and Gissel's vehicle. While it is admirable that Gray got out of his vehicle to help an injured motorist, he is simply not entitled to PIP benefits from Allstate.
Gray also argues that he has a claim under the Rescue Doctrine. The Rescue Doctrine is a tort-based action that is inapplicable to a PIP claim, which is a no-fault action. See Schwartzman v. Delaware Coach Company, 264 A.2d 519 (Del.Super. 1970).
CONCLUSION
Gray's motion for partial summary judgment is denied and Allstate's motion for summary judgment is granted.IT IS SO ORDERED.