Opinion
C.A. No. 06C-11-040-CLS.
Submitted: May 11, 2007.
Decided: August 20, 2007.
Upon Consideration of Defendants' Motion to Dismiss, GRANTED.
Darrell J. Baker, Esquire, Aber, Goldlust, Baker Over, Wilmington, Delaware, Attorney for Plaintiffs.
Brian E. Lutness, Esquire, Silverman, McDonald Friedman, Wilmington, Delaware, Attorney for Defendant Progressive Northern Insurance Company.
James F. Kipp, Esquire, Elzufon, Austin, Reardon, Tarlov Mondell, P.A., Bear, Delaware, Attorney for Defendant Barba and Reynolds Insurance Agency
ARBITRATION
JURY TRIAL OF TWELVE DEMANDED INTRODUCTION
This Motion to Dismiss arises from an insurance claim by Plaintiffs Chad and Catherine Painter ("Plaintiffs") against Defendant Progressive Northern Insurance Company ("Defendant Progressive") and Defendant Reynolds Insurance Agency ("Defendant Reynolds"). Specifically, Plaintiffs seek underinsured motorist benefits pursuant to their insurance policy with Defendant Progressive. For the reasons set forth below, Defendants' Motion to Dismiss for Failure to State a Claim is, hereby, GRANTED.
FACTS
Plaintiff Chad Painter ("Plaintiff") alleges that he was injured in a car accident that occurred on March 30, 2003 at approximately 1:53 a.m. The night of this accident, Plaintiff was driving southbound on Delaware Route 9 in Wilmington, Delaware. The tortfeasor here, Joshua Watson ("Watson") attempted to make a u-turn on Route 2 and collided with the car driven by Plaintiff.
As a result of this accident, Plaintiff alleges that he "has suffered and will continue to suffer severe painful, permanent and disabling injuries." Plaintiff also claims medical expenses and loss of income as well as loss of future earning capacity.
Pl. Compl., ¶ 8.
Following the accident, Plaintiffs brought a claim against the tortfeasor Watson who has a liability insurance policy with a limit of $25,000 per person and $50,000 per accident. Plaintiffs received the extent of these policy limits.
Now, Plaintiffs seek underinsurance benefits from Progressive. Plaintiffs filed the underlying Complaint on November 3, 2006 against Defendant Progressive, their insurance company, and Defendant Reynolds, the insurance agency that sold them an auto policy with Progressive. At the time of Plaintiff's accident, Defendant Progressive provided Plaintiffs with an insurance policy for underinsured motorist benefits
In the Complaint, Plaintiffs claim that their damages exceed the $25,000 tendered by Watson's insurance carrier. Plaintiffs, therefore, ask that Defendant Progressive reimburse them for damages exceeding the $25,000 already tendered. However, Plaintiffs admit that they do not know the exact amount owed to them via the Progressive policy as "Barba and Reynolds did not properly inform/advise the Painters of the cost, and coverages afforded by, the um/uim insurance."
Pl. Compl., ¶ 14.
Progressive subsequently filed this Motion to Dismiss for Failure to State a Claim, in which they assert that a primary analysis leads to the conclusion that Plaintiffs are not underinsured. According to Progressive, "(T)he initial policy of insurance for determining if there is UIM coverage is the vehicle in which Plaintiff is in at the time of the accident." Progressive, therefore, refers to its insurance policy which defines an underinsured motor vehicle as, "A land motor vehicle of any type to which a bodily injury liability bond or policy applies at the time of the accident, but the sum of all applicable limits of liability for bodily injury is less than the coverage limit for Under-insured Motorist Coverage shown on the Declaration Page." Because Progressive's policy only provided underinsured motorist benefits with limits of $15,000 per person and $30,000 per accident, Defendant Progressive reasons that Plaintiff "does not qualify (for coverage) as the vehicle's UIM limits are the same as the tortfeasor's policy."
Def. Progressive Mot. to Dismiss, ¶ 8 (citing St. Paul Fire Marine v. Metro. Property Cas. Ins. Co., 794 A.2d 601 (Del.Super. 2002)).
Def. Progressive Mot. to Dismiss, ¶ 7.
Def. Progressive Mot. to Dismiss, ¶ 8.
In response, Plaintiff argues that they must conduct at least some discovery before "Progressive's motion is even being `ripe' for discussion, or application to the Court." Plaintiff contends that they have not had the chance to conduct discovery because service was not perfected. As service was not perfected, Defendant Progressive and Defendant Reynolds have not responded to Plaintiffs request for all of the necessary documentation here. Moreover, Plaintiffs state that they cannot subpoena these records due to the nature of arbitration. Plaintiffs argue that they need this documentation "in order to determine whether there potentially exists a reformation claim."
Pl. Resp. to Def. Progressive Mot. to Dismiss, ¶ 3.
Pl. Supp. Resp. to Def. Progressive Mot. to Dismiss, ¶ 5 (citing Hamm v. Aetna, 656 A.2d 712 (Del. 1995)).
Finally, Defendant Reynolds has also filed a separate Motion to Dismiss this matter. Defendant Reynolds bases its Motion on one contention. It argues that the Court should dismiss Plaintiffs' claim because they failed to serve the Summons and Complaint within the 120 day time period required by Superior Court Civil Rule 4(j). According to Reynolds, this time period expired on March 3, 2007, and Plaintiffs failed to request an extension of time.
Plaintiffs contest Defendant Reynold's Motion by stating that administrative problems in the Prothonotary's Office caused the failure to serve the Summons and Complaint here. Plaintiffs contend that their counsel contacted the Prothonotary's Office several times in order to ensure service. By the time of the May 15, 2007 hearing, however, the Prothonotary and Sheriff's Office had still not cashed checks. As such, Plaintiffs request a Motion to Extend Time.
STANDARD OF REVIEW
In assessing the merits of a motion to dismiss for failure to state a claim pursuant to Superior Court Civil Rule 12(b)(6), all well-pleaded facts in the complaint are assumed to be true. "A complaint[,] attacked by a motion to dismiss for failure to state a claim[,] will not be dismissed unless it is clearly without merit, which may be either a matter of law or of fact." Likewise, a complaint will not be dismissed for failure to state a claim unless "[i]t appears to a certainty that, under no set of facts which could be proved to support the claim asserted, would the plaintiff be entitled to relief." That is to say, the test for sufficiency is a broad one. It is measured by whether a plaintiff may recover under any reasonably conceivable set of circumstances susceptible to proof under the complaint. If the plaintiff may recover, the motion must be denied.
Laventhol, Krekstein, Horwath Horwath v. Tuckman, 372 A.2d 168, 169 (Del. 1976).
Diamond State Telephone Co. v. University of Del., 269 A.2d 52, 58 (Del. 1970).
Id.
Spence v. Funk, 396 A.2d 967, 968 (Del. 1978); Klein v. Sunbeam Corp., 94 A.2d 385, 391 (Del. 1952).
Similarly, when a defendant who attacks a complaint for failure to state a claim upon which relief could be granted, and who moves to dismiss the complaint, offers affidavits, depositions, or other supporting documentation, in addition to pleadings, the motion will be considered a motion for summary judgment. Here, Defendant Progressive has relied on its insurance policy in addition to the pleadings. Therefore, the motion will be considered a motion for summary judgment.
Venables v. Smith, 2003 WL 1903779 at *2 (Del.Super.); Shultz v. Delaware Trust Co., 360 A.2d 576, 578 (Del.Super.Ct. 1976).
The Court's function when considering a motion for summary judgment is to examine the record to determine whether genuine issues of fact exist. Summary judgment will be granted if, after viewing the record in a light most favorable to the non-moving party, no genuine issues of material fact exist and the party is entitled to judgment as a matter of law. If, however, the record indicates there is a material fact in dispute, or if judgment as a matter of law is not appropriate, then summary judgment will not be granted.
Oliver B. Cannon Sons, Inc. v. Dorr-Oliver, Inc., 312 A.2d 322, 325 (Del.Super.Ct. 1973). See also Super. Ct. Civ. R. 56.
Id.
Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962).
DISCUSSION
First, the Court will address the issue of service. Pursuant to Rule 4(j):
If a service of the summons and complaints not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court's own initiative.
This rule, therefore, permits a Court to dismiss an action without prejudice if a party is responsible for the delay in service. Because the Court finds that the delay here was caused by excusable neglect, as it was the Court's error, it cannot hold Plaintiffs responsible.
Hence, the Court will next consider Defendant Progressive's Motion to Dismiss for Failure to State a Claim. The Delaware uninsured/underinsured motorist (UIM) statute governs the insurance claim at issue. Pursuant to 18 Del. C. § 3902:
b) Every insurer shall offer to the insured the option to purchase additional coverage for personal injury or death up to a limit of $ 100,000 per person and $ 300,000 per accident. . . . Such additional insurance shall include underinsured bodily injury liability coverage.
(1) Acceptance of such additional coverage shall operate to amend the policy's uninsured coverage to pay for bodily injury damage that the insured . . . (is) legally entitled to recover from the driver of an underinsured motor vehicle.
(2) An underinsured motor vehicle is one for which there may be bodily injury liability coverage in effect, but the limits of bodily injury liability coverage under all bonds and insurance policies applicable at the time of the accident total less than the limits provided by the uninsured motorist coverage. . . .
(3) The insurer shall not be obligated to make any payment under this coverage until after the limits of liability under all bodily injury bonds and insurance policies available to the insured at the time of the accident have been exhausted by payment of settlements or judgments. . . .
As recognized by the Delaware Supreme Court in Dunlap v. State Farm Fire Cas. Co, the purpose of this statute is to "`fully compensate innocent drivers.'" Delaware law, therefore, interprets 18 Del. C. § 3902 in a way that ensures complete compensation of the victim, but also limits recovery where mandated by the statute.
878 A.2d 434, 439 (Del. 2005) (citing Deptula v. Horace Mann Ins. Co., 842 A.2d 1235 (Del. 2004)).
Dunlap, 878 A.2d at 439.
Accordingly, the Supreme Court applies a strict interpretation of the definition of underinsured motorist. In Colonial Ins. Co. of Wisc. et. al. vs. Foskey et. al., the Supreme Court found 18 Del. C. § 3902(b)(2) unambiguous where it states, "`the limits of bodily injury liability coverage under all bonds and insurance policies applicable at the time of the accident total less than the limits provided by the uninsured motorist coverage. . (as) stated in the declaration sheet of the policy."
772 A.2d 177, 180 (Del. 2001).
So as to determine whether the statute obligates UIM carriers to pay their insureds, the Colonial Ins. Co. of Wisc. Court further found that a calculation of the total UIM coverage available is not necessary. The Court cited to a previous decision in Nationwide Mut. Ins. Co. v. Williams and explained that, "(T)he focus of the unambiguous definition of underinsurance in Section 3902(b) is on the symmetry between the limits of the claimant's (UIM) coverage and the limits of the tortfeasor's coverage." In Nationwide Mut. Ins. Co., the limits of the tortfeasor's liability equaled those of the claimant's underinsured motorist coverage. Hence, the Court ruled that the tortfeasor did not fall within the definition of an underinsured motorist under 18 Del. C. § 3902(b).
Id. (citing Nationwide Mut. Ins. Co. v. Williams, 695 A.2d 1123, 1127(Del. 1997)).
Id. (citing Nationwide Mut. Ins. Co. 695 A.2d at 1125).
Id. (citing Nationwide Mut. Ins. Co. 695 A.2d at 1127).
Finally, Colonial Ins. Co. of Wisc. Court also held that a claimant has the burden to "establis(h) the status of a tortfeasor as underinsured pursuant to subsection(b)(2)." The claimant must, therefore, present the Court with sufficient evidence demonstrating that the UIM policy is triggered in the first place. According to the Supreme Court, "`the presentation of record evidence which comports with the unambiguous definition in Section 3902(b)(2) is a condition precedent to pursuing an underinsurance claim.'"
772 A.2d at 180 (citing Nationwide Mut. Auto. Ins. Co. v. Peebles, 688 A.2d 1374, 1378 (Del. 1997)).
Id. (citing Nationwide Mut. Auto. Ins. Co., 688 A.2d at 1378).
Applying this Delaware law to the case at hand, the Court finds that it must grant Defendant's Motion to Dismiss for Failure to State a Claim. The definitive document for determining the issue of coverage here is Defendant Progressive's insurance policy. Prior to the May 15, 2007 hearing, Defendant Progressive submitted this document with its Motion. Plaintiffs, therefore, received the insurance policy well in advance of the hearing. Counsel for Plaintiffs had sufficient time to review the policy and make appropriate arguments. Instead, counsel simply stated that it needs an extension of time for discovery.
No further discovery is necessary here. The Court can make a determination under Delaware law as to whether 18 Del. C. § 3902 obligates Progressive to pay UIM coverage based on the tortfeasor's policy limit and Progressive's insurance policy. Because the tortfeasor's policy limit of $25,000 per person/$50,000 per accident clearly exceeds Progressive's Underinsurance motorist limits of $15,000 per person/$30,000 per accident, the tortfeasor here does not fall within the statutory definition of an underinsured motorist. Delaware law does not allow for the recovery of UIM benefits in such case. Hence, by failing to address the insurance policy or present the Court with record evidence in support of their claim, Plaintiffs have failed to persuade the Court otherwise.
CONCLUSION
For the aforementioned reasons, Defendants' Motion to Dismiss is, hereby, GRANTED.IT IS SO ORDERED.