Opinion
C.A. No. 99C-07-331 WCC
Decided: December 20, 2001
On Plaintiff Latanya Knight's Motion for Summary Judgment.
Denied.
On Defendant Statewide Insurance Company's Motion for Summary Judgment.
Granted.
Philip M. Finestrauss, Esquire, Attorney for Plaintiff.
J. Scott Shannon, Esquire, Attorney for Defendant.
ORDER
This 20th day of December, 2001, upon consideration of the parties' cross motions for summary judgment, it appears that:
1. On May 27, 1998, Latanya Knight ("the plaintiff") was injured while riding as a passenger in a car owned by Ursula Knight and insured by Statewide Insurance Company ("the defendant"). There is no dispute that the plaintiff was injured, nor that she was entitled to no-fault Personal Injury Protection ("PIP") as a result of the accident. In fact, the defendant paid claims for medical services that were submitted by the plaintiff under the PIP benefits.
2. At the time of the accident, the plaintiff had been employed by Wilmington Trust for nine years. As a result of the accident, the plaintiff was medically disabled from work and was out of work for 53 days, from May 27, 1998 until August 31, 1998. Under the terms of her employment, the plaintiff was eligible to be paid for absences due to illness, injury or maternity according to the "Short Term Disability (Sick Leave)" program, which stated in part:
She was out of work for 42 full days and the equivalent of 11 additional days, taken in a half day increments.
Absences are monitored on a calendar year basis. All absences due to disability, whether for one day or an extended period, are included under Short Term Disability; therefore, absences accumulate within a calendar year. Unused disability time is not compensable.
The program is non-contributory and non-cumulative. Due to her number of years of service, the plaintiff was eligible for 18 weeks or 90 days of paid short term disability or sick leave during 1998. Wilmington Trust compensated the plaintiff for the 53 days under the sick leave program. All of her absences occurred during the calendar year 1998, and she did not take disability for any other reason. On the date of her return to work, September 1, 1998, there were 88 remaining work days in 1998 and 37 days of sick leave available to her under the program if she needed them. On January 1, 1999, the plaintiff, because of her now ten years of service, automatically received 22 weeks or 110 days of sick leave. None of the unused portion of her 1998 sick leave rolled over or accumulated.
Wilmington Trust had no right of subrogation to recover the wages paid under the sick leave program.
3. When the plaintiff submitted a claim to the defendant for 80% of her lost wages during the time that she was medically disabled, i.e. 53 days, the defendant denied the claim. As such, the sole issue for the Court is whether the plaintiff is entitled to receive reimbursement for her lost earnings during the 53 days of her medical disability under the no-fault PIP benefits required by 21 Del. C. § 2118 when she was already compensated by her employer under their sick leave program.
The amount sought was $4,318.17.
4. Summary judgment will be granted when, in viewing the record in the light most favorable to the non-moving party, the movant has shown that no genuine issues of material fact exist and that the movant is entitled to judgment as a matter of law. In a case involving cross motions for summary judgment, such as presented here, the parties implicitly concede the absence of material factual disputes and acknowledge the sufficiency of the record to support their respective motions.
Super.Ct.Civ.R. 56(c).
Browning-Ferris, Inc. v. Rockford Enters, Inc., Del. Super., 642 A.2d 820 (1993).
5. According to 21 Del. C. § 2118(a)(2)a.2., a motor vehicle insurer must include compensation to injured persons for reasonable and necessary expenses incurred within 2 years from the date of the accident for net amount of lost earnings. The statute however, does not provide any guidance as to when earnings may be deemed "lost."
State Farm Mutual Auto. Ins. Co. v. Nalbone, Del. Supr., 569 A.2d 71, 72 (1989).
In State Farm Mutual Automobile Insurance Company v. Nalbone, the Delaware Supreme Court considered this language and decided a similar issue as posed here. In Nalbone, an employee, who was injured in an automobile accident, sought PIP benefits even though she was already compensated under a wage continuation or disability plan for lost wages. The Court found that such recovery was not authorized where it appeared that the receipt of employment benefits created no detriment or loss of entitlement to reimbursement of future losses. It further stated:
Del. Supr., 569 A.2d 71 (1989).
Application of a contractual-consideration rule will permit payment of uncompensated losses through payment of PIP benefits without disturbing the receipt of benefits from a collateral source if the collateral benefits are supported by a specific consideration, including the detriment of loss of future availability. Thus, where it can be demonstrated that the use of a wage continuation plan as the primary source of compensation for injury will result in a specific loss to the employee, either through the unavailability of such benefits in the future or the loss of any other employment benefit, the employee is entitled to recover PIP benefits.
Id. at 75.
Under the facts in Nalbone, the Court found that the receipt of employment benefits did not create a detriment in terms of future availability or entitlement to a cash equivalent. Similar to our case, the employee in Nalbone did not contribute to her wage continuation plan, and her benefits did not accrue. As such, the Court found that the employee suffered no out-of-pocket loss and that the payments from the collateral source were unsupported by actual consideration or detriment.
Id.
Id. at 75-76.
Similarly in Brown v. Nationwide Mutual Insurance Company, the Court was presented with facts virtually identical to those in Nalbone. The Court stated that:
Del. Supr., 574 A.2d 841 (1990).
While the Court found that the record did not provide a basis for concluding that the employee incurred the detriment required under Nalbone, it gave the employee an opportunity to pursue her claim and demonstrate that her receipt of wage reimbursement was supported by some tangible consideration or detriment. Id. at 843. This opportunity was granted because Nalbone was decided after the conclusion of Brown's Superior Court action.
[I]f an insured has paid a consideration to recover lost wages from a collateral source, he should be entitled to the benefit of his bargain. Consideration might also take the form of a tangible detriment incurred when the employee opts for wage reimbursement and thereby relinquishes the right to some other employee benefit. However, when the employee receives wage reimbursement as a benefit of his employment and gives up nothing in return, he has lost "neither wages nor consideration paid to a collateral source for wage compensation. Accordingly, the insured has no loss for which his insurer should provide compensation."
Id. at 842 (quoting Nalbone, 569 A.2d at 75).
In other words, the Court found that Section 2118 does not obligate an insurer to compensate its insured for wages which the insured is paid under an employment plan for which the insured gave no consideration other than simply reporting to work.
Brown, 574 A.2d at 842.
6. In the case sub judice, the plaintiff argues that she is entitled to recover her lost wages under the PIP benefits because her use of the 53 sick days was supported by consideration in the form of a specific detriment that resulted from the unavailability of the sick days for the remainder of 1998, which she earned through her years of service with Wilmington Trust. But the Court finds that those facts alone do not entitle the plaintiff to PIP benefits because she did not pay consideration, nor has she suffered any detriment or loss. She did not exhaust all of her available sick days in 1998; she did not have to monetarily contribute to the sick leave program; nor did her benefits roll over and accumulate into the next calendar year. Moreover, if her available sick time went unused, she could not use it as vacation time nor receive a cash equivalent. The Court finds that her nine years of service did not equate to consideration required to activate the PIP benefits. The plaintiff's lost wage reimbursement was a benefit of her employment, and the Court finds that nothing was given up in return.
Cf. Gaines v. State, Del. Super., C.A. No. 89C-DE-179, Balick J. (Dec. 28, 1990) (Op. and Order). Upon a motion for reargument, the Court addressed the issue of whether the loss of accumulated sick leave was a "specific loss" under Nalbone. It found that the loss of accumulated sick leave after working for 3 years was a loss of a valuable benefit, even though it may never be used. It further found that by using her accumulated sick leave, the employee had lost the security of knowing that it would be available in the event of illness or injury in the future. Id. at 2.
The present case is distinguishable from Gaines because the Plaintiff's sick leave did not accumulate. Her 37 remaining available sick days in 1998 did not roll-over into 1999 as unused. Had it accumulated, this would be a loss as warranted under Gaines, supra. But, the Court does not find that the Plaintiff shared the same loss as the employee in Gaines.
Furthermore, the plaintiff argues that a "wait and see" approach, i.e. that the claimant had to wait and see if she utilized the sick leave beyond that available to her, is contrary to the statutory scheme under 21 Del. C. § 2118 and does not comport with the insured's expectations. While the no-fault statute's purpose is to provide a full and speedy recovery for medical expenses and lost earnings, the Court finds that waiting to see what occurred in 1998 was not contrary to 21 Del. C. § 2118 since earnings must be deemed "lost" before they can be compensated. Until the plaintiff suffered a loss that is compensable, she cannot access the PIP benefits.
Nalbone, 569 A.2d at 75.
See Brown, 574 A.2d at 842.
7. While the Court appreciates and applauds the excellent advocacy displayed by the plaintiff's counsel, the factual circumstances in this case are in line with those of the Supreme Court decisions in Nalborne, and Brown, and in spite of his best efforts, the present case cannot be distinguished. For the foregoing reasons, the defendant's Motion for Summary Judgment is GRANTED and the plaintiff's Motion is DENIED.
IT IS SO ORDERED.