Opinion
C.A. No.: N20C-08-142 FJJ
01-13-2021
ASHLEY M. STEELE, as Next Friend of C.M.S., a minor Plaintiff, v. ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY, a foreign corporation, and USAA GENERAL INDEMNITY COMPANY, a foreign corporation, Defendants.
Gary S. Nitsche, Esquire and William R. Stewart III, Esquire, Weik, Nitsche & Dougherty LLC, Wilmington, Delaware, Attorneys for Plaintiff. Stephen F. Dryden, Esquire, Weber, Gallagher, Simpson, Stapleton, Fires & Newby LLP, Wilmington, Delaware, Attorney for Defendant USAA General Indemnity Company. Robert A Ranieri Esquire, Newark, Delaware, Staff Attorney for Allstate Property and Casualty Insurance Company.
ON DEFENDANT , ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY'S, MOTION TO DISMISS: MOTION DENIED OPINION AND ORDER Gary S. Nitsche, Esquire and William R. Stewart III, Esquire, Weik, Nitsche & Dougherty LLC, Wilmington, Delaware, Attorneys for Plaintiff. Stephen F. Dryden, Esquire, Weber, Gallagher, Simpson, Stapleton, Fires & Newby LLP, Wilmington, Delaware, Attorney for Defendant USAA General Indemnity Company. Robert A Ranieri Esquire, Newark, Delaware, Staff Attorney for Allstate Property and Casualty Insurance Company. Jones, J.
This case concerns an automobile accident in which the Plaintiff ("C.M.S." or "Plaintiff") in this action - a minor child - was struck and injured by a motorist backing out of a driveway. The Plaintiff now seeks to collect underinsured motorist ("UIM") coverage based on an insurance policy held by his grandmother, Rosemary Steele ("Steele"), with whom Plaintiff lived at the time of the accident.
There appears to be a factual dispute as to whether Plaintiff C.M.S. lived with his grandmother at the time the accident took place. Since the Court must resolve factual disputes in favor of the non-moving party at the motion to dismiss stage, the Court will assume that C.M.S. lived with his grandmother during the relevant time period.
The insurance provider for the Plaintiff's grandmother, Defendant Allstate Property and Casualty Insurance Company ("Allstate"), has moved to Dismiss the Plaintiff's claim in this action under Superior Court Civil Rule 12(b)(6). As authority for its motion, Allstate relies on the Supreme Court of Delaware's decision in Johnson v. State Farm Mutual Automobile Insurance Company, 189 A3d 1287 (Del. 2018). In this Court's view, Allstate's reliance on Johnson is misplaced. Allstate's motion is therefore DENIED.
USAA, the underinsured motorist carrier for the vehicle that struck the minor has also moved to dismiss the case. Plaintiff agrees that the Johnson decision applies to the claim against USAA and therefore USAA will be dismissed from this case via a stipulation between the parties.
FACTS
The following facts are drawn from the Complaint and other pleadings in this action, and are viewed in the light most favorable to the Plaintiff as the non-moving party in this motion.
Plaintiff C.M.S. (a minor child) was injured in a motor vehicle accident which occurred on March 5, 2018, when a truck driven by non-party and alleged tortfeasor Robert Hearin struck and injured the Plaintiff. At the time of the accident, C.M.S. was a pedestrian in the driveway of a home located in Bear, Delaware. Hearin carried liability insurance provided by USAA General Indemnity Company ("USAA") with a liability limit of $100,000. Following the accident, USAA paid Plaintiff the full $100,000 liability limit of Hearin's coverage.
Plaintiff in the instant action has brought an underinsured motorist claim against Allstate. Allstate is the UIM carrier for Plaintiff's grandmother, Rosemary Steele. Plaintiff resided with Ms. Steele at all relevant times.
The Allstate policy at issue defines who is "insured" under the policy for purposes of underinsured motorist coverage in the following manner:
Insured person(s) means:
The policy also contains the following provision:a) You [i.e., Steele] and any Resident Relative.
b) Any person while in, on, getting into or out of, or getting on or off an insured auto with your permission.
We will pay damages which an insured person is legally entitled to recover from the owner or operator of an uninsured or underinsured auto because of:
1. bodily injury sustained by an insured person.
STANDARD OF REVIEW
Under Superior Court Civil Rule 12(b)(6), the Court may dismiss a claim if it determines with a reasonable certainty that no set of facts can be inferred from the pleadings upon which the nonmoving party could prevail. When analyzing a motion to dismiss under Rule 12(b)(6), the Court accepts the well-pled allegations of the complaint as true and draws all reasonable inferences that logically flow from those allegations in favor of the non-moving party.
Central Mortgage Co. v. Morgan Stanley Capital Holdings, LLC, 27 A3d 531, 534 (Del. 2011).
Clinton v. Enterprise Rent-A-Car, 977 A2d 892,895 (Del. 2009).
ANALYSIS
Delaware Courts analyzing underinsured motorist claims have repeatedly held that underinsured motorist coverage is personal to the insured. In other words, coverage follows the person , not the vehicle . With this well-established principle in mind, I turn to the Supreme Court's decision in Johnson, which forms the basis of Allstate's position.
See e.g. Frank v. Horizon Assur. Co., 553 A.2d 1199 (Del. 1989) (". . .the weight of authority and sound public policy support our decision that uninsured motorist coverage is properly considered personal to the insured and not vehicle specific")
Hurst v. Nationwide Mut. Ins. Co., 652 A.2d 10 (Del. 1995); Jones v. Horace Mann Ins.Co., 723 A.2d 390 (Del. Super., 1998). See also Johnson at *2 ("we have found that Delaware's UIM statute provides that coverage is personal to the insured. . .")
In Johnson, a driver named Fredia Brinkley struck a pedestrian named Donald Johnson. Johnson and Brinkley were strangers with no relationship beyond their mutual involvement in the auto accident. Brinkley was the policyholder of a State Farm insurance policy which provided her with liability and underinsured motorist coverage. The language of Brinkley's policy indicated that her policy covered the "named insured [i.e. Brinkley]" as well as "resident relatives [] and any other person occupying the named insured's [Brinkley's] car." The language of Brinkley's policy defined the term "occupying" as "in, on , entering, or exiting [the vehicle.]"
Johnson, at *1.
Id. (emphasis added.)
Following the accident, State Farm paid Johnson its maximum liability limits of $100,000 under the Brinkley's policy. Johnson then sued State Farm in the Superior Court, seeking underinsured motorist benefits under Brinkley's State Farm policy. State Farm moved for summary judgment on Johnson's lawsuit, claiming that Johnson did not qualify as an insured party under Brinkley's policy. The Superior Court granted State Farm's Motion for Summary Judgment. Johnson then appealed to the Supreme Court, arguing that he qualified for coverage under Brinkley's policy because he was "on" Brinkley's vehicle within the meaning of her State Farm policy due to the physical contact he made with Brinkley's vehicle. Johnson argued that he qualified for coverage because he was physically "on" the hood of Brinkley's car momentarily during the accident. The Supreme Court rejected Johnson's argument and affirmed the ruling of the Superior Court. In addressing Donald Johnson's claim, the Supreme Court wrote: "Even though Appellant [Johnson] may have been 'on' or 'touching' Brinkley's vehicle for a brief second when he was hit, he fails to recognize that we have found that Delaware's UIM statute provides that coverage is personal to the insured."
Johnson v. State Farm Mutual Automobile Insurance Company, 2018 WL 3156855, at *2 (Del. 2018) (emphasis in original.)
Johnson at *2.
Johnson was neither the "named insured" nor a "resident relative" of Brinkley. As a "stranger" to Brinkley, the only way he could fit the definition of an insured party for purposes of underinsured motorist coverage under the policy at issue in Johnson was if he could establish that he was "occupying" Brinkley's vehicle at the time of the accident. Johnson therefore argued that he was "on" Brinkley's vehicle and therefore "occupying" it when he was hit. With this in mind, the Supreme Court analyzed whether Johnson was "on" the car that struck him. The Supreme Court concluded that he was not "on" Johnson's vehicle and thus was not "occupying" the car that hit him, and therefore was not entitled to coverage under Brinkley's State Farm policy.
Allstate points to the following language in the Johnson decision as support for its position:
Appellant has cited no case law, or persuasive authority, that warrants extending UIM insurance to pedestrians. Brinkley carrier UIM insurance to protect herself, her "resident relatives", and any other person ... occupying her vehicle "within the scope of her consent" from harm caused by unknown tortfeasors, not pedestrians injured by her own negligence. The mere fact that Johnson was in physical contact with Brinkley's vehicle because he was struck by it does not make him an insured occupant of the vehicle able to claim benefits under Brinkley's personal UIM coverage.
Johnson at *1.
This language does not support Allstate's position. This passage does not indicate that pedestrians are per se not covered by underinsured motorist policies. Indeed, the explicit language of Brinkley's policy stated that her policy's coverage extended to "resident relatives" and did not state that resident relatives lose coverage under her policy if they were involved in an accident as pedestrians. Donald Johnson did not fall within the scope of "resident relatives" of the policyholder because he and Brinkley were strangers who had no relationship apart from their involvement in the accident. Had Donald Johnson been a named insured or resident relative under Brinkley's policy, there would have been UIM coverage available to him under that policy. To accept Allstate's position would mean that no pedestrian could ever recover any underinsured motorist benefits under any policy. Such a result is inconsistent with the long held public policy of this state that UIM coverage is personal.
Harry Brown v USAA, 2019 WL 2361539 (Del Super., June 4, 2019) affirmed 238 A3d 191 (2020) and Angel Irizarry v Nationwide Property & Casualty Insurance Company (2020 WL525667, Jan 31, 2020 Del Super., affirmed 238 A3d 191 (Aug 25, 2020). --------
Unlike Donald Johnson, Plaintiff C.M.S. is a resident relative to the holder of the insurance policy at issue here. The express language of Rosemary Steele's policy covers "resident relatives," and does not indicate that resident relatives lose their coverage if they are involved in an accident as pedestrians. Since C.M.S. is a resident relative, he is covered by the express language of the policy at issue here.
Under the instant Allstate policy, C.M.S. is an insured party under the policy because he is a resident relative of policyholder Rosemary Steele's household. On this basis as an insured party under the policy he is entitled to UIM coverage where he is injured as a pedestrian.
For the above reasons Allstate's Motion to Dismiss is DENIED.
IT IS SO ORDERED.
/s/_________
Francis J. Jones, Judge cc: File&ServeXpress