Opinion
C.A. Nos. 99C-05-009, 99C-08-002
DATE SUBMITTED: November 29, 2000
DATE DECIDED: February 29, 2000
PLAINTIFFS' RESPECTIVE MOTIONS FOR SUMMARY JUDGMENT — GRANTED
H. Clay Davis, III, Esquire, Attorney for Plaintiffs Willie M. Ayers and Jerry F. Foskey
John D. Balaguer, Esquire and Marc S. Casarino, Esquire, Attorneys for Defendant Colonial Insurance Company of Wisconsin
Donald J. Detweiler, Esquire, Attorney for Defendant GEICO Indemnity Insurance Company
Ian Conner Bifferato, Esquire, Attorney for Defendant Hartford Underwriters Insurance Company
Robert J. Leoni, Esquire, Attorney for Defendant Nationwide Mutual Insurance Company
Pending before the Court are motions for summary judgment in two cases which have an identical issue. For purposes of judicial economy, I consolidate the cases solely for the purpose of issuing this decision. The parties have briefed their respective motions, and this constitutes my decision on the pending motions for summary judgment.
The cases shall proceed separately after the issuance of this decision.
FACTS
Facts regarding Ayers v. Colonial Insurance Company of Wisconsin and GEICO Indemnity Company
For purposes of this motion, the parties have stipulated to the facts.
Plaintiff in this cause of action is Willie M. Ayers, guardian of Kanika Wright ("Kanikat1), a minor. On June 20, 1998, Kanika was a passenger in a car involved in a one car accident. Lynette Ayers ("Ayers") was driving the car, and she is the alleged tortfeasor. The car was covered by insurance which defendant GEICO Indemnity Company ("GEICO") issued. Plaintiff argues that GEICO provided $15,000 of underinsurance ("UIM") coverage to Kanika as a passenger in the car.
Defendant Colonial ("Colonial") insured Kanika as a member of the household of her mother by a policy with UIM coverage of $15,000. Colonial also insured Kanika as a member of her stepfather's household by a policy with UIM coverage of $15,000. Plaintiff acknowledges that she can look to only one of the policies of Colonial for UIM coverage. See 18 Del. C. § 3902 (c);Johnson v. Colonial Insurance Company of California, Del. Super., C.A. No. 95C-05-189, Herlihy, J. (January 7, 1997)
GEICO has paid its liability policy limits of $15,000.
Plaintiff argues that since GEICO provided $15,000 of UIM coverage to Kanika, then she is entitled to stack that UIM coverage with that provided by Colonial. The stacked UIM coverage totals $30,000. In light of that fact, plaintiff maintains that the vehicle which Ayers drove is underinsured, and she seeks a declaratory judgment that she is entitled to underinsured coverage.
Also of significance to the pending motion is the following provision of GEICO's policy regarding uninsured motorist coverage:
1. The limit of liability for Uninsured Motorists Coverage stated in the declarations as applicable to "each person" is the limit of our liability for all damages, including those for care or loss of services, due to bodily injury sustained by one person as the result of one accident.
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The amount payable under this Coverage will be reduced by all amounts:
(a) paid by or for all persons or organizations liable for the injury;
(b) paid or payable under the Bodily Injury and Property damage Coverages of this policy. . . .
5. Any payment under this Coverage shall reduce any amount the insured is entitled to receive from the Bodily Injury or Property Damage Coverages of this policy.Facts regarding Foskey v. Hartford Underwriters Insurance Company and Nationwide Mutual Insurance Company
For purposes of this motion, the parties have stipulated to the facts.
Plaintiff Jerry F. Foskey is the duly appointed Administrator of the Estate of Florence Foskey ("Florence"). On March 21, 1999, Florence was a passenger in a vehicle which Dorothy Riggin ("Riggin") owned and was driving. A collision between Riggin's vehicle and one driven by Kimberly Elliott ("Elliott") occurred. Elliott caused the accident. Florence died as a result of the accident.
Elliott had liability coverage of $100,000 per person and $300,000 per accident. Nationwide Mutual Insurance Company ("Nationwide") was Elliott's carrier, and it paid $100,000 to Florence's estate.
Nationwide also insured Riggin's vehicle. This policy provided for UIM coverage of $100,000 per person and $300,000 per accident.
Florence also carried insurance coverage which Hartford Underwriters Insurance Company ("Hartford") issued. The UIM coverage had a limit of $100,000.
Plaintiff maintains that he can stack the Hartford UIM coverage with the UIM coverage on the vehicle in which Florence was a passenger. When he does so, the vehicle in which Florence was a passenger is underinsured, and plaintiff is entitled to the UIM coverage.
Pertinent to defendants' arguments against stacking are the provisions of their policies described below.
In the Hartford policy, it is provided:
OTHER INSURANCE
If there is other applicable insurance available under one or more policies or provisions of coverage:
1. Any recovery for damages under all such policies or provisions of coverage may equal but not exceed the highest applicable limit for any one vehicle under any insurance providing coverage on either a primary or excess basis.
2. Any insurance we provide with respect to a vehicle you do not own shall be excess over any collectible insurance providing coverage on a primary basis.
3. If the coverage under this policy is provided:
a. On a primary basis, we will pay only our share of the loss that must be paid under insurance providing coverage on a primary basis. Our share is the proportion that our limit of liability bears to the total of all applicable limits of liability for coverage provided on a primary basis.
b. On an excess basis, we will pay only our share of the loss that must be paid under insurance providing coverage on an excess basis. Our share is the proportion that our limit of liability bears to the total of all applicable limits of liability for coverage provided on an excess basis.
In the Nationwide policy regarding uninsured motorist coverage, it is provided:
OTHER INSURANCE
1. If there is other insurance for bodily injury suffered by an insured while occupying a motor vehicle other than your auto, our coverage is excess over any other collectible:
a) insurance;
b) self insurance;
c) proceeds from a governmental entity; or
d) sources of recovery.
2. Except as stated above, if there is other insurance similar to this coverage for bodily injury under any other policy, we will be liable for only our share of the loss. Our share is our proportion of the total insurance limits for the loss.
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4. In any event, if more than one policy issued by us or an affiliated company applies on an excess basis to the same loss, we will pay only up to the highest limit of any one of them.
The threshold issue in both cases is whether a passenger in a vehicle involved in an accident ("the vehicle") may stack the UIM coverage provided by the policy insuring the vehicle onto the passenger's individual policy(ies) to determine if the tortfeasor's vehicle is underinsured.
DISCUSSION
Summary judgment 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. Moore v. Sizemore, Del. Supr., 405 A.2d 679, 680 (1979). 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. Id. at 681. Where the moving party produces an affidavit or other evidence sufficient under Super. Ct. Civ. R. 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. Super. Ct. Civ. R. 56(e);Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If, after discovery, the nonmoving party cannot make a sufficient showing of the existence of an essential element of his or her case, then summary judgment must be granted. Burkhart v. Davies, Del. Supr., 602 A.2d 56, 59 (1991), cert. den., 112 S.Ct. 1946 (1992);Celotex Corp. v. Catrett, supra. 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. Ebersole v. Lowengrub, Del. Supr., 180 A.2d 467, 470 (1962).
To repeat, the threshold issue in both cases is whether a passenger in a vehicle involved in an accident ("the vehicle") may stack the UIM coverage provided by the policy insuring the vehicle onto the passenger's individual policy(ies) to determine if the tortfeasor's vehicle is underinsured.
All defendants cite to the case of Hubbs v. Liberty Mutual Insurance Company, Del. Super., C.A. No. 98C-09-162, Herlihy, J. (December 11, 1998) ("Hubbs") in support of their position that the UIM coverage provided by the policy insuring the vehicle may not be stacked onto the passenger's individual policy(ies) to determine if the tortfeasor's vehicle is underinsured. In Hubbs, this Court previously addressed this exact issue and held that a passenger in the vehicle may not stack the UIM coverage provided by the policy insuring the vehicle onto the passenger's individual policy to determine if the tortfeasor's vehicle is underinsured.
In Hubbs, Kristen Hubbs ("Hubbs") was a passenger in a car driven by Reginald Jefferson ("Jefferson"). Jefferson had UIM coverage in the amount of $15,000 through Nationwide. Jefferson's vehicle was hit by a tortfeasor's vehicle; the tortfeasor had liability coverage with State Farm Mutual Automobile Insurance Company for $50,000. Hubbs had coverage for her own vehicle through Liberty Mutual, and this policy included UIM coverage of $50,000 per person. The issue was whether she could stack her $50,000 UIM coverage onto Jefferson's $15,000 UIM coverage. If she could, then the tortfeasor's vehicle would be deemed underinsured.
The Court held that she could not so stack. The Court's starting point was 18 Del. C. § 3902 (b)(2), which provides as follows:
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. These limits shall be stated in the declaration sheet of the policy.
The Court examined the language of the statute. It noted that the statute focuses on the insurance applicable to the tortfeasor's motor vehicle, "not on the total possible coverage available to the injured party. [Emphasis in original.]" Id. at 3. The Court concluded the statute does not speak to "applicable" UIM coverage; it did not contemplate going beyond that UIM coverage available to Hubbs pursuant to the Liberty Mutual policy. Because her UIM coverage and the tortfeasor's bodily injury coverage were the same, the Court concluded the tortfeasor's vehicle was not underinsured.
The Court further reasoned that stacking was not allowed because Jefferson's coverage was treated as primary while Hubbs was treated as secondary, and to allow her to stack would give her a benefit unavailable to Jefferson. Finally, the Court reasoned that if stacking were allowed, she would benefit from a policy Jefferson paid for to obtain a benefit unavailable to him while if the policy she paid for were the only one involved, her UIM coverage would not be triggered. It concluded that to allow her to stack would be to contravene the clear language and intent of § 3902(b)(2), Williams v. Twin City Fire Ins. Co., Del. Super., C.A. No. 97C-09-186, Herlihy, J. (May 21, 1998), andAllstate Ins. Co. v. Gillaspie, Del. Super., 668 A.2d 757 (1995),aff'd, Del. Supr., No. 327, 1995, Hartnett, J. (January 10, 1996). The Court ruled that, under the circumstances at hand, Hubbs could not stack her UIM coverage onto Jefferson's.
Both plaintiffs here argue that the Hubbs decision is inapposite to Judge Ridgely's decision in Justice v. Colonial Insurance Company, Del. Super., C.A. No. 97C-05-028, Ridgely, P.J. (June 30, 1998) ("Justice"). The Court accepts their argument. In Justice, the Court examined whether UIM coverage available to the injured party through several polices of personal insurance could be stacked to determine whether the tortfeasor was underinsured, and it concluded it could be.
In Justice, Connie L. Justice ("Justice"), the injured party, was a driver of her vehicle, and she was injured in a collision with another vehicle driven by a tortfeasor. The tortfeasor carried bodily injury liability insurance in the amount of $15,000, and that amount was paid to Justice.
Justice was insured by Colonial for UIM coverage in the amount of $15,000 as the driver of her vehicle. GEICO also insured her for UIM coverage as a member of her father's household in the amount of $15,000. The Court held that UIM coverage may be stacked. It cited to Sligh. v. Nationwide Mut. Ins. Co., Del. Super., C.A. No. 94C-05 098, Del Pesco, J. (August 19, 1996), wherein the Court allowed stacking. The Court concluded that in order to determine the amount of UIM coverage available under 18 Del. C. § 3902 (b)(2), the injured party may look to all UIM coverage available.
In Jones v. Horace Mann Insurance Company, Del. Super., C.A. No. 96C-04-020, Ridgely, J. (May 1, 1998) at 6, aff'd, Del. Supr., 720 A.2d 559 (1998) ("Jones"), the Court stated:
It is settled law in Delaware that unless restricted by statute, UIM coverage from separate policies may generally be applied cumulatively or "stacked" for purposes of determining the limits of available coverage. Hurst v. Nationwide Mutual Insurance Co., Del. Supr., 652 A.2d 10, 13; Georgeopoulos at 4.
The Court, in Hubbs, did not address the decisions of the Superior Court in Justice and Jones. Those latter cases make clear that stacking of UIM is allowed, something which Hubbs determined was not allowed. The fact that stacking is allowed undermines the Hubbs rationale that § 3902(b)(2) focuses on the insurance applicable to the tortfeasor's motor vehicle, "not on the total possible coverage available to the injured party" and its conclusion the statute does not speak to "applicable" UIM coverage. Because of this, I decline to follow Hubbs.
I agree with the Court's statement in Williams v. Twin City Fire Insurance Company, supra at 3, that "the decisional road of cases in this area" consists of "curves and switchbacks [which] rival that famous Hollywood film two-lane road of curves and switchbacks, and many crashes, Mulholland Drive." It is hoped that the Supreme Court will take the opportunity this case provides to resolve the conflicting opinions issued in this area of the law.
Once stacking of UIM is permitted, then the Court looks to all available UIM; it does not exclude certain coverages based upon the individual facts of the case. The UIM provided in the vehicle in which the injured passenger was riding and available to that injured passenger is included within the determination of whether a tortfeasor's vehicle was underinsured.
However, defendants seek to prevent the application of this general rule to their respective facts on the ground that the respectively applicable policies preclude the inclusion of UIM in their specific circumstances.
In Ayers, defendants argue that GEICO's policy provision which precludes payment of both liability and UM/UIM coverage from a single policy prevents plaintiff from accessing GEICO's UIM coverage. Defendants cite to the case of Deery v. Hutchins, Del. Super., C.A. No. 91C-04-08, Del Pesco, J. (December 8, 1992) ("Deery") as support for that argument. The decision in Deery, however, was based entirely upon the Supreme Court's decision inAetna Cas. and Sur. Co. v. Kenner, Del. Supr., 570 A.2d 1172 (1990). The Supreme Court overruled its Kenner decision in Hurst v. Nationwide Mut. Ins. Co., Del. Supr., 652 A.2d 10, 15 (1995). Consequently, the Deery decision is not valid law, and the issue must be considered anew in light of the current state of the law.
In the Foskey case, the defendants argue that the "Other Insurance" provisions of its policy render the UIM coverage unavailable for plaintiff's purposes.
I first examine the purpose of UIM coverage as explained inNationwide Mut. Auto. Ins. v. Peebles, Del. Supr., 688 A.2d 1374, 1377-78 (1997):
[T]he statutory mandate in Section 3902(b)(1) . . . requires underinsurance coverage for the purpose of paying "bodily injury damage that the insured or his legal representative are legally entitled to recover from the driver of an underinsured motor vehicle."
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Section 3902(b)(1) was intended to pay the claimant for bodily injury damage that the insured driver was entitled to recover from the driver of an underinsured vehicle, if full compensation for those injuries had not been received after the deductions required by Section 3902(b)(3).
Any policy provisions which are designed to reduce or limit coverage to less than that which 18 Del. C. § 3902 (b) prescribes are void as against public policy. Hurst v. Nationwide Mut. Ins. Co., 652 A.2d at 12. Any restrictions in the scope of coverage must be authorized by statute. Id.; Jones v. Horace Mann Insurance Co., supra at 7.
Because the respective policies' provisions at issue in each case would restrict the availability of UIM coverage and because those restrictions are not authorized by statute, they are void.
Thus, in both cases, the respective plaintiffs may stack the UIM coverage provided by the policy insuring the vehicle in which the passenger was riding onto the passenger's individual policy(ies) to determine if the tortfeasor's vehicle is underinsured.
CONCLUSION
For the foregoing reasons, the respective motions of both plaintiffs are granted.
IT IS SO ORDERED.