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Campbell v. Permanent Gen. Assurance Corp.

Superior Court of Delaware
Jul 6, 2022
C. A. N21C-11-200 CLS (Del. Super. Ct. Jul. 6, 2022)

Opinion

C. A. N21C-11-200 CLS

07-06-2022

KACEENY CAMPBELL, Plaintiff, v. PERMANENT GENERAL ASSURANCE CORPORATION, a foreign corporation, Defendant.

Gary S. Nitsche, Esquire, Nitsche & Fredricks, LLC, Wilmington, Delaware, 19899, Attorney for Plaintiff, Kaceeny Campbell. Periann Doko, Esquire, Kent & McBride, P.C., Wilmington, Delaware, 19809, Attorney for Defendant, Permanent General Assurance Company.


Submitted: May 23, 2022

Upon Defendant's Motion for Summary Judgment. DENIED.

Gary S. Nitsche, Esquire, Nitsche & Fredricks, LLC, Wilmington, Delaware, 19899, Attorney for Plaintiff, Kaceeny Campbell.

Periann Doko, Esquire, Kent & McBride, P.C., Wilmington, Delaware, 19809, Attorney for Defendant, Permanent General Assurance Company.

ORDER

CALVIN L. SCOTT, JR. JUDGE

INTRODUCTION

Before the Court is Defendant Permanent General Assurance Company's ("Permanent") Motion to Dismiss converted to a Motion for Summary Judgment ("Motion"). Upon consideration of the Motion, Plaintiff Kaceeny Campbell's ("Ms. Campbell") response, and Permanent's reply, Permanent's Motion is DENIED for the following reasons.

BACKGROUND

Ms. Campbell filed this action against Permanent seeking underinsured motorist benefits from an auto-accident that occurred on May 12, 2019. At the time of the accident, Permanent insured Ms. Campbell's vehicle pursuant to a 1-year policy signed on September 22, 2018. Ms. Campbell recovered the limit of liability coverage from the tortfeasor and submitted an Under Insured Motorist ("UIM") claim to Permanent. Permanent filed a Motion to Dismiss under Superior Court Civil Rule 12(b)(6) attaching Ms. Campbell's policy and State of Delaware - Form A ("Form A"), a form containing the required coverage for registered Delaware vehicles and optional coverage, such as Uninsured/Underinsured Vehicle Coverage ("UM/UIM"). Permanent argued the case should be dismissed because the attached documents illustrate that Ms. Campbell waived UM/UIM making her ineligible to bring a UIM claim. The documents, do indeed, show that Ms. Campbell did not opt for UM/UIM in her policy. Additionally, it shows she explicitly waived coverage and signed that she understood her choice. Ms. Campbell responded to the Motion to Dismiss and correctly pointed out it should be converted to a Motion for Summary Judgment as Permanent attached additional documents for consideration by the Court. Ms. Campbell argued Permanent did not comply with 18 Del. C. § 3902(a-b). Specifically, Ms. Campbell alleges Permanent did not provide her with any information regarding UM/UIM coverage or its price and there was no meaningful offer as to the limits of the liability coverage. Permanent replied to Ms. Campbells response and asserted its forms comply with the statutory requirements Ms. Campbell alleges it did not comply with.

Form A states: "I understand my policy will be issued to reflect the options I have chosen with respect to the coverages shown above. I further understand and agree that my selection of the Uninsured/Underinsured Motor Vehicle Coverage option, as shown above, shall be applicable to the policy of insure on the vehicle described, on all future renewals of the policy, on future policies issued me because of a change of vehicle or coverage or because of an interruption of coverage, unless I subsequently request such coverage in writing." The statement was electronically signed by Ms. Campbell. The selection made on the form for Uninsured/Underinsured Motor Vehicle Coverage was "To reject this coverage entirely" and below the selection box, the form contained an asterisk explaining Uninsured/Underinsured Motor Vehicle Coverage is not required but is required to be offered.

STANDARD OF REVIEW

Under Superior Court Rule 56, the Court may grant summary judgment if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law." The moving party bears the initial burden of showing that no material issues of fact are present. Once such a showing is made, the burden shifts to the non-moving party to demonstrate that there are material issues of fact in dispute. In considering a motion for summary judgment, the Court must view the record in a light most favorable to the non-moving party. The Court will not grant summary judgment if it seems desirable to inquire more thoroughly into the facts in order to clarify the application of the law.

Super. Ct. Civ. R. 56(c); Burkhart v. Davies, 602 A.2d 56, 59 (Del. 1991).

Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).

Id. at 681.

Burkhart, 602 A.2d at 59.

Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962); Phillip-Postle v. BJ Prods., Inc., 2006 WL 1720073, at *1 (Del. Super. Ct. Apr. 26, 2006).

DISCUSSION

Under 18 Del. C. § 3902(a), an insurance provider is required to make an offer of UM/UIM coverage prior to the issuance of an insurance policy. There is no legitimate dispute that this occurred under the facts before the Court. An insurance company has "fulfilled its responsibility under this section of the statute" where it includes uninsured motorist coverage "unless waived by the insured."

See 18 Del. C. § 3902(a); Humm v. Aetna Cas. & Sur. Co., 656 A.2d 712, 713 (Del. 1995).; Johnson v. AIG Ins. Co., 2004 WL 1732211, at * 2 (Del. Super. July 26, 2004).

Johnson, 2004 WL 1732211, at * 3; see also Daniels v. Seacoast Cab Co., 2006 WL 2337361, at * 1 (Del. Super. July 27, 2006) (finding 18 Del. C. § 3902(a) requires all motor vehicles registered in Delaware have UM coverage unless rejected in writing by the insured).

For rejection of UM/UIM coverage by an insured to be valid, it must be rejected on "a form furnished by the insurer or group of affiliated insurers describing the coverage being rejected." It is undisputed that Ms. Campbell rejected UM/UIM coverage on September 22, 2018. On Form-A provided by Permanent, Ms. Campbell checked a box "[t]o reject this coverage entirely." The form was signed and dated by Ms. Campbell in a specific section regarding her understanding of her UM/UIM coverage selection. Following, Johnson v. AIG Ins. Co., the Court finds this constitutes a valid wavier of UM/UIM coverage by Ms. Campbell under § 3902(a).

2004 WL 1732211 (Del. Super. July 26, 2004).

In addition to the requirement that insurance companies make an offer of UM/UIM coverage, the insurance company also has an "affirmative duty to offer the insured additional coverage, above the $15,000 minimum amounts, 'so that the insured can make an informed decision' regarding the limits of coverage." "An informed decision can be made only if all of the facts reasonably necessary for a person to be adequately informed to make a rational, knowledgeable and meaningful determination have been supplied." "Delaware courts have strictly enforced Section 3902(b)'s requirement that insurance carriers clearly communicate offers of additional UM/UIM coverage to their policyholders."

Mason v. United Servs. Auto. Ass'n, 697 A.2d 388, 393 (Del. 1997) (quoting Morris v. Allstate Ins. Co., 1984 WL 3641, at *3-4 (Del. Super. July 10, 1984)).

Id. (quoting Morris, 1984 WL 3641, at *4).

Brintzenhoff v. Hartford Underwriters Ins. Co., 2004 WL 2191184, at *1 (Del. Super. June 4, 2004) (quoting Shukitt v. United Servs. Auto. Ass'n, 2003 WL 22048222, at *3 (Del. Super. Aug. 13, 3003)).

To clearly communicate offers of additional UM/UIM coverage, a meaningful offer is required. A meaningful offer can be shown by the insurance provider establishing the following was communicated to the insured: "(1) the cost of the additional coverage; (2) a communication to the insured which clearly offers [UM/UIM] coverage; and (3) an offer for uninsured motorist coverage made in the same manner and with the same emphasis as the insurer's other coverage."Requirement (3) would not apply to the facts before us as the policy in dispute is the only policy held between Permanent and Ms. Campbell. If the insurer fails to meet this burden, then the offer is treated as "a continuing offer for additional insurance, which the insured may accept even after the insured's accident."

Id.

Id.

Permanent is unable to demonstrate the requirements of the meaningful offer because it did not demonstrate the cost of additional coverage. In Brintzenhoff, this Court found the application provided by the insurer listed three tiers of UM/UIM coverage amounts and the corresponding increase in premium, providing for the cost of additional coverage. Looking to the policy and Form A provided by Permanent, there is no cost associated with UM/UIM. By failing to meet this burden, Permanent is not entitled to judgment as a matter of law as there is genuine issue of material fact regarding whether a meaningful offer existed.

CONCLUSION

For the foregoing reasons, Defendants' Motion for Summary Judgment is DENIED.

IT IS SO ORDERED.


Summaries of

Campbell v. Permanent Gen. Assurance Corp.

Superior Court of Delaware
Jul 6, 2022
C. A. N21C-11-200 CLS (Del. Super. Ct. Jul. 6, 2022)
Case details for

Campbell v. Permanent Gen. Assurance Corp.

Case Details

Full title:KACEENY CAMPBELL, Plaintiff, v. PERMANENT GENERAL ASSURANCE CORPORATION, a…

Court:Superior Court of Delaware

Date published: Jul 6, 2022

Citations

C. A. N21C-11-200 CLS (Del. Super. Ct. Jul. 6, 2022)