Opinion
No. 270, 2002.
Submitted: September 4, 2002.
Decided: November 20, 2002.
Court Below-Superior Court of the State of Delaware, in and for New Castle County C.A. No. 99C-02-210
Affirmed.
Unpublished opinion is below.
MARIE CARRIERE, Plaintiff Below-Appellant, v. PENINSULA INSURANCE CO., Defendant Below-Appellee. No. 270, 2002 Supreme Court of Delaware. Submitted: September 4, 2002 Decided: November 20, 2002
Before VEASEY, Chief Justice, WALSH, and BERGER, Justices.
Joseph T. Walsh, Justice:
ORDER
This 20th day of November 2002, upon consideration of the parties' briefs, it appears to the Court that:
(1) The plaintiff-appellant, Marie Carriere, filed this appeal from the Superior Court's grant of summary judgment to the defendant-appellee, Peninsula Insurance Company, on plaintiff's claims for unpaid medical bills, wage loss, costs, interest, attorney's fees, bad faith, and damage to credit and reputation. Carriere also appeals the Superior Court's denial, in part, of her motion to reopen the judgment.
The Superior Court granted Carriere's motion to reopen the judgment only on the limited issue of net lost wages. The parties ultimately settled the net lost wage claim.
(2) The record reflects that Carriere received medical treatment for injuries resulting from an automobile accident on September 4, 1995. At the time of the accident, Carriere was insured by Peninsula Insurance Company.
Carriere did not file her complaint in the Superior Court until February 19, 1999. The complaint contained three counts asserting breach of contract, bad faith, and punitive damages. After some early motion practice resulting from Carriere's failure to name the proper defendant, Peninsula filed a motion for summary judgment, raising four grounds.
(3) Although the Superior Court rejected three of Peninsula's grounds for summary judgment, it ultimately granted summary judgment to Peninsula on the ground that Carriere's claims were barred by 21 Del. C. § 2118(a)(2)i.2., which requires an insurer to pay only those expenses submitted within two years and 90 days of the accident. Peninsula had included in its summary judgment papers a sworn affidavit from Peninsula's insurance adjuster stating that only three medical bills, totaling $1107.50, had been submitted to Peninsula within the statutory time period. Carriere did not refute this sworn assertion.
In a decision dated January 12, 2000, the Superior Court denied Peninsula's first two grounds for summary judgment, i.e., that Carriere had failed to name the proper defendant and Carriere's claims were barred by the statute of limitations. Thereafter, Peninsula filed a motion to amend the judgment and requested the Superior Court to address the two additional grounds for summary judgment that Peninsula had asserted in its motion. After receiving Carriere's response, the Superior Court issued an opinion, dated June 12, 2000, which denied summary judgment on the ground that Carriere's claims were barred by her failure to attend an independent medical examination but granted summary judgment on the ground that Peninsula was required to honor only those expenses properly submitted within two years and ninety days of the accident.
DEL. CODE ANN. tit. 21, § 2118(a)(2)i.2. provides:
Payments of expenses under subparagraph a. of this paragraph shall be made as soon as practical after they are received during the period of 2 years from the accident. Expenses which are incurred within the 2 years but which have been impractical to present to an insurer within the 2 years shall be paid if presented within 90 days after the end of the 2-year period.
(4) Peninsula's affidavit also asserted that Peninsula had never received a salary and wage verification form or any other documentation in support of a wage loss claim. In her response to the summary judgment motion, Carriere asserted, although not in affidavit form, that her employer had provided Peninsula with a salary and wage loss verification form in November 1995. The only documentation Carriere offered in support of this unsworn assertion was a copy of a wage and salary verification form that apparently was faxed to Carriere's own counsel in March 1996. The faxed form does not identify the employer on whose behalf it was purportedly signed nor does it provide the employer's address or telephone number.
(5) Based upon Peninsula's sworn assertion that Peninsula had paid the only claims submitted to it within the statutory time period, the Superior Court entered judgment for Peninsula and closed the case by order dated July 28, 2000. Thereafter, on August 11, 2000, Carriere filed a motion to vacate the judgment on the sole ground that her wage loss claim had not been paid. In fact, Carriere stated in her motion, "Plaintiff's medical bills submitted within the time period specified by statute and in the Court's second opinion on Defendant's Motion for Summary Judgment have been paid."
(6) The Superior Court deferred action on Carriere's motion to vacate several times in order to give the parties time to discuss settlement of the wage loss claim. On September 14, 2001, more than a year after she filed her first motion to vacate, Carriere filed a second motion to vacate, which raised claims she had not raised previously. On October 29, 2001, the Superior Court denied Carriere's motion to vacate except as to the issue of Carriere's net lost wage claim. Carriere filed a motion for reconsideration on November 14, 2001, which the Superior Court denied on the ground that it was not timely filed. Once the parties indicated that the net lost wage claim had been settled, the Superior Court entered its final order in the case.
(7) Carriere filed this appeal from the Superior Court's orders granting summary judgment to Peninsula and refusing to vacate the judgment except as to the issue of net lost wages. This Court will review the Superior Court's decision granting summary judgment de novo. We review the Superior Court's denial in part of Carriere's motion to vacate, whether it is viewed as a motion to alter the judgment under Superior Court Civil Rule 59(d) or a motion for relief from judgment under Rule 60(b), for abuse of discretion.
Abb Flakt, Inc. v. National Union Fire Ins. Co. of Pittsburgh, 731 A.2d 811, 816 (Del. 1999).
Battaglia v. Wilmington Sav. Fund Soc'y, 379 A.2d 1132, 1135 (Del. 1977).
(8) Summary judgment is only appropriate if there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. If a motion for summary judgment is supported by affidavit, then the burden shifts to the nonmoving party to demonstrate that there are material issues of fact. It is not enough for the opposing party merely to assert the existence of such a disputed issue of fact. If the facts permit reasonable persons to draw from them but one inference, the question is ripe for summary judgment.
Brzoska v. Olson, 668 A.2d 1355, 1360 (Del. 1995).
See DEL. SUPER.CT.CIV.R. 56(e), which provides in part:
When a motion for summary judgment is made and supported as provided in this Rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this Rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
Id.
(9) In this case, we conclude that the Superior Court properly granted summary judgment to Peninsula. Peninsula, by affidavit, established that it had paid the only three claims submitted to it within two years and ninety days of the accident, as required by 21 Del. C. § 2218(a)(2)i.2. Carriere made little to no attempt to refute Peninsula's sworn factual assertions. Her bare allegations were not enough to create a genuine issue of material fact to overcome the motion for summary judgment.
Accordingly, the Superior Court did not err in entering judgment for Peninsula as a matter of law.
(10) In light of our holding that the Superior Court properly granted summary judgment to Peninsula on all of Carriere's claims, we find no abuse of discretion in the Superior Court's October 29, 2001 denial, in part, of Carriere's motion to vacate the judgment. Moreover, we find no error in the Superior Court's denial of Carriere's untimely motion for reargument.
We express no opinion on the Superior Court's decision to reopen the judgment on the issue of net lost wages, as that issue is not before us.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court is AFFIRMED.