Opinion
C.A. No. 04C-10-054 JTV.
June 5, 2007.
ORDER
Upon consideration of the defendant's motion for partial summary judgment, the plaintiff's response, and the record of the case, it appears that:
1. On December 15, 2001, the plaintiff, Melissa Coury, was a passenger in a vehicle operated by her husband. He was stopped at a red light, and when the light turned green he started to go forward. He then had to stop unexpectedly because an unidentified vehicle ran a red light and drove in front of the plaintiff's vehicle. The plaintiff and her husband were rear ended by a third car. The plaintiff reported having back pain at the scene of the accident and was taken to the emergency room.
2. The issue in the case is whether a herniated lumber disc at L4-5, which the plaintiff has, was caused by the accident. The plaintiff's treating physician, Dr. Kalamachi, says that it was. Dr. Mattern, who examined the plaintiff at the request of the defendant, State Farm Mutual Automobile Insurance Co., says that it was not. His opinion is that the herniated disc pre-dated the accident. On December 20, 2002, State Farm sent the plaintiff a letter which stated, in pertinent part, as follows:
Based on Dr. Mattern's report, State Farm will consider medical treatment through December 26, 2002. No additional medical treatment will be considered beyond that date.
4. After December 26, 2002, the plaintiff continued to send some medical bills to State Farm with a request for payment. The plaintiff also sent State Farm Dr. Kalamachi's medical records which contained his opinion that the herniated disc was caused by the accident. On July 29, 2003, State Farm sent a second letter reiterating that it would pay no medical bills incurred after December 26, 2002.
5. On July 30, 2003, Dr. Kalamachi performed surgery to repair the herniated disc. The plaintiff's counsel wrote to State Farm asking it to confirm that the expenses relating to the surgery would be paid under the plaintiff's PIP coverage. State Farm responded with another letter again reiterating that it would pay no expenses incurred after December 26, 2002.
6. Of the plaintiff's medical bills, four were submitted to State Farm more than 27 months after the accident. One of these, a bill from Christiana Medical Center, is for $30,692.65. I infer that all were incurred within two years of the accident.
7. The defendant contends that it has no legal obligation to pay the bills received more than 27 months after the accident because of language in 21 Del. C. § 2118(a)(2)(I.2). That language reads, in pertinent part, as follows:
Payments of expenses . . . 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.
This statutory language (and policy language which mirrors it), the defendant contends, limits its liability to bills received within 27 months of the accident. The plaintiff contends that the defendant should not be able to avail itself of this statutory and policy language because of its repeated refusal to consider payment of any bills incurred after December 26, 2002. Submission of bills which the defendant had already said it would not pay, the plaintiff contends, would have been a futile act.
8. Superior Court Rule 56(c) provides that judgment "shall be rendered forthwith 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 a judgment as a matter of law." On a motion for summary judgment, the Court examines the record to determine whether any material issues of fact exist. The facts must be viewed in the light most favorable to the non-moving party. Summary judgment may not be granted if the record indicates that a material fact is in dispute, or if it seems desirable to inquire more thoroughly into the facts in order to clarify the application of the law to the circumstances. However, when the facts permit a reasonable person to draw but one inference, the question becomes one for decision as a matter of law.
Super. Ct. Civ. R. 56 (c).
Guy v. Judicial Nominating Comm'n, 659 A.2d 777, 780 (Del.Super.Ct. 1995); Figgs v. Bellevue Holding Co., 652 A.2d 1084, 1087 (Del.Super.Ct. 1994).
Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962).
Wooten v. Kiger, 226 A.2d 238, 239 (Del. 1967).
9. After considering the contentions of the parties, I agree with the plaintiff. A refusal to pay bills after a certain date can have the effect of lulling a party into thinking that submission of bills incurred after that date is pointless. Here the defendant reiterated its refusal to consider any bills incurred after a certain date. Although the medical bills in question were themselves apparently first made available to State Farm after the expiration of 27 months from the accident, the medical records containing the services upon which the bills were based were sent to State Farm within 27 months. Under these circumstances, I conclude that the defendant is estopped from asserting the defense that the bills in question were not submitted within 27 months of the accident, or has waived that defense.
10. Therefore, the motion for partial summary judgement is denied .
IT IS SO ORDERED