Opinion
C.A. No. 07C-05-255 FSS.
Submitted: July 7, 2008.
Decided: October 17, 2008.
Plaintiff's Motion for Summary Judgment — GRANTED
Thomas J. Roman, Esquire, Kimmel, Carter, Roman Peltz, P.A., Newark, DE.
Michael I. Silverman, Esquire, Silverman McDonald Friedman, Wilmington, DE.
Dear Counsel:
This decides the parties' cross-motions for summary judgment. Plaintiff, a State Police officer, was injured during a traffic stop, but while he was on foot. Plaintiff received PIP benefits from his employer, the State. Now, Plaintiff is seeking PIP coverage under the tortfeasor's policy. Therefore, two issues are presented.
First, because Plaintiff was on foot and he was not in or attending to his patrol car when he was injured, he contends that he counts as a pedestrian under the tortfeasor's policy. That policy covers pedestrians injured by the policy's owner. Second, assuming he was a pedestrian, Plaintiff contends that he is entitled to stack the PIP benefits provided by the tortfeasor's coverage on top of the PIP benefits he got from the State. It is understood that the State's benefits did not reimburse Plaintiff entirely.
A. Plaintiff Was a Pedestrian
In the light most favorable to the tortfeasor's carrier, a reasonable juror would have to conclude that Plaintiff was a pedestrian when he was injured. Plaintiff had stopped a motorist for speeding on Polly Drummond Road near Fox Fire Drive. After obtaining the usual information from the speeder, Plaintiff walked back to his patrol car. Just as he got to the car, the tortfeasor rammed it and, in the process, hit Plaintiff. It is undisputed that before he was injured, Plaintiff had stepped away from his patrol car and walked several yards to the stopped motorist's vehicle, where he did police work. The only argument that Plaintiff was not a pedestrian comes from the fact that Plaintiff drove to the scene and he had just made it back to his patrol car when he was struck. Thus, he initially was a motorist and he was standing next to the car when he was hurt.
It has been held that a driver who steps out of his car remains a driver so long as he is by the car or involved in activity associated with the vehicle. Here the court holds, conversely, that a motorist who leaves a vehicle and becomes a pedestrian, remains a pedestrian until he re-occupies the vehicle. At the instant Plaintiff was struck, Plaintiff was like anyone else walking to a car. Although Plaintiff was a step away from the vehicle's door handle, he had not begun to open the car door, much less occupy the driver's seat. Therefore, Plaintiff was still a pedestrian when injured.
Nat'l Union Fire Ins. Co. v. Fisher, 692 A.2d 892, 896 (Del. 1997).
In reaching its conclusion, the court appreciates that a motorist who is working on his car, e.g. changing a tire or pumping gas, can be characterized as an occupant for insurance purposes. That characterization, however, is inappropriate here for two reasons. First, tire changers or gas pumpers are typically deemed occupants in order to bring them under PIP coverage. More importantly, as presented above, Plaintiff undoubtedly had become a pedestrian when he walked from his patrol car to the stopped vehicle in order to confront the driver and obtain the necessary documents. While those activities were conducted roadside, they were performed by Plaintiff on foot and in furtherance of his work, rather than as a motorist. And so, the rules concerning proximity and parameters should not apply to him. Again, the Plaintiff was injured before he reached the point where he had lost his status as pedestrian.
Id. at 898.
B. Plaintiff May Stack PIP Coverage Here
Were Plaintiff a pedestrian when he was struck by the tortfeasor, which he was, then Plaintiff was covered by the tortfeasor's insurance. That is undisputed. The carrier's fallback argument for why it does not have to pay is based solely on the fact that Plaintiff received PIP benefits from the State. In order to get those benefits, arguably, Plaintiff had to establish that he was an occupant of the patrol car. If that is true, so the carrier's argument goes, Plaintiff can not claim now, in a contradictory way, that he was a pedestrian. Moreover, Plaintiff should not be allowed a second recovery.
To make its case, the carrier presents the deposition of the St ate's claims representative. Basically, she testified that the employer believed Plaintiff was entitled to benefits, regardless of whether he was a pedestrian or an occupant. Therefore, the State's decision to pay has no bearing on Plaintiff's entitlement to benefits under tortfeasor's policy. While that testimony is useful as background, it is not dispositive. There is nothing in the record that undermines the facts supporting the conclusion that Plaintiff was a pedestrian, vis a vis tortfeasor's insurance policy. It has long been held that an injured pedestrian may stack PIP benefits. Whether the State correctly or incorrectly decided that Plaintiff was entitled to benefits does not preclude Plaintiff from seeking benefits to which he is entitled from the tortfeasor's carrier.
See Nationwide Mut. Ins. Co. v. Grimm, 1986 WL 1271, Taylor, J. (Del.Super. Jan. 14, 1986) (citing Brown v. Scott, C.A. No. 79C-MY-51, Christie, J. (Del.Super. Oct. 30, 1980)); see also, 16 LEE R. RUSS THOMAS F. SEGALLA, COUCH ON INSURANCE § 169:102 (3d ed. 1999).
If it seems that Plaintiff is seeking a windfall, that is not so. The State's benefits ran out before Plaintiff was made whole. Meanwhile, the tortfeasor's carrier promised to pay a pedestrian injured by the tortfeasor. Allowing the carrier to avoid stacking here means a windfall for the carrier.
For the foregoing reasons, Plaintiff is entitled to summary judgement on the question of the Defendant-carrier's obligation to provide PIP benefits under the tortfeasor's policy.
IT IS SO ORDERED.