Opinion
C.A. NO. 98C-11-224 CHT.
February 8, 2000.
ARBITRATION CASE JURY OF 12 Demanded
ORDER
This the 8th day of February, 2000, upon consideration of the Defendant's Motion for Summary Judgment and the record in this case, it appears that:
1. On November 17, 1993, the Plaintiff, a named insured under an automobile policy issued by the Defendant, was involved in an automobile accident in New Castle County, Delaware. As a result, the Plaintiff has alleged that she suffered personal injuries.
2. At the time of the accident, the Plaintiff was not employed. She had resigned from her position with Wilmington Savings Fund Society the day before the accident in anticipation of a move to California with her husband. The Plaintiff is now seeking lost wage benefits from Defendant due to her inability to work after the accident.
3. The Plaintiff filed the present action on November 20, 1998. The Defendant first filed a "Motion To Dismiss/Summary Judgment" on March 29, 1999 alleging that the Plaintiff's claim for lost wages fell outside both the statute of limitations for filing such claims under Delaware's no-fault statute as well as the contractual requirements that the claims be presented within twentyseven months of the accident at issue. The Plaintiff alleged in response that the Defendant failed to provide notice of the applicable limitation period pursuant to 10 Del. C. § 4317. On May 18, 1999, the Court denied the Defendant's Motion to Dismiss stating that Section 4317 did apply to the case and therefore written notice was required. The Defendant filed a motion for reargument on May 25, 1999, which was denied as well on August 17, 1999.
4. On May 25, 1999, the Defendant filed the instant Motion for Summary Judgment. In this motion, the Defendant alleged that the Plaintiff's claim for lost wages must be denied because she was unemployed at the time of the accident. In support of its position the Defendant relies on the decision in Swiderski v. Commercial Union, Del. Super., C.A. 993, 1976, Christie, J. (Nov. 15, 1977) (Let. Op.) at 2. Further, even if the Plaintiff can advance such a claim, she cannot, under the present circumstances of this case, establish with the requisite degree of certainty, the probable loss of earnings or put forth any evidence that she, prior to the date of the alleged injury, was entitled thereto.
5. Motions for summary judgment may be granted where the evidence shows that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. The moving party bears the burden of showing that no genuine issue-of material fact exists and the record must be viewed to the light most favorable to the non-moving party. Borish v. Graham et. al., Del. Super., 655 A.2d 831, 833 (1994). If there is any evidence to support an outcome favorable to the non-moving party, summary judgment must be denied. Plant v. Catalytic Construction Co., Del. Super., 287 A.2d 682, 684 (1972)
6. Swiderski is factually similar to the instant case in that the plaintiff there was injured in an automobile accident and was also unemployed. However, the plaintiff inSwiderski claimed that he had been offered and had accepted a job. The Court decided that "if Mr. Swiderski can prove that there was a bonafide offer and acceptance of a job to commence on January 6, 1975, and that he was capable of performing such a job and would have done so, then he would be entitled to recover his lost earnings from the defendant insurance carrier." Swiderski at 2. On the other hand, if such proof fell short of the required amount, then the legal sufficiency would be subject to review by the trial judge pursuant to an appropriate motion at the close of the plaintiff's case. Id.
7. Moody v. Nationwide Mutual Insurance Company, Del. Supr., 549 A.2d 291 (1988), also involved an insured who was in an accident and brought action against his automobile insurer to recover "No — Fault" personal injury protection benefits for lost wages and medical expenses resulting from his injury. The plaintiff was selfemployed at the time of the accident and presented a photocopy of a business record along with testimony that he had net earnings of $240 a week from his ownership and operation of the car wash. The Supreme Court held that with respect to a claim for loss of income, the plaintiff has the burden of providing evidence offering "some reasonable basis upon which a jury may estimate with a fair degree of certainty the probable loss which the plaintiff will sustain in order to enable it to make an intelligent determination of the extent of the loss." Id. at 291, 293 (citing Henne v. Balick, Del. Supr., 146 A.2d 394, 396 (1958)). The Court decided that whether the insured suffered lost wages as a result of his inability to work in the car wash was a question for the jury.
8. The instant case seeks to extend the holding in Swiderski one step further. To the extent it calls into question the quantum of proof necessary to prove a claim such as that which is at the center of this controversy, it also touches upon the issue presented in Moody. At the risk of oversimplification, the question presented is whether a plaintiff can present and recover on a claim for PIP benefits in the form of lost wages where he or she was not actually employed or contractually bound to begin employment on a date and pursuant to terms certain.
9. The concept underlying the requirement that motor vehicles registered in this state be insured and that said insurance provide for the payment of certain benefits without regard to the issue of fault did not, however, dispense the quantum of proof necessary to establish entitlement to those benefits. Nor does it mean that because an individual was once employed, that that employment, once terminated, can serve as a basis of a lost wage claim. Unfortunately, the General Assembly of this state did not provide any guidance concerning what it meant by the term "lost wages." The Court must therefore determine the meaning of that phrase.
10. In this regard, viewing Swiderski in light of the purpose underlying the statute and using common sense, one can infer that at the very least, there must have been some legally binding entitlement to compensation for labor and/or services which was interrupted by injuries arising out of a covered accident. To be "lost" implies that the item was once possessed by the individual seeking to recover it or the value thereof. Possession or entitlement are the keys to this equation. The Plaintiff must therefore be able to demonstrate that she had a legally recognizable claim to compensation that was interrupted by the November 17, 1993 accident. She is not required to show that she was employed on the date of the accident, only that compensation to which she was otherwise entitled at that point in time, was interrupted following and because of the aforementioned accident. The question of the sufficiency of the proof is one for the jury absent a determination prior to trial that the claimant can not establish anything other than the prospect that she or he had the capability to and would have secured employment sometime in the future. See Moody. The distinction lies in the past versus the future, what was compared to what might be.
11. Here, the Plaintiff is alleging that she was fully employed for the two years prior to the accident in the same field in which she was going to seek employment. in California. Her yearly pay in Delaware on her last job as legal secretary/administrator was $33,500. She also states that it was her intent after moving to California to obtain a job in the legal secretarial field. She in fact began employment on February 6, 1995 doing clerical/legal work for $31,824 a year, but she claims that due to the physical demand she had to leave the job. Whether she can establish a claim for past lost wages given these allegations and in light of the discussion above seems doubtful. However, the Court is not prepared to state that she can never do so. Consequently, it does not appear that the Defendant, at least at this point, is entitled to judgment as a matter of law or that a sufficient factual record has been established to allow the Court to make such a determination.
Based on the foregoing, it appears the Defendant is not entitled to the entry of a judgement in its favor on the grounds asserted at this time. Its motion must be, and hereby is, denied.
IT IS SO ORDERED.
TOLIVER, Judge.