Opinion
C.A. No. 02C-04-007 JTV.
Submitted: January 10, 2003.
Decided: April 28, 2003.
Upon Consideration of Plaintiff's Motion For Partial Summary Judgment
GRANTED
Stephen A. Hampton, Esq., Grady Hampton, Dover, Delaware. Attorney for Plaintiffs.
Colin M. Shalk, Esq., Casarino, Christman Shalk, Wilmington, Delaware. Attorney for Defendant.
OPINION
This is an action to recover lost wages under the personal injury protection benefits of an automobile insurance policy. On March 26, 2001, the plaintiff, Jacqueline M. George, was struck by a car insured by the defendant, Donegal Mutual Insurance Company. She was a pedestrian. At the time, she was employed at Midway Slots in Harrington, Delaware. Since the accident, however, she has not worked at her job and alleges that she is unable to do so because of injuries she sustained in the accident. Those injuries, she contends, limit her to light duty work which has prevented her from returning to her job at Midway Slots. The defendant contends that the plaintiff has a duty to mitigate her lost income by seeking substitute employment. The plaintiff has filed this motion for partial summary judgment, contending that the applicable policy provision does not require her to seek alternative employment to minimize her lost income.
Preliminarily, I note that summary judgment cannot be granted in any affirmative sense because material facts are in dispute. However, since it is likely that a decision on the legal issue presented will at some point be necessary, I will address the issue now. For purposes of this motion, I accept as fact that the plaintiff has neither sought nor obtained any alternative employment since the accident.
The Donegal policy provides in pertinent part as follows:
Subject to the limits shown in the Schedule of Declarations, personal injury protection benefits consist of the following:
2. Income Loss.
a. Loss of wages, salary or their equivalent, net of taxes, for work an "insured" would have performed had he not been injured.
The plaintiff contends that the work she "would have performed had [s]he not been injured" is her job at Midway Slots. She contends that under the above language she is under no obligation to seek alternative employment to minimize her lost wages. She relies upon the case of Casson v. Nationwide Insurance Company.
455 A.2d 361 (Del.Super. 1982).
In Casson, the plaintiff was an ironworker's apprentice. His job involved climbing, lifting and pulling heavy weights. After being injured in an auto accident, he was unable to return to his job. He did not seek any other type of work. His apprenticeship was terminated due to his inability to complete his on-the-job training. He refused to participate in rehabilitative services. He also refused a "trigger area injection" which one doctor had suggested as a diagnostic procedure. Eventually, the insurance company stopped paying the lost income benefits which it had been paying under the applicable insurance policy's personal injury protection benefits. The pertinent language in the policy read as follows:
We will pay for loss of earnings, meaning employment income actually lost, within two years after the accident, net of taxes, if the bodily injury prevents the insured from working at his normal employment.
The court first noted that under the statutory language of Delaware's No Fault Act an insured does have an obligation to minimize losses. This obligation arises from the statutory language which provides that insurance must be available to pay reasonable and necessary expenses, including lost wages. The term "necessary," the court reasoned, means lost wages which are "unavoidable" or "inescapable." The court then noted that under the No Fault Act an insurance policy may provide for coverage that is broader than the statutory minimum. The court held that the policy language involved in that case did not impose any duty on the insured to seek substitute employment. The court stated in pertinent part as follows:
21 Del. C. § 2118(a)(2)a.
455 A.2d at 366, citing 21 Del. C. § 2118(c). The provision is now at (d).
Here the language of the policy is free from any ambiguity and is susceptible of only one meaning — the language of the policy has extended the statutory minimum coverage by eliminating the requirement of "necessary" from its provision. As a result the standard of recovery is earnings "actually lost," without qualification. While income from substitute work actually performed might reduce the insured's recovery, there is no affirmative duty on the insured to seek such substitute employment and his entitlement is not conditioned on such effort. This interpretation of policy enlargement finds support in the language of the policy's medical expense clause which, by contrast, retains the statutory language of "reasonable and necessary."
Id.
The defendant contends that Casson is distinguishable. It argues that the policy in Casson compensated an insured for "earnings actually lost" from the insured's "normal employment." Since the language involved here does not define lost income in terms of "earnings actually lost" from "normal employment," it argues, a duty of mitigation should be found to exist.
The language in the Donegal policy, however, is as clear and unambiguous as that in Casson. Lost wages are defined in terms of "work an insured would have performed had he not been injured." (emphasis added). On the basis of the record so far, the work which the plaintiff would have performed had she not been injured is her job at Midway Slots. The policy language does not impose any duty on the insured to seek substitute employment and does not condition benefits upon her making an effort to do so. Accordingly, the fact that the plaintiff has not obtained or attempted to obtain substitute employment commensurate with her work restrictions is not a defense.
It is noted that whether or not her injuries did, in fact, prevent her from working at her job at Midway Slots is a disputed issue.
It is also noted that the Donegal policy, like the one in Casson, retains the "reasonable and necessary" language in its medical expense cover.
Donegal also relies upon the case of Marquis v. Hartford Accident Indemnity, which it contends has construed language identical to that involved here to impose a duty to mitigate lost wages. In that case the language appeared in a Michigan statute. The court decided that under Michigan law, the common law duty to mitigate applied despite the absence of any mitigation language in the statute. The proposition that a duty to seek alternative employment exists, despite the absence of any language so indicating in the policy was, however, rejected in Casson.
513 N.W.2d 799 (Mich. 1994).
Accordingly, the plaintiff was under no duty to seek substitute employment to minimize her lost wages. Therefore, as to that legal issue, partial summary judgment in her favor is granted.
It is important to note that the defendant did have a duty to any medical or rehabilitative treatment which might have lessened her alleged disability and allowed her to return to her job at Midway Slots. See Casson at 366.
Accord, Johnson v. State Farm Auto Ins. Co., 1991 Del. Super LEXIS 221 (Del.Super. 1991).
IT IS SO ORDERED.