Opinion
C.A. No. 07C-01-100 FSS.
February 26, 2009.
Upon Plaintiff's Motion in Limine — DENIED.
Edward Fornias, III, Esquire, Roeberg, Moore Friedman, Wilmington, DE.
Shae Chasanov, Esquire, Swartz Campbell, Wilmington, DE.
Carol Antoff, Esquire, Law Office of Cynthia G. Beam, Newark, DE.
Dear Counsel:
Plaintiff, a resident of North Carolina, a state that does not require "no fault" insurance, was hurt in a collision in Delaware. He wants to "board" the damages that typically are inadmissible thanks to our No-Fault statute's preclusion clause. As discussed below, it turns out that there is less here than meets the eye. Delaware's law now speaks to this situation directly, and so does Plaintiff's insurance policy. The law and the policy do not support Plaintiff.
21 Del. C. § 2118(h).
On September 22, 2008, Plaintiff filed a motion in limine seeking to admit PIP damages at trial. Following oral argument on October 17, 2008, the court ordered counsel to submit supplemental case law. The last submission was received on November 7, 2008. After considering all the submissions, the court adjusts its preliminary ruling and it will now deny Plaintiff's motion.
While driving a car that was registered and insured by Nationwide in North Carolina, Plaintiff was hurt in a collision on October 6, 2006, on Route 13 in Delaware. Defendant was a Delaware resident. Her vehicle registration and insurance were issued here. Plaintiff's Nationwide insurance policy does not provide PIP coverage and North Carolina does not require it. The policy does, however, contain an extraterritoriality clause extending coverage for injuries sustained in a state requiring coverage, such as Delaware.
Plaintiff's Nationwide Personal Auto Policy "Out of State Coverage" clause, in pertinent part, reads:
If an auto accident to which this policy applies occurs in any state or province other than the one in which your covered auto is principally garaged, we will interpret your policy for that accident as follows: If the state or province has:
2. A compulsory insurance or similar law requiring a nonresident to maintain insurance whenever the nonresident uses a vehicle in that state or province, your policy will provide at least the required minimum amounts and types of coverage.
Plaintiff claims that because he is a North Carolinian, Delaware's No-Fault statute does not apply to him and he is not eligible for insurance; therefore, he is not prohibited from introducing his PIP damages under 21 Del. C. § 2118(h). Plaintiff's supplemental submission offers a single case, from Washington D.C., supporting his position that his "residency" is dispositive.
Monroe v. Foreman, 540 A.2d 736 (D.C.Ct.App. 1988).
Defendant asserts that Plaintiff is precluded from admitting PIP damages because, although Plaintiff's policy was issued in a state that does not require minimum PIP coverage, Plaintiff is nonetheless eligible for benefits under § 2118(b) and, as such, Nationwide must insure Plaintiff with minimum coverage equal to that required for a Delaware resident. Further, Defendant contends that because Plaintiff's policy includes an extraterritoriality clause, Nationwide is required to pay Plaintiff PIP benefits in accordance with § 2118. Therefore, Plaintiff is subject to the same limitations found within § 2118 as though Plaintiff were a Delaware resident.
21 Del. C. § 2118(b), in pertinent part, reads:
If the state or jurisdiction of registration requires no minimum insurance coverage, then such owner must have insurance on such motor vehicle equal to the minimum insurance coverage required for motor vehicles registered in this State.
Most of the case law concerning this issue predates the 1992 amendment to Delaware's no-fault statute that added § 2118(b), addressing out-of-state drivers. That amendment is unambiguous. Now, the law clearly requires drivers from states without minimum insurance requirements, such as North Carolina, to have insurance equal to Delaware's minimums while driving here. The minimum requirements are set forth in § 2118(a)(2)(b). And, the new law plainly says if a person is eligible for benefits under § 2118(a)(2)(b), that person is precluded from "introducing into evidence in an action for damages against a torfeasor[,] those damages for which compensation is available under paragraph (2) or (3) of subsection (a)." If an out-of-state driver is required to have insurance equal to Delaware's, then that driver would also be treated equally under § 2118(h).
See, e.g., Nationwide Ins. Co. v. Battaglia, 410 A.2d 1017, 1019 (Del. 1980); Wallace v. Archambo, 619 A.2d 911 (Del. 1992); Deel v. Rizak, 474 F.Supp. 45 (D.Del. 1979).
21 Del. C. § 2118(b).
21 Del. C. § 2118(h).
This is consistent with the legislative purpose to "require insurance for all motor vehicles operating in this State whether they are registered in this State or not." In addition, this holding is apparently consistent with insurance practice, as many insurance companies include an extraterritoriality clause in their policies. What was once considered an "unfeasible burden on [] insurance companies," is seemingly commonplace now.
Del. H.B. 60, 136th Gen. Assem. (1992).
Nationwide, 410 A.2d at 1019.
Cf. Pollard v. State Farm Mut. Auto. Ins. Co.,___ P.3d ___, 2008 WL 2053070 (Colo.Ct.App. May 15, 2008); Johnson v. U.S. Fid. Guar. Co., 696 N.W.2d 431 (Neb. 2005); Meyer v. Hutchinson, 861 So. 2d 1185 (Fla.Dist.Ct.App. 2003); West Bend Mut. Ins. Co. v. Stegner, 610 N.W.2d 150 (Wis.Ct.App. 2000); 7A LEE R. RUSS THOMAS F. SEGALLA, COUCH ON INSURANCE § 109:33 (3d ed. 1999).
In any event, Plaintiff's insurance policy provides that Nationwide will extend coverage, if necessary, above the amounts purchased in order to comply with another state's compulsory insurance law. And so, Plaintiff's insurance policy jibes with North Carolina's and Delaware's laws. There is no reason to introduce Plaintiff's PIP-style damages because he has, or he should have had, coverage under prevailing Delaware law.
For the foregoing reasons, Plaintiff's motion in limine to admit special damages is hereby DENIED.
IT IS SO ORDERD.