Opinion
C.A. No. 09C-03-046-JRJ.
Date Submitted: April 14, 2009.
Date Decided: July 22, 2009.
Upon Defendant Foremost Insurance Group's Motion For Judgment on the Pleadings: DENIED.
Matthew R. Fogg, Esquire, Wilmington, Delaware, Attorney for Plaintiff, Frederick Hodgson.
Tracy A. Burleigh, Esquire., Wilmington, Delaware, Attorney for Defendant, Foremost Insurance Group.
I. INTRODUCTION
Before the Court is Defendant Foremost Insurance Group's ("Foremost") Motion for Judgment on the Pleadings. Foremost asserts that the Plaintiff, Frederick Hodgson ("Plaintiff"), is an "insured" under the insurance contract; therefore the $10,000.00 deductible provided for in the contract applies to Plaintiff, and he is precluded from recovering personal injury protection ("PIP") benefits until the deductible is paid. As explained below, although Plaintiff is an "insured" under the policy, the deductible does not apply to him because it only applies to the owner of the vehicle or members of the owner's household. For this reason, Foremost's Motion for Judgment on the Pleadings is DENIED.
21 Del. C. § 2118(a)(2)(f)
II. BACKGROUND
Plaintiff was allegedly injured in an automobile accident on April 2, 2008, after a car struck him while he was riding his brother's motorcycle. John Hodgson, Plaintiff's brother and owner of the motorcycle, insured the motorcycle pursuant to Foremost Policy No. 276 — 0071644673-01. Plaintiff claims that Foremost is in violation of 21 Del. C. § 2118 for failing to compensate him for injuries he sustained in the accident. Plaintiff argues he is entitled to compensation for reasonable and necessary medical expenses and lost wages incurred within two years from the date of the accident as an "insured" under the policy. Foremost argues that under "Option J" its policy, a deductible of $10,000.00 applies to Plaintiff as a named insured. Both parties agree Plaintiff is an "insured" under the insurance policy.Plaintiff argues that applying the deductible would violate 21 Del. C. § 2118(a)(2)(f) because he is not the owner of the vehicle or a member of John Hodgson's household. Therefore, Plaintiff argues he is eligible to receive PIP benefits without having to pay the deductible.
Foremost argues that the deductible applies to Plaintiff for two reasons. First, under the terms of the contract, Plaintiff is considered an "insured." Second, Plaintiff's brother signed an insurance agreement selecting Option J, which applies a $10,000 deductible. In support of its argument, Foremost relies on 21 Del. C. § 2118(a)(2)(f), which states, "[t]he owner of a vehicle may elect to have the coverage . . . written subject to certain deductibles."
An "insured" is defined under the policy as, "[a]ny person injured while occupying your covered motorcycle." Compl. Ex. A at 17, ¶ B (internal quotation marks omitted).
Def.'s Mot. For J. on the Pleadings at ¶ 14.
21 Del. C. § 2118(a)(2)(f).
III. STANDARD OF REVIEW
Pursuant to Superior Court Civil Rule 12(c), a party may move for a judgment on the pleadings, "[a]fter the pleadings are closed but within such time as not to delay the trial." "A motion for judgment on the pleadings is viewed in the nature of . . . a motion to dismiss because it admits for the purpose of the motion, the allegations of the opposing party's pleadings but contends they are insufficient at law." The test for sufficiency is whether a plaintiff may recover under any plausible circumstances capable of proof under the complaint. Thus, the Court's decision in such a matter must only be based on the record presented, including all pleadings, affidavits, depositions, admissions, answers to interrogatories, and not what evidence may be "potentially possible."IV. DISCUSSION
Under Delaware law, an insured may subject his or her coverage to certain deductibles. In such circumstances, "[t]he owner of a vehicle may elect to have the coverage described in this paragraph written subject to certain deductibles . . . applicable to expenses incurred as a result of injury to the owner of a vehicle or member of the owner's household. . . ." Insurance companies and their clients are free to agree to any contractual terms, however deductibles may not be inconsistent with Delaware law or public policy.John Hodgson selected "Option J" in his insurance coverage to apply a $10,000.00 deductible to his policy. He also selected to have the deductible apply to "named insured and resident relatives," rather than just the "named insured." 21 Del. C. § 2118(a)(2)(f) states:
The owner of a vehicle may elect to have the coverage described in this paragraph written subject to certain deductibles, waiting periods, sublimits, percentage reductions, excess provisions and similar reductions offered by insurers in accordance with filings made by such with the Department of Insurance; applicable to expenses incurred as a result of injury to the owner of a vehicle or members of the owner's household; provided that the owner of a motorcycle may elect to exclude from such coverage expenses incurred as a result of injury to any person riding such vehicle while not on a highway and in any case of injury when no other vehicle was involved by actual collision or contact.
Id. (emphasis added).
Foremost's interpretation of the contract conflicts with Delaware law. The deductible does not apply to Plaintiff because he is not the owner of the vehicle, and he is not a member of John Hodgson's household. In Barber v. Williams, this Court stated that insurance deductibles, "serve the public interest by allowing the owner of a vehicle to minimize the cost of his insurance by assuming the risks applicable to him and his family alone." The insurance contract defines "family member" as "[m]embers of the named insured's immediate family who do not have a separate household" and "[p]ersons actually residing with and economically dependent on the named insured." Plaintiff's home is located at 9 Glenrich Avenue, Wilmington, Delaware 19804. John Hodgson resides at 22354 Carriage Road, Millsboro, Delaware 19966. Thus, although Plaintiff and John Hodgson are brothers, under 21 Del. C. § 2118 and the insurance contract, Plaintiff is neither a "family member" nor "household member" of John Hodgson because he did not live in John Hodgson's household at the time of the accident.
Compl. at p. 5, ¶ 4.
Barber v. Williams, 1981 WL 394369, at *1 (Del.Super. Apr. 13, 1981) (emphasis added).
Compl. Ex. A at p. 17, ¶ A
Compl. at p. 5, ¶ 1
Compl. Ex. A at p. 1
V. CONCLUSION
Plaintiff is not the owner of the vehicle or a member of John Hodgson's household. Therefore, pursuant to 21 Del. C. § 2118(a)(2)(f), the deductible cannot apply to Plaintiff. Accordingly, Foremost's Motion for Judgment on the Pleadings is DENIED.
IT IS SO ORDERED.