Opinion
C.A. 02C-05-274-FSS.
Submitted: January 22, 2003.
Decided: April 25, 2003.
Upon Defendant's Motion for Summary Judgment — GRANTED
L. Vincent Ramunno, Esquire Ramunno Ramunno
Stephen F. Dryden, Esquire Berkowitz Schagrin Cooper Dryden
Dear Counsel:
Must a personal injury protection insurance carrier reimburse an injured passenger for wages lost by her mother while her mother tended to her during her convalescence? Alternatively, must the insurance company cover the reasonable value of those services if neither the insured, nor the injured passenger paid for them? Plaintiff was seriously injured in an automobile accident. Her mother chose to miss work and was not paid while her daughter recovered from the accident. Instead of going to work, the injured motorist's mother provided non-professional nursing services to her daughter, the insured. Now, Plaintiff has sued her PIP carrier, demanding coverage either for her mother's lost income, or at least for the reasonable value of the mother's services.
Del. C. Ann. tit. 21, § 2118 (1995 Supp. 2002).
Viewing the record in the light most favorable to Plaintiff, it appears that Plaintiff's mother began looking after Plaintiff's personal needs on November 28, 2001, and presumably she started missing work and losing wages at that time. It is not clear precisely what services Plaintiff's mother performed, but she is not licensed to provide professional care, including nursing. On December 17, 2001, Plaintiff's orthopedist, on a prescription blank, wrote that Plaintiff's mother "will need to care for her daughter for another 2-3 weeks." The doctor's note probably excused the mother's absence from work. It does not appear that Plaintiff's mother charged her daughter. Nor does it appear that Plaintiff's mother has a pending claim against her daughter for services rendered. Plaintiff's mother cared for her daughter out of natural care and concern.
Plaintiff's personal injury protection insurance policy does not promise to reimburse Plaintiff for non-professional nursing services, much less to cover her mother's lost wages. At the most, the policy covers "[s]ubstitute services," defined as "[r]easonable and necessary extra expenses for personal services which would have been performed by the `insured' had [s]he not been injured." Thus, for example, if Plaintiff would have done her own laundry but for her injuries and she had paid her mother to do the laundry, Plaintiff might have a claim to reimbursement for that expense and similar ones. If her insurance carrier challenged these expenses, the jury would have to consider their necessity and reasonableness. But Plaintiff's claim for substitute services is not framed as a reimbursement to Plaintiff for her expenses.
Insuring Agreement (II)(B)(4).
Here, Plaintiff asks to "recover the reasonable value of those personal errand type services performed by her mother that Plaintiff would have performed herself had she not been injured." Plaintiff expects the jury to hear about the work her
mother did and then determine the reasonable value of those services. And presumably, Plaintiff will turn over to her mother the proceeds of any award against the PIP carrier. Plaintiff's theory, however, skips over the basic fact that her insurance policy only covers her "expenses." Unless she paid for a substitute service and incurred an expense, the jury does not assign a reasonable value to services rendered so that a non-insured, such as Plaintiff's mother, might be reimbursed for the non-insured's services rendered. Because Plaintiff did not incur any actual substitute service expenses, she has no claim under her policy.
The validity of Plaintiff's claim does not turn only on her insurance policy's coverage provisions. When it comes to PIP coverage, Delaware's no-fault insurance statute also has a say. Not surprisingly, the no-fault law speaks in almost exactly the same language employed by Plaintiff's insurance policy. The PIP coverage required by law must include "[e]xtra expenses for personal services which would have been performed by the injured person had they not been injured." Thus, the analysis that precludes coverage under the policy here, also precludes coverage as a matter of law.
Del. C. Ann. tit. 21, § 2118(a)(2)(a)(4) (1995 Supp. 2002).
Furthermore, the general rule is that non-professional nursing services provided by loved ones is not reimbursable under the no-fault insurance law's PIP requirement. One Delaware case, Biddle v. Griffin, recognizes both the general rule and a possible exception on behalf of a spouse who misses work in order to provide necessary, non-professional nursing care. Although it recognizes an exception to the general rule precluding coverage, Biddle is not a helpful precedent for Plaintiff. First, Biddle turns on "special circumstances" justifying an exception in that case. Moreover, Biddle's exception to the rule only worked for an injured motorist's spouse.
Biddle v. Griffin, 277 A.2d 691, 692 (Del.Super. 1970).
Id.
Assuming that Biddle, which has not been followed in over twenty years, establishes a valid exception to the general rule denying coverage for non-professional nursing care, the court will not extend that exception to lost wages sustained by parents who provide non-professional nursing care for injured children. The court understands that but for her mother's care, Plaintiff's mother probably would have hired someone to look after her daughter while she convalesced. And the court accepts as fact that Plaintiff's mother lost work and income. Nevertheless, making PIP insurance cover personal services provided by an insured's family is a slippery slope. That is especially true in a case where there is no formal agreement concerning compensation, and the insured expects the jury to assign a reasonable value to the services rendered by her mother.
For the foregoing reasons, Defendant's Motion for Summary Judgment on Plaintiff's claim to reimbursement for her mother's services rendered from November 28, 2001 through December 31, 2001 is GRANTED.
IT IS SO ORDERED.