Opinion
C. A. No. 05C-04-087-CLS.
Date Submitted: December 19, 2006.
Date Decided: March 30, 2007.
UPON DEFEDNANT'S MOTION FOR REARGUMENT/CLARIFICATION.
Motion to Dismiss DENIED without prejudice.
Chaneta Brooks Montoban, Esquire, Casarino, Christman Shalk, P.A., Wilmington, Delaware, Attorney for Plaintiff.
Michael I. Silverman, Esquire, Silverman, McDonald Friedman, Wilmington, Delaware, Attorney for Defendant.
ORDER
1. Defendant Progressive Insurance Company ("Defendant") has filed a Motion for Reargument/Clarification of the Court's decision dated October 31, 2006, which denied its' Motion to Dismiss and held that Plaintiff State Farm ("Plaintiff") has the right to reimbursement of PIP benefits paid on behalf of Plaintiff Johnson. The Court made this ruling pursuant to 21 Del. C. § 2118, which provides that an insurance carrier automatically gains rights of subrogation against the tortfeasor's insurer.
2. Defendant seeks reargument, claiming that, "State Farm cannot challenge the Progressive coverage denial as they are not a party to the Progressive insurance contract." At the December 19, 2006 hearing, Defendant supported this claim by stating that it clearly denied coverage to the insured tortfeasor here, prior to the accident in question.
Def. Mot. Rearg. at ¶ 3.
3. The purpose of reargument is to permit reconsideration of findings of fact, conclusions of law, or judgment in order to correct errors prior to appeal. Reargument usually will be denied unless the moving party demonstrates that the Court overlooked a precedent or legal principle that would have a controlling effect, or that it had misapprehended the law or the facts in a manner affecting the outcome of the decision. "A motion for reargument should not be used merely to rehash the arguments already decided by the court."
Hessler, Inc. v. Farrell, 260 A.2d 701, 702 (1969).
Wilmington Trust Co. v. Nix, 2002 WL 356371 (Del.Super.); Whitsett v. Capital School District, Del. Super., C.A. No. 97C-04-032, Vaughn, J. (Jan. 28, 1999); Monsanto Co. v. Aetna Casualty Surety Co., Del. Super., C.A. No. 88-JA-118, Ridgeley, P.J. (Jan. 14, 1994).
5. This Court held that Plaintiff State Farm has the right to reimbursement of PIP benefits from Defendant Progressive. Plaintiff has this statutory right to subrogation against the tortfeasor's automobile liability insurance carrier under 21 Del. C. § 2118. While Defendant does not contest this finding of law, it does, however, raise an issue of fact still in dispute. Defendant Progressive claims that it denied PIP coverage to its insured tortfeasor prior to the accident in question. Because Defendant already denied PIP coverage, Plaintiff State Farm cannot claim it pursuant to 21 Del. C. § 2118. Defendant argues that making such a claim amounts to Plaintiff challenging the coverage provided to the insured tortfeasor per Defendant Progressive's contract agreement. Plaintiff State Farm concedes that it only has the right to subrogation of PIP benefits under an existing insurance contract agreement. The current Motion for Reargument, therefore, turns on an issue of fact.
6. In a Motion to Dismiss, all well-pled allegations are to be taken as true. Such a motion cannot be granted if the plaintiff may not recover under any conceivable set of circumstances susceptible of proof under the complaint. If a Motion to Dismiss is accompanied by additional papers, it is to be converted to a summary judgment motion. The Defendants' inclusion of the denial letters, therefore, should have converted their motion to one for summary judgment. Applying principles applicable to motions for summary judgment, the moving party is entitled to summary judgment if there is not a genuine issue of material fact and that party is entitled to judgment as a matter of law. The Court must view the evidence in a light most favorable to the non-moving party. Here, the non-moving party is Plaintiff.
Savor, Inc. v. FUR Corp., 812 A.2d 894, 896 (Del. 2002).
Lord v. Sonder, 748 A.2d 383, 398 (Del. 2000).
Chrysler Corp. v. Airtemp Corp., 426 A.2d 845, 847 (Del.Super.Ct. 1980).
Bershad v. Curtiss-Wright Corp., 535 A.2d 840, 844 (Del. 1987).
Alabi v. DHL Airways, Inc., 583 A.2d 1358, 1361 (Del.Super.Ct. 1990).
7. At the December 19, 2006 hearing, Plaintiff stated that an issue of fact exists with regard to PIP coverage by Defendant Progressive. Plaintiff claimed that Defendant only denied the tortfeasor of this coverage within two to three days after the accident in question. On the other hand, Defendant contended that it clearly denied PIP coverage prior to this time. Defendant supported this contention by referencing a letter sent to the tortfeasor, but never provided the Court with this letter. Thus, after reviewing this matter, the Court finds that a genuine issue of fact exists as to whether Defendant Progressive provided insurance coverage to the tortfeasor in the matter at hand.
8. Both parties have agreed that Defendant Progressive cannot be a party if they did not provide coverage for the tortfeasor at the time of the accident in question. Because material facts are in dispute as to coverage, the Court must deny the Motion to Dismiss. Defendant Progressive's Motion to Dismiss is, thereby, DENIED without prejudice.
IT IS SO ORDERED.