Opinion
C.A. No. 99C-10-139-FSS
May 31, 2001
Charles Slanina, Esquire.
Dear Mr. Mrs. McDuffy and Mr. Slanina:
On December 1, 2000 the Court dismissed this case because Plaintiffs failed to oppose Lumbermen's motion to dismiss. On January 19, 2001 the Court granted Plaintiffs' motion to reopen due to excusable neglect. The Court also heard oral argument on the motion to dismiss. After oral argument, the parties offered supplemental submissions. The Court has reviewed those pleadings. In addition, the Court has reviewed the file in Plaintiffs' earlier complaint, C.A. No. 98C-11-213-JEB, including Judge Alford's June 10, 1999 order denying Plaintiffs' motion to amend to add defendants.
Plaintiffs filed the above-captioned action on October 14, 1999. Its first count is a tort claim arising out of a motor vehicle accident that occurred in 1997. That count also alleges a tort claim arising out of another automobile accident on January 31, 1998. Count II is a PIP claim against Plaintiffs' no-fault automobile insurance carrier.
At this point, the Court must decide the insurance company's motion to dismiss. Basically, the insurance company contends that Plaintiffs' PIP claim was litigated in front of an automobile arbitration panel under 21 Del. C. § 2118(j) and Plaintiffs lost. According to the two award letters dated October 23, 1998, Plaintiffs "failed to satisfy the burden of proof."
Instead of filing a timely appeal from the automobile arbitration panel award, Plaintiffs filed a tort claim in this court on November 20, 1998. That complaint is captioned C.A. No. 98C-11-213-JEB. The complaint does not purport to be an appeal and it does not even mention a PIP claim. Plaintiffs, however, attached the automobile arbitration panel award and its certification letter to their complaint. On May 28, 1999, Plaintiffs filed their motion to amend complaint to add defendants, mentioned above. For the first time, Plaintiffs tried to focus the court's attention on their PIP claim. Plaintiffs presented their motion to amend on June 10, 1999 and it was denied. The presiding judge held, in part:
But it seems that it's not appropriate to amend the complaint in this action, which is against one of the defendants in a separate accident on November 7, 1997. That's the original complaint. You need to file another complaint against the other defendant for the action.
Apparently, in response to the Court's June 10, 1999 decision, Plaintiffs refiled their complaint in C.A. No. 98C-11-213-JEB, except that they named their insurance company as defendants. This refiling created the above captioned matter, 99C-10-139-FSS.
The Court further observes that Plaintiffs filed a third complaint, C.A. No. 00C-01-160-HLA, on January 19, 2001. It is the same as their other complaints, except it names one of two alleged tort-feasors in the 1998 accident as defendant.
Assuming that Plaintiffs perfected an appeal from the automobile arbitration panel award when they attached it to their complaint in C.A. No. 98C-11-213-JEB, which is a doubtful assumption, that appeal is pending in C.A. No. 98C-11-213-JEB. But the time for filing an appeal from the arbitration panel award passed long before Plaintiffs filed C.A. No. 99C-10-139-FSS. It is unavailing to contend that the above-captioned action, to the extent that it names the insurance company as a defendant, somehow was authorized by the Court in its June 10, 1999 bench ruling. As presented above, the Court told Plaintiffs to file a new complaint "against the other defendant for the action." The Court did not give Plaintiffs permission to name a new defendant in their new complaint, here.
Further, Plaintiffs rely on Walters v. State Farm Mut. Auto. Ins. Co., for the proposition that the appeal window does not apply to them. That is not what Walters says. Walters essentially states that claims presented to an arbitration panel may only be challenged on appeal. As mentioned, if Plaintiffs took an appeal, it will be found inC.A. No. 98C-11-213-JEB.
Del. Super., C.A. No. 29C-FE-219, Del Pesco, J. (Feb. 20, 1990) (Letter Op.).
In summary, the Court will not hear a PIP claim arising out of automobile accidents in 1997 and 1998 that was rejected by an automobile arbitration panel and which is the subject of previously filed, pending litigation. Even if Plaintiffs could bypass an appeal from the arbitration panel, which they cannot, by filing a direct claim in this court, that claim must be heard in the first-filed action, C.A. No. 98C-11-213-JEB. And as for Count I of C.A. No. 99C-10-139-FSS, that clearly is part of C.A. No. 98C-1 1-213-JEB. While there was sense in the Court's insistence that Plaintiffs file separate claims against the tort-feasors in separate accidents, the complaint in C.A. No. 99C-10-139-FSS is duplicative, in part, and an impermissible "end run," in part.
For the foregoing reasons, the complaint in the above-captioned matter, which names Plaintiffs' PIP carrier, Lumbermens Mutual Casualty Company, is DISMISSED, without prejudice to Plaintiffs attempting to pursue their PIP claim in C.A. No. 98C-11-213-JEB.
IT IS SO ORDERED.