Opinion
C.A. No. 05C-07-108 SCD.
Submitted: October 4, 2006.
Decided: October 13, 2006.
ORDER
This 13th day of October, 2006, upon consideration of the defendant American Life Insurance Company's (ALICO) Motion for Summary Judgment, and no response from plaintiff Robertson, it appears that:
(1) Plaintiff's claim arises from the alleged breach of four separate life insurance policies purchased by his wife between 1993 and 1996 on which he and his son are beneficiaries.
(2) At the time the policies were issued, plaintiff worked as an insurance agent for defendant ALICO in their Kuwait office. He was the agent who sold the policies to his wife.
(3) After the alleged death of plaintiff's wife on January 29, 1997, plaintiff sought death benefits. Over the next few years, defendant investigated the claim and requested further documentation from plaintiff.
(4) ALICO refused the claim, contending that plaintiff failed to provide requested documentation and failed to appear in person to answer ALICO's questions surrounding the death of his wife.
(5) On July 12, 2005, more than eight years after the alleged death of the insured, plaintiff filed a complaint in this Court seeking damages for ALICO's alleged breach of the four life insurance policies. Plaintiff's complaint was filed by Robert J. Leoni, Esquire. It appears that neither the insured nor the plaintiff have been in the United States at any time pertinent to this litigation.
(6) On October 17, 2005, ALICO filed and served its answer to the complaint raising, among other defenses, the affirmative defense that the claims raised in the complaint are barred by the statute of limitations.
(7) On April 25, 2006, ALICO filed the present motion for summary judgment.
(8) On July 13, 2006, the day before the plaintiff's answer to the summary judgment motion was due, Mr. Leoni wrote to the court regarding his intent to withdraw as counsel and, the same day, filed a motion to withdraw. In his motion to withdraw, Mr. Leoni gave the following explanation:
The relationship between the undersigned counsel and the Plaintiff has deteriorated to the point that the undersigned counsel does not feel able to continue representation of Plaintiff, and counsel cannot agree on the ongoing litigation of the case.
(9) On July 28, 2006, the Court granted Mr. Leoni's motion to withdraw as counsel for the plaintiff.
(10) At the same hearing on July 28, 2006, the Court entered an Order directing plaintiff to respond to ALICO's motion for summary judgment "before September 22, 2006, or the motion will be deemed unopposed."
(11) On September 7, 2006, the Court received a letter from the plaintiff by registered mail from India dated August 21, 2006, indicating that he believed he was required to be present for trial on September 22, 2006. Plaintiff's letter did not address any of the substantive issues raised in the defendant's motion for summary judgment.
The August 21, 2006 letter refers to a simultaneous e-mail which may have been received, but was not read or preserved.
(12) By letter dated September 8, 2006, delivered by e-mail to plaintiff Robertson and electronically filed, the Court corrected any misunderstanding and stated the following:
You appear to be under the impression that the trial of the matter is scheduled for September 22, 2006. That is not correct. There is a pending motion for summary judgment, which, by Order dated July 28, 2006, you were ordered to respond to on or before September 22, 2006. You must submit a written response. You are NOT to appear in person on September 22, 2006; no hearing is scheduled for that date.
(13) On September 18, 2006, the Court received a letter dated September 9, 2006, from plaintiff Robertson again indicating that he believed he was to appear before the Court on September 22, 2006. Plaintiff Robertson informed the Court that he will be unable to respond to the defendant's motion on or before September 22, 2006.
(14) Plaintiff Robertson states in the letter:
The Honourable Judge, I beg with you to consider my case and give me a longer date so that I can produce necessary evidentiary documents/respond to the Defendant motion. Please have pity on me and my minor son and treat this case as very very important/special to grant me the future date. Finally the Honourable Judge, if you fill that you cannot grant me a long date for my hearing than I humbly beg/request you to allow me to plead from Goa, India by email/registered post/telephonically/speed post or by courier.
(15) The Court did not respond to plaintiff Robertson's letter of September 9, 2006.
(16) Plaintiff has not filed a response addressing the substantive issues in the defendant's motion for summary judgment. Pursuant to the Court's July 28, 2006 Order, the motion for summary judgment is deemed unopposed.
(17) A motion for summary judgment may only be granted where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. In determining whether there is a genuine issue of material fact, the evidence must be viewed in the light most favorable to the non-moving party. The decision on a summary judgment motion must be based only on the record presented, including all pleadings, affidavits, depositions, admissions, and answers to interrogatories, not on what evidence is "potentially possible."
Merrill v. Crothall-American, Inc., 606 A.2d 96 (Del. 1992).
Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
Camac v. Hall, 698 A.2d 394, 396 (Del.Super.Ct. 1996) (citing Rochester v. Katalan, 320 A. 2d 704 (Del.Super.Ct. 1974)).
(18) Since the cause of action arose outside of Delaware, the Delaware borrowing statute applies. It provides in pertinent part:
Where a cause of action arises outside of this State, an action cannot be brought in a court of this State to enforce such cause of action after the expiration of whichever is shorter, the time limited by the law of this State, or the time limited by the law of the state or country where the cause of action arose, for bringing an action upon such cause of action.
(19) Defendants argue that the claims are time barred under both the Kuwaiti statute of limitations and the Delaware statute of limitations.
(20) Plaintiff alleges that the insured died on January 29, 1997.
(21) Plaintiff filed his complaint on July 12, 2005.
(22) Defendants have provided the Court with the affidavit of Reema Ali, an expert on Kuwaiti law, to support their contention that the Kuwaiti statute of limitations is three years. In addition to extensive experience working in Kuwait and advising international companies on Kuwaiti law, Ms. Ali's opinion on Kuwaiti law has been admitted into evidence by at least two U.S. Courts.
See Affidavit of Reema Ali filed contemporaneously with defendant ALICO's opening brief in support of its motion for summary judgment with respect to the applicable statute of limitations on all claims raised in the complaint.
See Curriculum Vitae of Reema Ali, attached as Exhibit 1 to Affidavit of Reema Ali.
(23) In the alternative, defendants argue that if Delaware law is applied because ALICO is a Delaware Corporation, the claim is time-barred. The Delaware statute of limitations governing an insurance policy, like any other contract, is three years.
Del. C. § 8106.
(24) Under Delaware law the statute of limitations begins to run from the accrual of the cause of action. Assuming, arguendo, that the cause of action accrued upon denial of the claim by ALICO, the limitations period commenced to run no later than 1999. The statute of limitations has expired, whether Kuwaiti or Delaware law is applied.
Id.
(25) There are no genuine issues of material fact which preclude the entry of judgment.
WHEREFORE, defendant ALICO's motion for summary judgment is GRANTED.
IT IS SO ORDERED.