Opinion
C.A. No. 09C-10-145 FSS, E-FILED.
Submitted: July 8, 2010.
Decided: October 27, 2010.
Upon American Independent Insurance Company's Motion to Dismiss, Converted to Summary Judgment.
GRANTED.
Lawrance Spiller Kimmel, Esquire.
Lynn Kelly, Esquire.
Mary E. Sherlock, Esquire.
Susan List Hauske, Esquire.
Tracy A. Burleigh, Esquire.
MEMORANDUM OPINION AND ORDER
Generally, this is a personal injury action arising out of a collision between a motorcycle and a car. The narrow issue centers on the insurer's inability to produce the signed policy. Plaintiff, the motorcyclist, does not dispute the insurer's assurance that the policy followed a standard form that precluded coverage. Even though Plaintiff acknowledges that neither he nor the driver is named in any policy, Plaintiff argues that because the insurer cannot produce the actual paperwork, he is entitled to coverage.
More specifically, this is American Independent Insurance Company's motion to dismiss Joseph Deptula's suit for damages allegedly caused when Lorie Tingle drove a Chevrolet Malibu in front of his motorcycle. Deptula claims AIIC is liable because "Tingle lived with George and Tina Bradford at the time of the Accident[,]" and AIIC insured their 2004 Ford Explorer. AIIC did not insure the Malibu, and, as mentioned, neither Deptula nor Tingle was named in the Bradfords' policy. AIIC argues its standard form policy excludes Tingle because she is not related to the Bradfords by blood, marriage, or adoption.
Deptula tacitly admits that Tingle was unrelated to the Bradfords. Moreover, he does not challenge AIIC's claim as to what its standard policy said. And, he does not claim, much less support the claim with evidence, that the Bradfords' policy differed from the standard form. Deptula argues AIIC's failure to locate the Bradfords' signed policy lets him extend coverage to Tingle, as a matter of law. The issue, therefore, is whether Deptula can survive AIIC's motion without presenting evidence that the Bradfords' signed policy is different from AIIC's standard policy.
I.
By attaching a copy of its standard form policy to its motion to dismiss, AIIC converted its Rule 12(b)(6) motion into a Rule 56 motion for summary judgment. If the moving party includes matters requiring the court to look beyond the pleadings, the 12(b)(6) motion becomes a Rule 56 motion for summary judgment. When that happens, the parties "shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Here, AIIC attached its standard form policy to its 12(b)(6) motion. In response, on February 1, 2010, the court extended discovery to provide time to find the Bradfords' signed policy. Thus, AIIC's motion to dismiss has been converted into a motion for summary judgment.
Super. Ct. Civ. R. 12(b)
Id.
II.
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law." AIIC bears the initial burden to show no genuine issue of material fact remains for trial. If met, the burden shifts to Deptula. The court "will accept as established all undisputed factual assertions, made by either party, and accept the non-movant's version of any disputed facts."To prevail, Deptula has to present evidence undermining AIIC's version of its standard policy and its claim that the Bradfords' policy was the standard one. Deptula cannot survive on bare assertions or conclusory allegations. Deptula acknowledges, "[u]nder the language of the sample policy . . . Tingle does not qualify for coverage as she fails to meet the `family member' requirement since she is not related to the insured by blood, marriage, or adoption." Deptula, as mentioned, does not present evidence tending to show that the lost policy differed from the standard form. He does not appear to have any factual support for this claim that the policy covered Tingle.
See e.g., Boling v. All State Ins. Co., 2006 WL 3240008 (Del. Super. Oct. 30, 2006)(Scott, J.); Monsanto Co. V. Aetna Casualty Surety Co., 1993 WL 563244 (Del. Super. Dec. 21, 1993)(Ridgely, P.J.).
Id.
III.
AIIC could not find the Bradfords' signed policy, but it showed by other means that Tingle was not covered. Delaware Rule of Evidence 1004, which tracks its federal counterpart, allows other evidence to prove the contents of a lost writing as long as the original was not lost in bad faith. In a letter dated May 28, 2010, AIIC claimed it turned over its "entire file" and its standard form policy "has been in continuous use since 1999," including when the Bradfords insured their 2004 Ford Explorer. The standard policy unambiguously limits coverage to the insured (the Bradfords) and "a person related to [the Bradfords] by blood, marriage, or adoption who is a resident of [the Bradfords'] household."
D.R.E. 1004; see also Remington Arms Co. v. Liberty Mut. Ins. Co., 810 F.Supp. 1420, 1427 (D. Del. 1992) ( finding it was appropriate under F.R.E. 1004 "to admit secondary evidence to prove the existence and contents of the lost [insurance] policies").
AIIC did not submit an affidavit supporting the May 28, 2010 letter, nor did AIIC say whether the "entire file" included a copy of the Bradfords' signed policy. Deptula, however, seems content that the letter is true and the Bradfords probably had a standard policy. At this point, therefore, the court is left to conclude from the undisputed circumstantial evidence, that the Bradfords' policy was AIIC's standard form policy.
Instead of trying to prove that the Bradfords' signed a policy that was different from AIIC's standard form policy, Deptula focuses on AIIC's inability to find the signed policy. He calls the loss reckless, but he does not present any evidence AIIC purposefully destroyed the lost policy, nor does he argue AIIC failed to diligently search for it. In a letter dated June 9, 2010, the court warned Deptula he "cannot prove coverage simply by demanding that [AIIC] produce the policy in question, not if [AIIC] can disprove coverage by other means." Despite the court's prompting, Deptula still argues that "AIIC's failure to produce the original, signed insurance contract negates the possibility of identifying the policy limits." But, that is not so.
In closing, and to be clear, the problem with the missing policy could have resulted in elaborate fact-finding. If Deptula had reason to believe that the Bradfords' policy materially differed from the standard policy, the court might have had to conduct a trial or hearing. But, as discussed above, Deptula has provided no reason to question the claim that, at the time, AIIC's policies typically did not cover unrelated people like Tingle and the Bradfords bought a typical policy. Therefore, the court was able to conclude without more fact-finding, as it did, that Tingle was not insured under the policy bought by the Bradfords from AIIC. And, because the court determined, based on the undisputed facts, the missing policy's actual terms, there is no need to apply any special rule of contract interpretation. The missing policy was the standard policy, and it plainly did not provide coverage to Tingle.
IV.
For the foregoing reasons, American Independent Insurance Company's motion for summary judgment is GRANTED.
IT IS SO ORDERED.