Opinion
C.A. No. 08C-04-204 CLS.
Decided: March 1, 2010.
ORDER
AND NOW, TO WIT, this 1st day of March, 2010, IT IS HEREBY ORDERED as follows:
Statement of Facts
This case arises from a motor vehicle accident that occurred on August 26, 2005. On that date, Plaintiff Delsa Fauconier ("Fauconier") was travelling northbound on I-95 near the Delaware/Maryland toll plaza when her vehicle was struck on the left side by Third-Party Defendant Abdullahi Mohamed ("Mohamed") as he tried to change lanes. At the time, Mohamed was driving a truck owned by Third-Party Defendant The Select Carrier Group ("SCG"). The police report indicates that Mohamed was insured by Acord Insurance Company. At all relevant times, Fauconier was insured by USAA Casualty Insurance Company ("USAA").
The police report misspelled Accord.
Although there are some discrepancies regarding the communications between parties, a review of the record supports the following findings. Fauconier, wrote to Mohamed and SCG on December 19, 2005, but received no response. On September 13, 2006, Fauconier wrote to Accord Insurance and received no response. On July 18, 2006, Fauconier received a letter from a USAA representative indicating that she would be handling Fauconier's Uninsured Motorist ("UM") Claim on behalf of USAA and on December 18, 2006, she again contacted Marks stating that she was reviewing Fauconier's demand. After Fauconier changed representation, USAA was contacted to confirm that USAA accepted the UM claim and on August 15, 2007, Fauconier received a response indicating that USAA was preparing to file suit against Mohamed and SCG. Three days before the two year statute of limitations would run, a USAA represented confirmed that Fauconier's UM claim was accepted.
Fauconier was originally represented by Michael Marks, Esquire ("Marks"), but Jonathan O'Neill, Esquire ("O'Neil") later took over the case.
The parties agree that the statute of limitations would run on August 26, 2007.
Fauconier alleges that it was not until November 30, 2007 that she received notification that her claim would not be acknowledged as a UM claim because the third party defendants were insured by Liberty Mutual. Fauconier then filed suit on April 22, 2008 against USAA for Uninsured Motorist Benefits. USAA filed a Third-Party Complaint against Mohamed and SCG. USAA has now filed the current Motion to Dismiss and/or Motion for Summary Judgment against Fauconier. Mohamed and SCG have filed a Motion to Dismiss and/or Motion for Summary Judgment against USAA.
Parties Contentions
USAA argues that Fauconier is not entitled to UM benefits. Specifically, USAA claims that Fauconier must exhaust her remedies against Third-Party Defendants before she can make a claim for UM benefits because Third-Party Defendants are, and were, insured at all relevant times. USAA also asserts that it did not waive any rights and should not be estopped from denying UM benefits simply because it responded to Fauconier's claim. USAA argues that Fauconier had the means to discover that the alleged tortfeasors were insured at the time of the accident through the police report and USAA's letter that was sent on August 14, 2007. Fauconier denies ever receiving a letter on or around August 14, 2007 that mentioned Liberty Mutual and argues that the police report listed an incorrect insurance carrier for Third-Party Defendants. Furthermore, Fauconier claims that, based on USAA's continuous acceptance of her UM claim, USAA waived its right to deny the claim or should be estopped from denying UM coverage after the statute of limitations has passed.
Mohamed and SCG make two arguments in support of its Motion to Dismiss/Motion for Summary Judgment. First, Mohamed and SCG contend that neither qualifies under the definition of an uninsured motorist and, therefore, Fauconier's claim for UM benefits against USAA must be dismissed. Furthermore, Mohamed and SCG cannot be directly liable to Fauconier because a claim against Mohamed and SCG is time-barred under 10 Del. C. § 8199. Second, Mohamed and SCG argue that USAA is not entitled to indemnification and/or contribution from Mohamed and SCG because there was no implied or express contract made between the parties. USAA claims that under the USAA policy, USAA has a statutory right to pursue Mohamed and SCG for contribution and/or indemnification.
An uninsured motorist is defined by 18 Del. C. § 3902, which states, in pertinent part:
For the purposes of this section, an uninsured vehicle shall be defined as:
a. One for which there is no auto liability bond, insurance or other security applicable at the time of the accident in at least the amounts required by the financial responsibility law where the auto is principally garaged or registered;
b. One for which the insuring company denies coverage or becomes insolvent; or
c. A hit-and-run vehicle that causes an accident resulting in bodily injury or property damage to property of the insured.
10 Del. C. § 8119 states:
No action for the recovery of damages upon a claim for alleged personal injuries shall be brought after the expiration of 2 years from the date upon which it is claimed that such alleged injuries were sustained; subject, however, to the provisions of § 8127 of this title.
The Virginia UM statute grants a right of contribution/indemnification to the UM insurer, to the extent of the benefits paid. Df.'s Br. 3. The Delaware UM statute states that "the insurer shall be entitled to the proceeds of any settlement recovery from any person legally responsible for the injury or property damage as to which such payment was made. . . ." 18 Del. C. § 3902(a)(4).
Standard of Review
Summary Judgment may be granted if the Court concludes that "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." The moving party bears the initial burden of showing that no material issues of fact are present. The burden then shifts to the nonmoving party to demonstrate that there are material issues of fact in dispute. In deciding a motion for summary judgment, the Court must view the record in the light most favorable to the nonmoving party. Summary judgment is inappropriate if a material fact is in dispute or if a more thorough inquiry into the facts is desirable to clarify the application of the law to the circumstances.
Super. Ct. Civ. R. 56(c); Burkhart v. Davies, 602 A.2d 56, 59 (Del. 1991). This Court is reviewing the Motions before it under a summary judgment standard of review because the parties have attached and relied upon matters outside the pleadings and, therefore, the parties have implicated the motion for summary judgment standard of review. Lagrone v. Am. Mortell Corp., 2008 WL 4152667, * 4 (Del. Super. Sept. 4, 2008).
Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
Id. at 681.
Brzoska v. Olson, 668 A.2d 1355, 1364 (Del. 1995).
Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962).
Discussion
I. USAA's MotionPrevious Delaware caselaw has indicated that "[g]enerally, the burden of proving that the tortfeasor or party responsible for the injury is not insured, is on the party seeking to recover under the uninsured motorist provision." Therefore, in this case, Fauconier had the responsibility of determining whether Mohamed, the tortfeasor, had insurance before filing a claim for UM benefits.
Lum v. Nationwide Mut. Ins. Co., 1979 WL 195347, *4 (Del. Super. Dec. 19, 1979).
In Deemedio v. Nationwide Insurance Co., a more recent Delaware case, the court granted summary judgment in favor of Plaintiff's insurance company because Plaintiff failed to exhaust her remedies against the tortfeasors before filing for uninsured motorist coverage. However, the court goes on to state that "if [Plaintiff] has made good faith reasonable efforts to contact [the tortfeasors] alleged insurance company, and can provide evidence to this Court that [the tortfeasor] is uninsured, a suit against [the tortfeasor] is not necessary."
1987 WL 6542 (Del. Super. Jan. 22, 1987).
Although this case is distinguishable from Deemedio because it is now undisputed that Mohamed and SCG were insured by Liberty Mutual at the time of the accident, the Court's discussion in Deemedio still applies. Specifically, Fauconier must show that she made good faith reasonable efforts to contact Mohamed and SCG's insurance company before filing suit against her own insurance company. In order to make such a determination this Court would be required to weigh the evidence and make a decision whether relying on the police report that included the wrong insurance carrier for the tortfeasor was a "reasonable effort." The Court is not permitted to weigh the evidence before making a decision on a motion for summary judgment. Accordingly, USAA's Motion is denied without prejudice.
II. Mohamed and SCG's Motion
After reviewing Delaware caselaw, the applicable statutes, and USAA's policy, this Court determines that Third-Party Defendants' Motion must be denied as premature. Until the underlying issue of whether Fauconier can file for UM benefits is determined, this latter issue cannot be decided. If Fauconier is successful under her claim for UM benefits then the relevant statutes and the USAA policy permit contribution/indemnification from Mohamed and SCG.
The Delaware statute governing uninsured vehicle coverage states:
In the event of payment to any person under uninsured vehicle coverage and, subject to the terms of such coverage, to the extent of such payment, the insurer shall be entitled to the proceeds of any settlement recovery from any person legally responsible for the bodily injury or property damage as to which such payment was made and to amount recoverable from the assets of the insolvent insurer of the other vehicle; provided, that this right of subrogation is limited to the amount of coverage required by the financial responsibility law.
The Court in Sinex v. Wallis discussed, at length, the meaning of this statutory section. The Court indicated that the first part of the statute creates a right of subrogation in an insurance carrier who has made payment to an insured under an uninsured motorist clause. This right of subrogation vests the insurer with two rights. The Court indicated that one of these rights is an equitable right directly against the tortfeasor. Meaning, this statute provides the insurance carrier who has made a payment under an uninsured motorist clause the means to recover from the party legally responsible.
565 A.2d 1384 (Del. Super. 1988).
Id.
Id. at 1388.
The argument that USAA has no right to contribution against Mohamed and SCG because any claim Fauconier may have had is barred by the statute of limitations must fail. In Builders and Managers, Inc. v. Dryvit Systems, Inc., the Court noted that previous Delaware caselaw held that:
2004 WL 304357 (Del. Super. 2004).
[I]t is irrelevant that the original plaintiffs never filed suit against [the third-party defendant], or that they would now be precluded from doing so by the statute of limitations. All that matters for the purpose of finding "common liability" is that they could have, at one time, made a negligence claim against [the third party defendant].
Id. at *4.
Although Builders and Managers, Inc. did not involve 18 Del. C. § 3902(a)(4), the decision did relate to the issue of contribution and/or indemnification and, therefore, the same reasoning should apply in the current case. Therefore, USAA should not be precluded from seeking contribution and/or indemnification simply because Fauconier did not file a suit directly against Mohamed and SCG before the statute of limitations ran.
The USAA policy itself also provides for its right to recover payment. The policy language states that "if we make a payment under this policy and the person to or for whom payment was made has a right to recover damages from another we shall be subrogated to that right." Based on this policy language, the policy permits recovery from Mohamed and SCG if USAA is required to pay Fauconier under the uninsured motorist clause. Therefore, it must first be determined whether Fauconier can pursue a claim for UM benefits before Mohamed and SCG's Motion can be determined. Accordingly, the Motion is denied.
Def.'s Ex. A. at 18.
IT IS SO ORDERED.