Opinion
C.A. No.: CPU4-12-001203
05-28-2013
GOVERNMENT EMPLOYEES INSURANCE COMPANY @ 1156317, a foreign corporation, as subrogee of FRANCINA G. STOVALL, Plaintiff, v. HELENA M. CREAMER, Defendant.
Michael K. DeSantis, Esquire Law Office of Dawn L. Becker Citizens Bank Center 919 Market Street, Suite 550 Wilmington, DE 19801 Attorney for Plaintiff Robert D. Goldberg, Esquire Biggs and Battaglia 921 North Orange Street Wilmington, DE 19801 Attorney for Defendant
On Defendant's Motion to Dismiss DENIED
Michael K. DeSantis, Esquire
Law Office of Dawn L. Becker
Citizens Bank Center
919 Market Street, Suite 550
Wilmington, DE 19801
Attorney for Plaintiff Robert D. Goldberg, Esquire
Biggs and Battaglia
921 North Orange Street
Wilmington, DE 19801
Attorney for Defendant ORDER
On March 27, 2012, Plaintiff Government Employees Insurance Company @ 1156317, as subrogee of Francina G. Stovall ("GEICO") brought this subrogation action against Defendant Helena M. Creamer ("Ms. Creamer") for lost wages and personal injury protection benefits incurred from an accident involving the parties on January 30, 2010, in the amount of $1,150.20. On April 20, 2013, Ms. Creamer filed an Answer, generally denying the allegations in the Complaint. On March 3, 2013, Ms. Creamer filed the present Motion to Dismiss.
On April 26, 2013, the Court held a hearing on the Motion. The Court heard oral argument from both parties. It is Ms. Creamer's position that the present action is time barred by the two-year limitation on personal injury actions in 10 Del. C. § 8119. Ms. Creamer concedes that a three-year Statute of Limitations applies to lawsuits for personal injury protection ("PIP") benefits by a PIP insurer against a tortfeasor's insurer pursuant to 21 Del. C. § 2118; however, she maintains that since the present action is against the individual tortfeasor rather than her insurance company, the right of subrogation is a common law right subject to the two-year limitation. Since the present suit was commenced over two years after the date of the accident, Ms. Creamer concludes, it should be dismissed. It is GEICO's position that the right to subrogation is statutory, thus the three-year statute of limitations applies regardless of whether the subrogation action is against the individual tortfeasor or its insurance company.
DISCUSSION
In considering a motion to dismiss, the Court must assume that all well-pleaded facts in the complaint are true. "A complaint will not be dismissed unless plaintiffs would not be entitled to recover under any reasonably conceivable set of circumstances susceptible of proof."
Battista v. Chrysler Corp., 454 A.2d 286, 287 (Del. Super. 1982).
Nix v. Sawyer, 466 A.2d 407, at 410 (Del. Super. 1983) (citation omitted).
Minimum insurance coverage requirements for vehicles registered in Delaware are set forth in 21 Del. C. § 2118(a), which provides:
No owner of a motor vehicle required to be registered in this State, other than a self-insurer pursuant to § 2904 of this title, shall operate or authorize any other person to operate such vehicle unless the owner has insurance on such motor vehicle providing the following minimum insurance coverage: (1) Indemnity from legal liability for bodily injury, death or property damage arising out of ownership, maintenance or use of the vehicle to the limit, exclusive of interest and costs, of at least the limits prescribed by the Financial Responsibility Law of this State; (2) Compensation to injured persons for reasonable and necessary expenses incurred within 2 years from the date of the accident... (3) Compensation for
damage to property arising as a result of an accident involving the motor vehicle... (4) Compensation for damage to the insured motor vehicle...Section 2118(g) of Title 21 affords insurers the statutory right to subrogation for payment of PIP benefits:
Insurers providing [PIP] benefits ... shall be subrogated to the rights ... of the person for whom benefits are provided, to the extent of the benefits so provided.
(1) Such subrogated rights shall be limited to the maximum amounts of the tortfeasor's liability insurance coverage available for the injured party, after the injured party's claim has been settled or otherwise resolved, except that the insurer providing benefits shall be indemnified by any workers' compensation insurer obligated to make such payments to the injured party.
Ms. Creamer relies on the language of 21 Del. C. § 2118(g)(1), which states that the insurer's right of subrogation is "limited to the maximum amounts of the tortfeasor's liability coverage available for the injured party." Ms. Creamer contends that she had no liability coverage, thus "the statute does not supplant the applicable two-year statute of limitations which would otherwise apply."
21 Del. C. § 2118(g)(1).
Def's Br. ¶ 8.
10 Del. C. § 8119 provides: "[n]o 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 Delaware Supreme Court addressed the issue of subrogation against an individual tortfeasor who had no third party insurer in Waters v. The United States. In that case, the Court was faced with the limitation of § 2118(g)(1) as applied to a self-insured tortfeasor. In reaching its conclusion that "under Delaware law, the insurer does have the right to recovery from a 'private individual' in subrogation," the Court explained:
Waters v. The United States, 787 A.2d 71 (Del. 2001).
Id.
Id. at 74.
While [§ 2118(g)(1)] clearly prohibits a PIP insurer from seeking recovery against an individual tortfeasor who has a third party insurer, it is silent with regard to tortfeasors who have no third party insurer. The limitation set by § 2118(g)(1) thus does not apply to self-insured tortfeasors. Rather, to the extent that § 2118(g)(1) is silent, the applicable rule is the general right to subrogation provided for at common law and incorporated into the unambiguous language of § 2118(g).
Id. at 73.
The Court finds that GEICO has a common law right of subrogation against the uninsured Ms. Creamer, which is "incorporated into the unambiguous language of § 2118(g)." Accordingly, the three-year statute of limitations found in 10 Del. C. § 8106 applies, as the present action is statutory in origin.
Id.
Furthermore, Ms. Creamer's proposition-that an uninsured motorist is not subject to the statutorily conferred legal action of § 2118- would undermine the legislative intent of the statute. "The legislature had several policy goals in mind in enacting the no fault statute, one of which was to hold the tortfeasor liable by granting the insurer a subrogation right." Ms. Creamer's argument would effectively reward motorists for their non-compliance with 21 Del C. § 2118; it would narrow the window of opportunity for the injured party to pursue a subrogation action merely because the tortfeasor failed to carry insurance as required by the statute.
Waters, 787 A.2d at 73 (citing Nationwide Mut. Ins. Co. v. Wooters, 1996 WL 280778, at *8 (Del. Super. Jan. 31, 1996). See also State Farm Mut. Auto Ins. V. Nalbone, 569 A.2d 71, 74 (Del. Super. 1989) (stating that subrogation will eventually place the loss on the tortfeasor, and the policy of deterring negligent conduct is served by making tortfeasors bear the full extent of their acts). --------
CONCLUSION
Both public policy and decisional law support the conclusion that GEICO's subrogation rights against the uninsured Ms. Creamer arise out of 21 Del. C. § 2118. Thus, the three-year statute of limitations applies, and GEICO's claim is not time-barred.
NOW, THEREFORE, for the foregoing reasons, Defendant's Motion to Dismiss is DENIED.
IT IS SO ORDERED this 28th day of May, 2013.
/s/_________
The Honorable Carl C. Danberg,
Judge