Opinion
C.A. No. 04C-03-14 ESB.
Submitted: July 9, 2004.
September 28, 2004.
H. Clay Davis, III, Esquire, Henry Clay Davis, III, P.A.
Colin M. Shalk, Esquire, Casarino, Christman and Shalk, P.A.
Dear Counsel:
This is my decision on the Cross-Motions for Summary Judgment filed by plaintiff Cynthia A. Ramsey ("Ramsey") and defendant State Farm Mutual Automobile Insurance Company ("State Farm") in this insurance coverage dispute. Ramsey's Motion for Summary Judgment is denied and State Farm's Motion for Summary Judgment is granted for the reasons stated herein.
STATEMENT OF THE CASE
Ramsey was injured in an automobile accident. At the time of the accident, Ramsey was covered by a State Farm insurance policy. Ramsey is suing State Farm to recover $399 in lost wages as disability wage loss payments. The lost wages stem from the time Ramsey spent going to medical appointments. Ramsey was not granted disability status from her treating physician for the time period in question, nor did her injuries prevent her from working. State Farm refused to pay Ramsey for her lost wages, reasoning that Ramsey was not disabled and she voluntarily chose to attend her medical appointments during her scheduled work time.
Wage loss payments to insured persons who are injured in an automobile accident are available under Del. Code Ann. Tit. 21 § 2118.
STANDARD OF REVIEW
Summary Judgment may be granted only when no material issues of fact exist, and the moving party bears the burden of establishing the non-existence of material issues of fact. Once the moving party meets its burden, then the burden shifts to the non-moving party to establish the existence of material issues of fact. Where the moving party produces an affidavit or other evidence sufficient under Superior Court Civil Rule 56 in support of its motion and the burden shifts, then the non-moving party may not rest on its own pleadings, but must provide evidence showing a genuine issue of material fact for trial. If, after discovery, the non-moving party cannot make a sufficient showing of the existence of an essential element of her case, then summary judgment must be granted. If, however, material issues of fact exist or if the Court determines that it does not have sufficient facts to enable it to apply the law to the facts before it, then summary judgment is inappropriate.
Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
Id. at 681.
Super. Ct. Civ. R. 56(3); Celotex Corp. V. Catrett, 477 U.S. 317, 322-23 (1986).
Burkhart v. Davies, 602 A.2d 56, 59 (Del. 1991), cert. den., 112 S.Ct. 1946 (1992); Celotex Corp., 477 U.S. 317 (1986).
Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962).
DISCUSSION
The issue in this case is whether Ramsey must be unable to work because of the accident in order to recover her lost wages. 21 Del. C. § 2118(a)(2)(a)(2) states:
(a) No owner of a motor vehicle 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:
. . . .
(2)a. Compensation to injured persons for reasonable and necessary expenses incurred within 2 years from the date of the accident for:
. . . .
(2) Net amount of lost earnings. Lost earnings shall include net lost earnings of a self-employed person.
Delaware Insurance Commission Regulation 603(4.1.2) defines "lost earnings" as "a loss of salary or its equivalent, net of taxes which were lost by reason of inability to work." Delaware courts have discussed an earlier version of this regulation on at least two separate occasions. In Baynard the Court found Title 21, Section 2118 of the Delaware Code to require lost earnings payments only for the period the employee is actually disabled. The Court in Casson discussed the Regulation as it relates to the "reasonable" and "necessary" language of Title 21, Section 2118 (a)(2) of the Delaware Code. The Court stated that "reasonable is deemed to refer to the amount of lost earnings, while necessary must be interpreted to mean those lost earnings which are unavoidable or inescapable."
Delaware Insurance Commission Regulation 603(4.1.2) (1987 revised).
See Baynard v. Federal Kemper Insurance Company, 1986 WL 11557 (Del.Super.Ct. 1986), See also Casson v. Nationwide Insurance Company, 455 A.2d 361 (Del.Super.Ct. 1982). The earlier version of this regulation was titled Amended Regulation No. 9. In substance, the two regulations are identical. Amended Regulation No. 9 of the Delaware Insurance Commission defined "loss of earnings" as "any amounts actually lost net of taxes on income which would have applied by reason of inability to work and earn wages or salary . . . that would otherwise have been earned in the normal course of an injured person's employment but not other income."
Baynard, 1986 WL at *2.
Casson, 455 A.2d at 365-366.
Id. at 366.
The New Hampshire Supreme Court has also addressed this issue. The only substantial difference is that the case dealt with a workers' compensation claim. In the Appeal of Gagnon, two claimants were denied indemnity benefits from the Compensation Appeals Board for time lost from work while attending medical appointments. The New Hampshire Supreme Court upheld the Compensation Appeals Board decision, stating, in part, that "[t]he relevant focus in determining whether to award indemnity benefits is whether the claimant's work-related injury affects the ability to physically perform a job or to otherwise engage in gainful employment." An analysis of the case law and the Delaware Insurance Commission Regulation suggests that an injured person who is insured must be unable to work and the wage losses must be unavoidable in order for the person to recover an award of lost earnings from his PIP carrier.
Appeal of Gagnon, 147 N.H. 366, 787 A.2d 874 (2001).
Id. at 368, citing Appeal of Normand, 137 N.H. 617, 620, 631 A.2d 535 (1993).
Ramsey was able to perform her job. The injury that she sustained no longer affected her ability to physically perform her job. Ramsey's lost earnings were not necessary, unavoidable, or inescapable as defined by Casson. There is no evidence in the record that suggests the medical appointments could only be scheduled during Ramsey's working hours, which might otherwise indicate to the Court that her lost earnings were unavoidable. Ramsey was under a duty to minimize her lost earnings by scheduling her medical appointments outside of work, which she failed to do. Furthermore, Ramsey was not actually disabled during the time period in question. Under Baynard an employee is only entitled to lost earnings payment for the time period they are disabled. Once Ramsey was capable of returning to work, she was no longer eligible for lost earnings payments.
Casson, 455 A.2d at 366.
Ramsey contends that Crum allows her to recover her lost earnings on the basis that it permits recovery for all out-of-pocket expenses. Ramsey is misinterpreting Crum. First, in footnote three, the Court specifically limited its holding "to the determination that employer-paid health insurance premiums contribute an integral component of earnings." Based upon footnote three, the case does not stand for the broad proposition Ramsey alleges, but for one more limited in scope. Second, in this case, Ramsey did not have any out-of-pocket expenses. She lost a portion of her wages because she chose to schedule her medical appointments during her workday. Had Ramsey scheduled her medical appointments before or after work, or on a day off, or at lunch, she would have been fully compensated. Third, the employees in Crum sustained injuries that prevented them from working during the time in question. Ramsey's injuries did not prevent her from working.
Crum and Forster Insurance Group v. Wright, 634 A.2d 373, 377 (Del 1993).
A review of the record demonstrates that no material issues of fact exist. State Farm has successfully carried its burden, while Ramsey has failed to show any genuine issues of material fact. Ramsey was injured in an automobile accident while under the coverage of an insurance policy issued by State Farm. Ramsey chose to attend her medical appointments during her scheduled work hours, thereby voluntarily incurring her lost wages. While Ramsey's lost wages are generally included as lost earnings under Del. Code Ann. Tit. 21 § 2118(a)(2), they are excluded by both case law and the Delaware Insurance Commission Regulation as set forth above. Ramsey was not disabled during the time period in question. Due to Ramsey's ability to work, she is precluded from recovering the $399 in lost wages. The Court's finding that State Farm was not responsible for Ramsey's wage loss payments makes Ramsey's contention that the State Farm acted in bad faith moot.
CONCLUSION
For the foregoing reasons herein, Ramsey's Motion for Summary Judgment is DENIED and State Farm's Cross Motion for Summary Judgment is GRANTED.