                                  SUPERIOR COURT
                                        OF THE
                                STATE OF DELAWARE

E. SCOTT BRADLEY                                                          1 The Circle, Suite 2
             JUDGE                                                   GEORGETOWN, DE 19947


                                    April 11, 2017

Douglas B. Catts, Esquire                        Lynn A. Kelly, Esquire
Schmittinger & Rodriguez, P.A.,                  Department of Justice
414 S. State Street                              820 N. French Street, 6th Floor
Dover, DE 19903                                  Wilmington, DE 19801

      RE: Virginia Robinson v. State of Delaware
          C.A. No: S16C-11-001 ESB

Dear Counsel:

      This is my decision on Defendant State of Delaware’s Motion for Summary

Judgment in this case where Plaintiff Virginia Robinson, a State of Delaware

employee, is seeking uninsured motorist benefits from the State for a motor vehicle

accident that she was involved in on April 15, 2016. Robinson was driving a car

owned and insured by the State when an unknown driver operating a pick-up truck

swerved into Robinson’s lane and struck her car head on. The unknown driver fled

the scene and has never been located. Robinson was acting in the course and scope

of her work as a social worker for the State at the time of the accident. Robinson has

received workers’ compensation benefits.         Robinson sought uninsured motorist

benefits from the State pursuant to its self-insurance policy.        The State denied

coverage, citing the version of 19 Del. C. §2304 in effect at the time of Robinson’s
accident and the Honorable William C. Carpenter, Jr.’s decision in Simpson v. State.1

The Simpson case holds that §2304 prohibits a State employee from gaining access

to the State’s uninsured/underinsured motorist coverage.                  Robinson argues that 1)

Simpson was wrongly decided, and 2) the current version of §2304, which would

allow Robinson to gain access to the State’s uninsured motorist coverage, is a

“clarification” of the version of §2304 in effect at the time of Robinson’s accident.

I believe that Simpson was correctly decided.2 Thus, the only argument to address is

Robinson’s “clarification” argument. House Bill No. 308 amended §2304 to allow

an employee to receive from his employer uninsured/underinsured motorist benefits

and personal injury protection despite the payment of workers’ compensation

benefits. House Bill No. 308 states that it shall take effect upon its enactment into

law. House Bill No. 308 was approved on September 6, 2016. The original and

amended versions of §2304 are set-forth below.

                                            Section 2304

             Every employer and employee, adult and minor, except as
      expressly excluded in this chapter, shall be bound by this chapter
      respectively to pay and to accept compensation for personal injury or
      death by accident arising out of and in the course of employment,
      regardless of the question of negligence and to the exclusion of all other


      1
          2016 WL 425010 (Del. Super. Jan. 28, 2016).
      2
          There is nothing ambiguous about “to the exclusion of all other rights and remedies.”

                                                   2
           rights and remedies.

                                        Section 2304 Amended

                  Except as expressly excluded in this chapter and except as to
           uninsured motorist benefits, underinsured motorist benefits, and
           personal injury protection benefits, every employer and employee, adult
           and minor, shall be bound by this chapter respectively to pay and to
           accept compensation for personal injury or death by accident arising out
           of and in the course of employment, regardless of the question of
           negligence and to the exclusion of all other rights and remedies.

                                              Clarification

           When a legislative body amends a statute to clarify – rather than to

substantively change – existing law, the amendment may apply retroactively.3 Courts

ordinarily consider three factors when deciding if an amendment clarifies existing

law: (1) whether the enacting body declared the amendment was clarifying; (2)

whether a conflict or ambiguity existed prior to the amendment; and (3) whether the

amendment is consistent with a reasonable interpretation of the prior enactment and

its legislative history.4 Delaware has recognized “clarification” as a way to assess an

amendment to an existing law.5




           3
               Trusz v. UBS Realty, 2016 WL1559563 (D. Conn. 2016).
           4
               Id.
           5
               Walls v. Dept. of Correction, 663 A.2d 488, 1995 WL 420801 (Del. July 3, 1995)
(Table).

                                                    3
       1. Whether the Enacting Body Declared the Amendment was Clarifying

       The synopsis to House Bill No. 308 is set-forth below.

              This bill is in response to the recent Delaware Superior Court
       decision of Simpson v. State of Delaware and Government Employees
       Insurance Company, 2016 WL 425010 (Del. Super. Ct. Jan. 28, 2016).
       In the Simpson decision, the Court noted the need for clarification, as the
       exclusivity provision in 19 Del. C. §2304 could operate to unfairly
       deprive an employee of much-needed benefits.

       The legislature did not state that it was clarifying §2304.        However, the

legislature did state that it was addressing Judge Carpenter’s request for clarification.

Judge Carpenter wanted the legislature to clarify whether it wanted §2304 to

preclude a worker from getting more compensation through his employer’s

uninsured/underinsured motorist coverage.       Judge Carpenter noted that recovery

under personal injury policies and workers’ compensation are not perfectly aligned

because personal injury policies may provide more coverage than workers’

compensation, resulting in a State employee not receiving much-needed benefits.

Judge Carpenter made his concern clear, stating “[t]o the extent there is an

inconsistency in coverage, there should be a clear legislative mandate to reflect what

was intended.” The legislature addressed that discrepancy by adding the insurance

benefits.   Given the manner in which Judge Carpenter phrased his request for

clarification, I took the legislature’s action as a remedy for that particular situation,



                                            4
not a “clarification” that §2304 was never intended by the legislature to make

workers’ compensation an employee’s sole remedy against his employer for a

workplace injury.

      2. Whether a Conflict or Ambiguity Existed Prior to the Amendment

      These was none and Judge Carpenter noted as much in Simpson, stating:

             It is shocking to the Court that this precise issue has never been
      decided before in this jurisdiction. That also probably suggests that the
      parties to such litigation have believed for some time the exclusivity
      language of the Workers’ Compensation Act would prohibit such action.
      (Emphasis added.)6

      3. Whether the Amendment is Consistent with a Reasonable Interpretation
         of the Prior Enactment and its Legislative History

      I conclude that it is not. The original and amended statutes are very different.

The original statute provides that every employer and employee shall have to pay and

accept, respectively, the benefits provided under workers’ compensation for personal

injury or death by accident arising out of the course of employment “to the exclusion

of all other rights and remedies.”

      The amended statute added uninsured motorist benefits, underinsured motorist

benefits and personal injury benefits. The original and amended statutes simply can

not be reconciled and the original §2304 simply can not be interpreted to include the



      6
          2016 WL 425010, at *5.

                                          5
insurance coverage that the amendment added.

      After considering all the factors, I conclude that the amended §2304 is not a

clarification of the original §2304. It is instead a substantive change which has no

retroactive application. Thus, I have granted the State of Delaware’s Motion for

Summary Judgment.

      IT IS SO ORDERED.

                                       /s/ E. Scott Bradley
                                              E. Scott Bradley




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