IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

CHAMEEKA ROBINSON,

Plaintiff, C.A. No. N18C-08-069 FWW

V.

STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY, a foreign
corporation, ALLSTATE PROPERTY
AND CASUALTY INSURANCE
COMPANY, a foreign corporation,
NATIONWIDE MUTUAL INSURANCE
COMPANY, a foreign corporation,

NEW JERSEY MANUFACTURERS
INSURANCE COMPANY, a foreign
corporation,

Nee? Nee ee ee’ ee” ee ee” ee” “ee ee” eee’ ee” ee’ ee ee” ee” ee ee”

Defendants.

Submitted: January 17, 2020
Decided: February 14, 2020

Upon Nationwide Mutual Insurance Company’s Motion for Summary Judgment
GRANTED.

ORDER

David P. Cline, Esquire, Law Offices of David P. Cline, 1404 North King Street,
P.O. Box 33, Wilmington, DE, 19801; Attorney for Plaintiff Chemeeka Robinson.

Stephen F. Dryden, Esquire, Weber Gallagher, New Castle Corporate Commons, 92
Read’s Way, Suite 104, New Castle, DE, 19720; Attorney for Defendant State Farm
Mutual Automobile Insurance Company.
Brian Thomas McNelis, Esquire, Young & McNelis, 300 South State Street, Dover,
DE 19901; Attorney for Defendant Allstate Property and Casualty Insurance
Company.

Arthur D. Kuhl, Esquire, Reger Rizzo & Darnall, 1523 Concord Pike, Suite 200,
Brandywine Plaza East, Wilmington, DE 19803; Attorney for Defendant
Nationwide Mutual Insurance Company.

Nicholas E. Skiles, Esquire, Swartz Campbell, LLC, 300 Delaware Avenue, Suite
1410, Wilmington, DE, 19801; Attorney for Defendant New Jersey Manufacturers
Insurance Company.

WHARTON, J.
This 14th day of February, 2020, upon consideration of Defendant
Nationwide Mutual Insurance Company’s (“Nationwide”) Motion for Summary
Judgment,' and the responses of State Farm Mutual Automobile Insurance Company
(“State Farm”) and Allstate Property and Casualty Insurance Company (Allstate),°

each taking no position; it appears to the Court that:

1. Plaintiff Chameeka Robinson (Robinson”) filed this action on August
7, 2018 alleging personal injuries arising from a multi-car accident on J-495 in 2016.4

DZ Prior to the accident, Robinson was at the scene assisting her godmother
whose vehicle was disabled.° After witnessing the accident, Robinson ran across the
highway and attempted to provide assistance to Megan Kee, the injured driver of
one of the vehicles involved in the accident.® While she was sitting on the driver’s
side floorboard of Kee’s vehicle comforting Kee and talking to Kee’s father on the
phone, Kee’s vehicle was struck by another vehicle, causing Kee to be ejected from
her vehicle and Robinson to “fly backwards.”” The driver of the vehicle that struck

the Kee vehicle was Shawnickque Kent.® Megan Kee tells a similar story, but places

 

' Def. Nationwide’s Mot. Summ. J., D.I. 70.

2 DI. 78.

3D. 76.

* Complaint, DI. 1.

’ Def. Nationwide’s Mot. Summ. J., Ex. A., Robinson Dep. at 20-21., D.I. 70.
6 Id. at 21-22.

1 Id. at 22-24.

8 Id. at 45-46.
Robinson inside the open driver’s side door standing about a foot from her, instead
of sitting on the floorboard.’ The vehicle operated by Kee was insured by State
Farm.!° Allstate insured the Kent vehicle.'! Nationwide insured a vehicle owned by
Robinson’s mother-in-law, which was not involved in the accident and remained on
the shoulder of the road the entire time.'*

3. Nationwide moves for summary judgment, arguing that no set of facts
in the record triggers its PIP coverage for Robinson’s injuries.'!? No party opposes
the motion.'* Delaware’s PIP statute, 21 Del. C. § 2118(a)(2)(d) sets out when
household members of an insured are entitled to PIP benefits from the insured’s
carrier. It provides, in pertinent part, that PIP coverage is applicable for members of
named insureds’ households for injuries in accidents: (1) as pedestrians for injuries
in accidents with non-Delaware insured vehicles; and (2) for injuries in accidents

while occupying any non-Delaware registered vehicle.!>

 

Id, Ex. B., Kee Dep. at 12-13. The Court views this discrepancy as being of no
significance.

10 Def. Nationwide’s Mot. Summ. J. at § 1, D.I. 70.

"Td.

2 Td. at F 2.

'3 Td. at J 10.

'* DI. 76 (Allstate); D.I. 79 (State Farm). Defendant New Jersey Manufacturers
Insurance Company has not responded to the motion. Robinson sought to have
Nationwide dismissed in a separate summary judgment motion, and New Jersey
Manufacturers adopted Robinson’s motion and asked that it be granted (D.I. 65).

'5 21 Del. C. § 2118(a)(2)(d).

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4. Summary judgment is appropriate if, when viewing the facts in the
light most favorable to the non-moving party, “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 a judgment as a matter of law.’!®

When considering a motion for
summary judgment, the Court’s function is to examine the record to determine
whether genuine issues of material fact exist “but not to decide such issues.”'’ The
moving party bears the initial burden of demonstrating that the undisputed facts
support its claims or defenses.'® If the moving party meets its burden, then the
burden shifts to the non-moving party to demonstrate that there are material issues
of fact to be resolved by the ultimate fact-finder.'°

5. The undisputed facts show that Robinson was not occupying the
Nationwide insured vehicle when the accident occurred. Accordingly, there is no
Nationwide PIP coverage for her as an occupant. Further, she was not injured in an

accident with a non-Delaware insured vehicle as either an occupant of that vehicle

or as a pedestrian. Thus, responsibility for PIP coverage would fall either to State

 

'© Super. Ct. Civ. R. 56(c); Buckley v. State Farm Mut. Auto. Ins. Co., 139 A.3d 845,
847 (Del. Super. Ct. 2015), aff'd, 140 A.3d 431 (Del. 2016) (quoting Moore v.
Sizemore, 405 A.2d 679, 680 (Del.1979).

'" Merrill v. Crothall-Am., Inc., 606 A.2d 96, 99-100 (Del. 1992).

'8 Sizemore, 405 A.2d at 681.

' Brzoska v. Olson, 668 A.2d 1355, 1364 (Del. 1995).

5
Farm or Allstate, either as an occupant of the State Farm insured vehicle, assuming
certain other conditions are met, or as a pedestrian.*? The Court makes no finding
here as to whether PIP coverage is the responsibility of State Farm or Allstate. The
Court does find, as a matter of law, however, that Nationwide has no PIP coverage
responsibility. Accordingly, the Court finds there is no genuine issue of material fact

and Nationwide is entitled to judgment as a matter of law.

THEREFORE, Defendant Nationwide Mutual Insurance Company’s Motion

for Summary Judgment is GRANTED.

IT IS SO ORDERED.

 

 

F errs W. Wharton; J.

 

221 Del. C. § 2118(a)(2)(e) permits coverage to pedestrians if they are injured with
any motor vehicle within the state, except as to named insureds or household
members, to the extent they must be covered by 2118(a)(2)(d).

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