        IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

ARUNA SAMPHA KANU,                            )
                                              )
        Plaintiff,                            )
                                              )
               v.                             )
                                              )   C.A. No. N15C-11-002 CLS
ALLSTATE INSURANCE                            )
COMPANY,                                      )
                                              )
        Defendant.                            )
                                              )
                                              )


                                       ORDER

        On this 31st day of May, 2017, and upon Defendant‟s, Allstate Insurance

Company‟s (“Defendant”) Motion for Summary Judgment, it appears to the Court

that:

   1. On February 13, 2015, three vehicles were involved in a motor vehicle

        accident where Plaintiff lost control of his vehicle and struck two other

        vehicles on northbound Interstate 95 (“I-95”). Plaintiff seeks uninsured

        motorist benefits from his insurer.

   2. On November 11, 2016, Defendant moved for summary judgment,

        contending that Plaintiff‟s claim for uninsured motorist benefits fails as a

        matter of law because Plaintiff did not offer any facts to create an issue of

        fact as to whether the object came from a motor vehicle. Defendant also
          contends that Plaintiff‟s uninsured motorist claim does not pass the Klug test

          because it was Plaintiff who lost control of the vehicle which is “an act of

          independent significance” breaking any connection to a vehicle. Finally,

          Defendant avers that Plaintiff did not allege any facts to support a

          negligence claim against a “phantom driver.” Plaintiff claims that Summary

          Judgment is inappropriate because material facts exist whether the object

          was from a motor vehicle.

      3. Defendant also filed a Motion to Strike portions of Plaintiff‟s Response to

          Defendant‟s Motion for Summary Judgment. Defendant claims that the

          Court should strike paragraphs 6 through 9 of Plaintiff‟s Response Motion.

          Defendant avers that paragraph 6 refers to the police report, which is

          inadmissible under 21 Del. C. § 4203(e). Additionally, Defendant argues

          that paragraphs 7 through 9 are hearsay within hearsay, and not admissible

          under Delaware Rule of Evidence 801.

      4. The Court may grant summary judgment if “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.”1 The moving party bears the initial burden of showing that no material


1
    Super. Ct. Civ. R. 56(c); Burkhart v. Davies, 602 A.2d 56, 59 (Del. 1991).
       issues of fact are present.2 Once such a showing is made, the burden shifts

       to the non-moving party to demonstrate that there are material issues of fact

       in dispute.3 In considering a motion for summary judgment, the Court must

       view the record in a light most favorable to the non-moving party.4 The

       Court will not grant summary judgment if it seems desirable to inquire more

       thoroughly into the facts in order to clarify the application of the law. 5

    5. First, neither party provided the Court with a copy of the applicable

       insurance policy. However, pursuant to 18 Del. C. § 3902, insurers must

       provide coverage “for the protection of persons insured thereunder who are

       legally entitled to recover damages from owners or operators of uninsured or

       hit-and-run vehicles for bodily injury, sickness, disease, including death or

       personal property damage resulting from the ownership, maintenance or use

       of such uninsured or hit-and-run motor vehicle.”6

    6. The “purpose of 18 Del. C. § 3902 is to protect innocent parties injured by

       the negligence of unknown tortfeasors or from those who have no means




2
  Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
3
  Id. at 681.
4
  Burkhart, 602 A.2d at 59.
5
  Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962); Phillip-Postle v. BJ Prods., Inc., 2006
WL 1720073, at *1 (Del. Super. Ct. Apr. 26, 2006).
6
  18 Del. C. § 3902(a).
       from compensating the injured persons.”7 The statute defines uninsured

       vehicle as:

              (1) 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;
              (2) One for which the insuring company denies coverage or
              becomes insolvent; or
              (3) A hit-and-run motor vehicle that causes an accident
              resulting in bodily injury or property damage to property of the
              insured. Bodily injury or property damage must be caused by
              physical contact of the hit-and-run vehicle with the insured or
              with an insured motor vehicle, or by a noncontact vehicle
              where the identity of both the driver and the owner of such
              vehicle are unknown. The accident must be reported to the
              police or proper governmental authority. The insured must
              notify his or her insurer within 30 days, or as soon as
              practicable thereafter, that the insured or his or her legal
              representative has a legal action arising out of the accident.8

    7. There is no definition of “hit-and-run motor vehicle” in this statue; however

       there is no “physical contact” requirement.9 Whether Plaintiff attempted to

       avoid debris from a non-contact vehicle is a question of fact for the fact

       finder to determine. During his deposition, Plaintiff stated that there were a

       lot of vehicles on the highway, and the object was between him and the next

7
  See National Union Fire Ins. Co. of Pittsburgh v. Fisher, 692 A.2d 892, 896 (Del. 1997) (citing
State Farm Mut. Auto. Ins. Co. v. Abramowicz, 386 A.2d 670, 671-72 (Del. 1978)); see also
Frank v. Horizon Assur. Co., 553 A.2d 1199, 1201 (Del. 1989)(“The legislative purpose
embodied in the requirement that uninsured motorist coverage be available to all members of the
public is clear: the protection of innocent persons from the negligence of unknown or
impecunious tortfeasors.”).
8
  18 Del. C. §§ 3902 (3)(a),(b),(c) (emphasis added).
9
  Abramowicz, 386 A.2d at 672; see also Castillo v. Clearwater Ins. Co., 8 A.3d 1177, 1180
(Del. 2010).
          vehicle. The Court will not weigh the evidence, and must accept the facts in

          a light most favorable to Plaintiff. Thus, a reasonable juror could infer that

          the object Plaintiff attempted to avoid came from another vehicle.

      8. Additionally, a prerequisite to recovery pursuant to an uninsured motorist

          claim under 18 Del. C. § 3902, the Court must determine “whether an injury

          „arose out of the use of a motor vehicle.”10 Under the Klug test the Court

          analyzes “(1) whether the vehicle was an active accessory in causing the

          injury, (2) whether there was an act of independent significance that broke

          the causal link between use of the vehicle and the injuries inflicted, and (3)

          whether the vehicle was used for transportation purposes.”11

      9. Defendant argues that Plaintiff‟s uninsured motorist claim fails, as a matter

          of law because Plaintiffs are unable to demonstrate that the injury arose out

          of the use of a motor vehicle. Specifically, Defendant argues that Plaintiffs

          cannot meet the Klug test because there is not “sufficient information” in the

          record “to attempt a Klug analysis” as Plaintiff does not know what the

          object was, or whether it had any relation to the operation of a motor

          vehicle.




10
     Kelty v. State Farm Mut. Auto. Ins. Co., 73 A.3d 926, 930 (Del. 2013).
11
     Id.(citing Nationwide Gen. Ins. Co. v. Royal, 700 A.2d 130, 132 (Del. 1997)).
     10. However, Defendant‟s argument is misplaced. Delaware case law shows

        that the first two prongs of the Klug test apply to the insured vehicle.12 To

        be considered an active accessory, “the vehicle must be more than the mere

        situs of the injury, but can be less than the proximate cause of the injury.” 13

        “The active accessory prong is intended to exclude situations such as those

        at issue in Campbell v. State Farm Mut. Auto. Ins. Co.,”14 where the vehicle

        was not more than the location of an incident.

     11. In Jones v. Delaware Transit Corp., this Court held that a bus was not more

        than a mere situs of a bus driver‟s injury when he injured himself while

        vacuuming a bus.15 Similarly, in Friel v. Hartford Fire Ins. Co., the court

        held that the insured vehicle was not more than a mere situs to plaintiffs

        injury because the “injury was in no way caused by use or operation of the


12
   “For a claimant‟s injury to have occurred in an accident involving a motor vehicle: the insured
vehicle must have been an „active accessory‟ in causing the injury; and the causal connection
between the use of the vehicle and the claimant‟s injury must not have been broken by an
independent act.” Friel v. Hartford Fire Ins. Co., 2014 WL 1813293, at *4 (Del. Super. May 6,
2014); see also Carroll v. Nationwide Mut. Fire Ins. Co., 2008 WL 2583012, at *2 (Del. Super.
June 20, 2008)(“[W]hether an accident arose out of the operation, use or maintenance of the
insured vehicle is a question of law.”); see e.g. State Farm. Mut. Auto. Ins. Co. v. Buckingham,
919 A.2d 1111, 1114 (Del. 2007)(stating “[the plaintiff‟s] vehicle was not simply the situs of the
attack, rather, it was an „active accessory‟ in the incident provoking the attack that caused [the
plaintiff‟s] injuries.”); Sanchez v. American Independent Ins. Co., 2005 WL 2662960, at *2 (Del.
Oct. 17, 2005)(stating that “[n]othing about [the plainitff‟s] presence in the vehicle contributed to
the fact that he was shot.”)(abrogated on other grounds by Kelty v. State Farm Mut. Auto. Ins.
Co., 73 A.3d 926 (Del. 2013)).
13
   State Farm Mut. Auto. Ins. Co. v. Buckingham, 919 A.2d 1111, 1114 (Del. 2007)(citing Klug,
415 N.W.2d at 878).
14
   Buckley v. State Farm Mut. Auto. Ins. Co., 2015 WL 4515699 (Del. Super. July 27, 2015).
15
   Jones v. Delaware Transit Corporation, 2016 WL 5946494 (Del. Super. Oct. 13, 2016).
        motor vehicle, except as a stationary platform from which product was being

        unloaded.”16

     12. Here, Plaintiff‟s vehicle was an active accessory in causing the injury.

        Plaintiff was driving his vehicle when he allegedly tried to avoid an

        unidentified object in the road. Further, the Court is not persuaded by

        Defendant‟s argument that Plaintiff‟s actions, i.e. swerving to avoid the

        object, is an act of independent significance that broke the causal link

        between the vehicle and the injuries inflicted. “[W]here an act of

        independent significance breaks the causal link between the use of a vehicle

        and infliction of injury to an insured/claimant, uninsured motorist coverage

        is not available.”17 Plaintiff‟s injuries stem from one incident, and the Court

        finds, based on the record before the Court, that there was not an act of

        independent significance. The third prong of the test, whether the vehicle

        was used for transportation purposes,18 is also met in Plaintiff‟s situation.

     13. Although Plaintiff is unable to identify the object in the road, or whether it

        came from another vehicle, on a motion for summary judgment the Court

        must view the facts in a light most favorable to Plaintiff. A material fact

        exists as to whether the unidentified object came from another vehicle.

16
   Friel v. Hartford Fire Ins. Co., 2014 WL 1813293, at *4 (Del. Super. May 6, 2014).
17
   State Farm. Mut. Auto. Ins. Co. v. Buckingham, 919 A.2d 1111, 1112 (Del. 2007).
18
   Sierra v. Allstate Property and Casualty Ins. Co., 2013 WL 2636043, at *2 (Del. June 12,
2013).
      14. Finally, neither party provided the Court with the applicable insurance

         policy. Therefore the Court‟s order is based on established Delaware law

         and not a specific policy. For the aforementioned reasons, Defendant‟s

         Motion for Summary Judgment is hereby DENIED.

      15. Finally, “motions to strike are disfavored and will only be granted when

         clearly warranted.”19 Here, regardless of the admissibility of paragraphs 6

         through 9 in Plaintiff‟s Response, there is an issue of fact regarding the

         identity of the object in the road. Therefore, the Court does not even need to

         consider the evidence or the admissibility of the evidence represented in

         paragraphs 6 through 9. Defendant‟s Motion to Strike is hereby DENIED.



      For the foregoing reasons, Defendant‟s Motion for Summary Judgment and

Motion to Strike are DENIED.

         IT IS SO ORDERED.

                                                           /s/ Calvin L. Scott
                                                           Judge Calvin L. Scott, Jr.




19
     CitiMortgage, Inc. v. Bishop, 2011 WL 2295161 (Del. Super. May 24, 2011).
