IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

CGURTNEY M. ZERN,
Plaintiff,

V. C.A. No. N18C-11-036 FWW

ALLSTATE FIRE AND CASUALTY
INSURANCE COMPANY,
a foreign corporation,

\/\/\/\./\/\_/\/\/\./\/\./

Defendant,

Submitted: January 1 1, 2019
Decided: April 26, 2019

Upon Defendant ’s Motz'on to Dismiss
DENIED

M

Joel H. Fredricks, Esquire, Weik, Nitsche & Dougherty, LLC, 305 N. Union Street,
Second Floor, Wilmington, Delaware 19899, Attorney for Plaintiff.

Arthur D. Kuhl, Esquire, Reger Rizzo & Darnall LLP, Brandywine Plaza East,

1523 Concord Pike, Suite 200, Wilmington, Delaware 19803, Attorney for
Defendant.

WHARTON, J.

This 26th day of April, 2019, upon consideration of the Motion to Dismiss of
Defendant Allstate Fire and Casualty lnsurance Company (“Allstate”), the Response
of Plaintiff Courtney M. Zern (“Zern”), and the record in this case, it appears to the

Court that:

l. Zern brought this action against Allstate, claiming personal injuries
related to an August 7, 2016 motor vehicle collision in DelaWare.1 The tortfeasor’s
liability insurance carrier tendered the limit of its liability coverage.2 Zern then
sought underinsured motorist benefits pursuant to her policy of insurance (“the
policy”) With Allstate. It is the terms of the policy that are at issue here.

2. Allstate moves to dismiss Zern’s underinsured motorist claim.3 The
basis of Allstate’s motion is that this action Was improperly filed in DelaWare
because the policy required Zern to file suit in her home county in Pennsylvania.4

3. Zern opposes the Motion to Dismiss.5 She asserts that DelaWare is an
appropriate jurisdiction for her claim.6 She contends that endorsement cited by

Allstate, Which contains the forum selection provision upon Which it relies, did not

 

1 Pl.’s Compl., at l.

2 Pl.’s Resp. Mot. Dismiss, at l.
3 Defs. Mot. to Dismiss, at l.

4 Id.

5 Pl.’s Resp. Mot. Dismiss, at l.
6 Id. at 4.

apply to the policy at the time of the collision.7 Zern also argues that the endorsement
does not render DelaWare an inappropriate forum because the forum selection
provision Was merely permissive and not mandatory.8

4. In reviewing a motion to dismiss for improper venue under Superior
Court Civil Rule 12(b)(3), the Court must assume as true all the facts plead iri the
complaint and view those facts and all reasonable inferences drawn from them in the
light most favorable to the plaintiff9 The Court may consider extrinsic evidence
from the outset, and may grant dismissal before the commencement of discovery on
the basis of affidavits and documentary evidence in the record.10 The Court may
“grant a dismissal motion before the commencement of discovery on the basis of
affidavits and documentary evidence if the plaintiff cannot make out a prima facie
case in support of its position.”ll

5. Allstate contends that the present case Was inappropriately filed in
DelaWare, citing a provision in an endorsement Which it claims is incorporated into

the policy.12 This endorsement states that:

 

7 Ia'. at 3.

8 Id. at 4.

9 Anglo American Sec. Funa', L.P. v. S.R. Global Intern. Fund, L.P., 829 A.2d 143,
148-9 (D€l. Ch. Aug. 4, 2003).

10 Courtney v. Intuitive Surgical, Inc., 2015 WL 6671558, at *l (Del. Super. Ct.
oct 30, 2015).

11 Simon v. Navellier Series Funa', 2000 WL 1597890 at *4 (Del. Ch. Oct. 19,
zoooi

12 Pl.’s Resp. Mot. Dismiss, at 2.

If the insured person and we do not agree on that person’s
right to receive damages or on the amount...then the
disagreement will be resolved in a court of competent
jurisdiction. Any and all lawsuits related in any way to
this coverage shall be brought...in the county in which
your address Shown on the Policy Declarations is
located.13

Zern’s address on the policy is in Pennsylvania.14 The policy went into effect July
23, 2016, but the endorsement was not incorporated into the policy until August 7,
2016, the day of the accident, due to a “change” in the policy.15 The “change” in the
policy was noted to be the deletion of a vehicle - the vehicle totaled as a result of the
accident.16 In other words, the forum selection provision relied upon by Allstate was
generated as a result of the accident and was not in effect at the time of the accident
Because the August 7th endorsement was not in effect at the time of the accident,

Allstate has not established that the complaint was improperly filed in Delaware.

6. In light of the foregoing determination that the forum selection
provision in the endorsement was not in effect at the time of the accident, the Court
need not address whether that provision was merely permissive or whether it was

mandatory.

 

13 Id.
14 Ia'.
15 Id.
16 Id.

THEREFORE, Defendant Allstate Fire and Casualty and Insurance

Company’s Motion to Dismiss is DENIED.

I'I` IS SO ORDERED.

 

Ferrii'W. Wharton, l.

