   IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


DEBORAH A. DEAL,        )
                        )
        Plaintiff,      )
                        )
        v.              )            C.A. No. N16C-03-005 JAP
                        )
LAUREN E. DIMONDO and   )
USAA CASUALTY INSURANCE )
COMPANY,                )
                        )
        Defendants.     )
                        )


              CORRECTED MEMORANDUM OPINION


     The issue before the court is a narrow one: Which version of

the underinsured motorist statute applies to this case? Under the

former version Plaintiff is not entitled to UIM benefits; under the

more recent version, she is. Plaintiff’s insurance carrier, USAA, has

moved to dismiss claiming that the older version of the statute

applies here. The court agrees.

     The facts are straightforward and not in dispute.       Plaintiff

Deborah Deal was involved in an automobile accident on March 27,

2014. According to the complaint, she suffered sprain and strain of

the cervical and lumbar spine, bilateral disc bulges, bilateral disc
herniation with root compression, and irritation of her nerve roots

in her lumbar and sacral spine.              She alleges she has already

undergone lengthy treatment and underwent an anterior lumbar

interbody fusion on April 4, 2016. For purposes of this motion the

court will assume the driver of the other car, Defendant Dimondo,

is liable for Plaintiff’s injuries. Ms. Dimondo has liability coverage

of $100,000, and the court assumes for present purposes that the

damages attributable to Plaintiff’s injuries exceed that amount.

Plaintiff purchased Under Insured Motorist (UIM) coverage from her

carrier, USAA, in the amount of $100,000. The question here is

whether she is entitled to any of those underinsured motorist

benefits.

     Prior to 2013 Delaware law provided that an insured was not

entitled to UIM coverage unless the combined liability coverage of

the tortfeasor(s) was less than the amount of the UIM coverage.

According to then-existing 18 Del. C. §3902:

            An underinsured motor vehicle is one for which there
            may be bodily injury liability coverage in effect, but the
            limits of bodily injury liability coverage under all bonds
            and insurance policies applicable at the time of the
            accident total less than the limits provided by the
            underinsured motorist coverage. These limits shall be
            stated in the declaration sheet of the policy.



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Plaintiff’s UIM policy limit is $100,000 and Defendant’s liability

insurance limit is also $100,000. Thus, if the old statute governs,

Plaintiff is not entitled to any UIM benefits because Defendant

Dimondo’s liability coverage is not “less than the limits provided by

the underinsured motorist policy.”1

       Under the more recent version of section 3902 Plaintiff would

be entitled to UIM coverage because the damages attributable to her

injuries assumedly exceed the Defendant’s $100,000 liability

coverage. On July 3, 2013 the governor signed into law a statute

which changes this result and provided for UIM coverage if the

insured’s damages exceeded the liability coverage available from the

tortfeasors. The revision to section 3902 provides:

              An underinsured motor vehicle is one for which there
              may be bodily injury liability coverage in effect, but the
              limits of bodily injury liability coverage under all bonds
              and insurance policies applicable at the time of the
              accident are less than the damages sustained by the

1
    The parties agree that for purposes of the former statute, Defendant’s liability coverage of
$100,000 was not “less than” Plaintiff’s UIM coverage of $100,000. Phrases such as “less than”
and “more than” exclude “equal to.” For example, in Tatum v. State, 941 A.2d 1009 (Del. 2007),
a criminal defendant was fined $100 in a trial court, and sought to appeal to the Supreme Court,
which has jurisdiction only over cases in which the fine “exceeds one hundred dollars.” The
Court found it lacked jurisdiction because a fine equal to one hundred dollars does not “exceed”
one hundred dollars. “Tatum's sentence on the charge of being in a park after dark was a fine of
$100, which clearly does not meet the jurisdictional threshold of a fine exceeding $100.”




                                               3
          insured. These limits shall be stated in the declaration
          sheet of the policy.

The parties agree, for present purposes, that Plaintiff’s damages

exceed Defendant’s $100,000 liability coverage, and therefore

Plaintiff is entitled to benefits under her UIM coverage if the new

statute applies.

     The key to determining which version of section 3902 applies

is found in the enacting legislation. When the General Assembly

revised section 3902 it provided that “[t]he provisions of this law

shall apply to motor vehicle insurance policies issued and/or

renewed six (6) months after enactment.”            In short, if Plaintiff’s

policy in force at the time of her accident had been renewed after

January 3, 2014 (“six (6) months after enactment”) she was entitled

to the benefit of the revised UIM statute; on the other hand, if the

latest renewal date of her policy at the time of the accident was not

after January 3, 2014, she is not covered by the revision to section

3902. A short timeline shows that Plaintiff’s UIM policy in force at

the time of the accident had not yet been renewed after January 3,

2014:




                                     4
               1. July 3, 2013.       Governor signs into law the

                   revision to section 3902. The revision will apply

                   to motor vehicle policies “issued and/or renewed

                   six (6) months after enactment.”

               2. October 20, 2013.             Plaintiff’s USAA policy

                   renewed. Set to expire April 20, 2014.

               3. January 3, 2014.             Earliest date on which

                   renewal or issuance of new policy will cause

                   policy to be subject to revised section 3902.

               4. March 27, 2014.        Automobile accident which

                   injures Plaintiff occurs.

               5. April 20, 2014.     Plaintiff’s USAA policy renews.

                   This is the first renewal after the six month delay

                   set forth in the revision to section 3902.

In short, the policy in effect when the March, 2014 accident

occurred was the one renewed on October 20, 2013. Consequently

it had not yet been renewed “six (6) months after enactment,” and

therefore the revised section 3902 does not apply here.

     Plaintiff argues strenuously that the policy behind the revision

to section 3902 requires that the revision be applied here.        She


                                  5
points to Moffit-Ali v. State Farm2 in which this court held that the

old version of section 3902 applied to the case before it but which

described in dictum the purpose of the revision to that section:

                 While the Court believes this is a legally correct
                 decision under the law at the time of the accident, it
                 finds comfort that the General Assembly has
                 recognized the previous statute was being used by
                 insurance companies to limit coverage in cases where
                 the plaintiff was significantly injured and the liability
                 coverage was not sufficient to provide fair
                 compensation. Clearly this was not intended by the
                 framers of the original statute and was inconsistent
                 with the intent of the law. Fortunately the statute as
                 changed will prevent such injustice from continuing.
                 Unfortunately for Plaintiff the previous statute controls
                 and State Farm's Motion must be granted.

The holding in this case is not a retrenchment from the views

expressed in Moffit-Ali. But no matter how compelling the policy of

a statute might be, however, “it is well-settled that unambiguous

statutes are not subject to judicial interpretation.”3 The Delaware

Supreme Court has often held that “the meaning of a statute must,

in the first instance, be sought in the language in which the act is

framed, and if that is plain the sole function of the courts is to

enforce it according to its terms.”4 There is simply no ambiguity in


2
  2016 WL 1424788 (Del. Super.).
3
  Leatherbury v. Greenspun, 939 A.2d 1284, 1288 (Del. 2007).
4
  Friends of H. Fletcher Brown Mansion v. City of Wilmington, 34 A.3d 1055, 1059 (Del. 2011) (internal quotation
and editing marks omitted); see Arnold v. State, 49 A.3d. 1180, 83 (Del. 2012) (“Thus, if statutory text is
unambiguous, this Court's role is limited to an application of the literal meaning of the statute's words.”);
Leatherbury v. Greenspun, 939 A.2d 1284, 1288 (Del.2007) (“If the statute as a whole is unambiguous and there is


                                                       6
the language “[t]he provisions of this law shall apply to motor

vehicle insurance policies issued and/or renewed six (6) months

after enactment.”                  Accordingly, the court is not free to resort to

“legislative intent” to attribute another meaning to it.

         Assuming for the sake of argument, however, there is an

ambiguity in the statute which permits this court to divine the

legislature’s intent as an aid to statutory construction, the

legislative history requires the same result the court has reached

here.          The “primary source of legislative intent is the bill's

synopsis.”5 The synopsis to the revision of section 3902 leads to the

same conclusion the court has reached.                                        That synopsis makes it

clear the revision is intended to apply only to policies renewed six

months after the enactment of the statute:

                  The provisions of the law will not affect existing
                  insurance policies, and will apply only to renewing or
                  new policies that become effective six months after the
                  law is enacted.6

         Despite the impassioned appeal from Plaintiff, the court is

bound by the words used by the General Assembly.                                                                It is

undisputed that Plaintiff’s policy in effect at the time of the accident

no reasonable doubt as to the meaning of the words used, the court's role is limited to an application of the literal
meaning of those words.”).
5
  Wilmington Savings Fund Soc., FSB v. Kaczmarczyk, 2007 WL 704937 at *4, n.39 (Del. Ch.).
6
  79 Del. Laws ch. 91, § 2 (2013).


                                                           7
was not one which was renewed “six months after the law is

enacted.” USAA’s motion to dismiss is therefore GRANTED.




Dated: July 1, 2016
                                    John A. Parkins, Jr.
                                    Superior Court Judge



oc: Prothonotary

pc: Richard A. DiLiberto, Esquire, Young Conaway Stargatt &
    Taylor, LLP, Wilmington, Delaware
    Thomas P. Leff, Esquire, Casarino Christman Shalk Ransom &
    Doss, P.A., Wilmington, Delaware
    Lauren E. Dimondo, 2437 West Colonial Drive, Upper
    Chichester, Pennsylvania




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