          IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                         IN AND FOR KENT COUNTY

STEPHANIE BUCKLEY,                   :
                                     :       C. A. No. K14C-03-028 JJC
            Plaintiff,               :
                                     :
     v.                              :
                                     :
STATE FARM MUTUAL                    :
AUTOMOBILE INSURANCE :
COMPANY,                             :
                                     :
            Defendant.               :

                            Submitted: July 8, 2015
                            Decided: July 27, 2015

                                   OPINION

   Upon Defendant State Farm Mutual Insurance Company’s Motion for
                          Summary Judgment

Michael J. Malkiewicz, Esquire of Barros McNamara Malkiewicz & Taylor,
Dover Delaware; attorneys for the Plaintiff.

Colin M. Shalk, Esquire of Casarino Christman Shalk Ransom & Doss,
Wilmington, Delaware, attorneys for the Defendant.

CLARK, J.


                             I. INTRODUCTION

     Before the Court is a suit for Personal Injury Protection (“PIP”) benefits for


                                         1
medical expenses incurred by a minor struck by a car while crossing the road to

board a school bus. Plaintiff Stephanie Buckley (“Plaintiff”) seeks PIP benefits

from the school bus’s PIP policy even though Plaintiff was not physically within

the bus at the time of the accident. In a case of first impression, the Court finds

that based upon the uncontroverted facts in this case, a student in the process of

crossing the road to board a school bus, at the direction of the driver via intercom

while the bus’s red stop lamps and stop arm are activated, is entitled to PIP

benefits from the automobile policy insuring the school bus. Accordingly,

Defendant State Farm Mutual Automobile Company’s (Defendant’s) Motion for

Summary Judgment is DENIED.

                  II. FACTS AND PROCEDURAL HISTORY

      The operative facts are not in dispute.      On March 27, 2012, 16 year old

Plaintiff Stephanie Buckley (“Plaintiff”) was struck on Westville Road by a motor

vehicle operated by Norman Anderson (“Anderson”). At the time Plaintiff was struck

by Anderson’s vehicle, she was crossing the street to board a Bumble Bee

Transportation bus insured by the Defendant, State Farm Mutual Automobile

Insurance Company (“Defendant”).

      Just before the incident, the bus approached the Plaintiff’s driveway, traveling

in the eastbound lane. As the bus approached, the driver activated the amber lights

                                          2
and slowed to a stop. At that point, the bus’s red stop lamps activated and the stop

sign arm extended. The entrance to the bus faced the sidewalk of the eastbound side

of the roadway, on the opposite side of the Plaintiff’s driveway. Plaintiff then exited

her home, and began walking down the driveway toward the road.            Prior to the

Plaintiff’s entering the roadway, the bus driver, via the bus’s intercom, directed the

Plaintiff to cross the westbound lane and board the bus. At that point, the Plaintiff

began walking across the westbound lane. Just before reaching the halfway point

near the double yellow center divide, a westbound motor vehicle operated by

Anderson struck the Plaintiff causing her injury.

      At the time of the aforementioned incident, State Farm Mutual Automobile

Insurance Company insured the bus. Its policy included $100,000 in PIP limits. The

No-Fault Coverage section of the State Farm policy reads in relevant part: “Insured

means: 1. Any person while occupying … your car …” Pursuant to the policy,

“Occupying means in, on, entering, or exiting.”

       Plaintiff claimed PIP medical benefits from State Farm in the amount of

$75,423.60 for treatment of her injuries. State Farm denied payment of these claimed

benefits. Thereafter, Plaintiff filed a PIP suit. Before the Court is Defendant’s

Motion for Summary Judgment, which contends that Plaintiff is not entitled to the

aforementioned PIP coverage because she was not an occupant of the bus at the time

                                          3
she was struck by a motorist, nor was she a person injured in an accident involving

such motor vehicle.

                              III. STANDARD OF REVIEW

       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.”1 In doing so, the Court must accept all undisputed

factual assertions and accept the non-movant's version of any disputed facts.2 When

the facts of record “permit a reasonable person to draw only one inference, the

question becomes one for decision as a matter of law.”3

                                      IV. DISCUSSION

A.     21 Del. C. § 2118(a)(2)c’s Analytical Framework

       The Delaware General Assembly enacted provisions requiring owners of




       1
           Super. Ct. Civ. R. 56(c); Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
       2
           Sztybel v. Walgreen Co., 2011 WL 2623930, at *2 (Del. Super. June 29, 2011).
       3
          Friel v. Hartford Fire Ins. Co., 2014 WL 1813293, at *2 (Del. Super. May 6, 2014)
aff'd Friel v. Hartford Fire Ins. Co., 108 A.3d 1225 (Del. 2015) (citing Wootten v. Kiger, 226
A.2d 238, 239 (Del.1967)).

                                                4
Delaware registered motor vehicles to obtain minimum insurance coverage.4 One of

these coverages includes Personal Injury Protection (“PIP”) coverage.5                     The

legislative intent of Delaware’s PIP statute is “to impose on the no-fault carrier … not

only primary but ultimate liability for the [injured party’s] covered medical bills to

the extent of [the carrier’s] unexpended PIP benefits.6 Pursuant to the operative

statute, PIP

        coverage ... shall be applicable to each person occupying such motor
       vehicle and to any other person injured in an accident involving such
       motor vehicle, other than an occupant of another motor vehicle.7

       Under section 2118(a)(2)c of Title 21, Delaware Code, whether a claimant is

eligible for PIP benefits is a question of statutory interpretation.8 Furthermore, the

Superior Court’s interpretation of an insurance policy is a matter of law.9 When

interpreting a statute, the Court must attempt to determine and give effect to the




       4
           21 Del. C. § 2118.
       5
           21 Del. C. § 2118(a)(2).
       6
        International Underwriters, Inc. v. Blue Cross & Blue Shield of Del. Inc., 449 A.2d 197,
200 (Del. 1982).
       7
           21 Del. C. § 2118(a)(2)c.
       8
           Kelty v. State Farm Mut. Auto. Ins. Co., 73 A.3d 926, 929 (Del. 2013).
       9
           Id.

                                                 5
General Assembly's intent.10

         In delineating the scope of PIP coverage, the Delaware Supreme Court has

adopted a liberal construction of the term “occupant.”11               Two Delaware Supreme

Court cases, Fisher and Kelty, combine to establish the criteria necessary to evaluate

the compensability of a PIP claim for injuries suffered by the claimant in this matter.

         In Friel v. Hartford Fire Ins. Co.– which was recently affirmed by the

Delaware Supreme Court12– this Court interpreted “the language in Section

2118(a)(2)c... to require that both occupants and non-occupants be ‘injured in an

accident involving a motor vehicle.’”13 As held in Friel, the separate standards

outlined in Fisher and Kelty must be met in the aggregate in order to support a

claim for PIP benefits. Accordingly, to determine whether a claimant is eligible for

PIP benefits, “the correct analysis should be: first, use the disjunctive two-prong

Fisher test to determine whether the plaintiff is an occupant; and second, use the

two-prong Kelty test to determine whether the accident involved a motor vehicle.” 14

         10
              National Union Fire Ins. Co. of Pittsburgh v. Fisher, 692 A.2d 892, 895-96 (Del.
1997).
         11
              Id. at 896.
         12
              Friel, 108 A.3d 1225 (Del. 2015).
         13
              Friel, 2014 WL 1813293, at *5.
         14
          Id. (emphasis added). (The Superior Court supported its interpretation with a number
of cases where a claimant was ineligible for PIP coverage despite clearly qualifying as an

                                                   6
       In its Answering Brief in opposition to this motion, the Plaintiff argued that

finding occupancy alone pursuant to a Fisher generated analysis is sufficient, in

itself, to trigger PIP eligibility under section 2118(a)(2)c. Plaintiff relies on a plain

reading of the statute that Plaintiff asserts requires all occupants of a motor vehicle

to be covered by PIP, regardless of whether the person was injured in an accident

involving the motor vehicle. Plaintiff’s argument is not wholly without merit. A

reasonable reading of 21 Del. C.§2118 (a)(2)c could mandate an either-or analysis

(i.e. requiring either (1) “occupancy”; or separately (2) that “any other person” be

injured in an accident “involving such motor vehicle.”) In response, Defendant

correctly asserts that this issue was squarely before this Court in Friel v. Hartford Fire

Ins. Co. There, this Court determined that occupancy alone was not enough. The

Friel decision required the finding of a use related nexus to the vehicle’s operation

before mandating PIP coverage under such vehicle’s policy. On appeal, the Delaware

Supreme Court affirmed the Friel decision in a one page Order “on the basis of and

for the reasons assigned by the Superior Court.” 15 As such, this Court is constrained

by the analytical framework outlined in Friel and will apply it below.



"occupant." See e.g.,Wagner v. State Farm Mut. Auto. Ins. Co., 2001 WL 34083818, at *2 (Del.
Super. Oct. 25, 2001); South v. State Farm Mut. Auto. Ins. Co., 2012 WL 5509623, at *2 (Del.
Super. Sept. 28, 2012)).
       15
            Friel v. Hartford Fire Ins. Co., 108 A.3d 1225 (Del. 2015).

                                                  7
       B.        Occupancy Requirement Pursuant to Fisher

       The occupancy test at issue was outlined by the Delaware Supreme Court in

Nat'l Union Fire Ins. Co. of Pittsburgh v. Fisher.16 Under this test, this Court must

utilize a disjunctive two prong test whereby a claimant will be considered an occupant

of a vehicle “if he or she is either: (a) within a reasonable geographic perimeter of the

vehicle, or (b) engaged in a task related to the operation of the vehicle.”17 In

assessing a reasonable geographic perimeter, “the claimant must be in, entering,

exiting, touching or within reach of the covered vehicle.”18 Under the task related to

the operation of the vehicle, courts must “carefully distinguish between job-related

tasks for which one's vehicle is an integral tool and tasks directly related to the

operation of one's vehicle.”19 Only tasks that are directly related to the operation of

the vehicle will suffice under the second prong of the Fisher analysis.20

       Turning to this case, the Plaintiff independently satisfies both prongs of the

Fisher test, though satisfying only one aspect is necessary. The parties agree that just

       16
            692 A.2d at 897-98.
       17
            Id. at 896 (emphasis added).
       18
          Id. at 897 (holding that the “geographic perimeter test should be a clear, bright-line test
(absent further legislative or contractual exposition) and should not involve a nexus
component.”)(emphasis added).
       19
            Id. at 897-98.
       20
            See e.g., Id. at 898.

                                                  8
prior to the accident, the Plaintiff was on her property, located on the westbound side

of Westville Road, waiting for the bus. The parties also agree, that when the bus

arrived, both the entrance to it and the bus itself were on the eastbound side of

Westville Road. Under the circumstances, the only logical way for the Plaintiff to

enter the bus would be for her to cross Westville Road. Indeed, that is precisely what

the Plaintiff was doing– crossing Westville Road, entering the bus– when she was

struck by Anderson’s vehicle.

      This criteria for occupancy references a reasonable geographic perimeter.

Evaluation of what is reasonable must contemplate, to a certain extent, the nature of

the vehicle and the activity at issue. Here, the evaluation as to what is a reasonable

geographic perimeter of a school bus hinges on several operative facts. Where a

student is crossing a two-lane road, at the express direction of a bus driver speaking

from an intercom system from within the bus, with stop lamps activated, and a stop

paddle extended, that student is in the process of “entering” the bus. Because

“entering” contemplates a reasonable geographical perimeter pursuant to the Fisher

test, the Court finds that the Plaintiff was an “occupant” within the meaning of section

2118(a)(2)c.

      The Defendant argues that the Plaintiff was not “entering” the bus because she

was not actually engaged in the process of getting into the vehicle. According to the

                                           9
Defendant, the “entrance to the bus was on the other side of the street, and [the

Plaintiff] would have to complete crossing the street to begin entering.” In support,

the defendant cites a number of cases, all of which are distinguishable from the

present case in either law or fact. Some of the case were decided prior to Fisher and

the articulation of its test, and others deal with whether the claimant was within reach

of the vehicle, and did not address whether the claimant was entering or exiting the

vehicle.

       For instance, the defendant cites Oggenfuss v. Big Valley Associates, where this

Court held that an injured plaintiff was not an occupant when she slipped and fell

within two feet of her car while returning from an automatic teller machine because

there was an insufficient nexus between the vehicle and the plaintiff’s activity.21

However, Oggenfuss was one of the cases referenced and implicitly rejected in

Fisher.22 Under the reasonable geographic perimeter prong– which did not yet exist–

the outcome in Oggenfuss would have been different because the plaintiff was clearly

within reach of her vehicle when she slipped and injured herself.

       Additionally, the Defendant’s position regarding the scope of what is considered

       21
            1996 WL 453319, at *1 (Del. Super. May 3, 1996).
       22
           See Fisher, 692 A.2d at 897-898 (providing that “[w]e realize that application of this
holding to prior Superior Court cases could have caused different results to have been obtained in
one or more of those cases... To the extent the analysis in any of those cases is inconsistent with
the holding announced herein, we decline to approve such case or cases."

                                                10
“to enter” is incorrect in this context.           As mentioned above, the reasonable

geographical perimeter criteria include a claimant that is either (1) in, (2) entering, (3)

exiting, (4) touching, or (5) within reach of the covered vehicle. Accordingly, being

“in” the bus would have been the only criteria which would require the Plaintiff to

“complete crossing the street.” “Entering” is an individually listed criteria. While it

is impossible, for instance, to be “in” a vehicle without “touching” it, it is possible to

be considered “entering” a vehicle prior to coming “within reach of”, or “touching”

it. By necessity, entering a vehicle for purposes of this definition of occupancy

contemplates a person being outside that vehicle. How far outside that vehicle the act

of entering extends to is controlled in this case by the specific facts of a school bus’s

loading and unloading procedures.

       Regulatory authority, effective at the time of the incident at issue, and cited by

Plaintiff is also instructive as to the relationship between a student boarding a school

bus and the vehicle itself. Namely, 14 Del. Admin. Code. §1105, Rule 8.0, deals with

the relationship of students to their school buses. Namely, Regulation 8.0 is entitled

“Pupil Conduct on School Buses”.23 Within that regulation, are various provisions

related to the “boarding” of students. Those same regulations prohibit students from



       23
         14 Del. Admin. Code §1105, Reg. 8.0 (Ex. “A’ to Plaintiff’s Answering Brief)
(emphasis added).

                                              11
crossing the road until “being told to begin crossing by the driver…”24 The regulations

further provide that a student shall, only at such direction, cross the roadway in the

same manner as Plaintiff was instructed to cross in the case at hand. Including the

street-crossing process within the definition of boarding a bus is supportive of a

finding that Plaintiff was entering a bus at the time of the injury.     Furthermore,
                                                                  25
regulation 9.0 includes “Procedures for Operating Buses.”               Withing these

procedures, Rule 9.8 provides in relevant part

      [p]upils who must cross the road to board the bus … shall cross at a
      distance in front of the bus beyond the crossing control arms so as be
      clearly seen by the driver and only upon an audible clearance by the
      driver. The driver shall signal pupils to cross by instructions through the
      external speaker of the public address system.

Boarding a school bus is synonymous with a student’s entering such a vehicle.

Accordingly, in evaluating what is a “reasonable” geographic perimeter, in the

circumstances of this case, the student was within such a perimeter.

      Only one of the Fisher criteria are necessary for a person to be considered an

“occupant” for purposes of PIP coverage. Nevertheless, independently, the second

Fisher criteria is also satisfied in this case. Under the unique circumstances involved

in a student boarding a school bus at the direction of a driver sitting inside the bus,


      24
           Reg. 8.1.13.
      25
           14 Del. Admin. Code §1105, Reg.9.0 (emphasis added).

                                              12
the boarding function is also a “task related to the operation of the vehicle.”

       The Supreme Court in Fisher was careful to “distinguish between job related

tasks for which one’s vehicle is an integral tool and tasks directly related to the

operation of one’s vehicle.” 26 The analysis of such matters is highly reliant upon the

individual facts of a given case. Clearly, the student injured in the accident at issue

was not engaged in a job-related task. Rather, she was in the process of being

transported to school. A school bus’s sole task is to transport its pupils to and from

school. A student, actively engaged in this process, is performing a task “inextricably

related to the operation” of the school bus.27 Accordingly, under either Fisher criteria,

the student qualifies as an occupant for purposes of PIP coverage.

       C.        Requirement That the Claimant Be Injured in an Accident Involving
                 a Motor Vehicle

       Next, to assess PIP coverage for this incident, the Court must also analyze the

claim pursuant to the criteria set forth in Kelty v. State Farm Mut. Auto. Ins. Co. to

determine if the claimant was injured in an accident involving a motor vehicle.28 To



       26
            Fisher, 692 A.2d at 897-898.
       27
          See Id. at 897 (quoting Messick v. Reliance Ins. Co., 1995 WL 1946624, at *3 (Del.
Super, Aug. 17, 1995), 995 WL 465 181, (Del. Super. July 26, 1995) (where the Supreme Court
cited approvingly the Superior Court’s use of this standard, while declining to revisit that case
and other cases’ results).
       28
            73 A.3d 926 (Del. 2013).

                                                13
do so, “[t]he Court must analyze: (1) whether the vehicle was an ‘active accessory’ in

causing the injury; and (2) whether there was an act of independent significance that

broke the causal link between the use of the vehicle and the injuries inflicted.”29 The

Court defined “active accessory” as “something less than proximate cause in the tort

sense and something more than the vehicle being the mere situs of the injury.”30

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

issue in Campbell v. State Farm Mut. Auto. Ins. Co.31 In that case, an individual sat

in a vehicle while another individual accidentally shot him.32 In that case, the vehicle

happened to be the physical location of the plaintiff at the time he was injured and

“had a negligible impact on the events that caused the respective plaintiff’s injuries.” 33

       In the present case however, the bus clearly had an impact on the events that

caused the Plaintiff’s injuries. The Plaintiff was safely on her property before being

injured. As the bus approached the Plaintiff’s driveway, the driver activated the amber

lights and slowed to a stop at which point the red lights activated and the stop sign


       29
            Friel, 2014 WL 1813293, at * 2 (internal quotations omitted).
       30
          Kelty,73 A.3d at 932 (quoting Nationwide Gen. Ins. Co. v. Royal, 700 A.2d 130, 132
(Del. 1997)).
       31
            12 A.3d 1137, 1139 (Del. 2011).
       32
            Id.
       33
            Kelty,73 A.3d at 933.

                                                 14
extended. The purpose of the lights and stop sign was to halt all traffic and facilitate

safe passage across the street for the Plaintiff. Additionally, the driver used the bus’s

loudspeaker to give instructions to the plaintiff to cross the street at the time she

crossed. Without the bus’s presence or the instruction by the driver sitting inside the

bus, the plaintiff would not have entered onto Westville Road at the time of the

accident. Furthermore, the precise manner of Plaintiff’s boarding, the directive by a

driver seated inside the bus for the student to cross, and the aforementioned

regulations including the detailed process for boarding,          supports this nexus.

Certainly, the bus’s impact on the circumstances of injury meet a but-for threshold.

But-for the presence of the bus, this injury would not have happened. Candidly, the

bus’s impact on the matter meets the standard (in a tort sense) for proximate cause,

which exceeds the necessary nexus for coverage. Consequently, the bus was an active

accessory to the Plaintiff’s injuries.

      Finally, there was no act of independent significance that broke the causal link

between use of the vehicle and the injuries inflicted. Defendant argues that (1) the

alleged negligence of the other driver, and (2) the alleged comparative negligence of

the Plaintiff, are superceding acts which break the causal link. Both, however, are

allegations regarding the negligence of another.




                                           15
      As noted in Kelty, intentional or criminal acts can break the causal link.34 The

superceding nature of the conduct in such situations hinges on the lack of forseeability

of that conduct. A motorist striking a child exiting or boarding a bus, however, is a

foreseeable risk of such activity. If the Court were to adopt a standard that excluded

PIP coverage where there was a negligent tortfeasor, it would eviscerate PIP coverage

in many instances. On the other hand, if a child in the process of boarding a bus were

injured by an intentional criminal act of a third party, such an intentional criminal act

would be of a superceding nature sufficient to break the causal link between the

vehicle and the injuries inflicted. Defendant’s proferred standard, however, would

provide for no PIP coverage in any circumstances where there was a negligent third-

party tortfeasor. That is clearly contrary to the purpose of Delaware’s mandated PIP

coverage. Here, these two alleged cases of negligent conduct, intervening though not

superceding under the circumstances of this case, do not rise to a level that result in

a denial of PIP coverage.

                                 V. CONCLUSION

      Here, the Plaintiff was an “occupant” of the bus within the meaning of 21 Del.

C. § 2118(a)(2)c. In addition, the circumstances surrounding her injury qualify as “an

accident involving such vehicle.” Accordingly, the Defendant’s Motion for Summary

      34
           Id.

                                           16
Judgment is DENIED.



IT IS SO ORDERED.
                      /s/ Jeffrey J Clark
                             Judge




                      17
