         IN THE SUPREME COURT OF THE STATE OF DELAWARE

    JAMES L. MARTIN,                           §
                                               §   No. 401, 2018
         Plaintiff Below,                      §
         Appellant,                            §   Court Below—Superior Court
                                               §   of the State of Delaware
         v.                                    §
                                               §   C.A. No. N18C-01-107
    NATIONAL GENERAL                           §
    ASSURANCE COMPANY,                         §
                                               §
         Defendant Below,                      §
         Appellee.                             §

                             Submitted: March 22, 2019
                             Decided: June 5, 2019

Before VAUGHN, SEITZ, and TRAYNOR, Justices.


                                         ORDER

       After consideration of the parties’ briefs and the record below,1 it appears to

the Court that:

       (1)    The plaintiff below-appellant, James L. Martin, filed this appeal from a

Superior Court order granting the motion to dismiss filed by the defendant-below

National General Assurance Company. We conclude that the judgment of the

Superior Court should be affirmed.




1
 We do not consider the documents that were included in the appellee’s appendix and that the
appellant moved to strike because they were not part of the record below.
       (2)     On October 10, 2015, Martin was injured in a collision with a car while

riding his bicycle.2 Martin’s insurance policy with National General included

$15,000 for personal injury protection (“PIP”), $5,000 for loss of property under

PIP, and $15,000 for bodily injury under the uninsured/underinsured (“UM/UIM)

provision, with $10,000 for property damage. The driver’s insurance policy with

State Farm included $15,000 for PIP. Martin received $15,000 in PIP benefits from

the driver’s State Farm policy. Martin alleged that his losses, including medical and

surgical expenses and lost income, from the accident exceed the PIP and UIM limits.

       (3)     Martin demanded PIP and UIM coverage under his policy with

National General. National General denied PIP coverage, informing Martin that

State Farm was exclusively liable. National General also denied UIM coverage,

initially informing Martin that the $15,000 policy limit did not exceed the State Farm

policy limit. National General subsequently informed Martin that his bicycle did not

fall under the definition of a covered auto under the policy. Finally, National

General informed Martin that he was not entitled to UIM coverage because the State

Farm policy limit was not exhausted.




2
 The facts stated in this order are drawn from the allegations of the complaint and are assumed to
be true only for purposes of this appeal from a motion to dismiss. Malpiede v. Townson, 780 A.2d
1075, 1082 (Del. 2001).

                                                2
      (4)    At an arbitration before a Delaware Department of Insurance

Arbitration Panel, the arbitrator found that Martin could not recover PIP benefits

under the National General policy because the policy precluded stacking of PIP

policies. The arbitrator found that the UIM claim was outside of his authority. The

arbitrator entered a decision in favor of National General.

      (5)    On January 11, 2018, Martin filed a complaint in the Superior Court for

PIP and UIM coverage under the National General policy. He also alleged that he

was entitled to exemplary damages based on National General’s bad faith denial of

UIM benefits based on an out-of-date version of 10 Del. C. § 3902(b)(2), failure to

investigate the cause of the accident, and failure to pay the policy limit. National

General filed a motion to dismiss the complaint for failure to state a claim under

Superior Court Civil Rule 12(b)(6). National General argued that a policy exclusion

precluded the double recovery of PIP benefits. As to the UIM claim, National

General argued that Martin had not shown that all of the policies available to him at

the time of the accident were exhausted as required by 18 Del. C. § 3902(b)(3).

Martin opposed the motion and submitted portions of the policy that he claimed

entitled him to PIP coverage. After oral argument, the Superior Court granted

National General’s motion to dismiss. This appeal followed.




                                          3
       (6)    We review a trial court’s granting of a motion to dismiss de novo.3 On

appeal, Martin argues that: (i) National General was required to file the entire

insurance policy with its motion to dismiss; (ii) under the doctrine of contra

proferentem, the policy allowed the recovery of PIP benefits under the State Farm

and National General policies; and (iii) National General was subject to a bad faith

claim based on its wrongful denial of his UIM claim. Martin did not raise his first

argument in the Superior Court so we will not consider that argument for the first

time on appeal.4

       (7)    Turning to Martin’s next argument, the doctrine of contra proferentem

requires ambiguous language in an insurance policy to be construed against the

insurance company.5        The National General policy endorsement excluded PIP

coverage for injuries sustained by the named insured or any family member while a

pedestrian injured by an accident with any motor vehicle other than the covered auto

with respect to which the insurance required by the Delaware Motorist Protection

Act is in effect. In Gonzalez v. State Farm Mut. Auto. Ins. Co.,6 this Court found

that virtually identical language was unambiguous and precluded a mother from

collecting the $15,000 PIP policy limit from her insurance carrier after her son was



3
  Cent. Mortg. Co. v. Morgan Stanley Mortg. Capital Holdings LLC, 27 A.3d 531, 535 (Del. 2011).
4
  Supr. Ct. R. 8. At oral argument, the Superior Court considered the portions of the insurance
policy submitted by National General and by Martin.
5
  Penn Mut. Life Ins. Co. v. Oglesby, 695 A.2d 1146, 1149-50 (Del. 1997).
6
  1996 WL 526014 (Del. Aug. 1996).
                                              4
hit by a car while riding his bicycle and the driver’s insurance company paid the

$15,000 PIP policy limit. In light of the unambiguous policy language, the doctrine

of contra preferentem is not applicable here. The plain language of the National

General policy precluded Martin from recovering the $15,000 PIP policy limit under

both the State Farm policy and the National General policy. He therefore failed to

state a claim for PIP benefits under the National General policy.

       (8)     Finally, Martin failed to state a claim for UIM benefits or bad faith.

Under 18 Del. C. § 3902(b)(3), National General was not obligated pay any UIM

benefits “until after the limits of liability under all bodily injury bonds and insurance

policies available to the insured at the time of the accident have been exhausted by

payment of settlement or judgments.” Martin did not allege and does not claim that

all limits of liability under all bodily injury bonds and insurance policies available

(specifically the driver’s State Farm policy) have been exhausted. Even though

National General initially denied UIM coverage based on an out-of-date version of

§ 3902(b)(2),7 National General subsequently denied coverage based on the


7
  This section previously allowed an injured claimant to recover UIM benefits from their insurance
company when their UIM coverage limits exceeded the tortfeasor’s bodily injury liability coverage
limit. 18 Del. C. § 3902(b)(3) (1995) (“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 uninsured motorist coverage.”). In 2013, this section was amended to provide that
a claimant could recover UIM benefits when their damages exceeded the tortfeasor’s bodily injury
coverage limit. 18 Del. C. § 3902(b)(3) (2013) (“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
                                                  5
unexhausted State Farm policy, which Martin does not dispute. After careful

consideration of the parties’ arguments, we conclude that the Superior Court did not

err in dismissing the Martin’s complaint.

       NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED.

                                          BY THE COURT:

                                          /s/ Collins J. Seitz, Jr.
                                                 Justice




the damages sustained by the insured.”). The amendment applied to policies issued or renewed
after January 3, 2014.

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