IN THE SUPERIOR COURT FOR THE STATE OF DELAWARE

TIFFANY WILLIAMS,

Plaintiff,
C.A. No. N16C-01-107 CEB
V_»~,

PROGRESSIVE DIRECT INSURANCE
COMPANY, a foreign corporation,

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Defendant.

Submitted: May 25, 2016
Decided: August 16, 2016

Upon Consideration of Defendant ’s
Motion for Summary Judgment.

DENIED.

J'oel H. Fredericks, Esquire, WEIK, NITSCHE & DOUGHERTY, Wilmington,
Delaware. Attorney for Plaintiff.

Daniel P. Bennett, Esquire, MINTZER SAROWITZ ZERIS LEDVA & MEYERS,
LLP, Wilmington, Delaware. Attorney for Defendant.

BUTLER, J.

FACTS

Plaintiff Tiffany Williams filed this action against Progressive Direct
Insurance Company seeking underinsured motorist ("UIM") benefits as a result of
a motor vehicle accident that occurred on April 30, 20l4. At the time of the
accident, the tortfeasor was insured through an insurance policy with GEICO
Indemnity Company. GEICO paid the hill liability policy limits of $15,000 to
Williams. Williams’ medical expenses exceeded GEICO’s policy limit payment,
so she sought payment under her UIM policy with Progressive.

Williams initially obtained insurance from Progressive on June 23, 20ll.
On December 23, 2013, Progressive issued an insurance card for a 2000 Dodge
Neon. On March l5, 2014, Williams removed the 2000 Dodge Neon from her
policy and added a 1995 Buick Park Avenue. Progressive sent Williams an
amended declarations page reflecting a change in the premium for the insurance
for the new vehicle and a new insurance card. At the time of the accident,
Williams’ policy with Progressive had a UIM policy limit of $15,000 per
person/$30,000 per accident,

PARTIES’ CONTENTIONS
Progressive filed a Motion for Summary Judgment, arguing that 18 Del. C.

§ 3902 as originally enacted when she purchased her policy in 20ll controls, and

Williams is not entitled to UIM benefits because her po1icy’s UIM coverage limits
did not exceed the tortfeasor’s policy limits.

Wi1liams argues that 18 Del. C. § 3902 as amended controls all new policies
issued after January 3, 2014. Williams contends that Progressive issued a new
policy for purposes of § 3902 when Williams changed the vehicles covered under
the policy on March 15, 2014.

STANDARD OF REVIEW

The Court may grant summary judgment only where the moving party can
"show that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law."l The moving party has the initial
burden of showing that no material issues of fact exist, and when that is met, the
burden shifts to the non-moving party to show that a material issue of fact does
exist.z On a motion for summary judgment, the Court views all facts in a light
most favorable to the non-moving party.3 "When the facts permit a reasonable
person to draw only one inference, however, the question becomes one for decision

by the Court as a matter of law."4

ii Super. Ct. Ch/.  56.

2 Moore v. Sizemore, 405 A.Zd 679, 680-81 (Del. 1979).
3 See Matas v. Green, 171 A.2d 916, 918 (Del. Super. 1961).

4 Elder v. Dover Downs, Inc., 2012 WL 2553091, at *2 (Del. Super. Jul. 2, 2012)-€-,_.

3

 

DISCUSSION

The condition precedent to any UIM claim is to show that the tortfeasor was
operating an uninsured or underinsured motor vehicle as defined by 18 Del. C. §
3902(b)(2). 5 The statute originally defined an underinsured motor vehicle as one
where the claimant’s UIM coverage limits exceed the tortfeasor’s bodily injury
liability coverage limits.6 But on July 3, 2013, the definition was amended to
trigger a claim for UIM benefits where the claimant’s damages exceed the
tortfeasor’s bodily injury liability coverage limits, regardless of the amount of the
claimant’s UIM coverage limit.7 The amended definition applies to all insurance

policies issued or renewed after January 3, 2014.8
The necessary question in deciding Progressive’s Motion for Summary

Judgment in this case is: when did Progressive issue Williams’ policy? Under

5 Dickerson v. Natz'onwide Mutual Ins. C0., 2016 WL 1714304, at *5 (Del. Super. Apr. 25, 2016)

(citing Nationwz'a'e Mutual Ins. C0. v. Williams, 695 A.Zd 1124, 1126 (Del. 1997) (internal
citation omitted)).

6 Under the previous definition, an underinsured vehicle was:
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.
18 Del. C. § 3902(b)(2) (1995).

7 See 18 Del. C. § 3902(b)(2) (defining an "underinsured vehicle" as one where "the limits of
bodily injury liability coverage under all bonds and insurance policies applicable at the time of
the accident total less than the damages sustained by the insured.").

8 79 Laws 2013,¢11. 91 §2.

Delaware law, a new policy is issued when there is a material change in the
policy.9 lt is well-settled that changing vehicles included in the coverage of a
policy is considered a material change.]o

Although Williams’ policy was originally issued on June 23, 201 l, a new
policy was issued for purposes of 18 Del. C. § 3902 on March l5, 20l4, when
Williams removed the Dodge Neon from her coverage policy and added the Buick
Park Avenue. Progressive apparently recognized this as the issuance of a new
policy too, as it mailed Williams a new insurance card and declarations page, along
with a notice that Williams was entitled to purchase UM/UlM coverage in an
amount equal to her liability coverage, a notice that is required only upon the
issuance of a new policy.ll

Viewing the facts in a light most favorable to Williams, the insurance policy
in effect at the time of the accident was issued after January 3, 2014 and therefore
the current language of 18 Del. C. § 3902(b)(2) applies. Because the current
definition requires only that Williams’ damages exceed the tortfeasor’s liability

limit, it is inconsequential that Williams’ UlM coverage limit was equal to the

9 See State Farm Mutual Auto. Ins. Co. v. Arms, 477 A.2d 1060, 1064-66 (Del. 1984); Shukitt v.
Um`tea' Services Auto. Ass ’n., 2003 WL 22048222, at *3 (Del. Super. Aug. 13, 2003).

 

10 See Arms, 477 A.2d at 1065; Mason v. Um'ted Services Auto. Ass ’n., 697 A.2d 388, 393 (Del.
1997); Shukitt, 2003 WL 22048222, at *3.

ll See Arms, 477 A.2d at 1065 ("It is the change in the basic legal relationships between the
parties which connotes a new policy, rather than a renewal, and thus triggers the offer
requirement of section 3902(b).").

tortfeasor’s liability limit. Williams may proceed with her claim for UIM benefits,

and Progressive’s M0ti0n for Summary Judgment is DENIED.

 

Judge Charles E. Butler

IT IS SO ORDERED.

