                           IN THE SUPERIOR COURT
                         OF THE STATE OF DELAWARE

CARLETTA E. SIMPSON,                   )
                                       )
            Plaintiff,                 )
                                       )
      v.                               )         C.A. No. N15C-02-138 WCC
                                       )
STATE OF DELAW ARE and                 )
GOVERNMENT EMPLOYEES                   )
INSURANCE COMPANY,                     )
                                       )
            Defendants.                )



                          Submitted: September 11, 2015
                            Decided: January 28, 2016

Defendant State of Delaware’s Motion for Summary Judgment – GRANTED

                           MEMORANDUM OPINION

Timothy E. Lengkeek, Esquire, Young Conaway Stargatt & Taylor, LLP, 1000 N.
King Street, Wilmington, DE 19801. Attorney for Plaintiff.

Lynn A. Kelly, Esquire, Department of Justice, 820 N. French Street, Wilmington,
DE 19801. Attorney for Defendant State of Delaware.

Erin K. Radulski, Esquire, Law Office of Dawn L. Becker, Citizens Bank Center
919 Market Street, Suite 550, Wilmington, DE 19801. Attorney for Defendant
GEICO.



CARPENTER, J.
       In the present case, Carletta E. Simpson (“Plaintiff”) seeks underinsured

motorist coverage from her employer, the State of Delaware (“Defendant” or

“State”), and her personal insurance carrier, Government Employees Insurance

Company (“GEICO”), for injuries sustained in the course of her employment in a

motor vehicle accident with a third party tortfeasor. Plaintiff operated a vehicle

owned and insured by the State at the time of the accident and she recovered

workers’ compensation benefits for her injuries. The State moved for summary

judgment on the grounds that Plaintiff accepted workers’ compensation to the

exclusion of other remedies. 1 For the foregoing reasons, the Motion is

GRANTED.

                 FACTUAL & PROCEDURAL BACKGROUND

       On September 16, 2010, Plaintiff was injured in an automobile collision

caused by Lashonmonique Dajanee Ricks. Ms. Ricks was driving a vehicle owned

by Tiffany J. Cleveland and insured by United Services Automobile Association

(“USAA”) with a policy limit of $15,000 per person. Plaintiff was operating a

State-owned vehicle as authorized by virtue of her employment in Delaware’s

Health and Social Services Department. All State-owned vehicles are insured


1
 Counsel for Defendant GEICO informed the Court that GEICO takes no position on the State’s
Motion for Summary Judgment. Letter from Erin K. Radulski, Esquire, to the Court, D.I.11
(April 17, 2015).


                                             2
under the State’s self-administered automobile liability policy,2 which includes

uninsured/underinsured motorist (“UM/UIM”) coverage with limits of $25,000 per

accident. 3 Plaintiff had also purchased UIM coverage through her GEICO policy.                   4



       Plaintiff suffered injuries to her cervical spine and lower back as a result of

the accident.5 In connection with those injuries, she received workers’

compensation benefits from the State pursuant to 19 Del. C. § 2304 for an 11-day

period following the accident.6 In July 2013, USAA paid Plaintiff the $15,000

policy limits to settle all claims on behalf of Ms. Cleveland and M s. Ricks.7 Given

Ms. Ricks’s status as underinsured motorist,8 Plaintiff requested UIM benefits

under the State’s policy in October 2013 but was denied coverage in May 2014.9



2
  Def. Mot. for Summ. J., Ex. D.
3
  See id. at 8.
4
  Pl. Compl., ¶ 19.
5
  Def. Mot. for Summ. J., Ex. A.
6
  Id. The documents supplied by the State are confusing at best. One document provided to the
Court indicates Plaintiff received total disability benefits of $426.37 bi-weekly for the period of
09/17/10 – 09/28/10 “in accordance with the provisions of the Workers’ Compensation Law of
the State of Delaware.” However, the second document included in the exhibit states “[n]o
actual payment has been made as such benefits have already been paid by PIP/auto no-fault
directly to the claimant.” Both documents are dated September 30, 2011. The Court will assume
for purposes of this motion that, as a result of the accident, Plaintiff received workers’
compensation benefits pursuant to 19 Del. C. § 2304.
7
  Pl. Compl., ¶¶ 11-12.
8
  The statute defines an “underinsured motor vehicle” as “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 insured” and requires those limits “be stated in the declaration sheet of the
policy.” 18 Del. C. § 3902(b)(2).
9
  Pl. Compl., ¶¶ 14-16.


                                                 3
       On February 16, 2015, Plaintiff commenced the instant litigation seeking

UIM benefits from both the State and GEICO. In the Complaint, Plaintiff asserts

she has suffered “serious, painful and limiting injuries, both physical and mental in

nature” some of which “have continued since the accident and are permanent in

nature”10 requiring her to undergo further treatment and incur additional costs.11

Plaintiff additionally maintains she continues to experience “considerable pain,

suffering, and discomfort, both mental and physical in nature”12 and “has incurred

lost wages and/or diminished earning capacity.” 13 According to Plaintiff, she has

been prevented from accessing her UIM benefits through GEICO until she is able

to exhaust the State’s coverage as the primary policy on the vehicle involved in the

accident. 14 In response, the State filed this Motion for Summary Judgment

pursuant to Superior Court Civil Rule 56, contending Plaintiff’s exclusive remedy

against it as her employer were the benefits she received under Delaware’s

Workers’ Compensation Act (“WCA”) and as a result, she is not “legally entitled

to recover” UIM benefits under the State’s insurance policy.




10
   Id. ¶ 6.
11
   Id. ¶ 7.
12
   Id. ¶ 8.
13
   Id. ¶ 9.
14
   Hearing Tr., 7:18-22 (May 11, 2015).


                                          4
                               STANDARD OF REVIEW

       In deciding a motion for summary judgment pursuant to Superior Court

Civil Rule 56, the Court must determine whether there are any genuine issues of

material fact.15 It is the burden of the moving party to prove that no such issues

exist and the movant is entitled to judgment as a matter of law.16 In reviewing a

summary judgment motion, the Court must view all factual inferences in a light

most favorable to the non-moving party. 17 Where it appears material facts remain

disputed or that further inquiry into the factual circumstances is warranted, the

Court will not grant summary judgment. 18

                                       DISCUSSION

       The Court is asked to decide whether Plaintiff may pursue a UIM claim

against her self-insured employer, the State of Delaware, for essentially the same

injuries she received workers’ compensation in light of the WCA’s exclusivity

clause. For the foregoing reasons, the Court finds Plaintiff is barred from

recovering UIM benefits under the State’s policy.

       Pursuant to 18 Del. C. § 3902, an insurer is required (1) to “include the

minimum uninsured motorist coverage in the policy, unless explicitly rejected by
15
   Super. Ct. Civ. R. 56(c). See also Wilm. Trust Co. v. Aetna, 690 A.2d 914, 916 (Del. 1996).
16
   See Moore v. Sizemore, 405 A.2d 679 (Del. 1979).
17
   See Alabi v. DHL Airways, Inc., 583 A.2d 1358, 1361 (Del. 1990).
18
   See Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. Super. 1962), rev’d in part on procedural
grounds and aff’d in part, 208 A.2d 495 (Del. 1965).


                                               5
the insured” and (2) to “alert the insured that he [or she] may purchase

supplemental underinsured motorist coverage.” 19 UIM benefits in particular are

governed under subsection (b), which requires insurers to offer the insured “the

option to purchase additional coverage for personal injury or death up to a limit of

$100,000 per person and $300,000 per accident or $300,000 single limit, but not to

exceed the limits for bodily injury liability set forth in the basic policy” and

specifies that “such additional insurance shall include underinsured bodily injury

liability coverage.”20 “Acceptance of such additional coverage shall operate to

amend the policy's uninsured coverage to pay for bodily injury damage that the

insured…[is] legally entitled to recover from the driver of an underinsured motor

vehicle.” 21 An insurer is not obligated to pay 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.” 22




19
   See Banaszak v. Progressive Direct Ins. Co., 3 A.3d 1089, 1094 (Del. 2010), as corrected
(Sept. 3, 2010).
20
   See 18 Del. C. § 3902(b) (emphasis added).
21
   Id. § 3902(b)(1). Moreover, “[a]n insured who executes a release of a single tortfeasor … in
exchange for payment of the entire limits of liability insurance afforded by the tortfeasor's
liability insurer shall continue to be legally entitled to recover against that tortfeasor for the
purposes of recovery against the insured's underinsurance carrier.” Id. § 3902(b)(4).
22
   Id. § 3902(b)(3).


                                                  6
       Under 2304 of the WCA, “[e]very employee… shall be bound …to accept

compensation for personal injury … by accident arising out of and in the course of

employment, regardless of the question of negligence and to the exclusion of all

other rights and remedies.” 23 Thus, in terms of sums recoverable from an employer,

the injured employee is limited to amounts available under the WCA. In cases

involving third party tortfeasors, however, § 2363 of the Act allows the employee

to “recover against the tortfeasor when the third party is ‘other than a natural

person in the same employ.’” 24 Furthermore, Delaware law “does not prohibit ‘a

risk-averse insured from contracting for additional recovery.’”25 In other words,

Courts have allowed employees to collect both workers’ compensation and UIM

benefits in cases where the employee purchased his or her own personal UIM

policy.26 In those cases, the Delaware Supreme Court has reasoned that

23
   19 Del. C. § 2304.
24
    See Littlejohn v. State Farm Mut. Auto. Ins. Co., 2010 WL 2029058, *2 (Del. Super. May 21,
2010) (quoting Grabowski v. Mangler, 956 A.2d 1217,1220 (Del. 2008)). See also 19 Del. C. §
2363. The State’s reliance on Littlejohn v. State Farm in support of this argument is thus
misplaced. In Littlejohn, the Court held that an employee could not recover worker’s
compensation and UIM benefits from her employer for injuries sustained as a result of a co-
worker’s negligent conduct because the co-worker was acting within the course and scope of his
employment. Plaintiff, on the other hand, was not injured by the negligence of a co-worker but
by that of a third party, Ms. Ricks. Thus, Littlejohn cannot be read to preclude an employee like
Plaintiff from recovering from a third party tortfeasor.
25
   See Kelley v. Perdue Farms, 123 A.3d 150, 154 (Del. Super. 2015) (quoting Adams v.
Delmarva Power & Light Co., 575 A.2d 1103, 1106 (Del.1990)).
26
    See Miller v. State Farm Mut. Auto. Ins. Co., 993 A.2d 1049, 1053 (Del. 2010) (“The State
Farm insurance policy was purchased and paid for by the Millers, whereas Miller's workers'
compensation insurance was paid for by his employer. Because State Farm contributed nothing
to the fund that created the collateral source and had no interest in that fund, State Farm should


                                                 7
“[r]estricting a double recovery in underinsured motorist cases would frustrate the

reasonable expectations of the insured (created by the payment of insurance

premiums) to recover under the policy, and thereby would defeat the General

Assembly's purpose in enacting Section 3902.” 27 However, the issue presently

before the Court, whether § 2304 precludes an employee’s recovery of UIM

benefits from a self-insured employer in addition to workers’ compensation paid

by the employer, appears to be one of first impression. Put differently, the Court is

confronted with a scenario in which the workers’ compensation insurer and the

UM /UIM insurer are the same entity, the State of Delaware.

       The State’s UM/UIM policy tracks the language of the statute and provides

that it will “pay all sums the insured is legally entitled to recover as compensatory

damages from the owner or driver of (a) an uninsured…[or] underinsured motor

vehicle because of bodily injury sustained by the insured… .” 28 With regard to

Plaintiff, there is no question she (1) was operating an automobile covered by the

policy, (2) exhausted the benefits available under tortfeasor’s policy, and, (3) for

purposes of this Motion, sustained damages in excess of those benefits.

Nevertheless, the State asserts Plaintiff is precluded from recovering UIM benefits



not have been allowed to benefit from it.”).
27
   See id. at 1056.
28
   Def. Mot. for Summ. J., Ex. D at 21 (emphasis added).


                                               8
under its policy because she accepted benefits under the WCA “to the exclusion of

all other rights and remedies.”29

       While the crux of the State’s argument is that Plaintiff is precluded by the

WCA from recovering UIM benefits under its policy, it would appear to the Court

that initial consideration is warranted as to whether Plaintiff’s injury was even

covered by the State’s policy in the first place. After all, “[o]nce an insured has

purchased the statutory minimum, the insured is free as a matter of contract to

procure as much or little optional insurance as it wants, and to allocate it among

drivers as it chooses.”30

       The named insured on the policy at issue here is the State and it appears to

have paid the premiums associated with its UIM coverage. Moreover, the policy

expressly lists as an exclusion “bodily injury to any employee of the insured

arising out of and in the course of his or her employment by the insured,” but not

to “bodily injury to domestic employees not entitled to workers’ compensation

benefits.”31 In response to the Court’s inquiry as to why the State would provide

self-insurance coverage for UM/UIM in the first place if such benefits were


29
   See 19 Del. C. § 2304.
30
   See Stoms v. Federated Serv. Ins. Co., 125 A.3d 1102, 1106 (Del. 2015). Like the policy in
Stoms, the State provides for $25,000 in PIP coverage, which exceeds the $15,000 minimum PIP
coverage required in Delaware. See id. at 1106 n. 15 (citing 21 Del. C. § 2118(a)); Def. Mot. for
Summ. J., Ex. D at 12 (added personal injury protection endorsement).
31
   Def. Mot. for Summ. J., Ex. D at 4 (emphasis added).


                                                9
precluded by the WCA, the State submitted the affidavit of Debra Lawhead,

Administrator of the State of Delaware Insurance Coverage Office.32 Ms. Lawhead

provided examples of UM/UIM coverage matters handled by her office where the

WCA does not apply, including: independent contractors operating State vehicles,

students on school busses, arrestees transported by police, prisoners transported by

the Department of Corrections, etc.33 In these cases, workers’ compensation is not

available and access to UM/UIM coverage would seem appropriate. Additionally,

the Delaware Supreme Court has recognized that “[t]here is nothing improper

under Delaware's insurance statutes about an employer providing higher optional

levels of insurance to certain of its [employees] than to others.” 34

       The basic tenant of the UM/UIM coverage, required to be offered in policies,

is to insure that individuals have the ability to be compensated for their injuries

beyond what may be available from a negligent tortfeasor’s policy. 35 For those

who have access to workers compensation, that is what is occurring by the benefits

32
   Lawhead Aff., D.I. 14, ¶¶ 2-4.
33
   Id. ¶¶ 7-10.
34
   See Stoms, 125 A.3d at 1106. See also State Farm Mut. Auto. Ins. Co. v. Kelty, 126 A.3d 631,
639 (Del. 2015) (“If insurance companies are forced to provide benefits beyond what
policyholders contracted for and what is expressly required under the statute, they will
undoubtedly raise the cost of such coverage, and thereby reduce the number of Delaware drivers
who opt to pay for anything more than the statutory minimum.”).
35
   See, e.g., Lomax v. Nationwide Mut. Ins. Co., 964 F.2d 1343 (3d Cir. 1992) (“Under Delaware
law, uninsured motorist coverage is designed to compensate innocent persons injured by
automobile who are unable to obtain recompense from unknown or impecunious negligent tort-
feasors for general damages, such as pain and suffering, as well as economic losses.”).


                                              10
they receive. As long as the employee’s injuries remain, workers compensation

will pay to compensate for the injury. So, in essence, workers compensation is

playing the same role that the UIM benefits would provide for an individual who

has access to them.

       In this context, the exclusivity provision makes sense. If not there, the

injured party would in effect be compensated twice for the same injury: first by

workers compensation and second by the employer’s UM/UIM insurance policy.

While the legislature clearly intended to protect injured parties from underinsured

tortfeasors, it did not intend it as a windfall beyond what would be the reasonable

and appropriate cost for the disability caused by the accident. 36 While the Court

would suggest that the State legislatively introduce clarifying language to support

their positions and the language of the insurance policy be reviewed beyond the

form document provided by their carrier, it finds that the phrase “exclusion of all

rights and remedies” in 19 Del. C. § 2304 prohibits the Plaintiff from gaining

access to the State’s UM/UIM policy. As such, the summary judgment motion of

the State is granted.

36
  See Harmon v. F & H Everett & Associates, 83 A.3d 737 (Del. 2013) (discussing exclusivity
clause in context of workers’ compensation and unemployment benefits) (“Although the
Workers' Compensation Act contemplates full compensation, it is not intended to permit more
than one recovery for a single loss.”).




                                             11
                                    CONCLUSION

      As indicated above, the Court believes this issue requires clarification from

the legislature. When that review is undertaken, the Court would suggest that a

more thorough study of what injuries are covered by the WCA versus those

covered under personal injury policies be done. It appears to the Court that

recovery under both is not fully aligned, meaning the exclusivity provision could

operate to unfairly deprive an employee of much-needed benefits. As noted by

Plaintiff here, pain and suffering as well as wages beyond the WCA maximum

compensation rate are not recoverable under the WCA but may be under a personal

injury policy. To the extent there is an inconsistency in coverage, there should at

least be a clear legislative mandate to reflect that was intended.

      It is shocking to the Court that this precise issue has never been decided

before in this jurisdiction. That also probably suggests that the parties to such

litigation have believed for some time the exclusivity language of the Workers

Compensation Act would prohibit such action. While the Court believes both

parties have advanced strong arguments in support of their positions, in the end it

finds the State’s position is correct.



                                         /s/ William C. Carpenter, Jr.
                                         Judge William C. Carpenter, Jr.

                                           12
