      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                IN AND FOR NEW CASTLE COUNTY

MICHAEL S. ROSTOCKI, IV,              )      C.A. NO.: N13C-08-140 ALR
         Plaintiff,                   )
                                      )
      v.                              )
                                      )
GEICO GENERAL                         )
INSURANCE COMPANY,                    )
         Defendant.                   )

                         Submitted: November 17, 2014
                          Decided: November 17, 2014

                Upon Defendant’s Motion for Summary Judgment
                                 GRANTED

      Defendant GEICO General Insurance Company filed a motion for summary

judgment on the grounds that Plaintiff had filed this lawsuit seeking Underinsured

Motorist Benefits but had failed to exhaust all available liability coverage.

Plaintiff filed a response in opposition to GEICO’s motion; GEICO filed a reply;

and the Court heard oral argument. In consideration of GEICO’s motion, the Court

finds as follows:

   1. This lawsuit arises from a motor vehicle accident that occurred on or about

      April 21, 2010. Plaintiff was a passenger in the vehicle driven by Plaintiff’s

      father.

   2. Plaintiff did not pursue a claim against his father and declined a settlement

      from his father’s insurance company.
      3. On the other hand, Plaintiff did pursue a claim against the driver of the other

         vehicle involved in the car accident and the owner of that other vehicle.

      4. The GEICO policy at issue in this lawsuit was issued to Plaintiff’s father and

         provides for Uninsured/Underinsured Motorist Benefits, as follows:

                 (a) The definition of “Uninsured Motor Vehicle” is amended to
                 include “Underinsured Motor Vehicle.” . . . .
                 (c) We shall not be obligated to make any payment because of
                 bodily injury to which this insurance applies and which arises
                 out of the ownership, maintenance or use of an underinsured
                 motor vehicle until after the limits of liability under all bodily
                 injury liability bonds and insurance policies applicable at the
                 time of the accident have been exhausted by payment of
                 judgments or settlements.1

      5. Plaintiff has Underinsured Motorist Benefits under Plaintiff’s father’s

         GEICO policy; however, Plaintiff did not exhaust the benefits under the

         insurance policy.       Accordingly, Plaintiff did not exhaust all available

         liability coverage, and exhaustion is a prerequisite to triggering underinsured

         motorist benefits.

      6. Plaintiff is barred under both statutory and decisional law from the recovery

         of Underinsured Motorist Benefits from Defendant GEICO because Plaintiff

         failed to pursue a claim against his father who was the driver of the vehicle

         in which Plaintiff was a passenger.




1
    Def’s. Mot. Summ. J. Ex. D, at 36 (emphasis added).
                                                2
    7. Delaware law provides, in relevant part:

              The insurer shall not be obligated to make any payment under
              this coverage 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. 2

    8. The exhaustion of liability policies before recovering underinsured motorist

       benefits was the central issue in the Delaware Supreme Court decision

       Dunlap v. State Farm.3             The Court concluded that the exhaustion

       requirement of Delaware’s Underinsured Motorist Statute is clear and

       unambiguous and that Underinsured Motorist insurers were obligated to pay

       Underinsured Motorist Benefits only “after the insureds exhaust all available

       liability insurance policies.”4

    9. Summary judgment may be granted 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 a judgment as a matter of law.” 5 Defendant is entitled to

       judgment as a matter of law. There are no genuine issues of material fact in

       dispute and the law is clear that Plaintiff may not recover Underinsured

       Motorist Benefits from Defendant GEICO because Plaintiff did not exhaust

       all available liability insurance policies.

2
  18 Del. C. § 3902(b)(3) (emphasis added).
3
  878 A.2d 434 (Del. 2005).
4
  Id. at 439-40.
5
  Super. Ct. Civ. R. 56.
                                              3
      NOW, THEREFORE, this 17th day of November, 2014, judgment is

hereby entered in favor of Defendant GEICO General Insurance Company

and against Plaintiff Michael Rostocki, IV.

      IT IS SO ORDERED.

                                    Andrea L. Rocanelli
                                    _____             ________________
                                    The Honorable Andrea L. Rocanelli




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