IN THE COURT OF COMMON PLEAS FOR THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY

DEANNA GILBERT, )
)
Plaintiff, )
)
v._ ) C.A. N0. CPU4-l6-00O265
)
NATIONWIDE MUTUAL )
INSURANCE COMPANY )
)
Defendant. )
)
Submitted: April 22, 2016
Decided: June 21, 2016
Tiffany Adams Anders, Esquire Donald M. Ransom, Esquire
Potter, Carmine & Associates Casarino, Christman, Shalk, Ransom & Doss, P.A.
840 N. Union Street 1007 N. Orange Street, Suite 1100
Wilmington, DE 19805 P.O. Box 1276
Attorney for Plaintijj” Wilmington, DE 19801

Attomeyfor Defendant

MEMORANDUM OPINION AND ORDER
_Ql_\l DEFEN_l_)ANT’S MOTION TO DISMISS_

\..___..¢_:.-\.-_».._,_..~».

The instant matter is a breach of contract action for failure to pay personal injury
protection ("PIP") benefits. Nationwide Mutual Insurance Company ("Nationwide") moved to
dismiss the Complaint filed by Deanna Gilbert ("Plaintiff’), its insured, pursuant to Court of
Common Pleas Civil Rule 12(b). Defendant argues that Plaintiff is not entitled to PIP benefits in
this particular instance because of certain limitations in her insurance policy pertaining to No-
Fault coverage. Plaintiff avers that the No-Fault coverage provision is ambiguous, and therefore
all reasonable inferences as to its meaning should be construed in her favor. On April 22, 2016,
the Court held a hearing on Nationwide’s Motion to Dismiss (the "Motion"), and reserved its

decision. This is the Court’s decision on the Motion.

FACTUAL ALLEGATIONS

The following is a summary of the allegations Plaintiff sets forth in her Complaint:l This
case arises from a motor vehicle accident that occurred on July 5, 2015. Plaintiff and seven other
passengers were involved in an automobile accident while they were riding in a vehicle owned
and operated by Robert Stabley ("Stabley").z As a result of the accident, the passengers,
including Plaintiff, suffered personal injuries. Due to these injuries, Plaintiff incurred medical
expenses and lost wages exceeding $40,000.00.

Stabley’s vehicle was registered in Delaware and insured by State Farm Insurance
Company ("State Farm"). The State Farm policy provided for no-fault PIP benefits in the
amount of $15,000.00 per person, and $30,000.()0 per accident. Due to the multiple injured
passengers in Stabley’s vehicle, the policy exhausted after $4,171.64 in PIP benefits were paid
on Plaintiff’ s behalf.

At all times relevant to this matter`, Plaintiff had an automobile insurance policy with
Nationwide (the "Policy").3 After exhausting the benefits under Stabley’s State Farm policy,
Plaintiff sought $10,828.36 of PIP benefits under her Policy with Nationwide, representing the
difference in PIP benefits available to her under the State Farm policy ($4,171.64) and the
amount of PIP benefits provided under her Policy ($15,000.00). Plaintiff maintains that she
reasonably expected Nationwide to provide her with PIP benefits because her Policy contained a
provision requiring Nationwide to pay its proportional share of benefits whenever other available

insurance failed to provide her with the total coverage she was entitled to under the Delaware

l Plaintiff filed her Complaint on January 20, 2016.

2 The accident occurred when Stabley properly drove through an intersection with the right of way as another
vehicle failed to yield, and caused the accident.
3 See Compl.1] 3, Ex. A.

Motorist Protection Act (the "Act"). Nationwide, however, denied Plaintiff’s claim for PIP
benefits, and subsequently, Plaintiff filed this action for breach of contract.
PARTIES’ CONTENTIONS

In its Motion, Nationwide argues that it is not liable for breach of contract pursuant to the
No-Fault provision within its Policy with Plaintiff, which unambiguously provides: ". . . if
injured while occupying or by involvement with any motor vehicle other than your auto, this
coverage will apply only if the other motor vehicle is not Insured under the Delaware Motorist
Protection Act."4 Based on this provision, Nationwide avers that Plaintiff is not entitled to PIP
benefits because she was injured in Stabley’s vehicle, which was registered in Delaware and
carried the minimum insurance requirements under the Delaware Motorist Protection Act.
Therefore, Nationwide argues that Plaintiff has failed to state a claim upon which relief can be
granted.

On the other hand, Plaintiff argues that the provision cited by Nationwide is ambiguous
when read in conjunction with another provision under the Policy, which she averred in her
Complaint. Plaintiff maintains that the policy provision excluding PIP benefits when an insured
is "inj ured while occupying or by involvement with any motor vehicle other than [her] auto" is in
conflict with another provision that states, "[i]f other insurance available under the Delaware
Motorist Protection Act applies to a loss, [Nationwide] will be liable for [its] proportional share

of the loss. That share will be determined by [its] proportion of the total coverage provided

’5 Plaintiff argues that, in considering this

under this and the other available coverage.’
ambiguity, under a reasonable interpretation of the Policy, Nationwide is required to pay its

proportional share of $15,000.00 when another Delaware insurance policy failed to provide the

4

4 Compl. Ex. A., Nationwide Policy at p. N2.
5 see 1¢1. ar Nz, N3-N4.

minimum benefits to Plaintiff, as required under the Delaware Motorist Protection Act. Plaintiff
maintains that she met her burden under Delaware’s notice pleading standard because her
Complaint detailed this ambiguity, and claims that Nationwide’s Motion should be denied since
the Policy is susceptible to more than one reasonable interpretation.
STANDARD OF REVIEW

On a motion to dismiss filed pursuant to Court of Common Pleas Civil Rule 12(b)(6), the
Court considers whether the plaintiff may recover under "any reasonably conceivable set of
circumstances susceptible to proof under the complaint."6 In reviewing a motion to dismiss, "the
Court accepts all well-pleaded allegations are as true and draws all reasonable inferences in the
light most favorable to the non-moving party."7 Dismissal is appropriate "only when ‘under no
reasonable interpretation of the facts alleged could the complaint state a claim for which relief

might be granted."’g

DISCUSSION
The limited issue before the Court involves the interpretation of two separate provisions

of an insurance policy. "Under Delaware law, the interpretation of contractual language,

9 When interpreting an insurance

including that of insurance policies, is a question of law."
contract, "[t]he first issue to be resolved . . . is whether the policy language is ambiguous."m The

language in an insurance policy will be deemed ambiguous when it is "‘fairly susceptible of

  

6 Peterson v. 21st Century Centennial Ins. C0., 2015 WL 4154070, at *2 (Del. Super. July 9, 2015) (citing Spence v.

Funk, 396 A.2d 967, 968 (Del. 1978).

7 Broadway v. Allstale Prop. & Cas. Ins. C0. , 2015 WL 4749176, at *2 (Del. Super. Aug. 11, 2015) (citing Doe 30 `s
Molher v. Bradley, 558 A.3d 429, 443 (Del. Super. 2012)).

8 Dippold Marble & Granite, lnc. v. Harleysville Mut. Ins. C0., 2014 WL 3587261, at *1 (Del. Super. July 21, 2014)
(quoting Precision Air, lnc. v. Standard Chlorine of Del., Inc., 654 A.2d 403, 406 (Del. 1995) (citing Hedenberg v.
Raber, 2014 WL 2191164, at *1 (Del. Super. 2014)).

9 0 'Brien v. Progressive Northern Ins. C0., 785 A.2d 281, 286 (Del. 2001).

m Ruggiero v. Monlgomery Mut. Ins. C0., 2004 WL 1543234, at *2 (Del. Super. Jun. 28, 2004).

4

different interpretations or may have two or more different meanings."’l‘ However, "[c]lear and
unambiguous language in insurance contracts will be given its plain and ordinary meaning."'z In
interpreting two provisions of the same insurance policy, "the controlling rule of [contract]
construction is that ‘[a] single clause or paragraph of a contract cannot be read in isolation, but

must be read in context."’w The Court "will not read a contract to render a provision or term

93,14

‘meaningless or i11usory.
The applicable provisions of the parties’ insurance agreement are as follows:

YOU AND A HOUSEHOLD MEMBER
You and household members are covered for bodily injury:

1. while occupying a motor vehicle; or
2. as a pedestrian if injury involves a motor vehicle.

However, if injured while occupying or by involvement with any
motor vehicle other than your auto, this coverage will apply only if
the other motor vehicle is not Insured under the Delaware
Motorists Protection Act.l$

OTHER INSURANCE - PERSONAL INJURY PROTECT1ON
The following provisions apply to circumstances in which Personal
Injury Protection benefits are available from more than one policy
or company:

1. 1f other Insurance available under the Delaware
Motorists Protection Act applies to a loss, we will be liable
for only our proportional share of the loss. That share will
b§:-dBie-ri_'r‘iinii;.*~'_»t‘l by §:».z`;'x:r proportion ~£*f>i“i`tlfzs;`ié i.‘e`it`al cov£:_s-`?'ig§ limits
pli§§&=’_i_a“§,`r'é'c§ i.f_rzi'<:§'c+._r th§§zr=z;:iif the other a?¢‘.ai}fszi_‘ilx-‘.;= cove'ra§e.'é

" /vzch@las v. Naz'l union Fzre ms. C0. ofPzzzsburgh, PA, 83 A.3d 731, 735 (Del. 2013) (quoting Eag/e lndus., ma
v. De Vilbiss Heallh Care, lnc., 702 A.2d 1228, 1232 (Del. 1997)).

12 Ruggiero , 2004 WL 1543234, at *2 (citing Rhone-Poulen Basic Chems. C0. v. American [ns. C0. , 616 A.2d 1192,
1196 (Del. 1992)).

'3 Stonewall lns. C0. v. E.I. du Pont de Nemours & C0., 996 A.2d 1254, 1260 (Del. 2010) (quoting Cheserom` v.
Nationwide Mul. Ins. C0., 402 A.2d 12l5, 1217 (Del.Super.l979), ayj"cl', 410 A.2d 1015 (Del.l980); Hua'son v. D &
V. Mason Contractors, lnc., 252 A.2d 166 (Del.Super.1969).

14 Osborn ex rel. Osborn v. Kemp, 991 A.2d 1153, 1159 (Del. 2010) (quoting Sonl'trol Holding C0. v. Marceau
lnvestissemenls, 607 A.2d 1177, 1183 (Del. 1992).

'5 Compl. Ex. A., Nationwide Policy at p. N2.

16 Compl. Ex. A., Nationwide Policy at p. N3-N4.

After carefully reviewing the parties’ submissions to the Court, as well as applicable law,
it appears that the issue presently before the Court is analogous to the issue in Gordon v.
Nationwide Mut. Ins. Co., 2010 WL 546454 (Del. Com. Pl. Feb. 2, 2010). In Gordon, the
plaintiff sought to recover PIP benefits under her automobile insurance policy with Nationwide
after she was injured as a passenger in a third-party’s vehicle.w The third-party’s vehicle was
insured under the Delaware Motorists Protection Act, however, the plaintiff exhausted the PIP
benefits available to her under that insurance policy’s $15,000.00 limit.]s Then plaintiff filed a
claim with Nationwide, requesting that her additional medical expenses be paid out of the
$15,000.00 PIP coverage included in her policy.lg Nationwide denied her claim, and the plaintiff
iiied suir?°

The Gordon Court was called upon to interpret two provisions of a Nationwide policy
that are identical to the two provisions at issue in this matter. First, the Gordon Court found that
the language in the first disputed provision clearly and unambiguously provided that "if the
insured is injured while occupying any vehicle other than the insured’s vehiele, PIP coverage
will be paid only if the other vehicle is not insured under the Delaware Motorists Protection
Act."z] With respect to this first provision, the Court found that "a reasonable person would
assume that PIP benefits are not available to Plaintiff under the Nationwide policy."zz Next,
Gordon Court then analyzed the second disputed provision and found that "[t]he introduction
sentence of [the second] provision, when read after the [first] provision, makes it clear that [the]

second provision does not apply to Plaintif ." The Court reasoned, "[t]he earlier provision

 

17 Gordon v. Nationwide Mui‘. Ins. Co. , 2010 WL 546454, at *l, *3 (Feb. 2. 2010). Specifically, Plaintiff was
insured under her husband’s automobile insurance policy with Nationwide. Id. at *l.

18 * *

ld. at l, 3.

‘° )d. ar *i.

2° 1¢.

21 [a'. at *3.

22 ld. ar *3.

precludes Plaintiff from receiving PIP benefits from Nationwide, making this circumstance one
in which PIP benefits were only available from one policy: [the third-party’s] policy. As a result,
the remainder of the second provision must be disregarded."” Ultimately, the Court found that
the insurance policy provisions were unambiguous, and dismissed the action with prejudice.m

Accordingly, this Court will follow the reasoning and adopt the holding of the Gora'on
Court as it applies to this matter. The first provision at issue excludes Plaintiff from receiving
PIP benefits under her Policy because she was injured as a passenger in a third-party’s vehicle
that was insured under the Delaware Motorists Protection Act. Therefore, the only insurance
policy that is available to Plaintiff is the third-party’s policy, and thus, according to the second
provision, Plaintiff is precluded from recovering under her Policy with Nationwide.

CONCLUSION

For the foregoing reasons, Defendant’s Motion to Dismiss is GRANTED. Plaintiff’ s

Complaint is dismissed with prejudice.

IT IS SO ORDERED this  day of June, 2016.

Ro ert H. .
Judge

23 /d.
24 ld.

