SUPER|OR COURT
oF THE

STATE OF DELAWARE

VlVIAN L. MEDINILLA LEoNARD L. WlLLlAMS JusTlcE CENTER
JuDGE 500 NoRTH KlNG STREET. sulTE 10400

WlLMlNGToN, DE 19801-3733

TELEPHONE (302) 255-0626

December 16, 2016

Frank Greene Anthony Forcina, Esquire
602 West 3rd Street 220 Continental Drive
Wilmington, DE 19801 Suite 205

Newark, DE 19713

Re: F rank Greene v. Allstate Insurance Company
Case No..° N15C-03-052 VLM

Dear Gentlemen:

For the reasons stated below, Defendant Allstate Insurance Company
(“Allstate”)’s Motion for Summary Judgment pursuant to Superior Court Civil
Rule 56 is DENIED. This Court finds that there is a genuine issue of material fact
that must go to a jury.

Relevant F acts

Mr. Greene Was involved in a motor vehicle accident on March 6, 2013.
Traveling on I-95 With his eight-year-old son/passenger, Mr. Greene Was hit by the
tortfeasor causing his Work truck to flip over.] As a result of the accident, Mr.
Greene’s 2007 Toyota Tundra Was considered a total loss.

Within a Week of the accident, Mr. Greene’s insurance company, Allstate,
sent him the first of two checks he Would receive related to his property damage.

 

l Plaintif`f` owns a landscaping company and represented that this vehicle Was necessary for him
to continue to operate his business.

The first was for $12,864, presumably the value of the totaled vehicle at the time of
the accident. On the face of this check, Allstate wrote: “In payment for Uninsured
Motorists - Property Damage and Comprehensive (Regular) for Date of Loss
3/6/2013.” The check lacked any indication that it was in settlement of his
insurance claim from the accident The second check, dated June 2l, 2013,
reimbursed Mr. Greene the amount of his property damage deductible. This check
simply stated that it was in payment for “ROD.”2

During oral arguments, Defense counsel conceded that, at the time when the
first check was sent, the parties wrongfully believed that this was an uninsured
motorist (“UM”) claim. Allstate later discovered that the tortfeasor had insurance
coverage on the date of the accident. Although the first check identified UM
insurance, the funds sent to Mr. Greene were not meant to satisfy any UM claim.
Allstate conceded that this was an error.

More importantly, Allstate did not send Mr. Greene a release. No
documents were sent to Mr. Greene to indicate that he was forever releasing any
and all claims related to his property claims. Additionally, both checks lacked any
indication that Mr. Greene’s deposit of either was conditioned on his assent to
settle the total claim.

Given Mr. Greene’s need to continue to operate his business, Mr. Greene
deposited both checks in March and July 2013 respectively. Following receipt of
the checks, he had no relevant contact with Allstate until filing this claim. He
testified that his understanding was that he had two years to file for injuries or
damages suffered as a result of this accident and was aware of this two-year time
period with respect to his potential claims.

Mr. Greene filed this pro se claim against Allstate on March 9, 2015.
Specifically, he alleges a deficiency in the amount of $9,000 to properly
compensate him for his loss of property. Allstate moved for summary judgment
on July 18, 2016.

Standard of Review

Delaware Superior Court Civil Rule 56 mandates the granting of summary
judgment where the moving party demonstrates that “there is no genuine issues as

 

2 lt appears from context that this in an abbreviation for “Return of Deposit.”

to any material fact and that the moving party is entitled to judgment as a matter of
law.”3 “Once the movant meets its burden, then the burden shifts to the non-
movant to demonstrate sufficiently an existence of one or more genuine issues of
material fact.”4 Summary judgment will not be granted if there is a material fact in
dispute or if “it seems desirable to inquire thoroughly into [the facts] in order to
clarify the application of the law to the circumstances.”5 In considering the
motion, “[a]ll facts and reasonable inferences must be considered in a light most
favorable to the non-moving party.”6 l~lowever, courts should not “indulge in
speculation and conjecture; a motion for summary judgment is decided on the
record presented and not on evidence potentially possible.”7

Discussion

Allstate relies entirely on Price v. State Farm Mutual Automobile Insurance
C0.8 to contend that it is entitled to dismissal on the basis that Mr. Greene
unconditionally manifested acceptance of the offer to settle his insurance claim.
This Court distinguishes Prz'ce from the facts of this case.

In Price, the plaintiff accepted payment from State Farm for an automobile
collision. There, State Farm sent a $50,000 check to plaintiff with a standard UM
settlement letter stating that the amount was in settlement of his UM claim.9
Plaintiff deposited this check.

 

3 DEL. SUPER. CT. Clv. R. 56(c).

4 Quality Elec. Co., lnc. v. E. States Const. Serv., Inc., 663 A.2d 488 (Del. 1995). See also DEL.
SUPER. CT. CIV. R. 56(e); Moore v. Sizemore, 405 A.2d 679, 681 (Del. 1979).

5 Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962).
6 Nutt v. A.C. & S. C0., lnc., 517 A.2d 690, 692 (Del. Super. 1986).

7 In re Asbestos Litig., 509 A.2d 1116, 1118 (Del. Super. 1986), aj'a' sub nom Nicolet, Inc. v.
Nutt, 525 A.2d 146 (Del. 1987).

8 2013 WL 1213292 (Del. Super. Mar. 15, 2013).
9 See id. at *3 (The enclosed letter stated: “Per our discussions on May 18, 2010, enclosed is our

draft in the amount of $50,000 to settle your Uninsured Motorist claim as a result of the above
accident.”).

In this case, Mr. Greene had no such explanation regarding the putative
settlement The language on the face of the first check failed to indicate any intent
on the part of Allstate to settle the total claim. Moreover, this check referenced a
UM claim, although the monies were for property damage. The second check
simply returned his deposit, but similarly offered no indication that it was in
settlement of his total insurance claim.

The Price Court found that plaintiff’ s actions of depositing the check with
the accompanying letter manifested objective assent to be bound by the terms of
the defendant"s offer of settlement.10 Here, it cannot be said that there was an
“offer” of any kind where Mr. Greene receives not one, but two checks. Neither
suggested that they were in settlement of his claim, nor did either explain that
acceptance of the checks served to resolve his claims. Distinguishable from Price,
the focus here is on what Allstate represented or failed to represent to l\/lr. Greene
regarding his property damage claim.

ln a light most favorable to Mr. Greene, there is a genuine issue of material
fact as to whether he accepted Allstate’s offer to settle his insurance claim in
March and July 2013. For the reasons stated above, Defendant Allstate’s Motion
for Summary Judgment is DENIED.

Sincerely,

 

/\\/

’Vivian L. Medinilla
Judge

 

10 See ia'. at *6 (“Even if Plaintiff initially protested, upon receipt he deposited the check despite
clear language in the accompanying letter stating that ‘enclosed is our draft in the amount of
$50,000 to settle your Uninsured Motorist claim.”’).

