              IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


MARIA L. DICKERSON and                   )
CHARLES L. DICKERSON,                    )
                                         )
Plaintiffs,                              )
                                         )
                    v.                   )
                                         )      C.A. No. S15C-04-022 MJB
                                         )
NATIONWIDE MUTUAL                        )
INSRUANCE COMPANY,                       )
A foreign corporation,                   )
                                         )
Defendant.                               )

                                        OPINION


                               Submitted: January 15, 2016
                                 Decided: April 25, 2016



               Upon Defendant’s Motion for Summary Judgment, GRANTED.
                 Upon Plaintiff’s Motion for Summary Judgment, DENIED.




Barry Guerke, Esquire, Parkowski, Guerke & Swayze, P.A., 116 W. Water Street, P.O. Box 598,
Dover, Delaware 19903, Attorney for Plainitff.

Louis J. Rizzo, Jr., Esquire, Reger, Rizzo & Darnall, LLP, 1523 Concord Pike, Suite 200,
Brandywine Plaza East, Wilmington, Delaware 19803, Attorney for Defendant.


BRADY, J.
                                                I. INTRODUCTION

         This is an underinsured motorist claim (“UIM”) brought by Maria and Charles Dickerson

(“Plaintiffs”) against Nationwide Mutual Insurance Company (“Defendant”). 1 The parties do not

dispute the underlying facts. On June 23, 2013, Maria Dickerson was operating a 2003 Toyota

Camry, driving northbound on State Route 1 in the left exit lane south of Exit 95 in or near

Dover, Delaware. 2 As Maria exited onto Exit 95, a 2010 Dodge Avenger owned by Robin A.

Soloman (“Soloman”) and operated by Amane Soloman (“Amane”), crossed over the painted

median and turned in front of Maria’s Camry causing Maria to swerve into the right lane of

travel to avoid striking Amane. 3 Maria subsequently struck a curb which caused the Camry to

strike an embankment several times and ultimately caused the car to overturn. 4

         The automobile insurance liability company for Soloman and Amane paid the full policy

limits of $100,000, Plaintiffs’ injuries and damages exceed the total amount paid. 5 In the present

matter, Plaintiffs seek a declaratory judgment, 6 pursuant to 10 Del. C. § 6501, declaring that the

provisions of the amended version of 18 Del. C. § 3902 apply to Plaintiffs’ claim for UIM

benefits. 7

                                          II. PROCEDURAL HISTORY

         On April 20, 2015, Plaintiffs filed a Complaint 8 and on June 25, 2015, Defendant filed a

Motion to Dismiss Plaintiffs’ Complaint for failure to state a claim upon which relief can be


1
  See Complaint, Item 1 (April 20, 2015).
2
  Complaint, Item 1, at *1-2 (April 20, 2015).
3
  Complaint, Item 1, at *1-2 (April 20, 2015).
4
  Complaint, Item 1, at *1-2 (April 20, 2015).
5
  Complaint, Item 1, at *4-5 (April 20, 2015).
6
  Although not specifically addressed by the parties, it appears from the complaint that if the version of 18 Del. C. §
3902 in effect at the time of the accident is applied Plaintiff cannot recover. See Complaint, Item 1, at *4-5 (April
20, 2015) (indicating that the tortfeasors’ policy limit was $100,000 and Plaintiffs’ uninsured/underinsured motorist
coverage was $100,000/$300,000).
7
  Complaint, Item 1, at *7 (April 20, 2015).
8
  Complaint, Item 1 (April 20, 2015).

                                                           2
granted, pursuant to Superior Court Rule of Civil Procedure 12(b)(6). 9 On July 24, 2015,

Plaintiffs filed a response to Defendant’s Motion to Dismiss 10 and on July 28, 2015, Defendant

filed a reply to Plaintiffs’ response to the Motion to Dismiss.11 On August 6, 2015, Plaintiffs

filed a Motion for Summary Judgment, 12 which was amended on August 7, 2015. 13

         On August 13, 2015, Plaintiffs sent a letter to the Court arguing that Defendant’s Motion

to Dismiss had been converted into a Motion for Summary Judgment because “matters outside

the pleadings have been presented to, and not excluded by, the Court.” 14 Plaintiffs indicated that

before the Court were cross motions for summary judgment. 15 On August 13, 2015, Defendant

wrote a letter to the Court indicating that there was no objection to Plaintiffs’ Motion for

Summary Judgment being “considered as a Sur-Reply to the pending Motion to Dismiss.”16

Defendant further noted that “[i]f the Court prefers to have a separate response from defendant to

that filing, then defendant agrees that both motions should be heard together.” 17

         On January 7, 2016, the Court notified the parties that it intended to convert Defendant’s

Motion to Dismiss into a Motion for Summary Judgment. 18 The Court instructed the parties to

submit any objection by February 5, 2016, and indicate whether either party wished to submit

additional documents or argument. 19 On January 7, 2016, Plaintiffs informed the Court that it

had no objection to converting Defendant’s Motion to Dismiss into a Motion for Summary




9
  Def.’s Mot. to Dismiss, Item 5 (June 24, 2015).
10
   Plaintiffs’ Opposition to Def.’s Motion to Dismiss, Item 8 (July 24, 2015).
11
   Def.’s Reply to Plaintiffs’ Opposition to Def.’s Motion to Dismiss, Item 9 (July 28, 2015).
12
   Plaintiff’s Motion for Summary Judgment, Item 10 (Aug. 6, 2015).
13
   Plaintiff’s Amended Motion for Summary Judgment, Item 11 (Aug. 7, 2015).
14
   Letter from I Barry Guerke, Esquire, Item 13 (August 12, 2015).
15
   Letter from I Barry Guerke, Esquire, Item 13 (August 12, 2015).
16
   Letter from Lou Rizzo, Esquire, Item 14 (Aug. 13, 2015).
17
   Letter from Lou Rizzo, Esquire, Item 14 (Aug. 13, 2015).
18
   Letter from Judge Brady, Item 17 (Jan. 7, 2016).
19
   Letter from Judge Brady, Item 17 (Jan. 7, 2016).

                                                          3
Judgment and indicated that it had no further materials and argument to submit. 20 On January

12, 2016, Defendant informed the Court that it too had no objection and no further

submissions. 21

         On January 15, 2016, the Court informed the parties that Defendant’s Motion to Dismiss

had been converted into a Motion for Summary Judgment and that the Court had taken the cross

motions for summary judgment under advisement. 22 On April 20, 2016, the Court received

correspondence from Defendant indicating that a recent decision of the Superior Court addressed

similar issues to the ones presented in the instant matter. 23 Specifically, that this Court applied

the previous version of 18 Del. C. § 3902 to an UIM claim resulting from an accident that

occurred prior to the amendment. 24

         The provisions of 18 Del. C. § 3902 in effect at the time of the relevant collision ins this

case provided that, in order for underinsured motorist coverage to be triggered, the plaintiff

needed to have underinsured motorist coverage limits in excess of the tortfeasor’s limits. 25 On

July 3, 2013, the General Assembly amended 18 Del. C. § 3902. Under the amended version,

underinsured motorist coverage is triggered so long as the tortfeasor’s limits were exhausted and

were insufficient to compensate plaintiff’s full damages. 26 The new version does not require an

accounting of the underinsured motorist coverage limits of the tortfeasor. 27 For the reasons

stated below, Defendant’s Motion for Summary Judgment is GRANTED and Plaintiffs’ Motion

for Summary Judgment is DENIED.


20
   Letter from I Barry Guerke, Esquire, Item 18, (Jan. 7, 2016).
21
   Letter from Lou Rizzo, Esquire, Item 19 (Jan. 12, 2016).
22
   Letter from Judge Brady, Item 20 (Jan. 15, 2016).
23
   Letter from Lou Rizzo, Esquire, Item 21 (April 20, 2016) (citing Moffitt-Ali v. State Farm Mut. Auto. Ins. Co.,
2016 WL 1424788, at *2 (Del. Super. Ct. Mar. 31, 2016)).
24
   Letter from Lou Rizzo, Esquire, Item 21 (April 20, 2016) (citing Moffitt-Ali, 2016 WL 1424788, at *2).
25
   See 18 Del. C. § 3902(b)(2) (1995).
26
   See 18 Del. C. § 3902(b)(2).
27
   See id.

                                                          4
                                         III. PARTIES CONTENTIONS

                                        A. Defendant’s Contentions

        Defendant argues that Plaintiffs’ claim for UIM benefits should be governed by the

previous version of 18 Del. C. § 3902. 28 Specifically, Defendant contends that “[t]he statute

expressly provides for prospective application when it states: ‘The provisions of this law shall

apply to motor vehicle insurance policies issued and/or renewed six (6) months after

enactment.’” 29 Defendant further argues that the policy under which Plaintiffs’ claim is based

falls into the category of “existing policies” which are not affected by the amendment. 30

Defendant notes that Plaintiffs subsequently renewed the policy, but argues that the claim is not

being made under the renewed policy, but it is being made under the policy which existed at the

time of the accident and is therefore subject to the previous version of 18 Del. C. § 3902. 31

        Defendant further argues that Plaintiffs are seeking to have the UIM statute retroactively

applied to a policy that was priced, purchased, and issued under the prior statutory scheme for

UIM benefits. 32       Defendant notes that Delaware courts disfavor retroactive application of

statutory provisions unless it is unmistakable on the face of the statute that the legislature

intended such an application. 33 Defendant further notes that Delaware courts have held that any

doubt with regard to whether an amended statute was intended to operate retroactively should be

resolved against such an application. 34




28
   See Def.’s Mot. to Dismiss, Item 5, at *1-2 (June 24, 2015).
29
   Def.’s Mot. to Dismiss, Item 5, at *3 (June 24, 2015).
30
   Def.’s Mot. to Dismiss, Item 5, at *3-4 (June 24, 2015).
31
   Def.’s Mot. to Dismiss, Item 5, at *3-4 (June 24, 2015).
32
   Def.’s Mot. to Dismiss, Item 5, at *4-5 (June 24, 2015).
33
   Def.’s Mot. to Dismiss, Item 5, at *4 (June 24, 2015) (citing Price v. All American Eng’g Co., 320 A.2d 336 (Del.
Super. Ct. 1974)).
34
   Def.’s Mot. to Dismiss, Item 5, at *4 (June 24, 2015) (citing Chrysler Corp. v. State, 457 A.2d 345, 351 (Del.
1983)).

                                                         5
         Defendant argues that the Plaintiffs “confuse[] the concept of what plaintiff must prove in

order to successfully recover UIM benefits with the concept of what triggers UIM coverage.”35

Specifically, Defendant contends that Plaintiffs must prove exhaustion of liability limits and

damages in excess of those limits, whereas the coverage is triggered by the occurrence of the

event. 36 Defendant argues that if the Court were to accept Plaintiffs’ position, an injured party

who has low or no UIM limits on his auto policy and who is involved in an accident with a

tortfeasor who has low liability limits, can buy new insurance with high UIM limits and submit a

claim under the new policy once the tortfeasor’s limits have been exhausted. 37 Defendant argues

that such a result is contrary to public policy and the general rule that “one cannot obtain

insurance for those losses which are not fortuitous, in other words, for those losses of which the

insured knows, plans, intends, or is aware.” 38

                                          B. Plaintiffs’ Contentions

         Plaintiffs argue that they are not seeking retroactive application of the amended version

of 18 Del. C. § 3902. 39 Specifically, Plaintiffs contend that a UIM claim is separate and distinct

from a claim against the tortfeasor and that such a claim does not necessarily originate from the

date of the accident. 40 Plaintiffs argue that a UIM claim “only comes into existence” when four

contingencies are met: (1) 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; (2) the UIM

carrier received an Affidavit of No Other Insurance in which the tortfeasor driver and, as

appropriate, the owner of the vehicle involved, swear no other applicable liability insurance


35
   Def.’s Reply to Plaintiff’s Opposition to Def.’s Mot. to Dismiss, Item 9, at *2 (July 28, 2015) (emphasis in
original).
36
   Def.’s Reply to Plaintiff’s Opposition to Def.’s Mot. to Dismiss, Item 9, at *2 (July 28, 2015).
37
   Def.’s Reply to Plaintiff’s Opposition to Def.’s Mot. to Dismiss, Item 9, at *3 (July 28, 2015).
38
   Def.’s Reply to Plaintiff’s Opposition to Def.’s Mot. to Dismiss, Item 9, at *3 (July 28, 2015).
39
   Plaintiffs’ Opposition to Def.’s Motion to Dismiss, Item 8, at *1 (July 24, 2015).
40
   Plaintiffs’ Opposition to Def.’s Motion to Dismiss, Item 8, at *2 (July 24, 2015).

                                                          6
exists; (3) the UIM carrier receives an affidavit or certification of those policies; and (4) proof

that the case against the tortfeasor has concluded, such as by providing a release or proof of final

judgment and the amount. 41 Plaintiffs argue that the four contingencies were not satisfied until

October 10, 2014, and therefore the UIM claim did not rise until after Plaintiffs’ auto policy with

Nationwide renewed for the second time and after expiration of the grace period found in the

amended version of 18 Del. C. § 3902. 42

         Plaintiffs further argue that the amended version of 18 Del. C. § 3902 is unambiguous in

its terms regarding applicability. 43 Specifically, Plaintiffs note that Senate Bill No. 61 provides

that “[t]he provisions of this law shall apply to motor vehicle insurance policies issued and/or

renewed six (6) months after enactment.” 44 Plaintiffs argue that had the General Assembly

intended the reference point to be the date of the collision and injury it would have expressly

stated so. 45

         Plaintiffs contend that Defendant’s reasonable expectation argument is without merit. 46

Specifically, Plaintiffs note that the Court should interpret the insurance coverage to comport

with the insured’s reasonable expectation and not the insurer because insurance policies are

contracts of adhesion. 47 Plaintiffs argue that the reasonable expectation was that the UIM claim,




41
   Plaintiffs’ Opposition to Def.’s Motion to Dismiss, Item 8, at *2 (July 24, 2015).
42
   Plaintiff notes that the Release of All Claims was executed on October 10, 2014, the Affidavits of No Other
Insurance are dated September 26, 2014, and the Certification of Police Limits provided by Nationwide, the
torfeasor’s auto carrier, is dated July 11, 2014. See Plaintiffs’ Opposition to Def.’s Motion to Dismiss, Item 8, at *2-
3 (July 24, 2015).
43
   Plaintiffs’ Opposition to Def.’s Motion to Dismiss, Item 8, at *3 (July 24, 2015)
44
   Plaintiffs’ Opposition to Def.’s Motion to Dismiss, Item 8, at *3 (July 24, 2015) (emphasis in original).
45
   Plaintiffs’ Opposition to Def.’s Motion to Dismiss, Item 8, at *3-4 (July 24, 2015).
46
   Plaintiffs’ Opposition to Def.’s Motion to Dismiss, Item 8, at *7 (July 24, 2015)
47
   Plaintiffs’ Opposition to Def.’s Motion to Dismiss, Item 8, at *7 (July 24, 2015) (citing State Farm Mut Auto. Ins.
Co. v. Johnson, 320 A.2d 345, 347 (Del. 1974).

                                                           7
which Plaintiffs contend did not come into existence until after the effective date of the amended

statute, receives the benefit of the remedial amendment. 48

        Plaintiffs note that they recently discovered that their insurance policy from the period of

July 7, 2014 through and including July 5, 2015, made substantial changes from the preceding

policy that had an original policy period of July 2014 through January 2015. 49 These changes,

Plaintiffs submit, amounted to a new policy within the provision of section 2 of Senate Bill

Number 61, which states, in pertinent part, “[t]he provisions of this law shall apply to motor

vehicle insurance policies issued and/or renewed six (6) months after enactment.” 50 Plaintiffs

further contend that regardless of whether the policy was issued or renewed, the UIM claim did

not come into existence until October 10, 2014, the date the Release of All Claims was executed,

which makes the amendment to 18 Del. C. § 3902(b)(2) applicable. 51

        Plaintiffs further argue that Defendant’s argument that the insurance policies are

“occurrence” policies, does not control in this matter because under Delaware law where an

automobile policy contains language that conflicts with statutes governing insurance, the

statutory provisions and underlying public policy goals control. 52 Plaintiffs note that there are

two important public policy goals of the UIM statute: (1) “to promote ‘full compensation to all

victims of automobile accidents’”; and (2) “to encourage ‘the Delaware driving public to

purchase more than the statutory minimum amount of automobile insurance coverage.’” 53




48
   Plaintiffs’ Opposition to Def.’s Motion to Dismiss, Item 8, at *7 (July 24, 2015).
49
   Plaintiff’s Amended Mot. for Summary Judgment, Item 11, at *1-2 (Aug. 7, 2015).
50
   Plaintiff’s Amended Mot. for Summary Judgment, Item 11, at *1-2 (Aug. 7, 2015) (citing 79 Del. Laws 2013 Ch.
91) (emphasis in original).
51
   Plaintiff’s Amended Mot. for Summary Judgment, Item 11, at *1-2 (Aug. 7, 2015).
52
   Plaintiff’s Amended Mot. for Summary Judgment, Item 11, at *2-3 (Aug. 7, 2015) (internal citations omitted).
53
   Plaintiff’s Amended Mot. for Summary Judgment, Item 11, at *4 (Aug. 7, 2015) (citing Harris v. Prudential
Prop. & Cas. Ins. Co., 632 A.2d 1380, 1382 (Del. 1993); Nationwide Gen. Ins. Co. v. Seeman, 702 A.2d 915, 918
(Del. 1997)).

                                                       8
                                                 IV. ANALYSIS

                                           A. Standard of Review

        Generally, a “Motion for Summary Judgment is appropriate where the record indicates

that there are no genuine issues of material fact and where, viewing the facts in the light most

favorable to the non-moving party, the moving party is entitled to summary judgment as a matter

of law.” 54 The moving party “bears the burden of showing that there are no genuine issues of

material fact so that he is entitled to judgment as a matter of law.” 55

                                              B. Applicable Law

        18 Del. C. § 3902 was enacted to provide innocent victims of motor vehicle accidents a

means of recovering for injuries “inflicted by impecunious tortfeasors.” 56 It aims to achieve this

objective by permitting “a claim for UIM benefits where an operator of an underinsured motor

vehicle causes the claimant bodily injury.” 57 The condition precedent to any UIM claim is to

show that the tortfeasor was operating an underinsured motor vehicle. 58 This threshold question

is governed by 18 Del. C. § 3902(b)(2), which was recently amended by the Delaware General

Assemble. 59 The previous version of 18 Del. C. § 3902(b)(2) defined an underinsured motor

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 limits provided by the uninsured




54
   Lukk v. State Farm Mut. Auto. Ins. Co., 2014 WL 4247767, at *3 (Del. Super. Ct. Aug. 27, 2014) (citing Del.
Super. Ct Civ. R. 56(c)).
55
   Capano v. Lockwood, 2013 WL 2724634, at *2 (Del. Super. Ct. May 31, 2013) (citing Moore v. Sizemore, 405
A.2d 679 (Del. 1979)).
56
   See Deptula v. Horace Mann Ins. Co, 842 1235, 1236 (Del. 2004); see also Hurst v. Nationwide Mut. Ins. Co.,
652, A.2d 10, 12 (Del. 1995) (citing Frank v. Horizon Assur. Co, 553 A.2d 1199, 1201 (Del. 1989)).
57
   See White v. Liberty Ins. Corp., 975 A.2d 786, 788 (Del. 2009) (citing 18 Del. C. § 3902(b)(1))).
58
   See Nationwide Mut. Ins. Co. v. Williams, 695 A.2d 1124, 1126 (Del. 1997) (“[T]he definition of underinsurance
in Section 3902(b)(2) operates as a prerequisite to a right of recovery from the claimant’s underinsurance motorist
policy.”) (citing Nationwide Mut. Auto. Ins. Co. v. Peebles, 688 A.2d at 1378).
59
   See 18 Del. C. § 3902(b)(2) (1995).

                                                         9
motorist coverage.” 60 The amended version of 18 Del. C. § 3902 defines an underinsured motor

vehicle as one where “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.” 61 Senate Bill No. 61, which amended 18 Del. C. § 3902, states in pertinent part, “[t]he

provisions of the law will not affect existing insurance policies, and will apply only to renewing

or new policies that become effective six (6) months after the law is enacted.” 62 The synopsis of

Senate Bill No. 61 further explains the legislative intent behind the bill by stating:

         The purpose of this amendment is to allow innocent victims of motor vehicle
         collisions to access their own underinsured benefits in circumstances where the
         victim’s damages are greater than the amount of the negligent driver’s insurance
         policy limits. Delaware Courts have ruled that if the innocent victim and the
         negligent driver have the same policy limit or the victim’s policy limits are less
         than the negligent driver’s, then the negligent driver is not considered
         ‘underinsured’ even if the negligent driver’s policy limit is inadequate to
         compensate the innocent victims. This amendment will rectify these inequities. 63

         An insurer is not obligated to make any UIM payments “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 for judgments.” 64 As a practical matter,

insurers require an insured to submit an Affidavit of No Other Insurance in which the tortfeasor

driver and, where appropriate, the owner of the vehicle involved, swear no other applicable

liability insurance exists. In addition, insurers require the insured to submit an affidavit or

certification of those policy limits and submit proof that the case against the tortfeasor has

concluded, if the claim is settled amicably, or proof of final judgment and the amount of same.




60
   Id.
61
   18 Del. C. § 3902(b)(2).
62
   79 Laws 2013, ch. 91 § 1.
63
   Id.
64
   See 18 Del. C. § 3902(b)(3).

                                                 10
        The Delaware Supreme Court in Rapposelli v. State Farm Mut. Auto. Ins. Co., stated that

“victims of accidents caused by underinsured motorists must seek reimbursement for their full

compensatory damages under their insurance contracts from their carriers. Although an insured

claimant must often prove the elements of tortuous conduct, contract law may apply to his

claim.” 65 The Court went on to note that “parties could resolve the existence of coverage or the

length of the statute of limitations before or without knowledge of the accident. On the other

hand, damages and fault require knowledge of the accident and its results. While the former set

of issues constitutes a contract action, tort law governs the latter set.” 66 The Court held that

“contract law governs only those aspects of the underinsured motorist claim that are not

controlled by the resolution of facts arising from the accident.” 67

        Under an “occurrence” insurance policy, an insured “is indemnified for acts or

occurrences which take place within the policy period . . .” 68 The insurer’s duty to indemnify the

insured is “triggered by a determination that fortuitous bodily injury or property damage

occurred during the policy period.” 69 The general rule is that “one cannot obtain insurance for

those losses which are not fortuitous, in other words, for those losses of which the insured

knows, plans, intends, or is aware.” 70 Delaware Courts have held that it is “contrary to public

policy for an insurance company to knowingly assume the burden of a loss that occurred prior to

making the contract.” 71




65
   Rapposelli v. State Farm Mut. Auto. Ins. Co., 988 A.2d 425, 427 (Del. 2010) (emphasis in original).
66
   Id. at 428-29.
67
   Id.
68
   Playtex, Inc. v. Columbia Cas., 1993 WL 390469, at *9 (Del. Super. Ct. Sept. 20, 1993) (citing Appalachian Ins.
Co. v. Liberty Mut. Ins. Co., 676 F.2d 56, 59 (3d Cir. 1982)).
69
   Id. (citing Restatement of Contracts § 291 comment a (1932); Peters Township School District v. Hartford
Accident & Indem. Co., 833 F.2d 32 (3d Cir. 1987)).
70
   Id. (citing Intermetal Mexicana v. Insurance Co. of North America, 866 F.2d 71 (3d Cir. 1989)).
71
   Id. (citing Burch v. Commonwealth County Mutual Ins. Co. Tex., 450 S.W. 2d 838, 840 (1970)).

                                                        11
                                                   C. Discussion

         The parties do not dispute any material facts, rather, the parties disagree as to whether the

amended or prior version of 18 Del. C. § 3902 applies to Plaintiffs’ claim. The Court finds the

undisputed facts are a sufficient basis for determining the legal issue, and, therefore, this case is

ripe for summary judgment.

         Plaintiffs argue that they are not seeking retroactive application of the amended version

of 18 Del. C. § 3902, because they are submitting a UIM claim under the new policy issued on

July 9, 2014, with a policy period of July 7, 2014 through January 5, 2015. 72 Plaintiffs further

contend that the UIM claim did not come into existence until October 10, 2014, the date the

Release of All Claims was executed, which makes the amendment to 18 Del. C. § 3902(b)(2)

applicable. 73 Plaintiffs’ arguments are unsupported by Delaware’s case law and Plaintiffs’

policy terms.

         Plaintiffs argue that a UIM claim does not arise or come into existence until the UIM

carrier receives an Affidavit of No Other Insurance, an affidavit or certification of those policies,

and proof that the case against the tortfeasor has concluded. 74 Certainly, the obligation to pay

does not arise until the carrier receives certain documentation, but the obligation is premised on

the occurrence of the collision from which the claim originates.                         The law is settled, and

Plaintiffs’ policies expressly state, that the applicable policy is the one in effect at the time of the

collision. 75




72
   See Plaintiffs’ Opposition to Def.’s Motion to Dismiss, Item 8 (July 24, 2015).
73
   See Def.’s Reply to Plaintiff’s Opposition to Def.’s Mot. to Dismiss, Item 9 (July 28, 2015).
74
   Plaintiffs’ Opposition to Def.’s Motion to Dismiss, Item 8, at *2 (July 24, 2015).
75
   Both of Plaintiffs’ policies at issue here expressly state, “[t]he selected coverages in this policy apply only to
occurrences while the policy is in force.” Insurance Policy, Exhibit A to Def.’s Reply to Plaintiff’s Opposition to
Def.’s Mot. to Dismiss, Item 9 (July 28, 2015); see also Insurance Policy, Exhibit C to Def.’s Reply to Plaintiff’s
Opposition to Def.’s Mot. to Dismiss, Item 9 (July 28, 2015).

                                                          12
         Both of Plaintiffs’ policies, relevant to review in the instant matter, are “occurrence”

policies. Specifically, each policy expressly states, “[t]he selected coverages in this policy apply

only to occurrences while the policy is in force.” 76 By Plaintiffs’ own admission, the policy

issued on July 9, 2014, is a “new” policy within the provision of section 2 of Senate Bill Number

61, 77 and therefore was not “in force” when the accident occurred. 78 As a result, by the terms of

the policy, it does not cover the accident in question.

         The insurance policy in effect at the time of the accident was not renewed or issued six

months following the amended version of 18 Del. C. § 3902. The insurance policy in effect at

the time of the accident was an existing insurance policy as of the date 18 Del. C. § 3902 was

amended. Such policies were expressly excluded from the amended statute’s application.79

Specifically, the General Assembly stated, “[t]he provisions of the law will not affect existing

insurance policies, and will apply only to renewing or new policies that become effective six (6)

months after the law is enacted.” 80

         Plaintiffs acknowledge that the insurance policies at issue are “occurrence” policies, but

argues such a distinction does not control because, under Delaware law, when an automobile

policy contains language that conflicts with statutes governing insurance, the statutory provisions

and underlying public policy goals control. 81 While Plaintiffs’ statement of the law is accurate,

Plaintiffs’ argument is not persuasive. The version of 18 Del. C. § 3902 in effect at the time of

the accident satisfied the underlying public policy goal “to encourage ‘the Delaware driving


76
   Insurance Policy, Exhibit A to Def.’s Reply to Plaintiff’s Opposition to Def.’s Mot. to Dismiss, Item 9 (July 28,
2015); Insurance Policy, Exhibit C to Def.’s Reply to Plaintiff’s Opposition to Def.’s Mot. to Dismiss, Item 9 (July
28, 2015).
77
   See 79 Laws 2013, ch. 91 § 1.
78
   Plaintiff’s insurance policy states that the policy period is from July 7, 2014 through January 5, 2015. Insurance
Policy, Exhibit A to Def.’s Reply to Plaintiff’s Opposition to Def.’s Mot. to Dismiss, Item 9 (July 28, 2015).
79
   See 79 Laws 2013, ch. 91 § 1.
80
   Id. (emphasis added).
81
   Plaintiff’s Amended Mot. for Summary Judgment, Item 11, at *2-3 (Aug. 7, 2015) (internal citations omitted).

                                                         13
public to purchase more than the statutory minimum amount of automobile insurance

coverage.’” 82 Further, by enforcing the policy in effect at the time of the accident, the Court’s

decision effects Delaware’s public policy that insurance companies should not knowingly

assume the burden of a loss that occurred prior to making the contract. 83

         Recently, this Court decided an issue similar to the one presented in the instant matter.84

In Moffitt-Ali, the plaintiff filed a claim for UIM coverage relating to injuries sustained in a

motor vehicle collision on December 2, 2012. 85 That Court noted that the definition for an

underinsured motor vehicle had recently changed with an amendment to 18 Del. C. § 3902, but

subsequent to the accident in question in that case. 86 The Court, referring to plaintiff’s policy in

effect at the time of the accident, determined that the amendment did not apply because the

policy was not renewed or secured after the amendment’s July 3, 2013 effective date. 87

         Moffitt-Ali is analogous to the instant case. The accident in question occurred prior to the

amendment of 18 Del. C. § 3902. The policy at issue here, as in Moffitt-Ali, is the policy in

effect at the time of the accident.             This result is legally correct and consistent with both

Delaware’s case law and the expressed language of the previous version of 18 Del. C. § 3902

which referenced the policies in effect “at the time of the accident.” 88




82
   See Harris, 632 A.2d at 1382; see also Seeman, 702 A.2d at 918.
83
   Playtex, Inc., 1993 WL 390469, at *9 (citing Burch, 450 S.W. 2d at 840).
84
   Moffitt-Ali, 2016 WL 1424788, at *2.
85
   Id.
86
   Id.
87
   Id.
88
   18 Del. C. § 3902(b)(2) (1995) (“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.”) (emphasis added).

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                                       V. CONCLUSION

       For these reasons, the Court finds that the amended version of 18 Del. C. § 3902 is

inapplicable to Plaintiffs’ UIM claim. As a result, Defendant’s Motion for Summary Judgment

is GRANTED and Plaintiffs’ Motion for Summary Judgment is DENIED.

       IT IS SO ORDERED.




                                                    __________/s/____________________
                                                    M. JANE BRADY
                                                    Superior Court Judge




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