            IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


CHAMEEKA ROBINSON,              )
                                )
             Plaintiff,         )               C.A. No. N18C-08-069 FWW
                                )
                    v.          )
                                )
STATE FARM MUTUAL AUTOMOBILE )
INSURANCE COMPANY, a foreign    )
Corporation, ALLSTATE PROPERTY  )
AND CASUALTY INSURANCE          )
COMPANY, a foreign corporation, )
NATIONWIDE MUTUAL INSURANCE )
COMPANY, a foreign corporation, )
NEW JERSEY MANUFACTURERS        )
INSURANCE COMPANY, a foreign    )
Corporation,                    )
                                )
             Defendants.        )


                                 Submitted: March 6, 2020
                                  Decided: May 14, 2020

                       Upon Plaintiff’s Motion for Summary Judgment
                                        GRANTED.

                                         ORDER



David P. Cline, Esquire, Law Offices of David P. Cline, 1404 North King Street,
P.O. Box 33, Wilmington, DE 19801; Attorney for Plaintiff Chemeeka Robinson.

Stephen F. Dryden, Esquire, Weber Gallagher Simpson Stapleton Fires & Newby
LLP, New Castle Corporate Commons, 92 Read’s Way, Suite 104, New Castle, DE,
19720; Attorney for Defendant State Farm Mutual Automobile Insurance Company.
Brian Thomas McNelis, Esquire, Young & McNelis, 300 South State Street, Dover,
DE 19901; Attorney for Defendant Allstate Property and Casualty Insurance
Company.

Arthur D. Kuhl, Esquire, Reger Rizzo & Darnall, 1523 Concord Pike, Suite 200,
Brandywine Plaza East, Wilmington, DE 19803; Attorney for Defendant
Nationwide Mutual Insurance Company.

Nicholas E. Skiles, Esquire, Swartz Campbell, LLC, 300 Delaware Avenue, Suite
1410, Wilmington, DE, 19801; Attorney for Defendant New Jersey Manufacturers
Insurance Company.




WHARTON, J.




                                      2
      This 14th day of May, 2020, upon consideration of Plaintiff Chameeka Robin-

son’s (“Robinson”) Motion for Summary Judgment,1 Defendant State Farm Auto-

mobile Insurance Company’s (“State Farm”) Response,2 Defendant Allstate Property

and Casualty Company’s (“Allstate”) Response to State Farm’s Opposition to Rob-

inson’s Motion for Summary Judgment,3 the responses of the other defendants;4 and

the record in this case, it appears to the Court that:

      1.     Robinson filed this action on August 7, 2018 alleging personal injuries

arising from a multi-car accident on I-495 in 2016. 5

      2.   At the time of the accident, Robinson, who lived in her mother-in-law’s

home, arrived at the scene with her then-husband, in her mother-in-law’s car.6 The

mother-in-law’s vehicle was insured by Nationwide (“Nationwide vehicle”).7

Robinson was at the scene to assist a disabled vehicle on the shoulder of the road.8

While Robinson’s then-husband was jumping the battery of the disabled car, a four-



1
  Pl.’s Mot. Summ. J., D.I. 51.
2
  Def. State Farm’s Mem. in Opp., D.I. 67.
3
  Def. Allstate’s Resp. to State Farm’s Opp., D.I. 83.
4
  Defendant New Jersey Manufacturers joins in the motion, D.I. 65. Defendant
Nationwide did not responded to the motion. Instead, it filed its own Motion for
Summary Judgment. D.I. 70, which the Court granted on February 14, 2020, D.I.
81.
5
  Complaint, D.I. 1.
6
  Def. State Farm’s Mem in Opp. at Exhibit 3 (Pl.’s Dep. at 9-16), D.I. 67.
7
  Id.
8
  Id. at Exhibit 3 (Pl.’s Dep. at 19-21).


                                            3
car collision occurred (“initial accident”).9 Robinson heard screaming and crossed

the roadway to the scene of the initial accident.10 The driver of one of the involved

vehicles, insured by State Farm (“State Farm vehicle”), appeared upset and shaken.11

That driver stood outside of her vehicle while attempting to call her parents.12 Rob-

inson approached the driver at the rear of the State Farm vehicle.13 She attempted

to calm the driver and helped her sit in the car.14 Robinson was either sitting on the

floorboard or standing by the driver side of the State Farm vehicle with the door

open, when another vehicle, insured by Defendant Allstate, crashed into the State

Farm vehicle.15 Robinson filed this action alleging personal injuries arising from

that collision.

      3.     In this summary judgment motion, Robinson seeks a ruling from the

Court that State Farm is the defendant responsible for providing PIP coverage for

her injuries. She also seeks dismissal of the other defendants.16 In its response in




9
  Id.
10
   Id.
11
   Id. at 43.
12
   Id.
13
   Id. at 38.
14
   Id. at 19-21, 38.
15
   Id. at Exhibit 3 (Pl.’s Dep. at 43).
16
   Pl.’s Mot. Summ. J., D.I. 51.


                                          4
opposition, filed after Allstate had responded, State Farm disputes that it is respon-

sible for PIP coverage and argues instead that Allstate has that responsibility. 17   The

Court previously decided that Robinson was an occupant of the State Farm vehicle

but felt that an additional submission from Allstate on the issue of whether the State

Farm vehicle was an “active accessory” to the accident would be helpful in deter-

mining which insurance company was responsible for PIP coverage.18 Allstate filed

its supplemental submission on March 6, 2020.19 After considering all of the parties’

arguments, the Court finds as a matter of law that State Farm is responsible for any

PIP coverage that may be due Robinson. Accordingly, Robinson’s Motion for Sum-

mary Judgment is GRANTED.

      4.      In her motion, Robinson claims that State Farm’s PIP applies to her

injuries because the accident involved the State Farm vehicle and she was an

“occupant” of the State Farm vehicle at the time of injury.20 Further, Robinson

argues that the State Farm vehicle was more than the mere situs of the accident

because she was at the State Farm vehicle to render aid to the driver when the

accident occurred.21 State Farm argues that Robinson is not entitled to summary



17
    Def. State Farm’s Mem. In Opp., D.I. 67.
18
    Order for Supplemental Submission, Feb. 14, 2020, D.I. 82.
19
    Allstate’s Resp. To State Farm’s Opp. To Pl.’s Mot. Summ. J., D.I. 83.
20
   Pl. Mot. Summ. J. at ¶ 8-20, D.I. 51.
21
   Id.


                                            5
judgment because genuine issues of material fact exist regarding Robinson’s address

and Robinson’s injuries.22 State Farm contends that Robinson was not an occupant

in the State Farm vehicle and that the State Farm vehicle was the mere situs of the

accident.23 Finally, State Farm argues that the State Farm vehicle was not an “active

accessory” in the accident because the driver had removed the keys from the ignition

at the time of impact.24 State Farm contends that Allstate’s PIP should apply to

Robinson’s injuries because it insured the vehicle which caused the accident.25

      5.    Summary judgment is appropriate if, when viewing the facts in the light

most favorable to the non-moving party, “the pleadings, depositions, answers to in-

terrogatories, and admissions on file, together with the affidavits, if any, 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.”26 When considering a motion for summary judg-

ment, the Court’s function is to examine the record to determine whether genuine

issues of material fact exist “but not to decide such issues.”27   The moving party

bears the initial burden of demonstrating that the undisputed facts support its claims


22
   Def. State Farm Mem. Opp. at ¶ 4-6, D.I. 67.
23
   Id. at ¶ 8, 10.
24
   Id. at ¶ 7.
25
   Id. at ¶
26
    Super. Ct. Civ. R. 56(c); Buckley v. State Farm Mut. Auto. Ins. Co., 139 A.3d 845,
847 (Del. Super. Ct. 2015), aff'd, 140 A.3d 431 (Del. 2016) (quoting Moore v.
Sizemore, 405 A.2d 679, 680 (Del.1979).
27
    Merrill v. Crothall-Am., Inc., 606 A.2d 96, 99-100 (Del. 1992).


                                          6
or defenses.28 If the moving party meets its burden, then the burden shifts to the

non-moving party to demonstrate that there are material issues of fact to be resolved

by the ultimate fact-finder.

     6.     Whether a claimant is eligible for PIP benefits is a question of statutory

interpretation and a matter of law.29 When interpreting a statute, the Court must

attempt to determine and give effect to the General Assembly's intent.30 The

legislative intent of Delaware's PIP statute is “to impose on the no-fault carrier not

only primary but ultimate liability for the [injured party's] covered medical bills to

the extent of [the carrier's] unexpended PIP benefits.31 To determine if a claimant is

eligible for PIP benefits under 21 Del. C. § 2118 this Court must analyze the two

tests laid out by prior Delaware precedent.32 First, the Court must determine whether

Robinson was an occupant of the vehicle that is subject to the PIP policy.33 Next,

the Court must “determine whether the accident involved a motor vehicle” under the

test laid out in Kelty v. State Farm Mutual Insurance Company.



28
   Sizemore, 405 A.2d at 681.
29
   Kelty v. State Farm Mut. Auto. Ins. Co., 73 A.3d 926, 929 (Del. 2013).
30
   Id.
31
   Buckley v. State Farm Mut. Auto. Ins. Co., 139 A.3d 845, 847 (Del. Super. Ct.
2015), aff'd, 140 A.3d 431 (Del. 2016) (citing International Underwriters, Inc. v.
Blue Cross & Blue Shield of Del. Inc., 449 A.2d 197, 200 (Del.1982)).
32
   Lesniczak v. State Farm Mut. Auto. Ins. Co., 2019 WL 4034351, at *2 (Del. Super.
Ct. Aug. 26, 2019).
33
   Lesniczak, 2019 WL 4034351 at *2; Nat'l Union Fire Ins. Co. of Pittsburgh v.
Fisher, 692 A. 2d 892 (Del. 1997).

                                          7
        7.    In its Order for Supplemental Submission, the Court held that Robinson

was an “occupant” of the Stat Farm vehicle:

               A person is an “occupant” of the vehicle “if he or she is
               either: (a) within a reasonable geographic perimeter of the
               vehicle or (b) engaged in a task related to the operation of
               the vehicle.” The Delaware Supreme Court has adopted a
               liberal construction of the term “occupant” and found that
               a claimant qualifies as an occupant when the claimant is
               “in, entering, exiting, touching or within a reach of the cov-
               ered vehicle.” On this issue, State Farm claims there are
               genuine issues of material fact. Robinson, in her deposi-
               tion, claims that she was sitting on the floorboard of the
               driver side of the vehicle. The driver of the State Farm
               vehicle claims that Robinson was standing in the doorway.
               The Court does not view the difference between where
               Robinson says she was and where the State Farm vehicle’s
               driver says that Robinson was as a genuine issue of mate-
               rial fact. Whether Robinson was sitting on the floorboard
               or standing in the doorway, certainly she was within a rea-
               sonable geographic perimeter of the vehicle. Therefore,
               Robinson was an “occupant” of the State Farm vehicle.
               Occupancy alone, however, is insufficient to establish eli-
               gibility for PIP benefits.34


         8.    Thus, the Court must determine whether Robinson’s accident involved

a motor vehicle under the Kelty test. The Kelty test requires the Court to (1) analyze

whether the vehicle was an active accessory in causing the injury, and (2) whether

an act of independent legal significance broke the causal link between the use of the




34
     Order for Supplemental Submission at 5,6 (citations omitted), D.I. 82.


                                             8
vehicle and the injuries inflicted.35 For the State Farm vehicle to be an active

accessory, there must be “something less than proximate cause in the tort sense and

something more than the vehicle being the mere situs of the injury.”36 Delaware

courts have held that a vehicle was not an active accessory in causing injury where

a plaintiff was shot in the head while a passenger in the vehicle;37 where the driver

closed the garage door from inside the car and it collapsed on a plaintiff, causing

injury;38 and where a plaintiff exited her car and tripped and fell in a parking lot

pothole. 39 Conversely, Delaware courts found a vehicle was an active accessory in

causing an injury where a plaintiff provoked another driver to attack him by driving

his car in a way that caused rocks to hit the other driver’s truck;40 and where a truck




35
   Kelty, 73 A.3d at 932.
36
   Id.
37
   Sanchez v. Am. Indep. Ins. Co., 886 A.2d 1278 (Del. 2005) (ORDER) (finding that
the vehicle was not an active accessory to plaintiff’s injury, noting that no one “in-
tentionally shot and targeted the vehicle.” Further, nothing about plaintiff’s presence
in the vehicle contributed to the fact that he was shot).
38
   Campbell v. State Farm Mut. Auto. Ins. Co., 12 A.3d 1137 (Del. 2011) (reasoning
that the car’s presence had no relationship with the injury because a wall-mounted
garage door opener would have been equally able to cause the injury).
39
   Hatcher v. State Farm Mut. Automobile Ins. Co., C.A. No. N15C-12-011 CLS,
Scott, J. (Del. Super. Ct. November 19, 2016) (ORDER) (reasoning that plaintiff
was not using her vehicle because it was already parked, she had exited her vehicle,
and had begun walking towards her destination).
40
   State Farm Mut. Auto. Ins. Co. v. Buckingham, 919 A.2d 1111 (Del. 2007) (finding
that the vehicle was an active accessory in the incident provoking the attack that
caused the injuries).


                                          9
accelerated, causing a rope to snap, knocking a plaintiff out of a tree.41 Essentially,

Delaware considers a vehicle an active accessory in causing injury where the vehicle

is a significant element leading to the injury.

      9.      State Farm argues that its vehicle was the mere situs of the accident

because Robinson had the driver remove the keys from the ignition and the airbag

had already deployed.42 It relies on Hatcher v. State Farm Mutual Automobile

Insurance Company,43 where the Superior Court held that the plaintiff was ineligible

for PIP benefits when she exited her car, began to head towards her destination, and

tripped and fell in a parking lot. Robinson argues that the State Farm vehicle was

more than the mere situs of the accident because she would not have been at the

vehicle had it not been in the initial accident. Based on the undisputed facts, the

Court finds as a matter of law that the State Farm vehicle was an active accessory to

Robinson’s injuries. Robinson arrived at the State Farm vehicle to aid the driver of

the State Farm vehicle. She and the driver of the State Farm vehicle sheltered inside

the car because they were on the side of a major roadway. While sitting in the vehicle

attempting to contact the driver’s parents, the Allstate vehicle crashed into the State



41
   Kelty v. State Farm Mut. Auto. Ins. Co., 73 A.3d 926, 933 (Del. 2013) (“Kelty's
fall, the branch breaking, and the rope snapping all depended upon John's truck ap-
plying force to the rope”).
42
   Def. State farm’s Mem Opp. at Exhibit 11 (Affidavit of Kee), D.I. 67.
43
   C.A. No. N15C-12-011 CLS, Scott, J. (Del. Super. Ct. November 19, 2016)
(ORDER)

                                          10
Farm vehicle. Robinson’s body was not hit by the Allstate vehicle, instead, her

claimed injuries arise from her positioning within the State Farm vehicle. Although

the State Farm vehicle could not be driven because the airbags had been deployed

and the ignition turned off, it was still actively being used as protection from the

dangers of standing on a major roadway - I-495. Thus, the State Farm vehicle was

a significant element leading to the alleged injuries and was an active accessory in

causing those injuries.44

      10.     Finally, the Court must determine whether an act of independent legal

 significance broke the causal link between the use of the vehicle and the injuries

 inflicted. Acts having independent legal significance that break the causal link

 between the use of a vehicle and injuries inflicted are intentional or criminal acts,

 such as battery.45 Robinson argues that the Allstate vehicle’s alleged negligence

 does not rise to the level of intentionality required to constitute an act of

 independent legal significance. 46 The Court finds, on these facts, there was no act

 of independent legal significance which breaks the causal link between the use of

 the vehicle and the alleged injuries.



44
   To the extent State Farm disputes Robinson’s injuries, the Court notes that Rob-
inson’s summary judgment motion is limited to PIP coverage and therefore, Robin-
son’s alleged injuries are not material to this motion.
45
   State Farm Mut. Auto. Ins. Co. v. Buckingham, 919 A.2d 1111, 1115 (Del.
2007).
46
   Pl. Mot. at ¶ 17-19.

                                         11
      THEREFORE, Plaintiff Chameeka Robinson’s Motion for Summary Judg-

ment is GRANTED. Defendant State Farm Mutual Automobile Insurance Com-

pany shall provide Personal Injury Protection to Plaintiff Chameeka Robinson to the

extent any such coverage is found to be necessary to compensate Plaintiff Chameeka

Robinson under the terms of its insured’s policy. All claims against Defendants All-

state Property and Casualty Insurance Company, and New Jersey Manufacturers In-

surance Company are DISMISSED.47

      Defendant Nationwide Mutual Insurance Company’s Motion for Summary

Judgment is GRANTED.

      IT IS SO ORDERED.
                                                    /s/ Ferris W. Wharton
                                                         Judge




47
  Nationwide’s Motion for Summary Judgment was granted on February 14, 2020,
D.I. 81.

                                        12
