                   IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


        MARITZA PEREZ,                                   )
                                                         )
                               Plaintiff,                )
                                                         )
                         v.                              )    C.A. No.: N17C-07-245 EMD
                                                         )
        STATE FARM MUTUAL                                )
        AUTOMOBILE INSURANCE                             )
        COMPANY, a foreign corporation,                  )
                                                         )
                               Defendant.                )


         ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

           Upon consideration of Defendant’s Motion for Summary Judgment (the “Motion”) filed

by Defendant State Farm Mutual Automobile Insurance Company (“State Farm”); Plaintiff’s

Opposition to Defendant’s Motion for Summary Judgment (the “Opposition”) filed by Plaintiff

Maritza Perez; and the entire record of this civil proceeding:

           1.       On June 13, 2014, Ms. Perez was riding in a car driven by Marie Ingles Luciano.

There was an accident. Alfredo Ingeles owned the vehicle and had a valid insurance policy (the

“Policy”)1 with State Farm. Ms. Luciano was negligent in a manner that caused injury to Ms.

Perez. State Farm paid the Policy limit to Ms. Perez. However, the Policy limit did not cover all

of Ms. Perez’s expenses from the accident.

           2.       The Policy also contains uninsured and underinsured (“UIM”) coverage. The

Policy states:

           Uninsured Motor Vehicle means a land motor vehicle: . . . (3) with respect to
           damages for bodily injury, the ownership, maintenance or use of which may be
           insured or bonded for bodily injury liability at the time of the accident, but the limits
           of liability for bodily injury liability are less than: (a) the limits for Uninsured Motor
           Vehicle coverage under this policy; or (b) the limits for uninsured motor vehicle

1
    Mot., Ex. C. Hereinafter cited as “Policy at ___.”
         coverage under a policy not in the name of you or any relative, if such coverage
         applies to the same bodily injury.”2

However the Policy also states “Uninsured Motor Vehicle does not include a land motor vehicle:

(1) whose ownership, maintenance, or use is provided Liability Coverage by this policy;. . .” 3

         3.       Ms. Perez sought UIM benefits under the Policy because the Policy limit for

general liability coverage was insufficient to cover her injuries. State Farm denied UIM

coverage.

         4.       On July 24, 2017, Ms. Perez filed this civil action against State Farm seeking

additional compensation under the UIM provision of the Policy. On March 2, 2018, State Farm

filed the Motion. On March 19, 2018, Ms. Perez filed the Opposition.

         5.       State Farm attached the summary (the “Summary”) for the 2013 amendment to 18

Del. C. § 3902 (“Section 3902”) to the Motion. State Farm relies on the Summary to contend

that Section 3902, as amended, only allows policyholders to collect UIM benefits from their

insurance in addition to general liability coverage. The Summary states:

         The purpose of this amendment is to allow innocent victims of motor vehicle
         collisions to access their own underinsured insurance 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.
         Nationwide Mut. Ins. Co. v. Williams, Del. Supr., 695 A.2d 1124 (1997). The
         provisions of the law will not affect existing insurance policies . . . .4

         6.       The standard of review on a motion for summary judgment under Civil Rule 56 is

well-settled. The Court’s principal function when considering a motion for summary judgment



2
  Policy at 12.
3
  Policy at 13.
4
  Mot., Ex. D.


                                                   2
is to examine the record to determine whether genuine issues of material fact exist, “but not to

decide such issues.”5 Summary judgment will be granted if, after viewing the record in a light

most favorable to a nonmoving party, no genuine issues of material fact exist and the moving

party is entitled to judgment as a matter of law.6 If, however, the record reveals that material

facts are in dispute, or if the factual record has not been developed thoroughly enough to allow

the Court to apply the law to the factual record, then summary judgment will not be granted.7

The moving party bears the initial burden of demonstrating that the undisputed facts support his

claims or defenses.8 If the motion is properly supported, then the burden shifts to the non-

moving party to demonstrate that there are material issues of fact for the resolution by the

ultimate fact-finder.9

         7.       This Court has already addressed the issues raised in the Motion.10 In Tillison v.

GEICO Secure Ins. Co., the Court found that a passenger could recover UIM benefits after

receiving benefits up to the policy limit.11 In Tillison, the policy explicitly excluded vehicles

covered under the liability section of the policy from UIM coverage.12 Regardless of that

exclusion, the Court found that the passenger in the vehicle could recover from the policy under




5
  Merrill v. Crothall-American Inc., 606 A.2d 96, 99-100 (Del. 1992) (internal citations omitted); Oliver B. Cannon
& Sons, Inc. v. Dorr-Oliver, Inc., 312 A.2d 322, 325 (Del. Super. 1973).
6
  Id.
7
  See Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962); see also Cook v. City of Harrington, 1990 WL 35244
at *3 (Del. Super. Feb. 22, 1990) (citing Ebersole, 180 A.2d at 467) (“Summary judgment will not be granted under
any circumstances when the record indicates . . . that it is desirable to inquire more thoroughly into the facts in order
to clarify the application of law to the circumstances.”).
8
  See Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1970) (citing Ebersole, 180 A.2d at 470).
9
  See Brzoska v. Olsen, 668 A.2d 1355, 1364 (Del. 1995).
10
   See generally Johnson v. State Farm Mut. Automobile Ins. Co., 2017 WL 4652061 (Del. Super. Oct. 16, 2017);
Tillison v. GEICO Secure Ins. Co., 2017 WL 2209895, at *1 (Del. Super. May 15, 2017); Baunchalk v. State Farm
Mut. Automobile Ins. Co., 2015 WL 12979117 (Del. Super. Oct. 26, 2015); Pankowski v. State Farm Mut.
Automobile Ins. Co., 2013 WL 5800858 (Del. Super. Oct. 10, 2013).
11
   Tillison, 2017 WL 2209895, at *3-4.
12
   Id. at *1.


                                                            3
the liability coverage and UIM coverage.13 The Court relied upon the current statute as revised

in 2013.14 The Court followed the reasoning in Baunchalk v. State Farm Mutual Auto. Ins. Co.

and reiterated that Section 3902 “[m]akes no distinction based upon the number of vehicles or

insurance policies involved in a collision. Rather, the statute [as amended] defines an

underinsured motor vehicle relative to the victim’s injuries.”15

         8.       The Tillison Court also noted that the passenger was an “innocent victim of

another’s negligence” and that Delaware public policy requires courts to narrowly construe

provisions that attempt to limit injured persons from recovering under uninsured/underinsured

motorist coverage.16 At the end of the opinion, the Tillison Court noted “there is no legislative

history that has been provided to the Court to support GEICO’s contentions and there probably is

none recorded. While the Court is unwilling to rule contrary to previous interpretations of the

state, it would encourage GEICO to pursue legislative clarification of this situation.”17

         9.       Here, the case is similar to Tillson. The Policy contained a similar provision to

the one addressed in Tillson. Under those circumstances, Tillson rejected an argument similar to

State Farm’s argument, and found that Section 3902 does not contain an unambiguous exclusion

for single-vehicle collisions. Further, Tillison relied on the same version of Section 3902.

Tillson is strong authority in this civil action. The only additional fact in this case is State

Farm’s reliance on the Summary.

         10.      State Farm relies on the Summary to argue that “the change to the statute was

meant to provide coverage to those innocent victims who had the foresight and who made the


13
   Tillison, 2017 WL 2209895, at *3; see also Pankowski, 2013 WL 5800858, at *3-4 (an insurance clause that
allows an insurer to avoid payment if there is another valid insurance policy is known as an “escape clause” and they
are disfavored by the courts).
14
   Tillison, 2017 WL 2209895, at *3.
15
   Id.
16
   Id.
17
   Id.


                                                         4
monetary effort to provide themselves with underinsured motorist coverage.”18 State Farm

narrowly interprets the Summary.

           11.    Although the Summary states “[t]he purpose of this amendment is to allow

innocent victims of motor vehicle collisions to access their own underinsured insurance benefits .

. . ,” the Summary clearly addresses a specific case decided by the Supreme Court, Nationwide

Mut. Ins. Co. v. Williams, 695 A.2d 1124 (Del. 1997), and not the situation here. In Williams,

the Supreme Court held that a driver could not collect underinsured benefits under the old

Section 3902 because the rule compared the limits of coverage of the tortfeasor and the

“innocent victim” to control recovery. If the limits of coverage were the same or if the tortfeasor

had more coverage than the innocent victim, then old Section 3902 limited recovery. The

Legislature addressed that issue in 2013. As such, the new Section 3902 compares the

tortfeasor’s limits of coverage compared to the innocent victim’s injuries and not the innocent

victim’s insurance coverage. The Summary was not intended to address the situation raised and

decided in Tillson—i.e., preventing passengers from collecting underinsured benefits when the

driver is the negligent party. Rather, the language of the Summary relates to the application of

the new Section 3902 in response to a previously decided case where a driver could not recover

UIM benefits under the old rule.




18
     Mot. ¶ 14.


                                                 5
      12.    The Court, therefore, finds that State Farm is not entitled to judgment as a matter

of law under Civil Rule 56. Accordingly, the Motion is DENIED.

IT IS SO ORDERED.

Dated: June 1, 2018
Wilmington, Delaware

                                           /s/ Eric M. Davis
                                           Eric M. Davis, Judge

cc:   File&ServeXpress




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