         IN THE SUPREME COURT OF THE STATE OF DELAWARE

 DONALD R. JOHNSON,                       §
                                          §     No. 450, 2017
       Plaintiff Below,                   §
       Appellant,                         §     Court Below: Superior Court
                                          §     of the State of Delaware
       v.                                 §
                                          §     C.A. No. N17C-03-206
 STATE FARM MUTUAL                        §
 AUTOMOBILE INSURANCE                     §
 COMPANY,                                 §
                                          §
       Defendant Below,                   §
       Appellee.                          §


                              Submitted: May 2, 2018
                              Decided: June 27, 2018

Before STRINE, Chief Justice; VALIHURA and VAUGHN, Justices.

                                     ORDER

      On this 27th day of June 2018, upon consideration of the parties’ briefs and

the record on appeal, it appears that:

      (1)    Appellant, Donald R. Johnson, appeals from a Superior Court opinion

granting Appellee, State Farm Mutual Automobile Insurance Company, summary

judgment. Johnson makes one claim on appeal.        He contends the Superior Court

erred when it found he did not qualify as an “insured” for purposes of an

underinsured motorist claim against a State Farm policy insuring a vehicle which

struck him while he was walking across the street as a pedestrian.
         (2)    On October 22, 2014, Fredia Brinkley struck Johnson with her vehicle

while Johnson was crossing the street on foot.            Johnson struck the hood of the

vehicle and rolled off, landing on the road. At the time of the accident, Brinkley

was insured by State Farm. On September 8, 2015, State Farm paid Johnson the

policy limit for Brinkley’s liability coverage.                He also sought underinsured

motorist coverage (“UIM”) on the theory that he was an insured under Brinkley’s

State Farm policy, but such coverage was denied by State Farm.            Johnson then filed

suit against State Farm in the Superior Court.

         (3)    Brinkley’s State Farm policy provides for underinsured coverage for

persons insured under the policy. The policy defines “insured” as: “[the named

insured]”; “resident relatives”; and “any other person while occupying . . . [the name

insured’s] car.”1 The policy goes on to state “[b]oth the use and actual operation of

such vehicle must be within the scope of [the named insured’s] consent.”2               The

policy defines occupying as “in, on, entering, or exiting [the vehicle].”3

         (4)    On August 17, 2017, State Farm filed a motion for summary judgment

arguing that Johnson does not qualify as an insured under the policy.          On October

16, 2017, State Farm was granted summary judgment, and this appeal followed.




1
    App. to Appellant’s Opening Br. at A23.
2
    App. to Appellant’s Opening Br. at A23 (emphasis added).
3
    App. to Appellant’s Opening Br. at A15.

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       (5)    “This Court reviews de novo the Superior Court’s grant or denial of

summary judgment ‘to determine whether, viewing the facts in the light most

favorable to the nonmoving party, the moving party has demonstrated that there are

no material issues of fact in dispute and that the moving party is entitled to judgment

as a matter of law.=@4    “When interpreting a statute, Delaware courts must ‘ascertain

and give effect to the intent of the legislature.’”5

       (6)    Appellant contends the Superior Court erred by finding he was not

entitled to UIM coverage as an “insured” under the language of Brinkley’s State

Farm policy. Under his theory, he qualified as an insured under the plain language

of the State Farm policy because he was occupying Brinkley’s vehicle in the sense

that he was “in, on, entering, or exiting” the vehicle.            He considers himself an

occupant by way of the physical contact he made when getting struck by the vehicle

and being on the vehicle’s hood.

       (7)    Appellant believes the Superior Court erred in applying the

“geographic perimeter” test when it found that he was not “occupying” the vehicle

even though he was touching the vehicle when he was struck. We have fashioned

a two-prong test to determine if a person is an “occupant” of a vehicle.                    The

claimant must either be “within a reasonable geographic perimeter of an insured


4
  Brown v. United Water Del., Inc., 3 A.3d 272, 275 (Del. 2010) (quoting Estate of Rae v. Murphy,
956 A.2d 1266, 1269-70 (Del. 2008)).
5
  State Farm Mut. Auto. Ins. Co. v. Davis, 80 A.3d 628, 632 (Del. 2013) (citations omitted).

                                               3
vehicle or engaged in a task related to the operation of a vehicle at the time injuries

are sustained.”6 To be within a reasonable geographic perimeter, the claimant need

be “in, entering, exiting, touching or within reach of the covered vehicle.”7

       (8)     The “geographic perimeter” test was never meant to apply to a

pedestrian who is struck by a vehicle.

       (9)     Even though Appellant may have been “on” or “touching” Brinkley’s

vehicle for a brief second when he was hit, he fails to recognize that we have found

that Delaware’s UIM statute provides that coverage is personal to the insured.8 The

purpose of that statute “is to protect innocent parties injured by the negligence of

unknown tortfeasors or from those who have no means for compensating the injured

persons.”9 Title 18, Section 3902 allows “a risk adverse person to establish a fund

to protect against losses caused by [others].”10

       (10) Appellant has cited no case law, or persuasive authority, that warrants

extending UIM insurance to pedestrians.               Brinkley carried UIM insurance to

protect herself, her “resident relatives,” and “any other person . . . occupying” her




6
   Nat’l Union Fire Ins. Co. of Pittsburgh v. Fisher, 692 A.2d 892, 896 (Del. 1997).
7
   Id. at 897.
8
   Frank v. Horizon Assur. Co., 553 A.2d 1199, 1202-03 (Del. 1989); see 18 Del. C. § 3902(a)
(“unless coverage is provided therein or supplemental thereto for the protection of persons insured
thereunder who are legally entitled to recover damages . . .”).
9
   Fisher, 692 A.2d at 896.
10
    Hurst v. Nationwide Mut. Ins. Co., 652 A.2d 10, 14 (Del. 1995).

                                                4
vehicle “within the scope of [her] consent” 11 , from harm caused by “unknown

tortfeasors,”12 not pedestrians injured by her own negligence. The mere fact that

Johnson was in physical contact with Brinkley’s vehicle because he was struck by it

does not make him an insured occupant of the vehicle able to claim benefits under

Brinkley’s personal UIM coverage.

         NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED.

                                               BY THE COURT:


                                               /s/ James T. Vaughn, Jr.
                                               Justice




11
     App. to Appellant’s Opening Br. at A23.
12
     Fisher, 692 A.2d at 896.

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