             IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

    YVONNE GREEN, WILMINGTON                      )
    PAIN & REHABILITATION CENTER,                 )
    and REHABILITATION ASSOCIATES,                )
    P.A., on behalf of themselves and all         )
    others similarly situated,                    ) C.A. No.: N17C-03-242 EMD CCLD
                                                  )
                 Plaintiffs,                      )
                                                  )
            v.                                    )
                                                  )
    GEICO GENERAL INSURANCE                       )
    COMPANY,                                      )
                                                  )
                 Defendant.                       )


                                Submitted: September 13, 2019
                                 Decided: September 23, 2019

  ORDER GRANTING DEFENDANT GEICO GENERAL INSURANCE COMPANY’S
     APPLICATION FOR CERTIFICATION OF INTERLOCUTORY APPEAL
       OF THIS COURT’S OPINION GRANTING PLAINTIFFS’ MOTION
                     FOR CLASS CERTIFICATION

       This 23rd day of September, 2019, upon consideration of Defendant GEICO General

Insurance Company’s Application for Certification of Interlocutory Appeal of This Court’s

Opinion Granting Plaintiffs’ Motion for Class Certification (the “Motion”) filed by Defendant

GEICO General Insurance Company (“GEICO”) on September 5, 2019; Plaintiffs’ Response to

Defendant GEICO General Insurance Company’s Application for Certification of Interlocutory

Appeal of This Court’s Opinion Granting Plaintiffs’ Motion for Class Certification (the

“Response”) filed by Yvonne Green, Wilmington Pain & Rehabilitation Center and

Rehabilitation Associates, P.A., on behalf of themselves and others similarly situated

(collectively, the “Plaintiffs”) on September 13, 2019; the Court’s decision dated August 27,

2019 (the “Opinion”); Supreme Court Rule 42 (“Rule 42”); and this civil action’s entire record,
the Court GRANTS the Motion and enters this Order certifying an interlocutory appeal of the

Opinion:

                                            BACKGROUND

           The Plaintiffs filed suit against GEICO. As alleged, GEICO uses two computerized

models (collectively, the “Rules”) to evaluate personal injury protection (“PIP”) claims of its

insureds. The Plaintiffs argue that GEICO uses the Rules to deny valid claims without

evaluating the facts underlying the claims. The Plaintiffs seek certification of a class action

under Superior Court Civil Rule 23.

           As part of the Civil Rule 23 process, the Plaintiffs filed their Plaintiffs’ Motion for Class

Certification (the “Class Motion”). After extensive briefing and a one-day hearing where the

parties presented evidence and arguments on May 10, 2019, the Court issued the Opinion. The

Opinion grants the relief sought in the Class Motion. GEICO noted an interlocutory appeal of

the Opinion on September 6, 2019.

           Previously, on September 5, 2019, the Plaintiffs submitted a proposed implementing

order (the “Proposed Order”). GEICO has opposed entry of the Proposed Order, arguing that the

Proposed Order is merely a disguised motion to reconsider the Opinion. The Plaintiffs have

countered and contended that, under Superior Court Civil Rule 23(d), the Court has broad

authority to manage “the course of proceedings or prescribing measures to prevent undue

repetition or complication in the presentation of evidence or argument” and “to deal [] with

similar procedural matters. The orders…may be altered or amended as may be desirable from

time to time.1




1
    Del. Super. R. Civ. P. 23(d).

                                                     2
         Given that GEICO noted an appeal, the Court does not feel it is appropriate to address the

Proposed Order. The Court is concerned with jurisdictional issues based on the appeal and Rule

42. The Court is apprehensive, though, that GEICO’s appeal is premature given that the Court

has not addressed issues like “claimant classes,” “class representatives” and “class counsel” (the

“Open Issues”)—all of which the Court anticipated dealing with subsequent to issuing the

Opinion. As such, the Supreme Court may not have an entire record to review on appeal and any

decision may warrant remand to address the Open Issues.

                                          APPLICABLE STANDARD

         Rule 42(b) dictates the standard for certifying an interlocutory appeal. “No interlocutory

appeal will be certified by the trial court or accepted by this Court unless the order of the trial

court decides a substantial issue of material importance that merits appellate review before a

final judgment.”2 In deciding whether to certify an interlocutory appeal, the trial court must

consider: (1) the eight factors listed in Rule 42(b)(iii);3 (2) the most efficient and just schedule to

resolve the case; and (3) whether and why the likely benefits of interlocutory review outweigh

the probable costs, such that interlocutory review is in the interests of justice.4 “If the balance




2
  Del. Supr. Ct. R. 42(b)(i).
3
  Delaware Supreme Court Rule 42(b)(iii) provides that the trial court should consider whether;
         (A) The interlocutory order involves a question of law resolved for the first time in this State;
         (B) The decisions of the trial courts are conflicting upon the question of law;
         (C) The question of law relates to the constitutionality, construction, or application of a statute of this State,
         which has not been, but should be, settled by this Court in advance of an appeal from a final order;
         (D) The interlocutory order has sustained the controverted jurisdiction of the trial court;
         (E) The interlocutory order has reversed or set aside a prior decision of the trial court, a jury, or an
         administrative agency from which an appeal was taken to the trial court which had decided a significant
         issue and a review of the interlocutory order may terminate the litigation, substantially reduce further
         litigation, or otherwise serve considerations of justice;
         (F) The interlocutory order has vacated or opened a judgment of the trial court;
         (G) Review of the interlocutory order may terminate the litigation; or
         (H) Review of the interlocutory order may serve considerations of justice.
  See Del. Supr. Ct. R. 42(b)(iii).
4
  Id.

                                                            3
[of these considerations] is uncertain, the trial court should refuse to certify the interlocutory

appeal.”5

                                            DISCUSSON

          The Court does not agree with many contentions in the Motion. GEICO continually

attempts to “recharacterize” the pleadings in this civil action to fit a situation previously

addressed by this Court and the United States District Court for the District of Delaware. The

Plaintiffs, however, have crafted a complaint and asserted claims recognized as potentially valid

by this Court and adopted by, among others, the United States District Court for the District of

New Jersey. The Court previously addressed those legal issues in GEICO’s motion to dismiss

(the “MTD”) the Plaintiffs’ Amended Complaint. The Court denied the MTD in an opinion

issued on April 24, 2018 (the “MTD Opinion”). GEICO noted an interlocutory appeal of the

MTD Opinion, however, the Supreme Court denied GEICO’s request for an interlocutory

appeal. Accordingly, the Court does not believe that Rule 42(b)(iii)(A)-(F) criterion apply.

          Instead, the Court is granting the Motion and entering this Order certifying an

interlocutory appeal because the Opinion: (i) “decides a substantial issue of material importance

that merits appellate review before a final judgment;”6 and (ii) implicates Rule 42(b)(iii) (G) and

(H).

          SUBSTANTIAL ISSUE

          The “substantial issue of material importance” prong of Rule 42 requires that the matter

decided goes to the merits of the case.7 The focus, here, is not on the merits of legal arguments,

but rather on whether the trial court’s decision determined a substantial issue. This case involves



5
  Id.
6
  Id. 42(b)(i).
7
  Id.

                                                   4
the application of 21 Del. C. § 2118 to GEICO’s Rules through a Civil Rule 23 class action. The

Opinion is not addressing a minor issue like a discovery dispute, but rather the viability of class

certification. The Court concludes, therefore, that the substantial issue criterion is met in

GEICO’s request for certification.

           LEGAL RIGHT

           A legal right is established when a court determines an issue essential to the positions of

the parties regarding the merits of the case, i.e., “where one of the parties’ rights has been

enhanced or diminished as a result of the order.”8 Arguably, the Opinion does not determine an

essential issue regarding the merits of the case. The Court notes that the Opinion addresses the

Plaintiffs’ request to certify classes and not the validity of the claims asserted in Plaintiffs’

Amended Complaint.

           RULE 42(b)(iii)

           Even if the Court finds that GEICO satisfied the substantial issue of material importance

requirement, GEICO must also meet at least one of the requirements of Rule 42(b)(iii). Here, the

Court finds that the Motion meets at least one of the Rule 42(b)(iii)(A)-(H) criterion.

           The Court cannot find that the Opinion involves a question of law resolved for the first

time in Delaware under Rule 42(b)(iii)(A) and (B). Despite GEICO’s contentions, the Opinion

merely allows the Plaintiffs to proceed under Civil Rule 23. This is hardly novel in Delaware.

           The Court has already addressed the validity of the claims pled by the Plaintiffs and

GEICO’s purported split in trial court opinions on those claims. In the MTD Opinion, the Court

addressed: (i) whether the Amended Complaint was well pled; and (ii) the applicability of

Wilmington Pain & Rehab. Ctr., P.A. v. USAA Gen. Indem. Ins. Co.9 and Johnson v. Geico


8
    Sprint Nextel Corp. v. iPCS, Inc., 2008 WL 2861717, at *1 (Del. Ch. Sept. 26, 2007).
9
    2017 WL 8788707, at *7 (Del. Super. Oct. 17, 2017)(Jurden, P.J.), appeal refused, 176 A.3d 124 (Del. 2017).

                                                          5
Casualty Co.10 As noted above, the Supreme Court did not accept an interlocutory appeal of the

MTD Opinion.

        Arguably, the Opinion could be seen to relate to the “construction, or application of a

statute of this State, [21 Del. C. § 2118,] which has not been, but should be, settled by this Court

in advance of an appeal from a final order.”11 However, the Opinion does not substantially go

into the construction or application of 21 Del. C. § 2118 to the Amended Complaint’s claims.

The Court addressed whether the Plaintiffs could proceed as a class under Civil Rule 23. GEICO

attacked the viability of the Amended Complaint in the MTD, the Court addressed that in the

MTD Opinion and the Supreme Court refused a request for interlocutory appeal of the MTD

Opinion.

        The Court does find that the Motion meets the criterion of Rule 42(b)(iii)(G) and (H).

The Opinion follows similar decisions of the Federal District Courts.12 However, such a class

has never been certified in Delaware. Wilmington Pain & Rehab. Ctr., P.A. discussed its

availability but did not rule upon it.13 A decision by the Supreme Court on the viability of the

type of classes certified in the Opinion could serve to terminate the class portion of this

litigation.14 The Court believes this because if GEICO is right on appeal and the Plaintiffs

cannot proceed as a class, then both forms of class certification—the one advanced in

Wilmington Pain & Rehab. Ctr., P.A. and the one advanced in the Amended Complaint—with

respect to the Rules will not be available in Delaware. This does not mean that the entire

litigation will terminate as the Plaintiffs would still be able to proceed on the Amended




10
   Johnson v. GEICO Casualty Co., 310 F.R.D. 246, 254 (D. Del. 2015), aff’d, 672 Fed. Appx. 150 (3d Cir. 2016).
11
   Rule 42(b)(iii)(C).
12
   See, e.g., DeMaria v. Horizon Healthcare Servs., Inc., 2015 WL 3460997, at *7 (D.N.J. June 1, 2015).
13
   2017 WL 8788707, at *7.
14
   Rule 42(b)(iii)(G).

                                                        6
Complaint, just not under Civil Rule 23.     The Court finds that Rule 42(b)(iii)(H) is necessarily

implicated because of the analysis relating to Rule 42(b)(iii)(G). In other words, determining

whether the type of class certified in the Opinion is available in Delaware, will serve the

considerations of justice.

         As stated above, the Court is concerned that without the Proposed Order (or a modified

Proposed Order) the Supreme Court may be addressing an interlocutory appeal not fully formed

or defined. However, the Court feels that addressing the Proposed Order is jurisdictionally

problematic since GEICO noted the interlocutory appeal prior to any action on the Proposed

Order.

                                         CONCLUSION

         IT IS HEREBY ORDERED that certification to the Supreme Court of the State of

Delaware for disposition in accordance with Rule 42 sought under the Motion is GRANTED.

Dated: September 23, 2019
Wilmington, Delaware

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

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