IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

AMINAH S. FINNEY,
C.A. NO. K17C-02-018 WLW

Plaintiff, : Kent County
V_ .

ATLANTIC STATES INSURANCE :
COMPANY, a foreign corporation,

Defendant.
Submitted: October 13, 2017
Decided: December 6, 2017
ORI)ER
Upon Defendant’s Motion for Summary Judgment

Dem`ed.

Scott E. Chambers, Esquire of Schmittinger & Rodriguez, P.A., Dover, Delaware;
attorney for Plaintiff.

Gary W. Alderson, Esquire of Elzufon Austin & Mondell, P.A., Wilmington,
Delaware; attorney for Defendant.

WITHAM, R.J.

Aminah S. Finney v. Atlantic States Inc. Co.
C.A. No. Kl7C-02-018 WLW
December 6, 2017

Before the Court is Defendant Atlantic States Insurance Company’s (“ASIC”)
motion for summary judgment and Plaintiff Aminah S. Finney’s response in
opposition. After careful review of the pleadings and consideration of the arguments
of counsel, the Defendant’s Motion for Summary Judgment is hereby DENIED.

FACTUAL AND PROCEDURAL BACKGROUND

The facts in this case are somewhat unusual, yet undisputed On September 27,
2016, l6-year-old Mason Faust lost control of his vehicle while traveling on
Delaware Route 7l. Mr. Faust crossed over the northbound lane, striking the
guardrail and a utility pole before eventually going over the guardrail, and flipping
an “unknown number of times” down the embankment. The Faust vehicle came to
rest after striking a tree. The collision between the Faust vehicle and the utility pole
caused the pole to split in half, with half of the pole hanging from a guy wire.

The Plaintiff, along with other drivers, stopped her vehicle in order to render
assistance to Mr. Faust. The Plaintiff was standing near the broken utility pole when
ASIC insured driver, Gary Lee Pierce, approached the scene of the accident in his
vehicle. Mr. Pierce, while attempting to avoid the pedestrians standing on the side
of the road, struck the guy wire with his vehicle, causing the top of the utility pole to
detach from the bottom half. The detached utility pole then struck the Plaintiff in the
back and head area.

The Plaintiff applied for Personal Injury Protection (PIP) coverage from ASIC
but ASIC denied her claim. The Plaintiff therefore filed the instant action, seeking

declaratory judgment pursuant to 10 Del. C. Ch. 65.

Aminah S. Finney v. Atlantic States Inc. Co.
C.A. No. K17C-02-018 WLW
December 6, 2017

THE PARTIES’ CONTENTIONS

First, ASIC contends that the Plaintiff was not injured as a “natural and
reasonable incident or consequence” of Mr. Pierce’ s use of the insured vehicle. ASIC
draws this foreseeability requirement from the Minnesota Supreme Court’s decision
in Associatea' Indep. Dealers, Inc. v. Mut. Serv. Ins. Companies.l

The Plaintiff contends that ASIC’s reliance on the Minnesota Supreme Court’ s
dicta is inapplicable in this case because, unlike the Minnesota no-fault statute,
Delaware’s PIP statute does not contain the words “arising out of ownership,
maintenance or use of the vehicle.” Moreover, the Plaintiff argues that including an
element of foreseeability as part of the Klug test2 is improper because the Minnesota
Supreme Court has noted that “each case presenting such a question must, to a great
degree, turn on the particular facts presented.”3

Second, ASIC contends that Mr. Faust’s conduct constituted an act of

independent significance which broke the causal link between Mr. Pierce’s use of his

 

1Associal.‘ea' Indep. Dealers, Inc. v. Mut. Serv. Ins. Compam`es, 229 N.W.2d 516, 518 (Minn.
1975)

2 The Klug test, as set forth in Cont ’l W. Ins. C0. v. Klug, 415 N.W.2d 876 (Minn. 1987), was
adopted in part by the Delaware Supreme Court in Kelty v. State Farm Mut. Auto. Ins. Co. , 73 A.3d
926 (Del. 2013). The Court recognizes that the parties often refer to Klug instead of Kelty. Either
is appropriate in the general sense. However, the Court prefers to refer to the test adopted in Kelly
as the Kelty test, instead of the Klug test, because the Court in Kelly eliminated the third prong of
the test set forth in Klug. Therefore, the Court will hereinafter refer to the Kelly test instead of the
Klug test.

3 Id. at 518.

Aminah S. Finney v. Atlantic States Inc. Co.
C.A. No. K17C-02-018 WLW
December 6, 2017

vehicle and the Plaintiffs injuries.

The Plaintiff contends that Mr. Faust’s collision was not an act of independent
significance that broke the causal chain between Mr. Pierce’s striking of the guy wire
and the Plaintiffs injuries. According to the Plaintiff, it is axiomatic that an
independent act breaking the causal link between Mr. Pierce’s striking of the guy wire
and the Plaintiffs injuries must have happened between the time where Mr. Pierce
struck the guy wire and the time that the pole hit the Plaintiff, The Plaintiff also
contends that an act that merely sets the stage for a subsequent injury does not
constitute an independent act. Morever, because these are highly factual
determinations, the Plaintiff alleges that summary judgment is inappropriate

Third, ASIC contends that the Delaware Supreme Court in State Farm Mut.
Auto. Ins. Co. v. Buckley, indicated an intention to look askance at “strained”
interpretations of our PIP statute.4

The Plaintiff did not respond to ASIC’s third contention.

STANDARD OF REVIEW

Summary judgment is granted only if the moving party establishes that there

are no genuine issues of material fact in dispute and judgment may be granted as a

matter of law.5 All facts are viewed in a light most favorable to the non-moving

 

4 State Farm Mut. Auto. Ins. Co. v. Buckley, 140 A.3d 431, 431-33 (Del. 2016).

5 Super. Ct. Civ. R. 56(c).

Aminah S. Finney v. Atlantic States Inc. Co.
C.A. No. K17C-02-018 WLW
December 6, 2017

party.6 Summary judgement may not be granted if the record indicates that a material
fact is in dispute, or if there is a need to clarify the application of law to the specific
circumstances7 When the facts permit a reasonable person to draw only one
inference, the question becomes one for decision as a matter of law.8 If the non-
moving party bears the burden of proof at trial, yet “fails to make a showing sufficient
to establish the existence of an element essential to that party’s case,” then summary
judgment may be granted against that party.9
DISCUSSION

Delaware requires the owners of Delaware-registered motor vehicles to obtain
certain insurance coverage.10 The personal injury protection (“PIP”) mandate requires
insurance that provides for “[c]ompensation to injured persons for reasonable and
necessary expenses . . . .”“ PIP coverage is available to each person “occupying such
motor vehicle and to any other person injured in an accident involving such motor

vehicle, other than an occupant of another motor vehicle.”12

 

6 Hammond v. Colt Indus. Operating Corp., 565 A.2d 558, 560 (Del. Super. 1989).
7 Super. Ct. Civ. R. 56(c).

8 Wootten v. Kiger, 226 A.2d 23 8, 239 (Del. 1967).

9 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

10 21 Del. C. § 2118(a)(2).

ll 21 Del. C. § 2118(a)(2)a.

12 21 Del. C. §2118(a)(2)c.

Aminah S. Finney v. Atlantic States Inc. Co.
C.A. No. K17C-02-018 WLW
December 6, 2017

This Court in Friel v. Hartford Fire Ins. Co., held that, “the language in
Section 2118(a)(2)c - ‘coverage . . . shall be applicable to each person occupying
such motor vehicle and to any other person injured in an accident involving such
motor vehicle . . . .’ - to require that both occupants and non-occupants be ‘injured
in an accident involving a motor vehicle.”’13 In other words, as Friel held, “the
correct analysis should be: first, use the disjunctive two-prong Fisher test to
determine whether the plaintiff is an occupant; and second, use the two-prong Kelly
test to determine whether the accident involved a motor vehicle.”14

I. The Fisher T est

The Fisher test provides, that 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.”15 The Delaware Supreme
Court found that a claimant qualifies as an occupant when the claimant is “in,
entering, exiting, touching, or within reach of the covered vehicle.”16

In this case, neither party raises occupancy as an issue. In fact, the parties

conceded at a hearing on this matter that the Plaintiff would have been considered a

 

13 Friel v. Hartford Fire Ins. Co., 2014 WL 1813293, at *5 (Del. Super. May 6, 2014).

14 Id.

15 Nat ’l Union Fire Ins. Co. ofPittsburgh v. Fisher, 692 A.2d 892, 896 (Del. 1997) (emphasis
in original).

16 Id. at 897.

Aminah S. Finney v. Atlantic States Inc. Co.
C.A. No. K17C-02-018 WLW
December 6, 2017

pedestrian at the time of her injury.17 Therefore, it is unnecessary for the Court to
conduct an occupancy analysis under Fisher. However, the Court reminds the parties
to review Fisher in the future, as the occupancy test is the first step in the Court’s
analysis of PIP claims pursuant to 21 Del. C. § 2118(a)(2)c.

II. The Kelly Test

In Kelty, the Delaware Supreme Court outlined a two-part test to determine
whether the plaintiff was “injured in an accident involving [the insured] motor
vehicle” as required by 21 Del. C. § 2118(a)(2)c.18 The Court must analyze: (l)
whether the vehicle was an “active accessory” in causing the injury; and (2) “whether
there was an act of independent significance that broke the causal link between the
vehicle and the injuries inflicted.”19 The Court defined active accessory to require
“something less than proximate cause in the tort Sense and something more than the
3720

vehicle being the mere situs of the injury.

The Court in Kelty concluded the vehicle in that case was an active accessory

 

17 Finney v. Atlantic States Ins. Co., K17C-02-018, at 12-13 (Del. Super. Oct. 13, 2017)
(TRANSCRIPT) (The Court, attempting to clarifyASIC’ s response to the Court’ s question regarding
the distance from the Plaintiff s person to her vehicle, stated, “[a]ll ri ght. I think we all have to agree
that she was not an occupant of [her own] vehicle.” ASIC responded, “[a]bsolutely not. In the literal
sense of a person, she’ s a pedestrian, yes.” The Plaintiff then stated, “it’ s uncontested that [the
Plaintiff] was not an occupant of another motor vehicle, therefore, she’s entitled to coverage.” ASIC
did not rebut the Plaintiff’ s contention.).

18 Kel¢y, 73 A.3d at 932.
‘9 Id. at 930 (ciring Klug, 415 N.w.zd ar 878.

20 Id. at 931.

Aminah S. Finney v. Atlantic States Inc. Co.
C.A. No. K17C-02-018 WLW
December 6, 2017

in causing the plaintiff s injuries.21 In Kelty, the plaintiff was trimming tree branches
and using a truck to pull away falling branches to avoid hitting power lines. He tied
one end of a rope to a branch and the other end to the truck, which was operated by
someone else. While the plaintiff was in a tree cutting a branch, the person in the
truck accelerated, causing the rope to snap and the branch to recoil, break from the
tree, and strike the power line, which knocked the plaintiff from the tree.22 The Kelly
Court held that, unlike the vehicles in other cases that “had a negligible impact on the
events” causing the plaintiffs injuries, the force exerted by the truck on the rope and
branch led to the plaintiff s injuries, and therefore the truck was an active accessory
in causing the plaintiff s injuries.23

In this case, although the parties identified several decisions for the Court to
consider,24 the Court’s analysis is guided by Kelty ’s holding because the facts in both
Kelly and this case are substantially similar. Like Kelty, the Pierce vehicle did not

directly collide with the Plaintiff, Rather, Mr. Pierce collided with a guy wire,

 

21 Ia'. at 933.
22 Id. at 928.
23 Id. at 933.

24 State Farm Mut. Auto. Ins. C0. v. Buckley, 140 A.3d 43 1 (Del. 2016) (applying the Court’s
holding in Kelty to the limited circumstances where a school bus was involved); Campbell v. State
F arm Mut. Auto. Ins. Co., 12 A.3d 1137 (Del. 2011); State F arm Mut. Auto. Ins. Co. v. Buckz'ngham,
919 A.2d 1111 (Del. 2007); Sanchez v. American Ind. Ins. Co., 2005 WL 2662960 (Del. 2005);
Gray v. Allstate Ins. Co., 2007 WL 1334563 (Del. Super. May 2, 2007); Wisnewski v. State Farm
Mut. Auto. Ins. Co., 2005 WL 697945 (Del. Super. Feb. 14, 2005).

8

Aminah S. Finney v. Atlantic States Inc. Co.
C.A. No. K17C-02-018 WLW
December 6, 2017

causing a utility pole to fall onto and injure the Plaintiff, Kelzy provides, therefore,
that the Pierce vehicle was an active accessory in the causing the Plaintiffs injury
because the force exerted by the Pierce vehicle on the guy wire and utility pole led
to the Plaintiff s injuries. Thus, the first prong of the Kelty test is satisfied

The Court must also examine the second prong of the Kelly test to determine
“whether there was an act of independent significance that broke the causal link
between use of the vehicle and the injuries inflicted.”25 ln this case, ASIC claims that
Mr. Faust’s original collision with the utility pole constitutes an act of independent
significance, thereby relieving Mr. Pierce and ASIC of liability. However, it is
axiomatic that in order to break the causal link between Mr. Pierce’s striking of the
guy wire and the Plaintiff s injuries, the independent act must have occurred between
the time when Mr. Pierce struck the guy wire and the time that the utility pole hit the
Plaintiff, Moreover, even if Mr. Faust’s collision with the pole helped to furnish the
means by which the Plaintiff was injured, the Court’ s decision remains the same. The
Court’s holding relies upon well settled Delaware precedent that the “liability of a
defendant does not depend upon a showing that defendant’s conduct was the
exclusive cause of plaintiffs injuries.”26 Rather, “[t]here may be more than one

proximate cause which would render a party labile for injuries.”27 The Court

 

25 Kelzy, 73 A.3d at 930.
26 Nutt v. GAF Corp., 526 A.2d 564, 566 (Del. Super. 1987).

27 Id. (citing McKeon v. Goldstein, 164 A.2d 260, 262 (Del. 1960); Wyatt v. Clena'aniel, 320
A.2d 738 (Del. 1974); Sweetman v. Strescon Indus., Inc., 389 A.2d 1319, 1323 (Del. 1978).

9

Aminah S. Finney v. Atlantic States Inc. Co.
C.A. No. K17C-02-018 WLW
December 6, 2017

recognizes that Kelly requires something less than proximate cause when determining
if an insured’s vehicle was an “active accessory” in causing the plaintiffs injury.
Nevertheless, the principles identified by the Court are helpful under these
circumstances Therefore, the second prong of the Kelly test is satisfied.
CONCLUSION

In sum, the Court finds that the Plaintiff was injured in an accident involving
an ASIC insured motor vehicle because the Pierce vehicle was an active accessory in
causing the Plaintiffs injury and Mr. Faust’s collision with the utility pole did not
constitute an act of independent significance The Court declines to address ASIC’s
argument regarding foreseeability because the Delaware Supreme Court did not deem
it necessary to address foreseeability on similarly situated facts in Kelty. On the same
note, the Court will not address ASIC’s public policy argument regarding strained
interpretations of the PIP statute. As the Delaware Supreme Court in Kelty did not
find the interpretation strained, neither will this Court.

Based on the foregoing analysis, the Defendant’s Motion for Summary
Judgment is hereby DENIED and the Plaintiff is hereby entitled to judgment as a
matter of law.

IT IS SO ORDERED.

/s/ William L. Witham. Jr.
Resident Judge

WLW/dmh

10

