            IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

NICHOLAS J. BISHOP,                         :
                                            :      C.A. No: K14C-11-004 RBY
                   Plaintiff,               :      In and For Kent County
                                            :
      v.                                    :
                                            :
PROGRESSIVE DIRECT INSURANCE                :
COMPANY, a foreign corporation, and         :
ENCOMPASS INDEMNITY COMPANY,                :
a foreign corporation,                      :
                                            :
                   Defendants.              :

                            Submitted: October 24, 2016
                            Decided: December 15, 2016

                         Upon Consideration of Defendants’
                          Motion for Summary Judgment
                                     DENIED

                       Upon Consideration of Plaintiff’s
                      Motion for Partial Summary Judgment
                                    DENIED

                                     ORDER


Noel E. Primos, Esquire, Schmittinger & Rodriguez, P.A., Dover, Delaware for
Plaintiff.

Daniel P. Bennett, Esquire, Mintzer, Sarowitz, Zeris, Ledva & Meyers,
Wilmington, Delaware for Defendant Progressive Direct Insurance Company.

Arthur D. Kuhl, Esquire, Reger Rizzo & Darnall, LLP, Wilmington, Delaware for
Defendant Encompass Indemnity Company.

Young, J.
Bishop v. Progressive Direct Ins. Co., et al.
C.A. No. K14C-11-004 RBY
December 15, 2016

                                         SUMMARY
       Nicholas J. Bishop (“Plaintiff”) filed a negligence claim against Progressive
Direct Insurance Company and Encompass Indemnity Company (“Defendants”).
Defendants filed a Motion for Summary Judgment. In response, Plaintiff filed a
Motion for Partial Summary Judgment on the issue of Plaintiff’s recklessness. Since
there is a genuine issue of material fact as to whether Defendants’ insured engaged
in reckless conduct that would violate 21 Del. C. § 4175, Defendants’ Motion for
Summary Judgment is DENIED. Likewise, because there is a genuine issue of
material fact as to whether Plaintiff was reckless under 21 Del. C. § 4175, Plaintiff’s
Motion for Partial Summary Judgment is DENIED.
                                FACTS AND PROCEDURE
       On March 15, 2014, Plaintiff was involved in a motor vehicle accident with
insured James Gohanna in which Plaintiff claims to have sustained injuries. The
accident occurred in the southbound lanes of Route 13 near Cheswold, Delaware.
Plaintiff and Defendants agree that the accident occurred when two cars in front of
Plaintiff moved into other lanes of traffic to avoid striking the rear of Gohanna’s car.
Plaintiff was unable to stop before running into the back of Gohanna’s car despite
these two closer vehicles’ being able to do so.
       Plaintiff asserts that the accident was the result of a road rage incident that
started miles before the accident’s location. He claims that Gohanna was in the
process of harassing, Kimberly Keeler, the driver of one of the vehicles that changed
lanes in order to avoid Gohanna. He further asserts that, for miles prior to the
accident, Gohanna had been driving erratically by speeding up beside Keeler and

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Bishop v. Progressive Direct Ins. Co., et al.
C.A. No. K14C-11-004 RBY
December 15, 2016

driving closely to her car at her car’s side. In Plaintiff’s view the accident occurred
when Gohanna got in front of Keeler and slammed on his brakes. Plaintiff, who states
that he was five car lengths behind the car in front of him and traveling at the speed
limit, claims that he had no choice but to hit Gohanna’s vehicle.
         Defendants assert that Plaintiff rear ended Gohanna as Gohanna gradually
slowed down on the highway in order to make a turn. Defendants further note,
through an expert report, that under the circumstances of this accident, Plaintiff could
not have been traveling both near the speed limit and five car lengths behind the
vehicle in front of him.
         Plaintiff filed suit on November 4, 2014, against Defendants, James Gohanna
and Kimberly Keeler. On April 27, 2016, Gohanna and Keeler were dismissed from
this case. Defendants filed a Motion for Summary Judgment on October 7, 2016.
Plaintiff filed a Motion for Partial Summary Judgment on October 11, 2016.
                                     STANDARD OF REVIEW
         Summary judgment is appropriate where the record exhibits no genuine issue
of material fact, and the movant is entitled to judgment as a matter of law.1 This Court
shall consider the “pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any” in deciding the motion.2 The moving party
bears the initial burden of demonstrating the nonexistence of material issues of fact;
the burden then shifts to the nonmoving party to show that there are material issues

         1
             United Vanguard Fund, Inc. v. Takecare, Inc., 693 A.2d 1076, 1079 (Del. May 22,
1997).
         2
             Del. Super. Ct. Civ. R. 56©.

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Bishop v. Progressive Direct Ins. Co., et al.
C.A. No. K14C-11-004 RBY
December 15, 2016

of fact in dispute.3 The Court views the record in the light most favorable to the
nonmoving party.4 When material facts are in dispute, or “it seems desirable to
inquire more thoroughly into the facts, to clarify the application of the law to the
circumstances,” summary judgment will not be appropriate.5 However, when the facts
permit a reasonable person to draw but one inference, the question becomes one for
decision as a matter of law.6
                                         DISCUSSION
       Defendants move this Court to grant their Motion for Summary Judgment,
arguing that there are no genuine issues of material fact with respect to this action.
Further, they state that there is no legally sufficient basis for a reasonable jury to find
them liable for Plaintiff’s alleged injuries, were this jury to apply the law to these
material facts, since Gohanna did not breach any duty he owed to Plaintiff, and since
Plaintiff was greater than fifty percent at fault for his injuries.
       Plaintiffs argue that this Court should grant their Motion for Partial Summary
Judgment. They argue that there are no genuine issues of material fact with respect
to whether Plaintiff was reckless under 21 Del. C. § 4175 in running into the back of
Gohanna’s car. Moreover, they note that they are entitled to judgment as a matter of
law with respect to Plaintiff’s recklessness, since Plaintiff did not knowingly


       3
           Fauconier v. USAA Cas. Ins. Co., 2010 WL 847289, at *2 (Del. Super. Mar. 1, 2010).
       4
           Moore v. Sizemore, 405 A.2d 679, 680 (Del. Aug. 6, 1979).
       5
           Sztybel v. Walgreen, 2011 WL 2623930, at *2 (Del. Super. June 29, 2011).
       6
           Wootten v. Kiger, 226 A.2d 238, 239 (Del. 1967).

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Bishop v. Progressive Direct Ins. Co., et al.
C.A. No. K14C-11-004 RBY
December 15, 2016

disregard a substantial and unjustifiable risk in running into the back of Gohanna’s
vehicle.
       Defendants’ Motion for Summary Judgment and Plaintiff’s Motion for Partial
Summary Judgment must be DENIED. This Court denies Defendants Motion for
Summary Judgment, because there is an issue of material fact as to whether Gohanna
and Keeler were involved in a road rage incident that led Gohanna to come to an
abrupt stop in front of Keeler. If there were such an incident, then Gohanna and
Keeler might be found to have violated 21 Del. C. § 4175. If either violated 21 Del.
C. § 4175, then he could not only be negligent per se, but he could also be subject to
liability regardless of the percentage at which Plaintiff was comparatively negligent
on a theory of recklessness.
       Plaintiff’s Motion for Partial Summary Judgment is DENIED, since there is
an issue of material fact as to whether Plaintiff was driving the speed limit and was
five car lengths behind the nearest vehicle. If Plaintiff was either driving faster than
the speed limit or less than five car lengths behind the nearest vehicle he could be
found to have been driving recklessly under the circumstances then existing.
I.     Defendants’ Motion for Summary Judgment is DENIED
       There is a genuine issue of material fact as to whether Gohanna and Keeler
were involved in a road rage incident that led to Gohanna’s coming to an abrupt stop
in front of Keeler.
       It is relevant to determine whether a defendant violated any statutes in
determining liability in a negligence case. “Violation of a statute or ordinance enacted



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Bishop v. Progressive Direct Ins. Co., et al.
C.A. No. K14C-11-004 RBY
December 15, 2016

for the safety of others is negligence in law or negligence per se.”7
       The circumstances of the prior Gohanna/Keeler interactions, if shown to be
proximately related to the Bishop/Gohanna collision, are relevant in determining this
claim’s outcome, since such an incident might violate Delaware’s Reckless Driving
statute. A person drives recklessly in Delaware when he drives “any vehicle in wilful
or wanton disregard for the safety of persons or property.”8 In Doherty v. State, the
Delaware Supreme Court upheld a Reckless Driving conviction when the defendant
ran into a turning horse carriage after attempting to pass it within 100 feet of an
intersection, while speeding, at night, on a shoulderless country road.9 A person
stopping abruptly on a highway in the midst of a road rage incident is similar to a
person attempting to pass a carriage within 100 feet of an intersection in its wanton
disregard for the safety of persons or property. Since the Plaintiff and Defendants
disagree with respect to whether any road rage incident led to the accident in the
instant action, there is an issue of material fact as to whether Gohanna violated 21
Del. C. § 4175 and Defendants are liable.
       Those facts also impact whether Plaintiff’s comparative fault bars him from
recovery. In Hufford v. Moore, the Court denied defendants’ Motion for Summary
Judgment when plaintiff ran into an tree after getting chased by defendant.10 The


       7
           Sammons v. Ridgeway, 293 A.2d 547, 549 (Del. May 30, 1972).
       8
           21 Del. C. §4175.
       9
           Doherty v. State, 817 A.2d 804, 1 (Del. June 10, 2002).
       10
            Hufford v. Moore, 2007 WL 4577384, at *1 (Del. Super. Nov. 8, 2007).

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Bishop v. Progressive Direct Ins. Co., et al.
C.A. No. K14C-11-004 RBY
December 15, 2016

Court reasoned that the facts were such that the defendants may be liable under a
reckless driving theory.11 Furthermore, the Court noted that a plaintiff may still
recover under a theory of negligence per se, because the defendant violated
Delaware’s reckless driving statute “even if plaintiff is found to be grossly
negligent.”12 If Gohanna stopped abruptly in front of Keeler in the midst of a road
rage incident then not only might that violate 21 Del. C. § 4175, and potentially make
Plaintiff’s comparative fault irrelevant.
II.    Plaintiff’s Motion for Partial Summary Judgment is DENIED
       Since there is an issue of material fact as to whether Plaintiff was driving the
speed limit and five car lengths behind the nearest vehicle or was not, this Court
denies Plaintiff’s Motion for Partial Summary Judgment. Whether a person is
speeding or following the car in front too closely could be relevant, depending on all
circumstances, in determining whether there was reckless driving. As noted above,
a person drives recklessly when he drives “any vehicle in wilful or wanton disregard
for the safety of persons or property.”13 As shown in Doherty, speeding in
combination with other unsafe conduct may in some instances be reckless.14
Moreover, a party may be negligent per se when he violates a statute.15 Given the


       11
            Id. at *2.
       12
            Id.
       13
            21 Del. C. §4175.
       14
            Doherty, 817 A.2d at 1.
       15
            Sammons, 293 A.2d at 549.

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Bishop v. Progressive Ins. Co., et al.
C.A. No. K14C-11-004 RBY
December 15, 2016

genuine issue of material fact, the Plaintiff is not entitled to partial summary
judgment.
                                         CONCLUSION
       Since there is a genuine issue of material fact as to whether Defendants’ clients
engaged in reckless conduct that would violate 21 Del. C. § 4175, Defendants’
Motion for Summary Judgment is DENIED. Because there is a genuine issue of
material fact as to whether Plaintiff was reckless under 21 Del. C. § 4175, Plaintiff’s
Motion for Partial Summary Judgment is DENIED.
       IT IS SO ORDERED.

                                                 /s/ Robert B. Young
                                                            J.

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