IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

MICHAEL HALL and
SUSAN HALL,

Plaintiffs,

Vv. C.A. No. N17C-08-028 CEB
MICHAEL RUSSELL d/b/a

MIKE’S TOWING,

Nee Nee Neue” “Nee ee” ee” ee” ee Se Se”

Defendant.

Submitted: July 16, 2020
Decided: August 26, 2020

MEMORANDUM OPINION

Defendant’s Motion in Limine
to Exclude Expenses Under the PIP/UIM
Exclusion of 21 Del C. § 2118(h).
DENIED.

Robert D. Goldberg, Esquire, BIGGS & BATTAGLIA, Wilmington, Delaware.
Attorney for Plaintiffs.

Louis J. Rizzo, Jr., Esquire, REGER RIZZO & DARNALL LLP, Wilmington,
Delaware. Attorney for Defendant.

BUTLER, J.
Surely the Plaintiff had no idea, while working under a vehicle to replace a
clutch one day, that he would propel the parties into a labyrinth of clauses and
subclauses in insurance law. But lest we get ahead of ourselves, the story goes like
this.

FACTUAL BACKGROUND

It seems that Michael Hall (“Plaintiff’ or “Hall”) was an auto mechanic and
was asked by Defendant Michael Russel (“Defendant”) doing business as “Mike’s
Towing Company” to do some transmission work on an unregistered, uninsured
Ford F-150 owned by Defendant. The Complaint says the following: “The truck
was elevated for servicing by Defendant who had placed the front wheels of the truck
on top of ramps in order that Mr. Hall could gain access beneath it. In the process of
elevating the truck, and unbeknownst to Mr. Hall, Defendant neglected to set the
handbrake. In addition, he failed to block the truck wheels to prevent the truck from
moving forward. As a result, while Mr. Hall was beneath the truck, it moved forward
and the front wheels rolled off the ramps, pinning Mr. Hall’s legs beneath the truck
and causing him serious injury including injuries to both his legs and his knees in
particular. Defendant had to use a jack to raise the truck and free Mr. Hall, who was
trapped beneath the truck for several minutes.”

Now, exactly how badly Mr. Hall was injured and who was negligent and in

what manner are all matters left for trial. The parties have moved forward with
discovery and each has a good idea what the other is saying. That is not where this
gets tricky. Here is where it gets tricky.

First, recall that the truck that rolled was not insured. It was, as they say, an
uninsured auto. Plaintiff, the mechanic, did have an automobile that was insured. It
was presumably parked outside in the lot when all this happened.

By operation of 18 Del. C. § 3902, any policy of auto insurance must have a
provision that insures the policy holder against injuries from accidents involving
uninsured autos or hit and run drivers from whom no recovery is possible. This is
called “uninsured motorist” — or UIM — coverage even though it actually insures
damage caused by the uninsured vehicle and perhaps should be called “uninsured
vehicle” coverage. UIM coverage must be of the same value as the “normal”
accident — or PIP coverage on the insured vehicle. So a policy with the statutory
minimum of $15,000 in PIP coverage must also have at least $15,000 in UIM
coverage. Plaintiff did indeed have the required PIP and UIM coverage on his
personal vehicles.

We know that generally speaking, when one purchases insurance to insulate
ones’ self from the expenses of an unforeseen event, the happening of the event and
procurement of insurance will not inure to the benefit of the tortfeasor. The so-called
“collateral source rule” prohibits the tortfeasor from setting off the plaintiff's

privately purchased insurance proceeds against the plaintiff's recoverable damages.
While some may argue this permits the plaintiff to enjoy a “double recovery,” that
is viewed as preferable to the alternative of permitting the tortfeasor/defendant to
profit (by setting off his own liabilities) from the tort victim/plaintiff’'s foresight in
obtaining insurance.

One might think that this same principle would apply in auto insurance law;
the tortfeasor should not be allowed to set off the proceeds of the driver’s privately
purchased — albeit statutorily mandated — auto insurance against the damages caused
by the tortfeasor. But that thinking would be incorrect in the case of PIP/UIM
coverage. As so often happens with legislation, what came out of the General
Assembly is a compromise among the various competing interests.

In passing the automobile financial responsibility law, the General Assembly
worked out the collateral source issue differently from the common law. It provided
in section 2118(h) that:

Any person eligible for benefits...is precluded from pleading or

introducing into evidence ...those damages for which compensation is

available under paragraph (a)(2) or (3) of this section...whether or not

such benefits are actually recoverable.

So while the collateral source rule would permit a plaintiff to plead and

“board” all of his medical expenses, even those paid, for example, by private health

insurance, an auto accident plaintiff may not plead and board those expenses eligible

 

121 Del. C. § 2118(h) (emphasis added).
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to be covered under PIP/UIM, regardless whether they are actually paid or even
requested.”

Defendant has moved in limine to preclude Plaintiff from introducing
whatever damages Plaintiff could have recovered under his UIM policy for his
personally owned automobile despite the fact that he did not make such a request.
Since Hall had $15,000 in PIP/UIM coverage on his personal vehicle, Defendant
argues that Plaintiff is precluded from introducing the first $15,000 in medical bills
to the jury as damages.

ANALYSIS

Aside from the rather curious policy proposition that auto mechanics are to
look to their personal vehicle’s UIM policies for recompense when they are injured
while repairing cars in a shop, the Defendant’s position raises more arcane issues of
statutory interpretation. For example, 21 Del. C. § 2118(a)(2)(c) — referenced above
in section 2118(h) — says that the minimum insurance required must be available to
any person “injured in an accident involving such motor vehicle.” But what is an

“accident involving such motor vehicle” for which insurance is required?

 

For example, in Mullins v. Klase, 2001 WL 659491 (Del. Super. May 31, 2001),
the Court prohibited Mullins from “boarding” his PIP damages despite the
insolvency of his PIP carrier and consequent inability to recover the expenses.

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This being a motion in limine, perhaps it is unnecessary to examine the full
lineage of cases involving this phrase, but suffice it to say this is not the first. Some
discussion of the evolution is helpful.

In Nationwide General Insurance Co. v. Royal,’ a plaintiff sought UIM
coverage from his own policy when he was the victim of a drive by shooting by an
uninsured motorist. The Court adopted a three-part test originally formulated by the
Minnesota Supreme Court to determine whether the injury arose out of the
“operation, use or maintenance” of a motor vehicle. The factors are first, whether
the vehicle was an “active accessory” in causing the injury. An active accessory is
one that is “something less than proximate cause and something more than the
vehicle being the mere situs of the injury.”* The second question is whether an act
of independent significance broke that causal link between the use of the vehicle and
the injuries inflicted. Finally, the Nationwide Court said it must examine whether
the vehicle was being used for transportation purposes.° In the Nationwide case, Mr.
Royal was unsuccessful in convincing the Delaware Supreme Court that he met these

three criteria and UIM coverage was disallowed.

 

3700 A.2d 130 (Del. 1997).

4 Td. at 132.

> Nationwide, 700 A.2d at 132. See Continental Western Insurance Co. v. Klug, 415
N.W.2d 876, 878 (Minn. 1987).

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The “used for transportation purposes” criterion in Nationwide was
specifically abrogated in the later case of Kelty v. State Farm Mutual Auto Insurance
Co.° This was a “you can’t make it up” case in which some do it yourselfers tried to
trim the branches off a tree and avoid the encroaching power lines by running a rope
from the branches to the trailer hitch on a pick up truck. Really, what could go
wrong? When the truck pulled forward, the rope snapped, the branches struck the
power lines, Kelty got knocked out of the tree by the recoil of the rope, and he sued.
The pickup was an “active accessory:” nothing else but the truck’s movement caused
the rope to snap, the branch to break and Kelty to fall, so the only problem was that
the truck was not really being used for transportation purposes. The Court found
that it had improperly imposed a “transportation purposes” requirement on “arising
out of’ claims and Kelty was therefore able to recover PIP benefits notwithstanding
that the vehicle was not being used for transportation purposes.

Perhaps an auto mechanic case was inevitable, and one came to Superior
Court in a case captioned Sierra v. Allstate Property & Casualty Insurance Co." In
Sierra, an auto mechanic was injured while pulling a chain hoist and holding onto
the car with one hand. Judge Parkins wrote that “Here the customer's car was not

moving and was not being used for transportation at the time of the accident. Indeed,

 

673 A.3d 926 (Del. 2013).
7 2013 WL 2636043 (Del. Super. June 12, 2013), aff'd, 2014 WL 134837 (Del.
2014).

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there is no particular significance to the fact that Plaintiff was touching a vehicle at
the time he hurt his lower back reaching for a chain. His hand could have been
touching anything and the injury would still have occurred.”® The Court concluded
that the vehicle did not play an active role in the accident and it was not an “accident
involving a motor vehicle” within the meaning of the statute. The Sierra decision
found that the “active accessory” rationale of the Nationwide decision equally
applicable to the term “accident involving such motor vehicle” under section 2118.7

“Active accessory” cases are more common than one might think, perhaps
owing to the ubiquity of automobiles in American life. In Jarrett v. Titan Indemnity
Co.,!° the plaintiff was standing next to his car, keys in hand, when a tree fell on him
and his car. He sought PIP benefits from his auto insurer. Judge Witham decided
Jarrett’s vehicle was not an active accessory to the tree falling on him. In Jones v.
Delaware Transit Corp.,/' Jones was working cleaning out a bus when the hose
attached to a vacuum caused her injury. She sought PIP benefits from DART, with
the Court ruling that the bus was not an active accessory to the hose mishap. In Friel
v. Hartford Insurance Co." the Plaintiff claimed injuries when he picked up a chain

attached to a pallet on the back ofa truck. Again, the Court ruled that the injury was

 

8 Id. at *2.

? Id.

102017 WL 6343552 (Del. Super. Dec. 11, 2017).
1 2016 WL 5948494 (Del. Super. Oct. 13, 2016).
22014 WL 1813293 (Del. Super. May 6, 2014).

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not caused by the operation of the vehicle. The Court used this rather pithy synopsis:
“The injury did not occur by virtue of the inherent nature of using a motor vehicle.”

If we are to find a harmonizing principle differentiating when the vehicle was
a “mere situs” or an “active accessory” to an injury, the showing that the injury
occurred by virtue of the “inherent nature” of a motor vehicle may be it. Indeed, in
Kelty, the Supreme Court said “Read in context, this [inherent nature] language
addresses the necessary causal relationship between the injury and the vehicle, an
inquiry encompassed within the Klug test's “active accessory” prong.'* So while
Kelty may have excised Klug’s “used as transportation” requirement, we see a
somewhat similar principal preserved in the necessity of showing that the injury

arose by virtue of the “inherent nature” of a motor vehicle (whether used as

transportation or not).

The truck in Kelty was not being used for transportation purposes: it was being

used to pull branches away from a power line. But at least it was being used for

 

13 Td. at *5 (citing Kelty, supra note 7, at 931 n. 29). This “inherent nature” language
actually comes from a Superior Court decision in Gray v. Allstate Ins. Co., in which
the Court said “the showing must be that the injury occurred by virtue of the inherent
nature of using the motor vehicle.” 668 A.2d 778, 780 (Del. Super. 1995)
(citing Dickerson v. Continental Casualty Co., Del.Super., C.A. No. 82C-MR-8,
Poppiti, J. (Sept. 1, 1983) (citing Hutchins v. Mills, Fla.Dist.Ct.App., 363 So.2d 818,
821 (1978), cert. denied, Fla.Supr., 368 So.2d 1368, (1979); Padron v. Long Island
Ins. Co., Fla.Dist.Ct.App., 356 So.2d 1337, 1338-39 (1978)).

14 Kelty, 73 A.3d at 931, n. 29.

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something that motor vehicles might be used for. The truck had functioning wheels,
an engine, drive train, etc. such that it could be used as a vehicle. Here, the pickup
truck was being serviced. It was fully disabled. It was not being used for anything
at all.

The Defendant can certainly point to the fact that the pickup rolled off the
ramp, which is something that cars do. But when it rolled, its transmission was
disconnected from its engine. And lots of heavy things roll when they are not
chocked. Here, it was not the pickup’s inherent nature as a motor vehicle that caused
it to roll, it was the fact that it had wheels, was put up on an angle using ramps and
was not chocked.

So whether we look at the problem with the Defendant’s argument as one of
“active accessory” or “independent causation” — the two necessary ingredients
according to the Nationwide/Kelty line of cases - we end up in the same place: it
was not a motor vehicle being used consistent with its inherent nature as a motor
vehicle.

The Court does not believe the injury in this case was sustained by virtue of
the use of a vehicle as a vehicle. It was essentially a heavy pile of metal when it
rolled off the ramp. The only thing working on it, unfortunately, was its wheels.
The Court therefore holds that Defendant may not avail himself of the insulation of

the first $15,000 in Plaintiff's damages by resort to section 2118(h).
CONCLUSION

For the reasons stated above, Defendant’s Motion in Limine is hereby

DENIED.

IT IS SO ORDERED.

Tudee Charles - Butler

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