IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

CONCELETA BERBICK, as NeXt )
Friend of RYAN H. BERBICK, a minor, )

Plaintiff,

v. C.A. No. NlSC-07-011 FWW
THE NEMOURS FOUNDATION,

a foreign corporation, d/b/a ALFRED
I. DUPONT HOSPITAL FOR
CHILDREN,

\./V\./V\./V\/VVVV

Defendant.

Submitted: October 14, 2016
Decided: December 8, 2016

MEMORANDUM OPINION AND ORDER

Upon Defendant’S Motion for Summary Judgment
DENIED.

Gary S. Nitsche, Esquire, Joel H. Fredricks, Esquire, Weik, Nitsche & Dougherty,
305 N. Union Street, Second Floor, P.O. BOX 2324, Wilmington, Delaware 19899;
Attorneys for Plaintiff.

Kevin S. Marm, Esquire, Cross & Simon, LLC, 1105 N. Market Street, Suite 901,
Wilmington, Delaware 19801; Michael C. Heyden, Esquire, 1201 N. King Street,
Wilmington, Delaware 19801; Michael C. Heyden, Jr., Esquire, Litchfleld Cavo
LLP, 1515 Market Street, Suite 1220, Philadelphia, Pennsylva.nia 19103; Attorneys
for Defendant.

WHARTON, J.

I. INTRODUCTION

Before the Court is The Nemours Foundation’s (“Defendant”) Motion for
Summary Judgment With respect to a personal injury lawsuit filed by Ryan Berbick
(“Berbicl<”). Berbick claims that he sustained personal injuries when he slipped
and fell on Defendant’s premises. The parties dispute whether Berbick’s claim
was tolled pursuant to 18 Del. C. § 3914. To resolve this dispute, the Court must
answer the following question: Is a non-Delaware insurer, which issues an
insurance policy covering a Delaware resident, Delaware property, or an activity to
be performed in Delaware, required to provide notice of the applicable statute of
limitations to a potential claimant pursuant to § 3914.

The Court answers this question in the affirmative Because the Court fmds
that Defendant issued such a policy and failed to notify Berbick of the applicable
statute of limitations, Berbick’s claim was tolled. Therefore, Defendant’s Motion
for Summary Judgment is DENIED.

II. FACTUAL AND PROCEDURAL CONTEXT

On June 25, 2013, Berbick, who is a minor, was at the Alfred I. duPont

Hospital for Children (“Hospital”).1 The Hospital is owned and operated by

Defendant, a Florida corporation.2 While Berbick was at the Hospital, he entered a

 

1Pl.’s Comp., D.I. 1, at l.
2 Id.

bathroom and fell due to water on the tloor.3 As a result of this fall, Berbick
claims that he sustained personal injuries.4

On July 1, 2015, Berbick filed a personal injury lawsuit against Defendant.
Berbick contends that Defendant was negligent because Defendant failed to
properly and reasonably inspect the premises, failed to warn Berbick of the
existence of water on the floor, and failed to properly and reasonably train its
employees.5

On August 1, 2016, Defendant filed its Motion for Summary Judgment,
asserting that Berbick’s claim was time-barred pursuant to 10 Del. C. § 8119.6 On
September 2, 2016, Berbick responded to Defendant’s Motion for Summary
Judgment by arguing that the statute of limitations was tolled because Defendant
failed to provide him notice of the applicable statute of limitations in accordance
with § 3914.7 The parties appeared before the Court for oral argument on October
14, 2016.

III. THE PARTIES’ CONTENTIONS
Defendant argues that Berbick’s claim is time-barred under § 8119 because

Defendant is not subject to § 3914. In particular, Defendant asserts that it is not

 

3 Id.

4 ld. at 2.

5 Id.

6 See D.I. 27. See also § 8119 (“No action for the recovery of damages upon a claim for alleged
personal injuries shall be brought after the expiration of 2 years from the date upon which it is
claimed that such alleged injuries Were sustained . . . .”).

7 See D.I. 32.

subject to § 3914 because its self-insured retention policy does not specifically
cover a Delaware resident, Delaware property, or activities to be performed in
Delaware.8 Defendant contends that its policy does not cover a Delaware resident,
for Defendant is only a resident of Florida, and not Delaware.9 With respect to the
latter two categories, Defendant contends that § 3914 requires an insurance policy
to be “uniquely directed” at activities or property in Delaware, and here, the policy
is not.10 Rather, Defendant’s “self-insured retention is applicable to all of its
facilities located in multiple states.”11

In contrast, Berbick argues that the statute of limitations was tolled because
Defendant failed to abide by § 3914.12 Berbick asserts that Defendant’s self-
insured retention invariably covers all liabilities arising from activities performed
on its property at the Hospital.13 As a result, Berbick contends that Defendant
issued an insurance policy that necessarily covers Delaware property and
activities.14 Because Defendant’s self-insured retention covers Delaware property

and activities, Berbick argues that it was required to provide notice pursuant to §

3914.

 

8 See D.I. 22, at 4-5.
91d.

1014 at 6.

11 lai

12 see D.I. 32, at 3-6.
13 lai

14 ld-

IV. STANDARD OF REVIEW
Superior Court Civil Rule 56(c) provides that summary judgment is
appropriate when there is “no genuine issue as to any material fact” and “the
moving party is entitled to a judgment as a matter of law.” When considering a
motion for summary judgment, the Court’s function is to examine the record to
determine whether genuine issues of material fact exist “but not to decide such

issues.”15

The moving party bears the initial burden of demonstrating that the
undisputed facts support his claims or defenses16 If the moving party meets its
burden, then the burden shifts to the non-moving party to demonstrate that there
are material issues of fact to be resolved by the ultimate fact-fmder.17

Summary judgment will be granted if, after viewing the record in the light
most favorable to the non-moving party, no genuine issues of material fact exist
and the moving party is entitled to judgment as a matter of law.18 If the record
reveals that material facts are in dispute, or if the factual record has not been

developed thoroughly enough to allow the Court to apply the law to the factual

record, then summary judgment is inappropriate19

 

15 Merrill v. Crorhall-Am., lnc., 606 A.2d 96, 99 (Del. 1992).

16 Moore v. Sizemore, 405 A.2d 679, 681 (Del. 1979).

17 Brzoska v. olson, 668 A.2d 1355, 1364 (Dei. 1995).

18 Merrill, 606 A.2d at 99-100.

19 See Cook v. Cz'ly ofHarrington, 1990 WL 35244, at *3 (Del. Super. Feb. 22, 1990) (“Summary
judgment will not be granted under any circumstances when the record indicates . . . that it is
desirable to inquire more thoroughly into the facts in order to clarify the application of law to the
circumstances.”).

V. DISCUSSION
According to § 3914, “[a]n insurer shall be required during the pendency of
any claim received pursuant to a casualty insurance policy to give prompt and
timely written notice to claimant informing claimant of the applicable state statute

»20

of limitations regarding action for his or her damages. This statute is an

“‘expression of legislative will to toll otherwise applicable time limitations’ with

»21

respect to claims made against insurers. Consequently, an insurer that fails to

comply with § 3914’$ “notification requirement is estopped from asserting the
statute of limitations defense against the claimant.”22

However, insurers are required to follow § 3914 only if the contracts they
issue fall within the ambit of 18 Del. C. § 3901_that is, the insurance contracts
cover “subj ects resident, located or to be performed in this State.” In LaFayette v.

Christian, the Court had to determine whether a non-Delaware insurance company

was required to provide notice of the applicable statute of limitations pursuant to §

 

20 In Stop & Shop C0., Inc. v. Gonzales, 619 A.2d 896, 898 (Del. 1993), the Delaware Supreme
Court held that § 3914 includes self-insurers The Court reasoned that “[W]hether the funding be
through contract with an independent insurer, or self-funding, or a combination of the two
through partial self-insurance in the form of deductibles, the result is the same. A fund is created
to protect against risk of bodily harm or property damage.” Id. at 898. Here, no one disputes
that Defendant is a self-insurer.

21 161 (quoting tan/gard v. Rich¢er, 570 A.2d 1148, 1149-50 (Del. 1990)).

22 LaFayette v. Christian, 2012 WL 3608690, *2 (Del. Super. Aug. 21, 2012) (citing Fleming v.
Perdue Farms, Inc., 2002 WL 31667335, at *2 (Del. Super. Oct. 30, 2002)). See also Stop &
Shop Co., 619 A.2d at 898 (“This tolling is mandated in the absence of affirmative action by the
insurer providing written notice to the claimant.” (citing § 3914)).

6

3914.23 Reading § 3914 in conjunction With § 3901, the Court held that § 3914
“does not apply to out-of-state insurers issuing any policy covering a non-
Delaware resident, non-Delaware property, or activities to be performed outside of
Delaware.”24 In essence, then, the Court held that the legislature did not intend for
§ 3914 to include out-of-state insurers issuing non-Delaware related policies.25

In this case, the question is whether a non-Delaware insurer, which issues an
insurance policy covering a Delaware resident, Delaware property, or an activity to
be performed in Delaware, is within the ambit of § 3914. The LaFayette Court
suggested that non-Delaware insurers that issue Delaware-related policies would
be within the ambit of § 3914.26 The Court agrees. The intention of § 3914 is to
“protect unsophisticated claimants from more sophisticated insurance
companies.”27 However, if all non-Delaware insurers are excluded from the statute

regardless of the policy’s relationship to Delaware, then the statute’s intention is

 

23 2012 WL 3608690,61*1.

24 ld. at *3.

25 Id. at n.18 (“To broaden the scope of Section 3914, to include out-of-state insurers issuing
non-Delaware related policies, would raise a host of public policy concerns. For instance, if an
out-of-state insurer were required to give notice, a question arises as to what state statute of
limitations the insurer Would be required to provide. The injured plaintiff may elect to initiate
litigation in the resident state, the tortfeasor’s resident state, or the state in which the accident
occurred. To be in compliance with Section 3914, therefore, an insurer would have to give notice
of all potentially applicable state statute of limitations The Court finds no indication that the
Legislature intended such a result.”).

11 161 6113.

27 Farm Family Ins. Co. v. Conectiv Power Delz`very, 2008 WL 2174411, at *4 (Del. Super. May
21 , 2008).

diminished28 Indeed, many non-Delaware insurance companies that write policies
covering residents, property, or activities in the State would not be required to
provide notice to potential claimants. Given the statute’s remedial nature, the
legislature could not have intended to have this result.29

Considering the holding above, the Court finds that Defendant was required
to provide Berbick notice of the applicable statute of limitations pursuant to §
3914. Defendant is an out-of-state insurer. It administers a self-insurance trust
fund providing $2,000,000.00 of coverage for all liability claims.30 Defendant uses
this general liability policy for all of its facilities in various states, including
Delaware. While Defendant’s policy covers all liabilities at other facilities in
various states, it invariably covers all liabilities arising from activities performed
on its property at the Hospital. Defendant’s insurance policy, therefore, covers

Delaware property and activities to be performed in this State.

 

28 See Taylor v. Bender, 1991 WL 89882, at *2 (Del. Super. May 28, 1991) (“The requirements
of § 3914 are designed to provide claimants with notice of the applicable statute of limitations
The burden placed on insurers is not an onerous one and conforms to a readily discernible
rational social policy considering the relative knowledge and position of the parties. Insurance
companies are likely to be aware of laws and regulations applicable to their business. A
claimant, on the other hand, is not. Concem over the possibility of a sophisticated insurance
industry overreaching a less sophisticated claimant is legitimate and reasonable.”).

29 Stop & Shop Co., 619 A.2d at 898 (“Since the statute may be deemed remedial legislation
designed to benefit claimants, we are required to accord to the statute a broad construction to
accommodate the legislative will.” (citing JD.P. v. F.JH., 399 A.2d 207, 210 (Del. 1979)).

30 See D.I. 22, at 3.

Defendant relies on Ndieng v. Woodward in support of its position.31 In
Ndieng, a Georgia resident who was insured by Allstate was in an automobile

32 The plaintiff filed a personal injury

accident with the plaintiff in Delaware.
lawsuit against the defendant33 The defendant argued that the plaintiff’s claim
was time-barred under § 8119 and that he was not required to provide notice
pursuant to § 3914.34 Relying on LaFayette, the Court found that the insurance
contract issued by Allstate was not written to cover some specific activity to be
performed in Delaware, and the contact with Delaware was “truly happenstance.”35
The Court noted that merely because Allstate also happens to write policies in
Delaware does not mean that it would be subject to § 3914.36

Defendant argues that the insurance policy here is indistinguishable from the
one present in Ndieng. Specifically, the car insurance policy in Ndieng was written
by an out-of-state insurer and covered liabilities in any state in which the defendant
drove. ln comparison, Defendant’s policy here is written by an out-of-state
insurer, and the policy is not “uniquely directed” at any Delaware property or

activities-the policy covers all liabilities in all states where Defendant has

facilities.

 

31 2012 WL 6915205 (Del. super. Dec. 19, 2012).
32 1a at *1.

33 Id_

34 ld. at *2.

35 ld-

361d

This argument is unpersuasive, Defendant fails to recognize the factual
distinctions present here. In Na’z'eng, the out-of-state insurer issued a policy
covering a Georgia resident, and that resident happened to be involved in an
accident in Delaware. As the Court noted, the policy’s contact with Delaware was
truly happenstance. Here, however, the contact is not happenstance. Defendant’s
policy covers the Hospital, a substantial entity that is fixed in Delaware and cannot
move, and all liabilities arising from activities to be performed at the Hospital are
inevitably covered by this policy. The fact that the policy is a general liability
policy that also covers other facilities in several other states does not detract from
what the policy covers-property and activities to be performed in Delaware.

VI. CONCLUSION

The Court finds that Defendant was required to provide notice of the
applicable statute of limitations to Berbick. Because Defendant did not provide the
requisite notice pursuant to § 3914, the statute of limitations was tolled.

Accordingly, Defendant’s Motion for Summary Judgment is DENIED.

IT IS SO ORDERED.

/_
Ferr}§ W. Wharton, Judge

 

10

