      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


NATIONWIDE PROPERTY &                    )
CASUALTY INSURANCE                       )
COMPANY,                                 )
                                         )
           Plaintiff,                    )
    v.                                   )     C.A. No.: N18C-02-167 PRW
                                         )
ANGEL IRIZARRY, JR.,                     )
                                         )
           Defendant.                    )


                        Submitted: November 21, 2019
                          Decided: January 31, 2020

     Upon Plaintiff Nationwide Property & Casualty Insurance Company’s
                        Motion for Summary Judgment,
                                  DENIED.


                MEMORANDUM OPINION AND ORDER


Louis J. Rizzo, Esquire, Reger Rizzo & Darnall LLP, Wilmington, Delaware,
Attorney for Plaintiff.

Scott E. Chambers, Esquire, Gary E. Junge, Esquire, Schmittinger & Rodriguez,
P.A., Dover, Delaware, Attorneys for Defendant.




WALLACE, J.
         Plaintiff, Nationwide Property & Casualty Insurance Company brings this

declaratory judgment action against Defendant, Angel Irizarry, Jr., seeking to affirm

Nationwide’s         denial      of    coverage         obligation       to   Mr.   Irizarry   for

uninsured/underinsured (“UI/UIM”) motorist benefits. Mr. Irizarry counterclaims

for declaratory judgment that UI/UIM benefits are available to him.

         Currently before the Court is Nationwide’s Motion for Summary Judgment.

The parties seek the Court’s determination whether policy provisions purporting to

preclude payment are valid and enforceable, or whether they are precluded pursuant

to Delaware’s UM statute (“§ 3902”) and its UIM subsection (“§ 3902(b)”).1

         For the reasons stated below, Nationwide’s summary judgment motion is

DENIED.

    I.      FACTUAL AND PROCEDURAL BACKGROUND

         Nationwide and Mr. Irizarry do not dispute the material facts in this action

and jointly submitted a “Statement of Undisputed Material Facts and Procedural

History” setting forth those uncontested facts as set forth below.2 This Stipulation

includes the undisputed text of the subject insurance policy.




1
         DEL. CODE ANN., tit. 18 § 3902 (2018).
2
         D.I. 16 [referred to and cited hereinafter as “Stipulation”].


                                                  -1-
      A. FACTUAL BACKGROUND

      Luis Velez obtained an automobile insurance policy3 from Nationwide on

December 9, 2016.4 Mr. Velez, solely through his own negligence, lost control of

the insured vehicle while driving it on April 2, 2017, causing a one-vehicle accident

on Barley Mill Road in New Castle, Delaware.5 Mr. Irizarry was an innocent

passenger in the vehicle and sustained an injury to his right hand. 6 The Policy

covered Mr. Irizarry as a guest passenger.7 This coverage includes personal injury,

bodily injury, and UM/UIM coverage.8

      The Policy’s UIM provision extends the definition of “uninsured motor

vehicle” to include:

      “[O]ne which is underinsured. This is a motor vehicle for which there
      may be bodily injury liability coverage in effect, but the limits of bodily
      injury liability coverage under all bonds and insurance policies
      applicable at the time of the accident are less than the damages
      sustained by the insured.”9



3
      Stipulation, Ex. A [referred to and cited hereinafter as the “Policy”].
4
      Stipulation ¶ 1.
5
      Id. ¶¶ 3, 5.
6
      Id. ¶¶ 3-4.
7
      Id. ¶ 6.
8
      Id. ¶ 2.
9
      Policy, at U2. Bold words occur in the original, and indicate terms defined in the Policy.


                                              -2-
The Policy goes on to exclude from its definition “any motor vehicle insured under

the liability coverage of this policy,” and asserts that “[Nationwide] will make no

duplicate payment to or for any insured for the same element of loss.”10

       Nationwide paid Mr. Irizarry’s medical providers the Personal Injury

Protection (“PIP”) limit of $15,000,11 and later settled a Bodily Injury (“BI”) claim

for the policy limit of $15,000 with Mr. Irizarry.12 The BI claim settlement followed

a demand letter from Mr. Irizarry through counsel for a sum larger than the policy

limit.13 Having exhausted those forms of coverage, Mr. Irizarry demanded UIM

payment from Nationwide for the alleged excess.14 Nationwide denied Mr. Irizarry’s

UIM claim via letter. According to Nationwide, Mr. Irizarry could not combine

UIM and BI coverage as the passenger in a one-car accident.15




10
       Id.
11
       Stipulation ¶ 8.
12
       Id. ¶11.
13
       Id. ¶¶ 9-11.
14
       The parties stipulate only that Mr. Irizarry asserts damages and demands compensation
over and above the $30,000 Nationwide already paid. Whether Mr. Irizarry’s injuries actually
exceed that amount is a disputed factual question not resolved here.
15
       Id. at 13.


                                            -3-
           B.    PROCEDURAL HISTORY

           Nationwide commenced this action seeking a declaratory judgment

supporting its denial decision.16            Mr. Irizarry answered the Complaint with a

counterclaim.17

           After submitting the Stipulation, the parties submitted their respective briefs

on Nationwide’s Motion for Summary Judgment.18 Following argument, the Court

reserved decision and later received certain requested and unsolicited supplemental

submissions.19

     II.        STANDARD OF REVIEW

           Summary judgment is appropriate when the record shows no genuine issue as

to any material fact and that the movant is entitled to judgment as a matter of law.20

The record is viewed in the light most favorable to the non-movant,21 as the purpose

of summary judgment is to determine whether genuine issues of material fact exist



16
           Id. ¶ 15.
17
           Id. ¶ 16.
18
        See Nationwide Prop. & Cas. Ins. Co.’s Br. in Supp. (D.I. 17) [hereinafter “Nationwide’s
Br.”]; Angel Irizarry Br. in Opp’n. (D.I. 18).
19
       E.g. Nationwide Prop. & Cas. Ins. Co.’s Ltr. Br. (D.I. 23) [hereinafter “Nationwide’s Ltr.”];
Angel Irizarry Ltr. Br. (D.I. 24); D.I. 27-28; D.I. 31; D.I. 33-34.
20
           Brzoska v. Olson, 668 A.2d 1355, 1364 (Del. 1995) (citing Super. Ct. Civ. R. 56(c)).
21
           Jones v. Crawford, 1 A.3d 299, 301-02 (Del. 2010).


                                                 -4-
rather than to resolve them.22 The Court accepts as true the factual stipulations of

the parties.23

       The proper construction of a contract is purely a question of law.24 “[W]hen

the language of an insurance contract is clear and unequivocal, a party will be bound

by its plain meaning because creating an ambiguity where none exists could, in

effect, create a new contract with rights, liabilities and duties to which the parties

had not assented.”25 “A contract is not rendered ambiguous simply because the

parties do not agree upon its proper construction. Rather, a contract is ambiguous

only when the provisions in controversy are reasonably or fairly susceptible of

different interpretations or may have two or more different meanings.”26 The true

test of a contract’s potential ambiguity is not what the parties to the contract intended

it to mean, but what a reasonable person in the position of the parties would have

thought it meant.27


22
       Merrill v. Crothall-American, Inc., 606 A.2d 96, 99 (Del. 1992) (citing United States v.
Diebold, Inc., 369 U.S. 654 (1962)).
23
       S. G. Williams of Dover, Inc. v. Diamond State Vinyl, Inc., 430 A.2d 794, 796 (Del. Super.
Ct. 1981).
24
       Aetna Cas. & Sur. Co. v. Kenner, 570 A.2d 1172, 1174 (Del. 1990).
25
       Hallowell v. State Farm Mut. Auto. Ins. Co., 443 A.2d 925, 926 (Del. 1982).
26
       Rhone-Poulenc Basic Chems. Co. v. American Motorists Ins. Co., 616 A.2d 1192, 1196
(Del. 1992) (internal citation omitted).
27
       Steigler v. Ins. Co. of North America, 384 A.2d 398, 401 (Del. 1978).


                                              -5-
        Lastly, this Court applies settled principles of statutory interpretation, giving

effect to the plain language of an unambiguous statute, and applying the literal

meaning of the statute’s words.28 “[T]he meaning of a statute must, in the first

instance, be sought in the language in which the act is framed, and if that is plain . . .

the sole function of the courts is to enforce it according to its terms.” 29 A statute is

ambiguous only if it is “reasonably susceptible to different interpretations, or if

giving a literal interpretation to the words of the statute would lead to an

unreasonable or absurd result that could not have been intended by the legislature.”30

     III.   DISCUSSION

        On five occasions before five different judges, beginning with Baunchalk v.

State Farm, this Court has applied and interpreted the interactions between § 3902(b)

UIM coverage with other forms of coverage under the same policy when the victim

is a passenger or pedestrian not expressly named in the policy.31 In every case, this



28
      See Arnold v. State, 49 A.3d 1180, 1183 (Del. 2012) (citing Dennis v. State, 41 A.3d 391,
393 (Del. 2012)).
29
       Friends of H. Fletcher Brown Mansion v. City of Wilmington, 34 A.3d 1055, 1059 (Del.
2011) (quoting Caminetti v. United States, 242 U.S. 470, 485 (1917)).
30
        See Arnold, 49 A.3d at 1183 (citing Dennis, 41 A.3d at 393).
31
        Baunchalk v. State Farm Mutual Auto. Ins. Co., 2015 WL 12979117 (Del. Super. Ct. Oct.
26, 2015). The other cases are Brown v. Everett, 2019 WL 2361539 (Del. Super. Ct. Jun. 4, 2019);
Perez v. State Farm Mutual Auto. Ins. Co., 2018 WL 2473152 (Del. Super. Ct. Jun. 1, 2018);
Johnson v. State Farm Mutual Auto. Ins. Co., 2017 WL 4652061 (Del. Super. Ct. Oct. 16, 2017);
and Tillison v. GEICO Secure Ins. Co., 2017 WL 2209895 (Del. Super. Ct. May 15, 2017).


                                              -6-
Court found § 3902(b) defines “underinsured” solely in terms of the magnitude of

the injury the victim suffered relative to the total coverage paid out, irrespective of

the source of those payments.32 Where an innocent passenger of the policyholder-

driver has injuries in excess of BI or PIP limits, the policyholder-driver’s UIM

coverage applies as well.33

       This interpretation of has been consistent; any policy language putatively

narrowing the coverage terms of a UIM policy governed by § 3902(b) is superseded

and void.34 This Court has specifically addressed both types of narrowing language

Nationwide invokes here, finding both are superseded by and void under § 3902(b).

Even while this matter was pending, the Court again addressed the types of

contractual provisions Nationwide seeks to invoke to avoid payment. It again found

them superseded by § 3902(b).35




32
        Baunchalk, 2015 WL 12979117 at *5. Under the “Unknown Phantom Vehicle” rule, UIM
benefits may be combined with BI and PIP for hit-and-run cases with unidentified assailants, even
prior to the 2013 amendments to § 3902. Id. at *2 (citing Pankowski v. State Farm Mut. Auto. Ins.
Co., 2013 WL 5800858 (Del. Super. Ct. Oct., 10, 2013)). Nationwide does not challenge this older
rule, and premises its denial of UIM coverage on the accident in this case being single-vehicle.
Stipulation ¶ 14.
33
       Baunchalk, 2015 WL 12979117 at *5.
34
       Id.
35
        See Brown, 2019 WL 2361539 at *2-3 (negating non-duplication clauses and contractual
definitions of terms that would deny coverage these types of circumstances).


                                              -7-
       Nationwide concedes that Baunchalk and its progeny set mandatory minimum

coverage terms for UIM clauses, that if the Court here applied its earlier precedents

the additional UIM coverage for Mr. Irrizary is mandated, and therefore summary

judgment for Nationwide would be precluded.36

       A. STARE DECISIS’S ROLE IN CONSTRUING § 3902(b) HERE.

       The doctrine of stare decisis in Delaware provides that a point of law settled

by a judicial decision is thereafter controlling precedent for the same Court and is

to be reexamined only upon a showing of both (1) “urgent reason” and (2) a “clear

manifestation of error.”37 Of course, while not done lightly, such a decision—and

those of the same Court following it—may be departed from, overruled, or set aside

by a higher appellate tribunal.38 But undoubtedly, deference to prior decisions is a


36
        See Nationwide’s Br., at 14 (“In sum, these cases conclude that policy provisions designed
to limit UM/UIM coverage, such as the “non-duplication clause” at issue in this case, are contrary
to public policy.”).
37
       Oscar George, Inc. v. Potts, 115 A.2d 479, 481 (Del. 1955).
38
         See Gatz Properties, LLC v. Auriga Capital Corp., 59 A.3d 1206, 1219 (Del. 2012) (“It is
axiomatic, and we recognize, that once a trial judge decides an issue, other trial judges on that
court are entitled to rely on that decision as stare decisis. Needless to say, as an appellate tribunal
and the court of last resort in this State, we are not so constrained.”) (internal citations omitted).
It is likewise elementary to the structure of the American legal system that lower courts are
absolutely bound by prior decisions of law made by higher courts, even if those prior decisions
are manifestly improper. E.g. Gebhart v. Belton, 87 A.2d 862, 865 (Del. Ch. 1952) (Chancellor
Seitz expressing and supporting the view that the ‘separate but equal’ doctrine laid down by the
United States Supreme Court in Plessy v. Ferguson was contrary to the United States Constitution,
but nevertheless inescapably binding on lower courts); see also Brown v. Bd. of Education of
Topeka, 347 U.S. 483, 494-95 (1954) (approving of the Chancellor’s analysis in Gebhart on
appeal, and overruling Plessy).


                                                 -8-
necessary manifestation of the principle that individuals must be afforded “an

opportunity to know what the law is and to conform their conduct accordingly.”39

The United States Supreme Court has gone so far as to describe stare decisis as being

“of fundamental importance to the rule of law.”40

       Of particular note here: the Baunchalk line of cases are decisions on statutory

interpretation. Any concerted judicial misconstruction of a statute is subject to

corrective tuning by the legislature, and thus prior statute-interpreting rulings gain

approving harmony from ensuing legislative silence.41 The Court in Baunchalk-type

innocent-passenger cases has previously answered Delaware insurers’ policy

arguments by urging them “to pursue legislative clarification,” since the statutory

language is unambiguous and controlling.42




39
       State v. Barnes, 116 A.3d 883, 891 (Del. 2015) (quoting Landgraf v. USI Film Products,
511 U.S. 244, 265 (1994)); Oscar George, Inc., 115 A.2d at 481 (Stare decisis’s “support rests
upon the vital necessity that there be stability in our courts in adhering to decisions deliberately
made after careful consideration.”).
40
        Hilton v. South Carolina Public Railways Comm’n, 502 U.S. 197, 202 (1991) (quoting
Welch v. Texas Dep’t of Highways and Public Transp., 483 U.S. 468, 494 (1987)); Payne v.
Tennessee, 501 U.S. 808, 827 (1991) (Stare decisis is “the preferred course because it promotes
the evenhanded, predictable, and consistent development of legal principles, fosters reliance on
judicial decisions, and contributes to the actual and perceived integrity of the judicial process.”).
41
       See Barnes, 116 A.3d at 892; see also Illinois Brick Co. v. Illinois, 431 U.S. 720, 736
(1977) (“[C]onsiderations of stare decisis weigh heavily in the area of statutory construction,
where Congress is free to change this Court’s interpretation of its legislation.”).
42
       Tillison v. GEICO, 2017 WL 2209895, at *3.


                                                -9-
          B.    NATIONWIDE’S INVOCATION OF STATE FARM v. KELTY.

          Nationwide urges the Court to view the UIM coverage under the Policy as a

supplemental policy offering excess coverage outside of the strictures of § 3902(b)

entirely.43 Nationwide interprets Baunchalk as forbidding excess UIM policies

outside of the narrow terms permitted by § 3902(b), which in its view contravenes

Delaware public policy encouraging insurance coverage and protecting freedom of

contract.44

          Nationwide relies heavily on State Farm v. Kelty, which addressed

supplemental clauses.45 The Kelty policy included an excess PIP provision with a

pedestrian exclusion that itself made an exception for family members of the

insured.46 Such exclusions would be invalid on baseline PIP coverage, but the Kelty

Court found that, because the policy at issue contained baseline coverage with a

conforming PIP clause up to the minimum requirement, the excess PIP clause could




43
         See Nationwide’s Ltr., at 2. (arguing that “Limitations on excess coverage that do not
restrict policyholders from obtaining additional coverage at market price are not a cause for
concern under the UM/UIM statute.”) (citations omitted).
44
          Id. at 3 (citing NAF Holdings, LLC v. Li & Fung (Trading) Ltd., 118 A.3d 175, 180 (Del.
2015)).
45
          State Farm Mutual Auto. Ins. Co. v. Kelty, 126 A.3d 631 (Del. 2015).
46
          Id. at 634.


                                               - 10 -
permissibly include limitations and exclusions that would be impermissible for

baseline PIP.47

       Nationwide emphasizes that UIM coverage:                      (a) is supplemental and

optional—not compulsory like no-fault insurance generally; (b) is opt-in rather than

opt-out;48 and (c) permits motorists to obtain varying levels of coverage, down to

nothing at all.49 As purely excess coverage, Nationwide argues that Baunchalk and

its progeny erred by failing to recognize Kelty controls, and thereby permits insurer

and insured to negotiate more limited UM/UIM coverage than § 3902(b).50

       C. NATIONWIDE NEVER OFFERED CONFORMING UM/UIM COVERAGE.

       But there is a chink in Nationwide’s Kelty armor. While insurer and insured

have the capacity to create a policy that conforms to Delaware law without any

UM/UIM coverage, doing so requires the insured to explicitly reject UM coverage

“in writing, on a form furnished by the insurer.”51 There are fewer formalities for


47
       Id. at 636-37.
48
        Compare DEL. CODE ANN., tit. 18 § 3902(a)(1) (2018) (requiring UM coverage as a
component of all automobile insurance policies, but providing an exception for written opt-out by
the insured) and id. at § 3902(b) (requiring automobile insurers to offer the option of UIM coverage
to customers).
49
        Nationwide’s Br., at 7-8. In contrast, UM coverage, if obtained, must be for “not be less
than the minimum limits for bodily injury and property damage liability insurance provided for
under the motorist financial responsibility laws of this State.” DEL. CODE ANN., tit. 18 § 3902(a)(2)
(2018).
50
       Nationwide’s Br., at 8-9; Nationwide’s Ltr. At 2-3.
51
       DEL. CODE. ANN., tit. 18 § 3902(a)(1).
                                                - 11 -
rejecting UIM coverage, but the insurer is nevertheless obligated to offer a

conforming UIM package.52 This offer must be detailed enough to permit the

insured to make an informed decision, must include a price term, and the insurer

bears the burden of showing that the offer of UIM coverage was made and

declined.53

       Had Nationwide offered Mr. Velez UIM coverage conforming to § 3902(b),

and had Mr. Velez affirmatively rejected that coverage, he and Nationwide could

have thereby created a valid automobile insurance policy adhering to Delaware law

yet offering no UIM coverage. If the provisions at issue were contained in a

supplementary excess rider after conforming UM/UIM had been declined,

Nationwide’s Kelty theory might properly be before the Court. But Nationwide

presents no signed form from Mr. Velez opting out of conforming UM coverage.

Nor does Nationwide submit evidence demonstrating Mr. Velez declined a

conforming UIM policy.

       Where Delaware law requires an automobile insurer to offer an optional

coverage provision and the insurer fails to do so, “the insurer is deemed to have made




52
        See DEL. CODE ANN., tit. 18 § 3902(b) (2018) (“Every insurer shall offer to the insured the
option to purchase” a conforming UIM policy) (emphasis added).
53
        Humm v. Aetna Cas. & Sur. Co., 1994 WL 465553, at *2 (Del. Super. Ct. Jul. 20, 1994),
aff’d, 656 A.2d 712 (Del. 1995).


                                              - 12 -
a continuing offer of such additional coverage to the insured” that “remains open

even after an accident occurs.”54 Thus, even if the Court accepted Nationwide’s

Kelty argument that the UM/UIM clause in the Policy is a nonconforming

supplementary provision outside § 3902(b), having not shown that conforming

coverage was offered and rejected likely permits Mr. Velez to retroactively reform

the Policy post-accident to add precisely that conforming UM/UIM coverage

Nationwide seeks to avoid.55

       D. NATIONWIDE’S KELTY GLOSS CANNOT OVERCOME STARE DECISIS.

       Nationwide neither discloses any “urgent reason” nor unveils any “clear

manifestation of error” justifying discard of this Court’s now-well-settled § 3902(b)

jurisprudence.56

       Nationwide makes no showing that it offered conforming UM/UIM coverage

which Mr. Velez rejected. As such, Nationwide’s argument that the UM/UIM

coverage in the Policy is a supplementary rider § 3902(b) would simply subject the

Policy to reformation to add conforming UM/UIM coverage with the precise


54
       State Farm Mutual Auto. Ins. Co. v. Arms, 477 A.2d 1060, 1064 (Del. 1984) (quoting and
adopting as “a correct interpretation of Delaware law” O’Hanlon v. Hartford Acc. & Indem. Co.,
522 F.Supp. 332 (D. Del. 1981)).
55
       Parson v. State Farm Mutual Auto. Ins. Co., 2011 WL 7052137, *3 (Del. Super. Ct. Dec.
30, 2011) (citing Arms); Davis v. State Farm Mut. Auto. Ins. Co., 2011 WL 1379562, *5 (Del.
Super. Ct. Feb. 15, 2011) (same).
56
       Oscar George, Inc., 115 A.2d at 481.


                                              - 13 -
benefits for Mr. Irizarry that Nationwide now seeks to challenge. So the same result

flows from both Nationwide’s Kelty theory and adherence to the Baunchalk cases.

Nationwide thus cannot demonstrate error of any kind, let alone a “clear

manifestation of error.”

       Neither can Nationwide demonstrate “urgent reasons” to revisit Baunchalk.

Like prior insurers in the innocent-passenger UIM cases, Nationwide argues that the

Baunchalk rule makes coverage conforming to § 3902(b) more expensive and

thereby disincentivizes it in a manner contrary to public policy.57 Had Nationwide

in fact offered both conforming § 3902(b) coverage as well as a nonconforming

alternative that excludes Baunchalk passengers, the difference in price between the

provisions might possibly substantiate this oft-made policy argument and in the

proper case justify to this Court or one higher to set Baunchalk aside. But that didn’t

happen.

       Lastly, stare decisis gains force when the legislature and private citizens have

ordered their affairs in reliance on previous decisions.58 Contrary to Nationwide’s

assertion that “outside of the courtroom, there is no individual or societal reliance



57
       Nationwide’s Br., at 15.
58
        Hilton, 502 U.S. at 202 (Noting that “[s]tare decisis has added force when the legislature,
in the public sphere, and citizens, in the private realm, have acted in reliance on a previous
decision, for in this instance overruling the decision would dislodge settled rights and expectations
or require an extensive legislative response.”).


                                               - 14 -
on Baunchalk,” policyholders like Mr. Velez have precisely manifested and

procured such an interest. Mr. Velez obtained the Policy from Nationwide more

than a year after Baunchalk was handed down. At the time they formed the Policy,

Nationwide and Mr. Velez are presumed to have been aware that the UM/UIM

clause would combine with the PIP and BI coverage in the event of an accident

injuring an innocent passenger of Mr. Velez.59 When underwriting the policy,

Nationwide is presumed to have taken such considerations in to account.60 Mr.

Velez could reasonably expect that he was purchasing insurance to cover his

passengers according to the Baunchalk rule, and thus overturning the rule necessarily

gives Nationwide a windfall of the premiums it collected for coverage of which it

was later relieved.

     IV.   CONCLUSION.

       First, since Baunchalk was first decided the General Assembly has had almost

four years to correct any interpretive error by this Court. It hasn’t. Insurers like



59
          See Koval v. Peoples, 431 A.2d 1284, 1285 (Del. Super. Ct. 1981) (“In the law of contracts,
it is a recognized principle that existing laws form a part of a contract.”); Trader v. Jester, 1 A.2d
609, 613 (Del. Super. Ct. 1938) (“The rule is well established that the laws in force at the time and
place of making the contract enter into, and form a part of it as if they had been expressly referred
to, or incorporated in, its terms. The obligation of the contract is measured by the standard of the
laws existing at the time of the making of the contract.”).
60
        See Osborn ex rel. Osborn v. Kemp, 991 A.2d 1153, 1159 (Del. 2010) (“Delaware adheres
to the ‘objective’ theory of contracts, i.e. a contract’s construction should be that which would be
understood by an objective, reasonable third party.”). An objective, reasonable Delaware insurer
would be aware of Delaware law, hence of the meaning and import of the UM/UIM provisions.


                                                - 15 -
Nationwide have offered UM/UIM policies thereafter fully aware of the Baunchalk

rule and presumably priced accordingly.

      Second, Nationwide cannot escape Mr. Irizzary’s claim via its alternative

theory that the UM/UIM provisions at issue constituted some supplemental

nonconforming coverage outside the scope of § 3902 as construed by Baunchalk

without a showing that it offered, and Velez rejected, a conforming policy.

      So, Nationwide’s Motion for Summary Judgment is DENIED.

      IT IS SO ORDERED.


                                                /s/ Paul R. Wallace
                                                Paul R. Wallace, Judge




                                       - 16 -
