                  IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

     NATIONWIDE MUTUAL INSURANCE                 )
     COMPANY,                                    )
                                                 )
                Appellant Plaintiff,             )
                                                 )
     v.                                          )
                                                 )    C.A. No.: N18C-01-213 EMD
     AMERICAN INDEPENDENT                        )
     INSURANCE COMPANY,                          )
                                                 )
                Appellee,                        )
                                                 )
     and                                         )
                                                 )
     DOUGLAS SLAPPY,                             )
                                                 )
                Defendant.                       )
                                                 )

                            MEMORANDUM OPINION GRANTING
                         MOTION TO DISMISS COMPLAINT ON APPEAL

                                       I. INTRODUCTION

          Quan’Ja Reeves and Jaquan Reeves (the “Reeves”) were passengers in an uninsured

vehicle. Defendant Douglas Slappy purportedly struck the Reeves.1 Mr. Slappy had an

insurance policy with American Independent Insurance Company (“AIIC”).2 The Reeves lived

with their mother who had Nationwide Mutual Insurance Company (“Nationwide”) personal

injury protection (“PIP”) benefits.3 Pursuant to Ms. Reeves’ policy, Nationwide paid the Reeves

PIP benefits.4 Nationwide sought subrogation from AIIC and sought arbitration with the




1
  Compl. ¶ 4.
2
  Id.
3
  Id. ¶ 5.
4
  Id.
insurance Commissioner (the “Commissioner”).5 The arbitration panel found in favor of AIIC.

Nationwide appealed.6

        Nationwide filed an appeal with this Court. The appeal was incorrectly docketed as an

administrative action rather than a civil action. Nationwide voluntarily dismissed the claim and

filed a new complaint outside the deadline imposed by 21 Del. C. § 2118(j)(5). AIIC filed a

Motion to Dismiss Complaint on Appeal (the “Motion”). Nationwide filed an Opposition to

American Independent Insurance Company’s Motion to Dismiss Complaint on Appeal (the

“Opposition”). The Court held a hearing (the “Hearing”) on the Motion on April 23, 2018.

Counsel for the parties appeared at the Hearing and made arguments in support of the Motion

and the Opposition. At the conclusion of the Hearing, the Court asked the parties to submit

supplemental legal analysis regarding the applicability of 10 Del. C. § 8118 (the “Savings

Statute”) to improperly filed appeals.

        For the reasons set forth more fully below, the Court will GRANT the Motion as the

Savings Statute does not apply to actions initiated pursuant to 21 Del. C. § 2118(j) (the

“Arbitration Statute”).

                                    II. RELEVANT FACTS

        On December 22, 2014, the Reeves were passengers in an uninsured vehicle.7 Mr.

Slappy struck the Reeves.8 Mr. Slappy had an insurance policy with AIIC.9 The Reeves’ mother

had an insurance policy with Nationwide.10 Pursuant to Ms. Reeves’ policy, Nationwide paid

PIP benefits to the Reeves because the Reeves resided with their mother.11


5
  Id. ¶ 6.
6
  Id. ¶ 7.
7
  Compl. ¶ 4.
8
  Id.
9
  Id.
10
   Id. ¶ 5.
11
   Id.

                                                 2
         Under the Arbitration Statute, Nationwide filed a petition for arbitration against AIIC

with the Commissioner “seeking subrogation of PIP payments made on behalf of the Reeves.”12

On May 18, 2018, the insurers attended an Insurance Commissioner’s Arbitration regarding the

motor vehicle accident.13 The Reeves did not attend the arbitration.14 The parties disputed

liability for the accident under the PIP benefits.15 On May 24, 2017, the arbitration panel

rendered its decision in favor of AIIC and against Nationwide.16 On May 25, 2017,

Nationwide’s former counsel emailed AIIC’s counsel asking for a certified copy of the

arbitration panel’s decision to file an appeal.17

         On June 6, 2017, Nationwide’s former counsel filed a complaint on appeal in this Court

(the “Original Complaint”).18 “The Original Complaint was inadvertently filed as an

administration action.”19 Nationwide never served the Original Complaint or any supporting

documents upon AIIC.20

         On December 14, 2017, Nationwide’s current counsel entered his appearance.21 On

January 5, 2018, Nationwide’s counsel spoke with Court personnel and learned of the filing

error.22 The Court advised Nationwide to dismiss the case and re-file.23 On January 11, 2018,

Nationwide voluntarily dismissed the case.24 Nationwide notes that the voluntary dismissal was

with prejudice.25 Nationwide asserts that it was an inadvertent mistake and that Nationwide


12
   Id. ¶ 6.
13
   Opp. ¶ 1.
14
   Compl. ¶ 7.
15
   Opp. ¶ 1.
16
   Id. ¶ 1.
17
   Id. ¶ 2.
18
   Id. ¶ 3.
19
   Id.
20
   Id.
21
   Opp., Ex. D.
22
   Opp., Ex. E.
23
   Id.
24
   Opp., Ex. F.
25
   Opp. ¶ 5; see also Opp., Ex. F.

                                                    3
moved for a modification of the default order.26 On April 11, 2018, the Court heard

Nationwide’s motion to modify. AIIC did not oppose the motion. As such, the Court granted

the motion to modify.

        Nationwide filed the corrected complaint (the “New Complaint”) on January 15, 2018.27

Nationwide timely served AIIC.

                                     III. STANDARD OF REVIEW

        “In reviewing a motion to dismiss an appeal . . . the Court looks to Superior Court Civil

Rule 72(i) which outlines the reason why the Court may grant such a motion.”28 Under Rule

72(i): “[t]he Court may order an appeal dismissed . . . upon a motion to dismiss by any party.

Dismissal may be ordered for untimely filing of an appeal. . . .”29

                                             IV. DISCUSSION

        THE SAVINGS STATUTE DOES NOT APPLY HERE

        The losing party of an insurance arbitration has a right to appeal de novo to this Court.

The Arbitration Statute provides in pertinent part:

        (j) Every insurance policy issued under this section shall require the insurer to submit to
        arbitration, in the manner set forth hereinafter, any claims for losses or damages within the
        coverages required under paragraph (a)(2) of this section and for damages to a motor
        vehicle, including the insured motor vehicle, including loss of use of such vehicle, upon
        request of the party claiming to have suffered a loss or damages within the above-described
        coverages of paragraph (a)(2) of this section or to such a motor vehicle. Such request shall
        be in writing and mailed to the Insurance Commissioner.

                 (1) All arbitration shall be administered by the Insurance Commissioner or
                 the Insurance Commissioner's nominee.

                                                           ***

                 (5) The right to require such arbitration shall be purely optional and neither
                 party shall be held to have waived any of its rights by any act relating to
26
   Opp. n.1.
27
   Id. ¶ 5.
28
   Marshall v. Frank, 1994 WL 146380, *1 (Del. Super. Jan. 26, 1994).
29
   Del. Super. Ct. Civ. R. 72(i).

                                                       4
                 arbitration and the losing party shall have a right to appeal de novo to the
                 Superior Court if notice of such appeal is filed with that Court in the manner
                 set forth by its rules within 30 days of the date of the decision being
                 rendered.30

        The facts are not in dispute on this issue. Nationwide filed the Original Complaint as an

administrative appeal within 30 days of the decision by the arbitration panel. Nationwide never

served the Original Complaint. After learning that the Original Complaint was misfiled,

Nationwide dismissed the Original Complaint and filed the New Complaint more than 30 days

from the date of the arbitration panel’s decision. The express language of subsection (5) of the

Arbitration Statute seems to bar Nationwide from pursuing this civil action. This harsh result

appears true even though Nationwide filed the Original Complaint within the time limitations of

the Arbitration Statute.

        In the Opposition, Nationwide relies upon the Savings Statute. The Savings Statute is

“intended to alleviate the harsh consequences of the statute of limitations when an action,

through no fault of the plaintiff, is technically barred by the statute of limitations.”31 “The

Savings Statute reflects a public policy preference for deciding cases on their merits.” 32 The

Savings Statute provides:


        If in any action duly commenced within the time limited therefor in this chapter, [1]
        the writ fails of a sufficient service or [2] return by any unavoidable accident, [3]
        or by any default or neglect of the officer to whom it is committed; or [4] if the writ
        is abated, or the action otherwise avoided or defeated by the death of any party
        thereto, or for any matter of form; or [5] if after a verdict for the plaintiff, the
        judgment shall not be given for the plaintiff because of some error appearing on the
        face of the record which vitiates the proceedings; or [6] if a judgment for the
        plaintiff is reversed on appeal or a writ of error; a new action may be commenced,




30
   21 Del. C. § 2118(j) (emphasis added)
31
   Marvel v. Prison Indus., 884 A.2d 1065, 1067 (Del. Super. 2006).
32
   Reid v. Spazio, 970 A.2d 176, 180 (Del. 2009) (citing Vari v. Food Fair Stores, New Castle, Inc., 205 A.2d 529,
531 (Del. 1964)).

                                                         5
        for the same cause of action, at any time within 1 year after the abatement33 or other
        determination of the original action, or after the reversal of the judgment therein.34

The phrase “the action otherwise avoided or defeated . . . for any matter of form” refers “to a

technical flaw in a complaint or writ or a jurisdictional defect resulting in the dismissal of the

case.”35

        The Saving Statute only applies to claims commenced within a limitation period set out

in Title 10, Chapter 81 (“Chapter 81”)—“If in any action duly commenced within the time

limited therefore in this chapter…”36 The decisional law supports this conclusion.37 In Moore v.

Greybeal, the Chancery Court ruled that the Saving Statute applied only to statutes of limitation

contained in Chapter 81.38 The Chancery Court went on to hold that the Savings Statute does not

apply to “statutes of creation,” like 12 Del. C. § 1309(a), whose limitation periods cannot be

satisfied by filing in just any forum.39 The Supreme Court agreed with the Chancery Court’s

rationale and affirmed the result.40

        A claim brought under the Arbitration Statute is not a claim commenced under Chapter

81. An Arbitration Statute action is like a 12 Del. C. § 1309(a) action—i.e., a claim arising out

of a statute of creation. Moreover, subsection (5) of the Arbitration Statute requires a losing




33
   ABATEMENT, Black's Law Dictionary (10th ed. 2014) (“The suspension or defeat of a pending action for a
reason unrelated to the merits of the claim”).
34
   10 Del. C. § 8118(a)(emphasis added).
35
   Savage v. Himes, 2010 WL 2006573, *2 (Del. Super. May 18, 2010).
36
   10 Del. C. § 8118(a)
37
   Christiana Hosp. v. Fattorri, 714 A.2d 754, 757 (Del. 1998)(the Savings Statute inapplicable to medical
malpractice claims governed by 18 Del. C. § 6856); Moore v. Graybeard, CIV. A. No. 9851, 1989 WL 17430, at *6
(Del. Ch. Feb. 24, 1989)(the Savings Statute did not apply to a petition to review a will, stating that “the actual
words of Section 8118 cannot be stretched to reach an action brought under Section 3109 of Title 12…”), aff’d 567
A.2d 422 (table), 1989 WL 114316, at *1 (Del. Aug. 25, 1989)(the Saving Statute only applies to statutes of
limitation contained in Chapter 81); Huffington v. T.C. Group, LLC, C.A. No. N11C-01-030 JRJ CCLD, 2012 WL
1415930, at *9-10 (Del. Super. Apr. 18, 2012)(the Saving Statute does not apply to a Massachusetts “Blue Sky”
securities fraud statute).
38
   Moore, 1989 WL 17430, at *4-6.
39
   Id.
40
   Moore, 1989 WL 114316, at *1.

                                                         6
party to file an appeal de novo in this Court (not just any forum) within 30 days of the arbitration

panel’s decision.41 The Savings Statute, therefore, is not appellee had suffered no substantial

prejudice due to the failure to name other necessary parties as those available to Nationwide.42

As stated above, the Court recognizes that this result is harsh and does not seem to satisfy the

public policy preference for deciding cases on their merits, but the result follows from an

application of the express language of the Savings Statute and the cases interpreting that

language.

         The Court has also considered the Supreme Court’s holding in State Personal

Commission v. Howard.43 In Howard, the Supreme Court refused to dismiss an appeal where

the notice of appeal failed to name all necessary parties. The Supreme Court came to this

conclusion by endorsing the expression of “disapproval of the disposition of appeals upon

technical grounds.”44 Moreover, the Supreme Court relied upon Supreme Court Rule 102(a)

which provides: “These rules shall be construed so as to do substantial justice and to provide for

the speedy and efficient determination of proceedings in this Court.”45 The Supreme Court noted

that the unnamed necessary parties had identical interests with the named necessary party and

were also represented by the same counsel.46 As such, the Supreme Court held that the appellant

had demonstrated that the appellee, or appellees, would not suffer substantial prejudice by

correcting the notice of appeal to include the additional necessary parties.47


41
   21 Del. C. § 2118(j)(5).
42
   The Court reviewed the non-Delaware cases cited by Nationwide in the supplemental legal analysis submitted to
the Court. In most instances, however, the language of other state’s savings statutes is broader and does not contain
the type of limiting language contained in Delaware’s Saving Statute. See, e.g., C.P. v. Utah Office of Crime
Victims’ Reparations, 966 P.2d 1226 (Utah Ct. App. 1998)(Utah’s savings statute applies to “any action” timely
commenced and not just actions commence pursuant to a particular chapter or section of Utah’s code).
43
   420 A.2d 135 (Del. 1980).
44
   Id. at 137.
45
   Id.
46
   Id. at 138.
47
   Id.

                                                          7
          The Court has a rule similar to Supreme Court Rule 102(a). Superior Court Civil Rule 1

states:

          These Rules shall govern the procedure in the Superior Court of the State of
          Delaware with the exceptions state in Rule 81. They shall be construed and
          administered to secure the just, speedy and inexpensive determination of every
          proceeding.48

Nationwide filed the Original Complaint in the Court but as an administrative appeal. This is the

fault of Nationwide. In addition, for some reason, Nationwide did not serve the Original

Complaint. This is also Nationwide’s fault. At the Hearing, AIIC noted the passage of time and

the difficulties of getting the insured to cooperate in further civil proceedings.

          The Court does not view the failure to properly file and serve the Original Complaint as

“technical” deficiencies. Civil Rule 72(c) requires that an appellant shall mail copies of the

notice of appeal to all parties to the appeal and file a certificate of mailing with the Court.49 Civil

Rule 72(c) also requires that the notice of appeal be mailed “[a]t the same time” that the appeal is

filed.50 The record here is that Nationwide never filed notice of the filing of the Original

Complaint, or any other form of notice of appeal of the arbitration panel’s decision, to AIIC.

          Moreover, the decision in Howard places the burden on Nationwide to establish the

absence of substantial prejudice.51 Nationwide indicated to AIIC that it planned to appeal by e-

mailing and asking for a certified copy of the arbitration panel’s decision in order to file an

appeal;52 however, Nationwide took no additional steps to appraise AIIC of the Original

Complaint until after the case was dismissed and Nationwide filed the New Complaint. Months

passed. AIIC has had no additional contact with its insured. As with any limitation period, AIIC


48
   Del. Super. Ct. Civ. R. 1.
49
   Del. Super. Ct. Civ. R. 72(c).
50
   Id.
51
   Howard, 420 A.2d at 137.
52
   Opp. ¶2.

                                                  8
had the right to believe that this matter had concluded with the arbitration panel’s decision.

Nationwide has not demonstrated to the Court that this period of delay does not substantially

prejudice AIIC. Under these facts, the Court will not extend the reasoning of Howard to this

case.

                                        V. CONCLUSION

        For the foregoing reasons, the Court GRANTS the Motion.

Dated: May 17, 2018
Wilmington, Delaware

                                              /s/ Eric M. Davis
                                              Eric M. Davis, Judge




                                                 9
