IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
CASEY SHELOR,
Plaintiff, C.A. No. K18C-06-043 WLW

Vv.

NATIONWIDE MUTUAL
INSURANCE COMPANY,

Defendant.
Submitted: August 9, 2019
Decided: November 7, 2019
ORDER
Defendant’s Motion for Partial Summary Judgment

Regarding Plaintiff's Punitive Damages Claim.
Denied.

William D. Fletcher, Jr., Esquire of Schmittinger & Rodriguez, P.A., Dover,
Delaware; attorney for Plaintiff.

Kenneth M. Doss, Esquire of Casarino Christman Shalk Ransom & Doss, P.A.,
Wilmington, Delaware; attorney for Defendant.

WITHAM, R.J.
Casey Shelor v. Nationwide Mutual Ins. Co.
C.A. No. K18C-06-043 WLW
November 7, 2019

Presently before the Court is Defendant, Nationwide Mutual Insurance Co.,
(hereinafter “Nationwide’”) and its motion for partial summary judgment in a claim
for Underinsured Motorist (hereinafter “UIM”) benefits filed by Plaintiff Casey
Shelor (hereinafter “Plaintiff’). After considering the record as presented and the
parties’ arguments, it appears to the Court that:

FACTUAL AND PROCEDURAL HISTORY

1. Plaintiff presently resides in the State of Delaware at 66 Nomad Trial,
Camden-Wyoming, Delaware 19934.

2. Nationwide is a licensed insurance provider authorized to transact insurance
sales in Delaware.

3. Plaintiff had a Nationwide automobile insurance policy that covered the
period between November 14, 2015 through May 14, 2016.' This agreement provided
coverage on her vehicle and included UM/UIM coverage in the amount of $100,000
per person and $300,000 per accident.’

4. During the coverage period, Plaintiff was operating her car, a 2008 Acura
TSX, on February 7, 2016. At approximately 11:18 a.m. that morning, Plaintiff was
driving in Camden, Delaware, traveling westbound on Willow Grove Road
approaching the intersection with Dundee Road.

5. Anthony Wester (hereinafter “Wester”), the alleged tortfeasor, was driving

 

' See D. Mot. For Partial Summary Judgment (hereinafter “D. Mot. Part. Sum. Jud.”) Ex. B
at pg. 1 (Plaintiff's Nationwide policy number is 528219557.).

* See Pl. Compl. Ex. B at pg. 2.
Casey Shelor v. Nationwide Mutual Ins. Co.
C.A. No. K18C-06-043 WLW
November 7, 2019

a 2001 Toyota Celica and traveling northbound on Dundee Road. Wester allegedly
ran a stop sign at the intersection of Dundee Road and Willow Grove Road and stuck
Plaintiff's vehicle. Plaintiff suffered severe bodily injuries as a result of the accident.

6. Wester was an underinsured driver pursuant to 18 Del. C.§ 3902(b)(2).°

7. Plaintiff filed her claim in this Court seeking UIM benefits on June 27,
2018. Nationwide filed its response, in opposition, on August 22, 2018. Nationwide
subsequently filed a motion for partial summary judgment on May 21, 2019 and seeks
partial summary judgment regarding Plaintiffs punitive damages claim only.’
Plaintiff responded, in opposition, on June 4, 2019.

8. The Court conducted a hearing on the motion on August 9, 2019.

LEGAL STANDARD OF REVIEW

9. On a motion for summary judgment pursuant to Superior Court Civil Rule
56, the moving party has the initial burden of showing that no material issues of fact
exist and that he is entitled to a judgment as a matter of law.’ The burden then shifts

to the non-moving party to demonstrate that a genuine issue of material fact exists.°

 

?18 Del. C. §3902(b)(2) states: “[a]n underinsured motor vehicle is one 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. These limits shall be stated in the declaration sheet of the policy.”

* See D. Mot. Partial Summary Judgment (hereinafter “D. Mot.”) at pg. 1.

> Bryant v. Federal Kemper Ins. Co., 542 A.2d 347, 348 (Del. Super. 1988) (citing Moore
v. Sizemore, 405 A.2d 679, 680 (Del. 1979).

° Id. (citing Moore, 405 A.2d at 681).
Casey Shelor v. Nationwide Mutual Ins. Co.
C.A. No. K18C-06-043 WLW
November 7, 2019

The facts must be viewed in the light most favorable to the non-moving party.’
Summary judgment may not be granted if the record indicates that a material fact is
in dispute, or if it seems desirable to inquire more thoroughly into the facts in order
to clarify the application of the law to the circumstances.’ However, when the facts
permit a reasonable person to draw but one inference, the question becomes one for
decision as a matter of law.’
PARTIES’ CONTENTIONS

10. Nationwide argues that because Plaintiff's policy with Nationwide “clearly
and unambiguously” excludes coverage for punitive damages, the policy is
enforceable and Plaintiff is not entitled to punitive damages."°

11. Plaintiff counters by asserting that several provisions and/or terms of
Plaintiffs insurance policy are prohibited pursuant to Delaware law.'' Specifically,
she asserts that regardless of the fact that the policy does not provide UIM coverage
in accordance with 18 Del. C. $ 3902(b)(2), she is nevertheless entitled to coverage

 

’ Hamilton v. Liberty Mut. Fire Ins. Co., 2010 WL 8250753, at *1 (Del. Super. June 24,
2010) (citing Guy v. Judicial Nominating Comm'n, 659 A.2d 777, 780 (Del. Super. 1995)).

* Ebersole v. Lowengrub, 180 A.2d 467, 468-69 (Del.1962).

* Hamilton, 2010 WL 8250753, at *1 (citing Wootten v. Kiger, 226 A.2d 238, 239 (Del.
1967)).

D. Mot. at 43.

'' See Pl. Reply at 42 (Plaintiffs reply only has two numbered paragraphs, even though there
are several paragraphs within § 2.).
Casey Shelor v. Nationwide Mutual Ins. Co.
C.A. No. K18C-06-043 WLW
November 7, 2019

pursuant to the statute.'* In other words, since Nationwide does not sufficiently
identify policy language that provides UIM coverage that is required by Delaware in
Plaintiff's policy, Nationwide can therefore not rely upon a punitive damages
exclusion that only applies to a repealed version of UIM coverage that has not been
statutorily mandated since 2013."
DISCUSSION

12. 18 Del. C. § 3902(b)(2) states:

An underinsured motor vehicle is one 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. These limits shall be stated

in the declaration sheet of the policy.'*

13. The Delaware legislature adopted this definition of underinsured motor
vehicle on July 3, 2013.'° Section 3902(b)(2), as adopted, was to be applied to
Delaware car insurance policies issued and/or renewed six months after the

definition’s adoption, approximately January 3, 2014.'°

 

Id.

'? Pl. Reply at pg. 4.

"4 See 18 Del. C. § 3902(b)(2) (emphasis added) (this was the amended portion).
'° Td.

'® See Id. Revisor’s Note (included and highlighted in the packet).

5
Casey Shelor v. Nationwide Mutual Ins. Co.
C.A. No. K18C-06-043 WLW
November 7, 2019

14. Here, however, Plaintiffs insurance policy partially defines underinsured
motor vehicle as:

One which is underinsured. This is a motor vehicle for which bodily injury

liability coverage or other security or bonds are in effect; however, their total

amount is less than the highest limit of [UIM] coverage under either:
(1) This Policy. See Declarations for those limits; or
(2) Any other applicable policy.!”

15. This partial definition appears to have been repealed by the 2013
amendment of section 3902(b)(2) and it’s adoption. Prior to the 2013 amendment,
section 3902(b)(2) stated:

An underinsured motor vehicle is one 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
total less than the limits provided by the [UIM] coverage. These limits shall
be stated in the declaration sheet of the policy."

16. Here, it appears that Plaintiff's policy defined underinsured motor vehicle
pursuant to the definition as amended in 1984, and that it failed to incorporate the
2013 amended definition. Since the policy began nearly a year and a half after the

2013 amendment was to go into effect, it appears that her policy coverage is not in

 

'’ See Pl. Ex. A. Definitions U2 at 4 2 (highlighted).

8 See 18 Del. C. § 3902(b)(2), 64 Laws 1984, ch. 426 (July 20, 1984).

6
Casey Shelor v. Nationwide Mutual Ins. Co.
C.A. No. K18C-06-043 WLW
November 7, 2019

accordance with the current definition pursuant to section 3902(b)(2).

17. Additionally, Plaintiff identifies other provisions/terms/exclusions of her
insurance policy that have been previously voided by the Delaware Supreme Court.
First, under Plaintiff's “Coverage Exclusions,” Nationwide attempts to exclude UIM
where the claim arises from occupying a motor vehicle owned by the insured, but not
insured under this policy.'? The Supreme Court, in Frank v. Horizon Assurance Co.,
found that such a provision was void and contrary to public policy.”” Second,
Nationwide attempts to exclude from the definition of an uninsured motor vehicle
“any motor vehicle owned by a government unit or agency.””' However, this was also
found to be invalid by this Court and upheld by the Supreme Court.”

18. Plaintiffargues that because her Nationwide auto insurance policy does not
provide UIM coverage per the statute, any policy exclusion that relates to the repealed
1984 amendment does not apply. However, Plaintiff correctly states that when the
section 3902(b)(2) is correctly applied, there appears to be no provision that excludes
the recovery of punitive damages by one claiming UIM benefits, such as the present
Plaintiff.

19. Nationwide nevertheless asserts that under Delaware law, uninsured and

 

" See Pl. Ex. A Coverage Exclusions U3 at 4 4 (highlighted).
°° Frank v. Horizon Assur. Co., 553 A.2d 1199, 1205 (Del. 1989).
*! See Pl. Ex. A. Definitions U2 at § 2 (highlighted).

*? See Cropper v. State Farm. Mut. Auto. Ins. Co., 671 A.2d 423, 427 (Del. Super. 1995),
aff'd 676 A.2d 907 (Del. 1995).
Casey Shelor v. Nationwide Mutual Ins. Co.
C.A. No. K18C-06-043 WLW
November 7, 2019

underinsured insurance policies that contain language that clearly and unambiguously
excludes coverage for punitive or exemplary damages is enforceable.”*

20. However, the distinguishing fact in this case that sets it apart from Price
and Hamilton is that in both those cases, the insurance policies were in compliance
with Delaware law in terms of the coverages and definitions of certain key terms.
Here, as demonstrated by Plaintiff, that is clearly not the case as her policy contains
provisions and terms that were either: (1) amended by the Delaware legislature, but
yet still included in the policy, or (2) found to be offensive to public policy by the
Courts and thus void. As a result of this statutorily deficient insurance policy, the
Court agrees that Nationwide has failed to provide any “clear [ ] and unambiguous
[ ] language that excludes coverage for punitive or exemplary damages.

CONCLUSION

Based on the above mentioned reasons, this Court DENIES Nationwide’s

motion for partial summary judgment as it pertains to Plaintiff's punitive damages

claim.

IT IS SO ORDERED

/s/ William L. Witham, Jr.
Resident Judge

WLW/dmh

 

* See Price v. Continental Ins. Co., 768 A.2d 975, 976 (Del. Ch. 2000) (Chancery Court
enforced punitive and/or exemplary exclusionary language). Price was followed by this Court in
Hamilton, 2010 WL 8250753, at *3 (Del. Super. June 24, 2010).

8
