IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

LAMAR JARRETT,
C.A. NO. K16C-06-025 WLW

Plaintiff, : Kent County

V.

TITAN INDEMNITY COMPANY,
a foreign corporation,

Defendant.
Submitted: October 11, 2017
Decided: December l l, 2017
ORDER
Defendant’s Motion for Summary Judgment.
Grantea'.
Scott E. Chambers, Esquire and Gary E. Junge, Esquire of Schmittinger & Rodriguez,
P.A., Dover, Delaware; attorneys for the Plaintiff.

Lisa M. Grubb, Esquire of the LaW Offlce of Cynthia G. Beam, Wilmington,
Delaware; attorney for the Defendant.

WITHAM, R.J.

Lamar Jarrett v. Titan Ina'emm'ly Co.
C.A. No. K16C0960925 WLW
December 1 l, 2017

Before the Court is Defendant Titan Indemnity Company’s (“Titan”) Motion
for Summary Judgment and PlaintiffLamar Jarrett’ s Response in Opposition. Titan’s
motion is hereby GRANTED.

FACTUAL AND PROCEDURAL BACKGROUND

On February 3 , 2016, Mr. Jarrett, intending to perform maintenance on another
person’s vehicle in a nearby apartment parking lot, transported his tools to the
parking lot in his own vehicle. Mr Jarrett parked his vehicle directly beside the other
vehicle that he intended to conduct maintenance on. Afcer examining the other
vehicle, Mr. Jarrett turned to his own vehicle to retrieve the tools that he had brought.
Mr. Jarrett was standing next to his vehicle, with his keys in hand, preparing to
unlock the door when his brother yelled that a tree was falling. Mr. Jarrett attempted
to move away from the falling tree, but he and his vehicle were struck by the tree
before he could escape.

At the time of the loss described, Mr. Jarrett’s vehicle was insured by Titan.
Mr. Jarrett applied to Titan for no-fault PIP benefits as a result of his loss. However,
Titan denied coverage for his loss pursuant to the terms of Mr. Jarrett’s policy as his
injuries did not arise, “out of the: (1) ownership; (2) maintenance; or (3) use; of a
motor vehicle.”

Mr. Jarrett subsequently filed suit to recover his unpaid medical expenses, up
to the contractual policy limits, damages set forth in 21 Del. C. § 2118B(c), together
with pre and post-judgment interest and the costs of litigation.

On July 27, 2017, Titan filed its Motion for Summary Judgment pursuant to

Superior Court Civil Rule 56(c), on the basis that it is entitled to judgment as a matter

2

Lamar Jarrett v. Titan Indemnily Co.
C.A. No. Kl6C0960925 WLW
December 11, 2017

of law.

On August 17, 2017, Mr. Jarrett filed his Response in Opposition to Titan’s
Motion for Summary Judgment.

On August 18, 2017, Titan filed a Reply to Mr. Jarrett’s Response.

On September 22, 2017, the Court held oral argument for this matter. At the
end of the hearing, the Court determined that it was necessary for the parties to
submit supplemental briefing.

On October 4, 2017, Mr. Jarrett filed his supplemental briefing with the Court.
Titan filed its supplemental brief on October 11, 2017.

THE PARTIES CONTENTIONS

In Titan’s initial brief filed on July 27, 2017, Titan contends that it is entitled
to summary judgment because Mr. Jarrett’s injury “did not arise out of the: (l)
ownership; (2) maintenance; or (3) use; of his motor vehicle as a motor vehicle.”
Specifically, Titan contends that Mr. Jarrett is not entitled to PIP benefits because,
according to Titan, Mr. Jarrett cannot demonstrate that his bodily injury “arose out
of the use of a motor vehicle.” In addition, Titan contends that Mr. Jarrett’s vehicle
was not an “active accessory” in causing the injury. Next, Titan alleges that the
falling tree was an act of independent significance that broke the causal link between
the use of Mr. Jarrett’ s vehicle and the injuries inflicted at the time of the use. Finally,
Titan contends that Mr. Jarrett is not entitled to PIP benefits because his vehicle was
not being used for transportation purposes.

In Mr. Jarrett’s initial response on August 17, 2017, he contends that Titan is

not entitled to summary judgment because: (l) he was an occupant of his vehicle at

3

Lamar Jarrett v. Titan Indemnity Co.
C.A. No. K16C0960925 WLW
December ll, 2017

the time he was injured; (2) his vehicle was an active accessory in causing the injury;
and (3) the tree falling does not constitute an act of independent significance Mr.
Jarrett alleges that the PIP statute does not require that a claimant show that he was
“using” the insured vehicle or that it be “used for transportation purposes.” Finally,
Mr. Jarrett contends that Titan’ s “independent si gnificance” defense is barred because
Titan did not raise it as an affirmative defense in its answer. Therefore, Mr. Jarrett
requests that the Court deny Titan’s motion for summary judgment.

In Titan’s Reply, filed on August 18, 2017, Titan contends that Mr. Jarrett was
not “engaged in a task related to the operation of his vehicle.” Titan also alleges that
Mr. Jarrett would not have been considered an occupant of his vehicle. Finally, Titan
believes that Mr. Jarrett is not entitled to PIP benefits because, according to Titan,
Mr. Jarrett’s vehicle was merely the situs of his injuries and the tree falling
constituted an act of independent significance Titan claims that it included the
argument, regarding independent significance, in Titan’s denial of benefits letter to
Mr. Jarrett. In sum, Titan requests this Court grant summary judgment.

In Mr. Jarrett’s letter to the Court, filed on October 4, 2017, he clarified that,
despite the language in Mr. Jarrett’ s insurance policy, the only requirements that Mr.
Jarrett must demonstrate to qualify for PIP coverage are those requirements contained
in 21 Del. C. § 2118(a)(2)c. Mr. Jarrett also clarifies his position regarding his
occupancy at the time of his injury, as well as his belief that his vehicle was an
“active accessory” in causing his injuries. And, Mr. Jarrett re-states his opinion that
he does not believe that an act of independent significance occurred when the tree fell

on him. In sum, Mr. Jarrett asks the Court to deny Titan’s motion for summary

4

Lamar Jarrett v. Titan Indemm`ly Co.
C.A. No. Kl 6C0960925 WLW
December 11, 2017

judgment.

In Titan’s letter to the Court, filed on October l 1, 2017, Titan concedes that the
PIP statute requires coverage to any person, “occupying such motor vehicle and to
any other person injured in an accident involving such motor vehicle, other than an
occupant of another vehicle.”l Pursuant to this standard, Titan contends that Mr.
Jarrett was not an occupant of his vehicle because, according to Titan, “close
proximity to an insured vehicle is not enough to warrant extension of PIP coverage.”
In addition, Titan contends that Mr. Jarrett’s vehicle was not an “active accessory”
in causing his injuries. Rather, according to Titan, the vehicle was merely the situs
of the accident.

STANDARD OF REVIEW

Summary judgment is granted only if the moving party establishes that there
are no genuine issues of material fact in dispute and judgment may be granted as a
matter of law.2 All facts are viewed in a light most favorable to the non-moving
party.3 Summary judgement may not be granted if the record indicates that a material
fact is in dispute, or if there is a need to clarify the application of law to the specific

circumstances.4 When the facts permit a reasonable person to draw only one

 

1 21 Del. C. § 2118(a)(2)c.
2 Super. Ct. Civ. R. 56(c).
3 Hammond v. Colt Indus. Operating Corp., 565 A.2d 558, 560 (Del. Super. 1989).

4 Super. Ct. Civ. R. 56(c).

Lamar Jarrett v. Titan Indemm`ty Co.
C.A. No. K16C0960925 WLW
December 11, 2017

inference, the question becomes one for decision as a matter of law.5 If the non-
moving party bears the burden of proof at trial, yet “fails to make a showing sufficient
to establish the existence of an element essential to that party’s case,” then summary
judgment may be granted against that party.6
DISCUSSION7

Delaware requires the owners of Delaware-registered motor vehicles to obtain
certain insurance coverage8 The personal injury protection (“PIP”) mandate requires
insurance that provides for “[c]ompensation to injured persons for reasonable and
necessary expenses . . . .”9 PIP coverage is available to each person “occupying such
motor vehicle and to any other person injured in an accident involving such motor
vehicle, other than an occupant of another motor vehicle.”10

This Court in Friel v. Hartford Fire Ins. Co., held that, “the language in
Section 2118(a)(2)c - ‘coverage’ . . . shall be applicable to each person occupying

such motor vehicle and to any other person injured in an accident involving such

 

5 Wootten v. Kiger, 226 A.2d 238, 239 (Del. 1967).
6 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

7 In this case, the parties agree that 21 Del. C. § 2118(a)(2) controls the outcome of the
Court’s decision, rather than the terms of Titan’s insurance policy with Mr. Jarrett. Therefore, the
Court declines to address the language of the policy, instead relying exclusively on § 21 18(a)(2) and
relevant precedent.

8 21 Del. C. § 2118(3)(2).
9 21 Del. C. § 2118(a)(2)a.

10 21 Del. C. § 2118(a)(2)c.

Lamar Jarrett v. Titan Indemm`ly Co.
C.A. NO. K16C0960925 WLW
December 1 1, 2017

motor vehicle . . . .’ - to require that both occupants and non-occupants be ‘injured
in an accident involving a motor vehicle.”11 In other words, as Friel held, “the correct
analysis should be: first, use the disjunctive two-prong Fisher test to determine
whether the plaintiff is an occupant; and second, use the two-prong Kelly test to
determine whether the accident involved a motor vehicle.”12

I. The Fisher T est

The Fisher test provides, that a person is an “occupant” of the vehicle “if he or
she is either: (a) within a reasonable geographic perimeter of the vehicle or (b)
engaged in a task related to the operation of the vehicle.”13 The Delaware Supreme
Court found that a claimant qualifies as an occupant when the claimant is “in,
entering, exiting, touching, or within reach of the covered vehicle.”14

In Friel, the Court determined that the plaintiff qualified as an occupant of the
vehicle under the first prong of the Fisher test.15 The plaintiff, in that case, “was
within a reasonable geographic perimeter because he was standing in the back part

of the truck when his injury occurred.”16 The Court did not address the second-prong

 

11 Friel v. Harly"ord Fire Ins. Co., 2014 WL 1813293, at *5 (Del. Super. May 6, 2014).
12 Id.

13 Nat ’l Union Fire Ins. Co. ofPittsburgh v. Fisher, 692 A.2d 892, 896 (Del. 1997) (emphasis
in original).

14 Id. at 897.
15 Friel, 2014 WL 1813293 at *4.

16 Id. See also Walker v. M & G Convoy, Inc., 1989 WL 158511 (Del. Super. Nov. 2, 1989)
(holding that plaintiff who slipped and fell on ice while securing cars on his employer’s motor

7

Lamar Jarrett v. Titan Indemnily Co.
C.A. No. K16C0960925 WLW
December l 1, 2017

of F isher as to whether the plaintiff was engaged in a task related to the operation of
the vehicle because the two-part test is disjunctive, and further analysis was
unnecessary.17

In this case, the Court finds that Mr. Jarrett qualifies as an occupant of his
vehicle under the first prong of the Fisher test. Mr. Jarrett was within a reasonable
geographic perimeter of the vehicle because he was standing directly next to his
vehicle, with his keys in hand, attempting to open the vehicle’s door when his injury
occurred. Like Friel, the Court will not address the second-prong of the Fisher test
because it is unnecessary.

II. The Kelly T est

In Kelty, the Delaware Supreme Court outlined a two-part test to determine
whether the plaintiff was “injured in an accident involving [the insured] motor
vehicle” as required by 21 Del. C. § 2118(a)(2)c.18 The Court must analyze: (l)
whether the vehicle was an “active accessory” in causing the injury; and (2) “whether

there was an act of independent significance that broke the causal link between the

 

vehicle carrier preparing to travel was very close to the vehicle and engaged in a task related to the
vehicle and therefore was an occupier of a motor vehicle).

17 Id.

18 Kelly v. State Farm Mut. Auto. lns. Co., 73 A.3d 926, 932 (Del. 2013) (The test adopted
by the Court in Kelty was originally known as the Klug test. However, the Court in Kelly dropped
the third element of the Klug test. Although the Court in this case refers to the applicable test as the
Kelly test, the Court recognizes that parties often cite the Klug test as the applicable test. Either
reference is appropriate, as long as the parties understand that the third element of Klug Was
eliminated in Kelty).

Lamar Jarrett v. Titan Ina'emnity Co.
C.A. No. Kl 6C0960925 WLW
December ll, 2017

vehicle and the injuries inflicted.”19 The Court defined active accessory to require
“something less than proximate cause in the tort sense and something more than the
vehicle being the mere situs of the injury.”2°

Mr. Jarrett, in his attempt to satisfy the Kelly test, urges the Court to consider
Walker v. M & G Convoy, 1nc.21 Mr. Jarrett’s reliance on Walker, however, is
misplaced as Walker was decided before Kelly and does not address the “active
accessory” prong of the Kelz§v test. Rather, Walker exclusively discusses the standard
for determining whether or not a person is considered an “occupant” of a vehicle22
Thus, although the Court finds that Walker is inapplicable for purposes of the Kelly
test, the Court acknowledges that Walker is still applicable for purposes of the Fisher
test.23

Having addressed Walker, the Court finds that Kelty, Sanchez, and Friel are
relevant to the Court’s decision. The Court will, therefore, discuss each case in tum.

In Kelly, the Court concluded that the vehicle in that case was an “active
accessory” in causing the plaintiff s injuries.24 The plaintiff in Kelty was trimming

tree branches and using a truck to pull away falling branches to avoid hitting power

 

19 Id. at 930 (citing Com"l W. Ins. Co. v. Klug, 415 N.W.2d 876, 878 (Minn. 1987)).
20 Ia'. at 931.

21 Walker v. M & G Convoy, Inc., 1989 WL 158511 (Del. Super. Nov. 2, 1989).

22 Ia'. at 1.

23 See supra note 16.

24 Kel¢y, 73 A.3d 31933.

Lamar Jarrett v. Titan Indemnily Co.
C.A. No. K16C0960925 WLW
December 11, 2017

lines. He tied one end of a rope to a branch and the other end to the truck, which was
operated by someone else While the plaintiff was in a tree cutting a branch, the
person in the truck accelerated, causing the rope to snap and the branch to recoil,
break from the tree, and strike the power line, which knocked the plaintiff from the
tree25 The Kelty Court held that, unlike the vehicles in other cases that “had a
negligible impact on the events” causing the plaintiffs injuries, the force exerted by
the truck on the rope and branch led to the plaintiffs injuries, and therefore the truck
was an active accessory in causing the plaintiff’s injuries.26

In contrast, the Delaware Supreme Court held in Sanchez v. American
Ina'epena'entlns. Co. ,27 that a vehicle was the “mere situs” of the plaintiff accidentally

being shot.28 “Although [the plaintiff] was shot while he was sitting in the car, his

 

25 Ia'. at 928.
26 Ia'. at 933.
27 Sanchez v. American Ina'ep. Ins. Co., 2005 WL 2662960 (Del. Oct. 17, 2005) (TABLE).

28 The Court recognizes that Sanchez ’s holding Was partially abrogated by Kelly. The key
word, however, is partially. Kelly ’s abrogation of Sanchez merely related to Sanchez’s incorrect
reliance upon the third prong of the Klug test, Which requires that a vehicle be used for transportation
purposes. Kelty, 73 A.3d at 930 (citing Klug, 415 N.W.2d at 878). Kelly held that the PIP statute
does not contain the Words “arising out of ownership, maintenance or use of the vehicle.” Id at 930-
31. Therefore, Kelty eliminated the third prong of Klug and overruled Sanchez. However, it is
apparent that Sanchez ’s holding is still binding in regards to the first two prongs of the Klug test
because Kelly applied Sanchez ’s holding to determine Whether or not the plaintiff’ s vehicle in Kelty
was an “active accessory” or the “mere situs” in causing the plaintiff s injury. Id. at 922-33. Kelty
determined that, unlike Sanchez, the plaintiff s vehicle in Kelty constituted an “active accessory” in
causing the plaintiff’ s injuries because the vehicle had more than a negligible impact on the events
that caused the injuries. Ia'. at 933. Kelly is also not the last decision to recognize that Sanchez is
relevant for the purpose of analyzing the first two prongs of the Klug test, now known as the Kelty

10

Lamar Jarrett v. Titan Ina'emm'ly Co.
C.A. NO. Kl6C0960925 WLW
December 11, 2017

location was the only connection between the injury and the vehicle.”29 The plaintiff
“could just have easily been walking or riding a bike through the intersection when
he was shot.”3° The Court concluded “there was no casual connection between [the
plaintiff s] use of the vehicle and his injuries.”31

Likewise, in Friel, this Court held that the vehicle was not an active accessory
in causing the plaintiffs injury but was the mere situs of the injury.32 In Friel, the
plaintiff arrived at Costco in his truck with pallets of product to deliver. While
standing on the back of his truck, the plaintiff bent down to attach chains to a pallet
and injured his back.33 The chains were provided by his employer and used to attach

the pallets to a forklifc.34 The Court explained that the injury occurred “after [the

plaintiff] bent down to hook the chains to a pallet”; the chains “were not attached to

 

test. For instance, this Court relied on Sanchez in both Jones v. Delaware Transit Corp. , 2016 WL
5946494 (Del. Super. Oct. 13, 2016) and Kanu v. Allstate Ins. Co. , 2017 WL 2407091 (Del. Super.
May 31, 2017). In sum, there should be no confusion as to why the Court is relying upon Sanchez
in this decision because it is still binding for the purposes of the test set forth in Kelty.

29 Sanchez, 2005 WL 2662960 at *2.
30 Id.
31Ia'. at *3.

32 Friel, 2014 WL 1813293, at *4; see also Sierra v. Allstate Pro. & Cas. Ins. Co. , 2013 WL
263 6043, at *2 (“Indeed 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.”).

33 Friel, 2014 WL1813293, at *1.
34 Ia'.

ll

Lamar Jarrett v. Titan Ina'emm'ly Co.
C.A. No. K16C0960925 WLW
December ll, 2017

the truck and were not a part of the truck”; and the plaintiff “picked up the chains []
at the warehouse and transported them in the truck in anticipation of the pallet stop.”35
The Friel Court therefore held: “The injury was in no way caused by [the] use or
operation of the motor vehicle, except as a stationary platform from which product
was being unloaded. The injury did not occur by virtue of the inherent nature of using
a motor vehicle.”36

Based on Delaware law and the record, Mr. Jarrett’s vehicle was not an “active
accessory” in causing his injuries. Like Sanchez and Friel, Mr. Jarrett’s location was
the only connection between his injury and the vehicle Mr. Jarrett could just have
easily been struck by the fallen tree if he had used another means to transport his
tools. If for example, Mr. Jarrett had carried his tools with him in a tool box, he would
have been struck by the tree if he had placed the tool box in the same place that he
parked his car. Therefore, as the presence of Mr. Jarrett’s vehicle had a negligible
impact on the events causing Mr. Jarrett’s injury, there was no causal connection
between Mr. Jarrett’s use of the vehicle and his injuries.

As the Court finds that Mr. Jarrett’s vehicle was not an “active accessory” in
causing his injuries, the Court declines to address the “independent significance”
prong of Kelly because it is unnecessary under the circumstances

CONCLUSION

The Court finds that Mr. Jarrett qualifies as an “occupant “ of his vehicle, under

 

35 Ia'. at *4.

36 ld. at *5 (citing Kel¢y, 73 A.3d at 931 n. 29).

12

Lamar Jarrett v. Titan Indemnity Co.
C.A. No. K16C0960925 WLW
December ll, 2017

the first prong of the Fisher test, because Mr. Jarrett was within a reasonable
geographic perimeter of the vehicle when the injury occurred. However, the Court
also finds that Mr. Jarrett’s vehicle does not qualify as an “active accessory” in
causing his injuries, under the first prong of the Kelty test, because the vehicle
constituted the mere situs of Mr. Jarrett’s injuries. Therefore, Mr. Jarrett is not
eligible for PIP benefits because he was not injured in an accident involving his Titan
insured motor vehicle, as required by statute and defined by case law.

Titan Indemnity Company’s Motion for Summary Judgment is hereby
GRANTED.

IT IS SO ORDERED.

/s/ Wi[lc`am L. Witham, Jr.
Resident Judge

WLW/dmh

13

