the policy is Maintenance Tech, LLC and the coverage is personal only to it.
Defendant argues that since Plaintiff was not occupying a covered vehicle at the
time of the accident, Plaintiff is not insured under the terms of the policy.
Therefore, Defendant claims Plaintiff is not entitled to the UIM coverage under
Maintenance Tech, LLC’s commercial policy.

s!'é.

`zz. Plaintijj"s Contentions

Plaintiff asserts that UIM coverage is personal to the individual and not to
the vehicle the he was driving at the time of the accident. Therefore, Plaintiff
argues, it is irrelevant whether the motorcycle was covered by the Dairyland’s or
Defendant’s policy, because the policy is personal to him as the driver of a covered
vehicle. Plaintiff also contends that Donegal’s attempt to tie the UIM coverage to
the motorcycle he was riding and not him as an individual is tantamount to an
"other motor vehicle" exclusion, which the Delaware Supreme Court has held
violates public policy when limits are placed on the coverage about the manner in
which the insured can be injured.

111. §STAMDARD QFBLV_IEW,

A party is entitled to summary judgment where there are no genuine issues
of material fact.4 The moving party bears the burden of demonstrating that there is
no genuine issue of material fact so that that party is entitled to judgment as a
matter of law.5 In evaluating the motion, the Court must view all factual inferences
in a light most favorable to the non-moving party.é When both parties file motions

to dismiss and neither party asserts that there is a genuine issue of material fact to 

the disposition of either motion, the Court will treat the motions as a stipulation

that a decision on the record submitted with the motions is appropriate.7 ' 

IV. DISCUSSlON_

man

The essential question before this Court is whether the policy issued to
Maintenance Tech, LLC is personal to Plaintiff because he was a driver of one of

"u*i\r_oor_e v_ szzen;@re,_¢tos_/>..z_§i 679, 680 (Del. 1979).

5
Id.
6 Merrill v. Crothall-Am., Inc., 606 A.Zd 96, 99 (Del. 1992).

7 super. cr. civ. R. 56(11).
3

motorist’s policy paid Berrnel the liability limit, as did the policies that insured his
motorcycle and his wife’s auto insurance policy. However, Berrnel was denied
UIM coverage for a policy that named "‘Siemens Corporation, Advanced Bumer
Technologies, Bridges Electric, and Siemens IT Solutions & Services"’
("Siemens") as the named insured.'z Siemens was Berrnel’s employer and had
assigned him a company car for his business and personal use.

The Supreme Court distinguished an earlier case, Franks v. Horizon Assur.
C0,l3 where it had held that barring UIM coverage to named injured under a policy
because the named insured was driving a vehicle insured under another policy at
the time of the accident was against public policy.l4 The Bermel Court
distinguished Frank by stating:

Berrnel is not the insurance consumer and did not purchase the Liberty insurance.
As explained below, his biweekly paycheck deduction was for his use of the
automobile and was not a contribution to insurance premiums. Because Bermel
was not a named insured and has no expectation that the Liberty Policy extended
to his personal use of other, privately-insured motor vehicles, the language of the
Liberty Policy cannot be read as an impermissible other motor vehicle
exclusion."§

There is no question that the named insured in the policy issued by
Defendant was Maintenance Tech, LLC. Plaintiff is correct in his assertion that
UIM coverage is generally personal to the insured and does not depend on the
vehicle the insured was occupying when he was injured. However, under the
reasoning of Bermel Plaintiff was not the named insured; the named insured was
Maintenance Tech, LLC. Plaintiff, like the plaintiff in Bermel, was not the named
insured. Defendant’s policy does not thus extend here to his personal use of
another’s privately-insured motorcycle. Therefore, it was permissible for
Defendant to deny coverage to Plaintiff because neither Plaintiff, or any member
of his family, was a named insured under the policy.

Finally, the language in Defendant’s policy is not an impermissible "other
motor vehicle" exclusion, as Plaintiff claims. The Berrnel Court reviewed
substantively-identical language and determined that the "[p]olicy cannot be read
as an impermissible other motor vehicle exclusion."m Since Defendant’s policy
language is the same, it too cannot be read as an other motor vehicle exclusion

12 1a
13 553 A.zd 1199 (D@i. 1939}_,_;-,_..
"‘ld. at 1202.

‘5 Berm@1,56 A.sd ar 1068.

‘6 ld.

V. ___CONCL _,,.

 

Bermel is factually and legally binding on this Court and is not otherwise
distinguishable The policy issued by Defendant does not entitle Plaintiff to UIM
coverage because Plaintiff was not the named insured under the policy.

Defendant’s Cross-Motion for Summary Judgment is GRANTED.
Plaintiff’s Cross-Motion for Summary Judgment is DENIED.

IT IS SO ORDERED.
Very truly yours, '
\ .
maj q . 
Richard R. Cooch
RRC/jmf

cc: Prothonotary

