Free Letter - District Court of Delaware - Delaware

Case 1:04-cv-01324-JJF-LPS Document 127 Filed 11/17/2005 Page 1 of 2
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Curtis P. Cheyney, III
.»‘|¤'¤' November 17, 2005
VIA ELECTRONIC FILING
The Honorable Kent A. Jordan
United States District Court
044 North King Street, Room 4200
Wilmington, DE 10001
RE: Eames v. Nationwide Mutual Insurance Comgag
CA. No.: 04·CV-1024 KAJ
Response to Pla.intiffs’
November 10, 2005 electronic filing
Dear Judge Jordan:
at the conclusion of the November 0, 2005 oral argument, Plaintiffs’ counsel requested
and was granted the last word. Without any invitation or leave from the Court to do so,
Plaintiffs have now imposed upon Nationwide and the Court yet further argument. Given this
tactic, and because Nationwide finds this further argument in error, misleading and
misrcpresentative, we are compelled to respond.
The referenced 1002 Georgia State Court of Appeals decision is misrepresented as having
relevance to the pending Motion to Dismiss. This is a diversity case governed by Delaware state
law. Nationwide briefly offers the following additional points in response to Plaintiffs’ e—filing
dated November 10, 2005:
1. The November 10, 2005 e-filing was neither requested by the Court nor permitted
under the governing Local or Federal Rules of Civil Procedure;
2. The George State Court of Appeals decision is not a “new" opinion; it was written
10 years before the November 0, 2005 argument date, and available to counsel
prior to and at the time of the hearing;
0. The decision is misrepresented in that its focus is upon a ibrm application i'or
insurance fspecifically for a PIP coverage] obtained pursuant to a unique, specific
Georgia statute. No similar Delaware statute exists ;
4. The Hardy decision focuses upon an Application for insurance {which was
apparently considered by the Georgia court to be part of the policy} and the
requirements of a specific Georgia statute. Plaintiffs base their arguments in this
case upon extrinsic materials referred to by Plaintiffs as documents allegedly called

Case 1:04-cv-01324-JJF-LPS Document 127 Filed 11/17/2005 Page 2 of 2
The Henerable Kent A. Jerdan
Ncvember 17, 2l]U5
Page 2
“rate quetes, merneranda ef insurance, etc." The issue under Delaware law en this
metien is net whether the extrinsic materials are ambigueus. Rather, the issue en
this metien under the geverning Delaware law is whether the pelicy is ambigueus
in defining the specific arneunt ef PIP eeverage;
5. The language ef the Hardy Applicatien that references "full eeverage" is a phrase
that dees net exist in the Eames pelicy. lvfereever, even the extrinsic decuments
that Plaintiffs purpertedly rely upen de net centain the phrase “full eeverage" as
in Hardy;
5. There is ne Delaware statutery duty fer an insurer te effer [and explain] eptienal
higher PIP Benefits {in excess ef the Basic}; the statutery minimum PIP benefits
are the enly required ecverage and the ebligatien te effer the minimum enly is set
ferth in the Delaware statute, eentrasted te the Geergia statute D.C.G.A. ii 33—34-
5. The litigatien in Geergia was plairitiffs’ engeing pest-accident request fer an
eppertunity te subsequently purchase the eptienal, additienal PIP eeverage as the
Applicatien was incerrectly alleged te be ambigueus when it used the werds “full
ceverage" fer PIP. By centrast, the instant Eames actien is a breach ef centract
actien eentending that the pelicy PIP ceverages as issued at the time ef centracting
are at issue, and there is ne claim ibr eptienal PIP ceverages net required by
statute er selected by the Eames; and
T. The fecus ef Plaintiffs’ letter brief is net upen the helding ef the Geergia Hardy
decisien, which is faverable te Natienwide. Rather, Plaintiffs purpert te base their
arguments upen a cemment in the cencurring epinien which has never been
fellewed er cited after its publicatien in Geergia er in Delaware.
We remain available te previde briefing regarding these issues sheuld the Ceurt believe it
vveuld he helpful. We further request that ne further suhmissiens en this metien be permitted
unless requested by the Deurt.
Respectfully yeurs,
SWARTZ CAMPBELL, LLC
,g'S,g' Nichelas E. Skiles, Esguire
Niehelas E. Skiles, Esquire {DE I.D. #3777}
Curtis P. Cheyney, III, Esquire
3Ufl Delaware Avenue, Suite 113I]
Wilmingten, DE 19351
{302] 555-5935
CPCi'dd
cc: Jehn S. Spadare, Esq.