Free Motion in Limine - District Court of Delaware - Delaware

Case 1:04-cv-00911-GIVIS Document 79-6 Filed 12/21/2005 Page 1 ofpifgc I Om
Westlaw;
Not Reported in A.2d Page I
Not Reported in A.2d, 1995 WL 339069 (Del.Super.)
(Cite as: 1995 WL 339069 (De1.Super.))
Only the Westlaw citation is currently available. Universal Underwriters/ Recreational Products
policy applied to the plaintiff. Under the
UNPUBLISHED OPINION. CHECK COURT application for the policy which appears to be
RULES BEFORE CITING. incorporated into the policy itself, the deductible
applied to "YOU or a resident relative." The
parties agree that, in this case, the word "YOU" in
Superior Court of Delaware. the policy refers to Wilson as "thc Named Insured
Kathleen DEARIE, shown in the declarations ..., " The parties are also in
v. accord that plaintiff was not a "resident relative"
Karin II. WEISS and ICI Americas, Inc. such that the deductible would apply to her under its
N0. CIV. A. 92C—06-252. meaning. However, plaintiff points to language in
a document titled "Delaware Motorist Protection
May 8, 1995. Act--(Amendatory Endorsement)" which is alleged
Michael I. Silverman, Wilmington, DE. to fonn a part of the Wilson policy. Under the
endorsement, the "insurance for PERSONAL
Cari Schnee, Wilmington, DE. INJURY PROTECTION shall be subject to a
deductible of $15,000 applicable to the named
QUILLEN insured and NMMBERS OF HIS HOUSEIIOLD
occupying the INSURED MOTOR VEHICLE at
Gentlemen: the time of an accident." The parties, for the
purposes of this motion, agree that plaintiff is a
*1 The plaintiff has filed a Motion in Limine to "member" of the Wilson household such that, if this
permit the introduction of special damages at a trial clause controls here, plaintiff was subject to the
conceming personal injuries sustained in a motor $15,000 deductible in the Universal
vehicle accident in order to circumvent the Underwriters/Recreational Products policy.
evidentiary bar of21 Del. C. § 2118(h). [FN1]
Also, at the time of the accident, plaintiff
Facts maintained a separate policy of insurance with
The plaintiff was injured on February 23, 1992 as a Liberty Mutual Insurance Company. Liberty
passenger on a motorcycle owned and operated by Mutual is not named in this action. The Liberty
Bradford Wilson, A vehicle operated by thc policy, however, specifically excluded medical PIP
defendant, Karen II. Weiss ("defendant") coverage for injuries sustained while occupying a
rear—ended the Wilson motorcycle. At the time of vehicle with less than four wheels. Thus, plaintiff
the accident. the Wilson motorcycle was insured by was not eligible for PIP coverage under the Liberty
Universal Underwriters/Recreational Products. policy.
The policy contained minimum limits of financial
responsibility coverage of $15,000/ $30,000. The As noted, plaintiff did not assert a PIP claim
policy also contained a $15,000 deductible for regarding the accident in this case. In her action
personal injury protection ("PIP") coverage. The for damages against the defendant here, plaintiff
plaintiff did not assert a PIP claim pursuant to 21 seeks permission to introduce into evidence
Del. C. §2l18 under the Wilson policy. damages which might be viewed as eompensable
under 21 De!. C. § 2118(a) because she claims she
The parties disagree whether the deductible in the was not "eIigible" for benefits as that term is used in
© 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works.
http://print.westlawcom/delivery.htm1“?dest¤atp&format=HTl\/ILE&dataid;B005580000... 12/19/2005

Case 1:04-cv-00911-GIVIS Document 79-6 Filed 12/21/2005 Page 2 ofllfgc 2 Ol 3
Not Reported in A.2d Page 2
Not Reported in A.2d, 1995 WL 339069 (Del.Super.)
(Cite as: 1995 WL 339069 (Del.Super.))
21 Del. C. §21 l8(h). be hivolous because she clearly would be entitled
to PIP coverage. Plaintiff however, argues that the
Discussion plaintif`f here could have reviewed the Universal
The issue in this case can be distilled to whether Underwriters/Recreational Products policy and
the existence of a $15,000 deductible on a PIP reasonably have concluded that PIP coverage was
policy, which applies to a plaintiff who is covered unavailable based on the broader exclusion. On
as a member of the household of a named insured, that basis, plaintiff states her PIP claim went
indicates that the plaintiff is not "eligible" for unasserted, and she was not "e1igib1e" for PIP
benefits available under 21 Del. C. § 21 18(a) as that coverage.
term is used in 21 Del. C. § 2118(h).
However, even accepting her premise, plaintiff s
*2 As an initial matter, deductible clauses which argument is unavailing. The plaintiff essentially
reduce coverage below the minimum required by argues that no PIP claim was made because she
the statute are not prohibited in Delaware. 21 Del. believed the $15,000 deductible barred recovery.
C. § 21 l8(a)(2)(f); Cmtron v. Universal As stated, however, the inclusion of deductibles in a
Umlerwrilers Group, Del.Super., 601 A.2d 1051, PIP policy, "applicable to expenses incurred as a
1053 (1990) (quoting Barber v. Williams, result of injury to the owner of a vehicle or
Del.Supr., 445 A.2d 334 (1981) (Unpublished members of his household," is a permissible
Order No. 120, 1981, October 27, 1981); see also practice in Delaware. 21 Del. C. § 2118(a)(2)(l);
21 Del. C. § 21I8(f). ln Cimron, the court said Clnrrorz, 601 A.2d at 1053. But the election ofthe
that "while the deductible, in effect, eliminated the insured to include a high deductible does not
PIP coverage required by statute, the deductible preclude plaintiffs status as a statutorily eligible
provision was not against public policy, but rather "injured person." 21 Del. C. § 2118(a). Coverage
reflected the public policy of allowing those insured was available in this case even if it was subject to a
to use other methods of insuring for the amount of deductible which was bargained for by the named
the deductible or to minimize the cost ofinsurance." insured in order to realize a savings on the
lat Thus, the deductible in the Wilson policy, to insurance premium. Obviously, there would be
which plaintiff under the Delaware Amendatory other considerations if the deductible applied
Endorsement is not a stranger, is a valid clause against a stranger to the Universal Underwriters/
which represented a choice by the named insured to Recreational Products policy. See 2] Del. C. §
minimize the cost of insurance. This is the case 2118(a)(2)(f). But, under our current law, one who
even if PIP coverage was effectively eliminated for is the "member" of the "household" of a named
the named insured and members of his household. insured who in turn bargains for a substantial
[PN2] deductible with the goal of saving on premiums
cannot be heard to complain that he or she was not
An insurance contract which contains an ambiguity "eligib1e" for benefits as that term is used in §
must be construed against the insurer when the 21l8(h).
policy is against the expectation of the insured. [al
at 1055 (quoting Hallowell v. State Farm Mutual *3 Plaintiff therefore, was eligible for benefits
Auto Ins. Co., Del.Supr., 443 A.2d 925, 926 (1982); under 21 De/. C. § 2128(a) subject to a deductible,
Novellino v. Lgfe Iris. Co. ofNorl/1 Am., Del.Supr., albeit a very substantial deductible. Therefore,
216 A.2d 420, 422 (1966)). If this insurance plaintiff is precluded from introducing into
contract was interpreted against Universal evidence in this action damages for which
Underwriters/ Recreational Products, the clause compensation is available under 21 Del. C. §
which states that the deductible applies to a 2118(a). It should also be noted that the
"rcsident relative," and not to the broader category evidentiary exclusion of§ 2118(h) applies "without
of household members, would be controlling. regard to any elective reductions in such coverage
Under that interpretation, plaintiffs argument would and whether or not such benefits are actually
© 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works.
http://print.westlaw.com/delivery.html?dest=atp&format=llTMLE&dataid=B0055 80000... 12/19/2005

_ page 3 of 3
- Filed 12/21/2005
ument 79 6
Case 1:04-cv-00911-GIVIS DOC Page 3 of3
Not Reported in A.2d Page 3
Not Reported in A.2d, 1995 WL 339069 (Del.Super.)
(Cite as: 1995 WL 339069 (Del.Super.))
recoverable." Plaintiffs Motion in Limine is
DENIED. IT IS SO ORDERED.
FN1. Section 2118(h)reads:
Any person eligible for benefits described
in paragraph (2) or (3) of subsection (a) of
this section, other than an insurer in an
action brought pursuant to subsection (g)
of this section, is precluded from pleading
or introducing into evidence in an action
for damages against a tortfeasor those
damages for which compensation is
available under paragraph (2) or (3) of
subsection (a) of this section without
regard to any elective reductions in such
coverage and whether or not such benefits
are actually recoverable.
FN2. The Court notes that the statutory
objective of § 2118 is to enable persons
who have been injured in automobile
accidents to receive the economic benefit
of immediate payment without awaiting
protracted litigation. Crum and Forster
Ins. Group v. Wright Del.Supr., 634 /\.2d
373 (1993). Since the very reason for the
existence of no-fault coverage is
contravened by permitting an insured to
obtain a deductible clause, it is somewhat
ironic that the plaintiff as a household
member is denied coverage to the extent of
the insured's election of a permitted
deductible.
Not Reported in A.2d, 1995 WL 339069
(Del.Super,)
END OF DOCUMENT
© 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works.
http://print. westlaw.com/de1ivery.html?d est=atp&format=HTMI , RXHiam:A—¤ im I .- .. A A A A