Free Motion in Limine - District Court of Delaware - Delaware

Case 1:04-cv-00911-GIVIS Document 79-5 Filed 12/21/2005 Page 1 ofléagc I OI 5
I/\/mtiavvc
Not Reported in A.2d Page I
Not Reported in A.2d, 2001 WL 1198946 (Del.Super.)
(Cite as: 2001 WL 1198946 (Del.Super.))
H 2001 order. Again, the order speaks for itself. Its
Only the Westlaw citation is currently available. gist was that according to the preclusion statutes
express terms, it makes no difference whether
UNPUBLISHED OPINION. CHECK COURT Plaintiff actually receives PIP coverage from his
RULES BEFORE CITING. carrier. By implication, that means it does not
matter whether Plaintiff has insurance available, or
whether, as in this case, the carrier cannot pay.
Superior Court of Delaware. What matters is whether Plaintiff was in the class
Roger I,. MULLINS and Marcella Mullins legally obligated to obtain PIP coverage, which he
v. was. The fact that Plaintiffs coverage may fail
John R. KLASE, because his PIP carrier will not respond does not
N0. Civ.A. 99C—04-l82FSS. justify shifting Plaintiffs PIP coverage onto
Defendants carrier. To justify shifting PIP coverage
Submitted June 29, 2001. onto the tortfeasor's carrier, Plaintiff must establish
Decided Sept. 28, 2001, that he was not eligible for PIP coverage. The order
further explains how the court reached its
RE: Plaintiffs Motion for Rea1·gument-DENIED conclusion. despite the fact that Plaintiff may be
Dear Counsel: blameless for his PIP predicament.
*1 On May 31, 2001, the court entered an order Like he did in his initial submission, on reargument
effectively precluding Plaintiff from introducing Plaintiff declares, ipsa dixiz: "In fact coverage is not
medical bills that should have been covered by his available." To establish his point, Plaintiff rewrites
PIP insurance. The order speaks for itself. In the controlling statute, making his entitlement to
summary, the court held that Plaintiff was in the PIP benefits turn on whether they are "available,"
class of persons eligible for PIP benefits, even rather than whether he was "eligibIe." Instead of
though Plaintiffs PIP carrier is insolvent. Therefore, presenting authority to support his position, Plaintiff
under 21 De/. C. § 21l8(h), [FN1] the court denied merely distinguishes the case authority on which the
Plaintiffpennission to "board his specials." order broadly relies, Reed v. Ifojjfeeker. [FN2]
While Plaintiff is correct that Reed is easily
FN1. 21 De/. C, § 2118(h): Any person distinguishable on its facts, Reed, nevertheless,
eligible for benefits is precluded from stands for the general proposition that:
pleading or introducing into evidence in an
action for damages against a tortfeasor FN2. Reed v. 11Oj{,eeta». Del.Supr., 61.6
those damages for which compensation is /\.2d 835, 837 (1992), citing wiz/v
available without regard to any elective approval, Dee! v. Rim/t, D. Del., 474
reductions in such coverage and whether F.Supp.45,46(I979).
or not such benefits are actually
recoverable. It is settled that "persons cligible" under Section
21 l8[h] is "any person ‘within a class of persons to
Through reargument, Plaintiff insists that he "has whom the statutorily required [no—fault insurance]
no coverage due to the insolvency of his carrier," coverage extends’."
therefore 2II8(h)’s preclusion does not apply. Furthermore, Plaintiff continues to ignore the plain
That is the precise point addressed in the May 31, language in 21 De/. C. § 21l8(h) that the
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Case 1:04-cv-00911-GIVIS Document 79-5 Filed 12/21/2005 Page 2 ofiglgc 2 OH
Not Reported in A.2d Page 2
Not Reported in A.2d, 2001 WL 1198946 (Del.Super.)
(Cite as: 2001 WL 1198946 (Del.Super.))
evidentiary preclusion applies "without regard to Yarrington, $5000. Thornburg wanted to use the
whether or not such benefits are actually $5,000 payment by his carrier to Yarrington as a
recoverable? Plaintiff still has not offered a way set-off against any damage award to Yarrington.
around the statute‘s plain language. Specifically, Thornburg asked the trial coun; to
instruct the juiy to deduct the $5,000 from any
The motion for reargumenfs second feature is award it might make to Yairington. Thornburg
Plaintiffs assumption that: "the health carrier has a reasoned that Yarrington should not be allowed to
lien on any settlement obtained by Mr. Mullins." recover from Thomburg's insurance and then
That position also is unsupported by authority and recover from Thornburg again at trial. The parties
Plaintiff does not mention or attempt to distinguish eventually agreed that the jury would not be told
the authorities on which the order relies in reaching about the payment. After the jury retumed a verdict
theopposite conclusion. [FN3] for Yarrington, the trial court credited Thornburg
with the payment by his carrier. On appeal,
FN3. [nfl. Unclerwriters, Inc. v. Blue Yctrritzgton held that because Yairii1gton's 35,000
Cross & Blue Shield of Del, live., pretrial recovery came tram Thornburg's insurance,
Del.Supr., 449 /\.2d 197, 200 (1982). See the $5,000 was not from a collateral source and the
also Gtmmestttcl v. Gimmestrmf Minn. insurance payment was deductible from
Ct./\pp., 451 N.W.2d 662 (1990); Yarrington's verdict. The courts would not allow
McMic/mel v. Robertson, Md. Ct. Yarrington to recover twice from Thornburg.
Spcc.App., 549 A.2d 1157, 1161-1162 `
(1988); Bullock v. Pariser, Pa.Super., 457 ln Nolbone, the injured plaintiff, Nalbone, tried to
A.2d 1287 (1983). obtain a double recovery from both her PIP carrier,
State Farm, and from her employers "wagc
*2 Finally, Plaintiffs motion raises a new theory on continuation plan." A divided Court decided by a
reargument. Now he claims: "the expenses are narrow margin that the benefits provided by
boardable under the collateral source doctrine" He Nalbone‘s employer were attributable to Nalbonc`s
cites llttrringtou v. Thornburg, lPN4] and State employer, rather than Nalbone and, therefore,
Form Mutual Automobile Insurance v. Nalbonc. Nalbone could not recover those benefits from State
[PNS] lust as Reed is distinguishable from this case Farm. Natl/none held: "1f the insured has paid
on its facts, so are Yurrlrtgtotr and Nolbone. More consideration for recovery from a collateral source,
importantly, the collateral source rule then recovery should be allowed." [FN6] The Court
fundamentally concerns double recoveries by reasoned: "lf a person pays both auto and health
plaintiffs from collateral sources of their own insurance premiums if an injury occurs he should
making. As discussed below, the collateral source be permitted, as a matter of contract law, to receive
rule permits a double recovery from insurance paid double recovery since that is what he has paid for."
for by a plaintiff`. As also discussed below, [F1\l7j As mentioned, State Farm did not have to
Yarringtcou and l\lc1lbone are not controlling in this pay its own insured. Nalbone, to the extent she had
situation. received benefits from her employer.
FN4. Yorringtot-1 v. Tltornberg, Del.Supr., FN6.ld. at 75.
205 A.2d I (1964).
FN7. ld.
FN5. State Farm Mutual Automobile
lnsurcmce v. l\/'albone, Del.Supr., 569 A.2d Thus, Yarririglon and Nczlbone do not address
7l (1989). boarding damages, especially PlP claims. At the
most, they may control a future decision as to
ln Yorritigton, thc tortfeasor, Thornburg, had whether Plaintiff can recover from his PlP carrier
collateral insurance that paid the plaintiff, on top of the health insurance benefits he already
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Case 1:04-cv-00911-GMS Document 79-5 Filed 12/21/2005 Page 3 ofpdgc 3 013
Not Reported in A.2d Page 3
Not Reponed in A.2d, 2001 WL 1198946 (Del.Super.)
(Cite as: 2001 WL 1198946 (Del.Super.))
has received. If it comes to that, the coun assumes
without deciding, that Plaintiff might recover from
his PIP carrier if he proves that he, and not his
employer, paid for the health insurance coverage
that he received. Meanwhile, as discussed above,
Yrzrrington and /\/cz/bone do not help the court
decide whether Plaintiff can make a PIP claim at
trial. The court observes merely in passing,
however, that the _jury in Ihrringzon never learned
about Thornburg's insurance. `
*3 In this case, the critical question remains
whether Plaintiff can ask the jury to award PIP
benefits, which are excluded by law and not
ordinarily recoverable at trial. The only rationale
for Plaintiffs position remains his theoretical
concem that if he wins a damage award, it might
someday be reduced by a set—off in favor of the
health insurance carrier. Like the court tried to
explain in its original decision, that eoneem is
legally unfounded and, moreover, it does not justify
shifting the obligation to provide PIP coverage onto
the tortfeasor, or his insurance carrier.
For the foregoing reasons, Plaintiffs Motion for
Reargurnent is DENIED.
IT IS SO ORDERED.
Not Reported in A.2d, 2001 WL 1198946
(Del.Supcr.)
END OP DOCUMENT
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