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McGinnes v. State Farm Mutual Automobile Insurance Co.

Superior Court of Delaware, Sussex

September 24, 2013

HARRY DAVID McGINNES, Plaintiff,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant.

SUBMITTED DATE July 19, 2013.

UPON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT - GRANTED.

Kelley M. Huff, Esquire.

Jeffrey A. Young, Esquire.

MEMORANDUM DECISION

STOKES, J.

This is a contract claim which plaintiff Harry David McGinnes ("plaintiff") has brought against defendant State Farm Mutual Automobile Insurance Company ("defendant") seeking benefits pursuant to the underinsured motorist coverage ("UIM") provision of his automobile policy. Currently pending before the Court is defendant's motion for summary judgment seeking dismissal of the case on the ground that it is time-barred.

FACTS

On September 8, 2006, plaintiff was driving his motor vehicle, which defendant insured, when he collided with a vehicle operated by Marissa O'Donnell ("O'Donnell"). O'Donnell crossed the center line and struck plaintiff's vehicle head on. This accident occurred in Sussex County, Delaware.

Plaintiff settled the tort claims with O'Donnell. AAA Mid-Atlantic Insurance Company insured O'Donnell, and as a part of the settlement, paid plaintiff the $15, 000.00 policy limits.

Plaintiff received that payment in July, 2010.

Plaintiff maintains that the $15, 000.00 is insufficient to compensate him for his injuries. He made a demand on defendant on November 17, 2010, for UIM benefits. By letter dated December 13, 2010, defendant offered to pay plaintiff $5, 000.00 under his UIM coverage.

Plaintiff alleges the offered amount is not reasonable compensation for his injuries. On June 29, 2012, plaintiff filed this suit seeking UIM benefits pursuant to his policy with defendant. He alleges defendant has breached its contract with him by failing to pay him reasonable compensation for the injuries O'Donnell caused in excess of $15, 000.00 and up to $50, 000.00.

The insurance policy in effect at the time of the accident was entered into in Florida. Defendant's address on the policy was a Florida one and plaintiff's address was a Florida one.

The State Farm agent listed on the policy was based in Florida. The accident report from the September 8, 2006, accident shows plaintiff's address as Florida and reflects that he has a Florida driver's license. The same report establishes that the vehicle was tagged and licensed in Florida. The December 13, 2010, letter denying plaintiff full coverage came from defendant's Claim Representative located in Winter Haven, Florida. Defendant contends that this evidence establishes the cause of action arose in Florida and plaintiff resided in Florida during the times pertinent to this litigation.

Plaintiff does not allege any facts regarding his residency in the complaint. In an affidavit, he asserts the following. At the time of the accident, his residence was Dagsboro, Delaware. He received payment from the tortfeasor's liability carrier in late July, 2010, and his residence at that time was Dagsboro, Delaware. He resided at Crestview, Florida, when defendant sent its December 13, 2010, letter. His affidavit asserting residency is conclusory; it does not present any evidence to support a general assertion that he was a resident at either location.

Besides the documentary evidence, the only other substantive evidence produced in this summary judgment motion regarding plaintiff's "residency" is contained in his deposition testimony taken on June 25, 2013.

Q And your current address?
A Is [ ] Overview Drive, ... Crestview, Florida, ....
Q For how long have you ...

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