MARTHA E. CONVERSE and DAVID CONVERSE, husband and wife, Plaintiffs,
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a foreign corporation Defendant
Date Submitted: July 1, 2013
On State Farm Mutual Insurance Company's Motion for Summary Judgment.
Gary S. Nitsche, Esq. and Michael B. Galbraith, Esq., Weik, Nitsche, & Dougherty, Wilmington, Delaware, 19899. Attorneys for Plaintiffs.
Robert M. Greenberg, Esq., Tybout, Redfearn, & Pell, Wilmington, Delaware 19899. Attorney for State Farm Mutual Insurance Company.
Calvin L. Scott, Jr. Judge
Before the Court is Defendant State Farm Mutual Automobile Insurance Company's ("State Farm") Motion for Summary Judgment. State Farm's motion presents the issue of whether State Farm is the excess Underinsured Motorist ("UIM") insurer in this case and, if so, whether Plaintiffs are required to exhaust the primary UIM benefits before seeking excess UIM benefits. The Court has reviewed the parties' submissions. For the following reasons, State Farm's motion is GRANTED.
On June 20, 2007, Plaintiff Martha Converse was a passenger in a vehicle owned and operated by James Early ("Early vehicle"). The vehicle was struck by a vehicle driven by Patrick Lampart ("Lampart vehicle"). At the time of the accident, the Lampart vehicle was insured through a Massachusetts policy with Plymouth Rock Assurance Company ("Plymouth"). The Early vehicle was insured by a Massachusetts policy through Commerce Insurance Company ("Commerce") that contained UIM policy limits of $100, 000 per person and $300, 000 per accident. Plaintiffs held a personal automobile insurance policy with State Farm, issued in Delaware, containing the same UIM policy limits. On July 28, 2010, Plaintiffs signed a release with Plymouth and, in exchange, Plymouth paid its policy limit of $25, 000 to Plaintiffs.
On April 5, 2011, Plaintiffs filed this action against State Farm claiming that State Farm was liable for Patrick Lampart's negligence pursuant to 18 Del. C. § 3902, Delaware's Uninsured/Underinsured Motorist statute.
State Farm moves for summary judgment on the grounds that, under Delaware and Massachusetts law and the language of its policy, Commerce's UIM benefits are primary and the State Farm UIM benefits are excess. State Farm also contends that, since Plaintiffs failed to exhaust the Commerce UIM benefits, they are precluded from recovering from State Farm.
Plaintiffs do not challenge State Farm's contention that, generally, State Farm's coverage would be excess; however, Plaintiffs argue that, based on the language in the Commerce and State Farm policies and the operation of Delaware and Massachusetts law, State Farm becomes the primary UIM insurer by virtue of Plaintiffs' failure to obtain Commerce's consent to settle with the tortfeasor. Plaintiffs also cite to the public policy underlying Delaware's UIM statute and the fact they have purchased the ...