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Barone v. Progressive Northern Insurance Co.

Superior Court of Delaware, New Castle

January 29, 2014

MICHAEL P. BARONE SR. and GERTRUDE P. BARONE Plaintiffs,
v.
PROGRESSIVE NORTHERN INSURANCE CO., Defendant.

Submitted: October 2, 2013

Upon Plaintiffs' Motion for Reargument.

Stephen B. Potter, Esq., Tiffany M. Shrenk, Esq., Potter, Carmine & Associates, P.A., Wilmington, Delaware, Attorneys for Plaintiffs.

Donald M. Ransom, Esq., Casarino Christman Shalk Ransom & Doss, P.A., Wilmington, Delaware, Attorney for Defendant.

OPINION

BRADY, J.

I. Introduction

Before the Court is a Motion for Reargument filed Michael P. Barone, Sr. and Gertrude P. Barone ("Plaintiffs") that requests the Court reconsider its previous ruling relating to cross motions for summary judgment. On April 25, 2013, Plaintiffs filed a Motion for Summary Judgment with the Court. Defendant Progressive Northern Insurance Company ("Progressive") responded to Plaintiffs' Motion with a Cross Motion for Summary Judgment on May 30, 2013. The Court heard oral argument on the Motions on June 6, 2013 and reserved judgment. On September 18, 2013, the Court denied Plaintiffs' Motion for Summary Judgment and granted Progressive's Motion for Summary Judgment. Plaintiffs thereafter filed a timely Motion for Reargument on September 25, 2013. Defendant filed a response in opposition to Plaintiffs' Motion for Reargument on October 2, 2013. Upon consideration of parties' respective submissions, Plaintiffs' Motion for Reargument is DENIED for the reasons discussed below.

II. Facts [1]

A. Background

This case arises from a motor vehicle accident that occurred on July 3, 2012. Plaintiff Gertrude P. Barone ("Plaintiff") was driving a car owned by her step-son and daughter-in-law when she was involved in the collision. The step-son's car was registered in Delaware and insured by GEICO. The GEICO policy provided Personal Injury Protection ("PIP) benefits in the amount of $15, 000.00. Plaintiff exhausted the $15, 000 of PIP benefits available under the GEICO policy.[2]

At the time of the accident, Plaintiff's husband, Mr. Barone, owned a vehicle insured under a Progressive policy with PIP benefits up to $100, 000 per person ("Policy"). Plaintiff sought $85, 000 of PIP benefits under her Progressive policy after exhausting the benefits under the GEICO policy.[3] Because Progressive declined to provide the benefits, Plaintiffs filed suit.

Plaintiff asserted in her Motion for Summary Judgment that she is entitled to collect benefits from Progressive, and that her position is supported by Delaware law and public policy.[4]Plaintiff contended that she was entitled to $85, 000 in PIP benefits under the policy with Progressive, because "[she] is not attempting a double recovery, and instead is requesting the difference of PIP benefits available under the third-party policy and her own policy be paid to her."[5]

Progressive filed a Cross Motion for Summary Judgment on May 30, 2013. Progressive claimed that 21 Del. C. § 2118(a)(2)(c) unambiguously excludes "an occupant of another motor vehicle." Therefore, Progressive argued, because Plaintiff was not occupying the insured vehicle and was the occupant of another vehicle, subparagraph (c) unambiguously does not afford her coverage. Finally, Progressive also asserted that the language of subparagraph (d) plainly demonstrates the General Assembly's intention to mandate an extension of coverage only in the specific situation where an insured is injured by an accident "while occupying any registered motor vehicle other than a Delaware registered insured motor vehicle."[6]

In the Court's September 18 decision, which Plaintiffs now seek to reargue, the Court concluded that Plaintiff could not recover the $85, 000 in PIP benefits under the Progressive policy. The Court reached this conclusion, relying on Section 2118 and the OMV section of the Progressive policy, [7] because Plaintiff was occupying a Delaware ...


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