KEVERN I. PHILLIPS, Plaintiff,
CARLOS CASTILLO OCASIO, Defendant.
Submitted: March 27, 2014
On Plaintiff's Motion for the Entry of Partial Summary Judgment
Matthew M. Bartkowski, Esquire, Kimmel, Carter, Roman & Peltz, P.A., Attorney for Plaintiff
Ronald W. Hartnett Jr., Esquire, Chrissinger & Baumberger, Attorney for Defendant
The Honorable Mary M. Johnston, J.
This action arises out of an automobile accident. Plaintiff did not have insurance as required by 21 Del. C. § 2118.
In answer to the complaint, Defendant asserted several affirmative defenses and a counterclaim. The Counterclaim contends that Plaintiff was negligent for failing to insure the vehicle. Affirmative Defense Seventeen alleges that Plaintiff was negligent for failing to have insurance as required by statute. Affirmative Defense Eighteen asserts that Plaintiff waived the right to claim special damages because Plaintiff operated the vehicle without insurance.
Plaintiff has moved for partial summary judgment on Affirmative Defenses Seventeen and Eighteen and the Counterclaim.
SUMMARY JUDGMENT STANDARD
Summary judgment is granted only if the moving party establishes that there are no genuine issues of material fact in dispute and judgment may be granted as a matter of law. All facts are viewed in a light most favorable to the non-moving party. Summary judgment may not be granted if the record indicates that a material fact is in dispute, or if there is a need to clarify the application of law to the specific circumstances. When the facts permit a reasonable person to draw only one inference, the question becomes one for decision as a matter of law. If the non-moving party bears the burden of proof at trial, yet "fails to make a showing sufficient to establish the existence of an element essential to that party's case, " then summary judgment may be granted against that party.
Plaintiff argues that it is well-settled that an uninsured plaintiff may seek and recover damages otherwise precluded by 21 Del. C. § 2118(h). Section 2118(h) provides:
Any person eligible for benefits described in paragraph (a)(2) or (3) 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 (a)(2) or (3) of this section without regard to ...