Submitted: March 10, 2014
Tiffany Quell Friedman, Esquire, Edward H. Wilson, III, Esquire (Argued), Roeberg, Moore & Friedman, P.A., Attorney for Plaintiff
Christina M. Gafford, Esquire (Argued), Tybout, Redfearn & Pell, Whitney N. Hutchinson, Esquire, Belgrade and O'Donnell, P.C., Attorneys for Defendant
MARY M. JOHNSTON, J.
FACTUAL AND PROCEDURAL CONTEXT
On October 25, 2010, Plaintiff Jason Friel was employed as a delivery driver by Southern Wine & Spirits ("SWS"). Friel delivered products to various customers, including Costco. Defendant Hartford Fire Insurance Company ("Hartford") insured SWS.
Friel made a "pallet stop" at Costco on October 25, 2010. At a pallet stop, the product to be delivered is on multiple pallets inside the truck. In preparation for a pallet stop, drivers are responsible for getting a set of chains and a claw from a milk crate in the SWS warehouse. The chains and the claw are then used to connect the pallets to the forklift during the unloading process. Costco provided the forklift to complete the delivery.
On October 25, 2010, Friel obtained chains and a claw from the SWS warehouse and drove 12 or 13 pallets of product to Costco for the pallet stop. Friel arrived at Costco, parked the truck, applied the air brake, and turned off the truck. Friel exited the truck, opened the back of the truck, and removed the load bar, and awaited the arrival of the forklift.
Friel alleges he was injured during the unloading process. During the unloading process, Friel was standing in the back of the truck. While unloading approximately the tenth pallet of product, Friel bent down to hook up the chains and "felt a pop" in his back. Friel's injuries include lumbar strain and sprain, lumbar disc derangement at L4-5, and lumbar facet pain. Friel filed a worker's compensation claim against his employer SWS as a result of his injury.
At the time of the injury, SWS had an automobile insurance policy with Hartford. The policy included Delaware Personal Injury Protection coverage ("PIP"), which stated in relevant part:
We will pay, in accordance with Del. Code Ann. Tit. 21, Chapter 21, Subchapter 1, [PIP] benefits to or for the benefit of "the injured person" who sustains "bodily injury" caused by an "accident" arising out of the ownership, maintenance or use of a "motor vehicle" as a motor vehicle and incurred within two years from the date of the "accident."
Hartford denied Friel's claim for PIP coverage, reasoning that Friel's injury did not arise out of an "automobile accident." On May 5, 2013, Friel filed suit alleging breach of contract due to Hartford's failure to pay PIP benefits. Friel has incurred lost wages in the amount of $11, 982.05. Friel is seeking an order requiring Hartford to provide PIP protection in the amount of Friel's lost wages resulting from his accident. The parties have filed Cross Motions for Summary Judgment. The parties agreed at oral argument to have the case heard on dispositive motions.
STANDARD OF REVIEW
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 ...