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Furman v. Delaware Department of Transportation

Superior Court of Delaware, New Castle

July 9, 2014

JEFFREY FURMAN, Plaintiff,
v.
DELAWARE DEPARTMENT OF TRANSPORTATION, Defendant,
v.
SCOTTSDALE INDEMNITY COMPANY, Third-Party Defendant.

Submitted: April 8, 2014

On Third-Party Defendant's Motion to Dismiss.

Bruce C. Herron, Esq., Losco & Marconi, P.A., Wilmington, Delaware. Attorney for Third-Party Defendant Scottsdale Indemnity Company.

Frederick H. Schranck, Esq., Delaware Attorney General, Delaware Department of Justice, Attorney for Defendant Delaware Department of Transportation.

Anthony A. Figliola, Jr. Esq., Figliola & Figliola, Attorney for Plaintiff.

ORDER

CALVIN L. SCOTT, JR. JUDGE

Introduction

Before the Court is Third-Party Defendant Scottsdale Indemnity Company's ("Scottsdale") motion to dismiss Defendant Delaware Department of Transportation's ("DelDOT") Third-Party Complaint in this personal injury action. The Court has reviewed the parties' submissions. For the following reasons, Scottsdale's motion is GRANTED.

Background

On October 24, 2008, Jeffrey Furman ("Plaintiff") suffered injuries after falling into an uncovered maintenance box while crossing Pennsylvania Avenue in Wilmington, Delaware.[1] On October 19, 2010, Plaintiff filed this suit against DelDOT alleging that DelDOT was responsible for the maintenance of Pennsylvania Avenue and that it failed to maintain the roadway and to warn of the hazardous condition.[2] On December 20, 2010, DelDOT filed a motion to dismiss asserting the defense of sovereign immunity and attaching the affidavit of Debra Lawhead ("Ms. Lawhead"), Insurance Coverage Officer for the State of Delaware, to show that neither the State nor DelDOT had waived immunity because neither purchased insurance coverage applicable to Plaintiff's injuries.[3] The Court granted the motion based on statements contained in Ms. Lawhead's affidavit.[4] On October 19, 2011, the Supreme Court reversed the decision, holding that, in order for this Court to rely on the affidavit, it was required to formally convert the motion into a summary judgment motion and provide notice to the parties.[5] The Court found that the trial court erred by ruling prematurely without giving Plaintiff an opportunity to discover whether an insurance policy existed.[6] Therefore, the court ultimately remanded the case to allow the trial court to reconsider the motion and provide a reasonable opportunity for the parties to present factual material.[7]

On remand, the Court allowed DelDOT to add Scottsdale as a party to this lawsuit.[8] On November 22, 2013, Plaintiff asserted a third-party claim against Scottsdale alleging that Scottsdale was liable for DelDOT's damages because it provided insurance coverage to DelDOT.[9] On March 26, 2014, DelDOT filed its Third-Party Complaint against Scottsdale.[10] In the Third-Party Complaint, DelDOT asserted that, after the case was remanded, the State provided a large amount of insurance coverage data from Ms. Lawhead's records to support her affidavit.[11] DelDOT acknowledged that Scottsdale did not agree that its policy covered Plaintiff's claim.[12] Nevertheless, DelDOT stated that, "[t]o the extent that any coverage exists from a Scottsdale policy for the claims made in this litigation, Scottsdale must address the issues of liability and damages up to the limits of any such coverage."[13]

Scottsdale moved to dismiss DelDOT's Third-Party Complaint under Del. Super. Ct. Civ. R. 12(b)(6) on the ground that the unambiguous terms of the its policy (the "Scottsdale Policy") do not provide DelDOT coverage for Plaintiff's injuries. Specifically, Scottsdale argues that DelDOT is not the named insured, that the "Designated Premises Limitation" Endorsement, CG 21 44 07 98 (the "Endorsement"), demonstrates that Plaintiff's injuries are not covered by the policy, and that "the insurance policy precludes direct actions against the insurance company until or unless there is a settlement with the insured or a judgment against the insured."[14]

To support this motion to dismiss, Scottsdale has submitted a copy of the insurance policy at issue.[15] The "COMMON POLICY DECLARATIONS" page (the "CPD") provides that "DELAWARE STATE/INS. COVERAGE OFFICE" is the named insured and states that the "Business Description" is "SPECIAL EVENT-MEETINGS."[16] The CPD also states that the policy includes coverage for "Commercial General Liability Coverage Part" for a premium of $4, 250.[17] In addition, the CPD states that the policy includes the forms and endorsements listed on the "SCHEDULE OF FORMS AND ENDORSEMENTS" page (the "Forms and Endorsements Page"), which includes, inter alia, the "COMMERCIAL GENERAL LIABILITY COVERAGE PART SUPPLEMENTAL DECLARATIONS" (the "Supplemental Declarations"), the "COMMERCIAL GENERAL LIABILITY COVERAGE FORM" ("CGL ...


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