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Annestella v. Geico General Insurance Co.

Superior Court of Delaware, Kent

August 18, 2014

DIANE ANNESTELLA, Plaintiff,
v.
GEICO GENERAL INSURANCE COMPANY, a Foreign Corporation, NATIONWIDE MUTUAL INS. CO., a Foreign Corporation, Defendants.

Submitted: July 11, 2014

Upon Defendant GEICO General Insurance Company's Motion for Summary Judgment. Denied.

William D. Fletcher, Jr., Esquire of Schmittinger & Rodriguez, P.A., Dover, Delaware; attorney for Plaintiff.

Michael K. DeSantis, Esquire of the Law Office of Dawn L. Becker, Wilmington, Delaware; attorney for Defendant GEICO.

Sean A. Dolan, Esquire of the Law Office of Cynthia Beam, Newark, Delaware; attorney for Defendant Nationwide.

ORDER

WILLIAM L. WITHAM, JR. RESIDENT JUDGE

INTRODUCTION

Defendant GEICO General Insurance Company (hereinafter "GEICO") has moved for summary judgment against Plaintiff Diane Annestella (hereinafter "Plaintiff") based on Plaintiff's acknowledged failure to timely notify GEICO of a settlement agreement with the underlying tortfeasor. GEICO argues that Maryland law applies to this case, and under Maryland law, as well as the language of Plaintiff's policy, the failure to provide timely notice of the settlement to GEICO precludes Plaintiff from recovering underinsured motorist (hereinafter "UIM") benefits under her policy with GEICO.

Plaintiff argues that Delaware law should apply to this case, and that summary judgment would be premature in the absence of further discovery. Plaintiff also argues that GEICO has waived its lack of notice argument by failing to plead it in its answer, and contends that under the language of the release in the settlement agreement, GEICO's subrogation rights have been preserved.

Following the Court's careful consideration of the parties' arguments and submissions, and for the reasons set forth herein, Defendant's motion for summary judgment is denied without prejudice. The Court concurs with Plaintiff that further discovery is needed before a thorough choice of law analysis can be conducted. The Court also finds it necessary to address Plaintiff's waiver argument, as these proceedings have focused entirely on an affirmative defense that appears nowhere in GEICO's answer and GEICO has yet to amend its answer despite ample time to do so.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff was involved in a car accident with Michael J. Haxton (hereinafter "Haxton"), a Delaware resident, in Delaware on November 23, 2009. Plaintiff owned a Nissan automobile at the time, which was insured by GEICO. However, Plaintiff was not driving that vehicle at the time of the accident. Instead, she was driving another vehicle with the permission of its owner. That vehicle was insured by Defendant Nationwide Mutual Insurance Company (hereinafter "Nationwide"), who has not taken a position on the instant motion.

On September 19, 2012, Plaintiff entered into a settlement agreement with Haxton under which Plaintiff recovered Haxton's policy limits of $15, 000 from Haxton's insurance carrier. The agreement included a 'general release of all claims' which states in pertinent part:

Notwithstanding any of the above, this release does not have any effect on or application to any underinsured motorists claim that [Plaintiff] may have against any insurance company or any insurance policy. [Plaintiff] hereby specifically reserves any and all underinsured claims. No one is released to the extent that it would ...

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