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Kanu v. Allstate Insurance Co.

Superior Court of Delaware

May 31, 2017

ARUNA SAMPHA KANU, Plaintiff,
v.
ALLSTATE INSURANCE COMPANY, Defendant.

          ORDER

          Calvin L. Scott, Jr. Judge

         On this 31st day of May, 2017, and upon Defendant's, Allstate Insurance Company's ("Defendant") Motion for Summary Judgment, it appears to the Court that:

         2. On November 11, 2016, Defendant moved for summary judgment, contending that Plaintiff's claim for uninsured motorist benefits fails as a matter of law because Plaintiff did not offer any facts to create an issue of fact as to whether the object came from a motor vehicle. Defendant also contends that Plaintiff's uninsured motorist claim does not pass the Klug test because it was Plaintiff who lost control of the vehicle which is "an act of independent significance" breaking any connection to a vehicle. Finally, Defendant avers that Plaintiff did not allege any facts to support a negligence claim against a "phantom driver." Plaintiff claims that Summary Judgment is inappropriate because material facts exist whether the object was from a motor vehicle.

Del. C.

         4. The Court may grant summary judgment if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law."[1] The moving party bears the initial burden of showing that no material issues of fact are present.[2] Once such a showing is made, the burden shifts to the non-moving party to demonstrate that there are material issues of fact in dispute.[3] In considering a motion for summary judgment, the Court must view the record in a light most favorable to the non-moving party.[4] The Court will not grant summary judgment if it seems desirable to inquire more thoroughly into the facts in order to clarify the application of the law.[5]

Del. C. [6]

         6. The "purpose of 18 Del. C. § 3902 is to protect innocent parties injured by the negligence of unknown tortfeasors or from those who have no means from compensating the injured persons."[7] The statute defines uninsured vehicle as:

(1) One for which there is no auto liability bond, insurance or other security applicable at the time of the accident in at least the amounts required by the financial responsibility law where the auto is principally garaged or registered;

(2) One for which the insuring company denies coverage or becomes insolvent; or

(3) A hit-and-run motor vehicle that causes an accident resulting in bodily injury or property damage to property of the insured. Bodily injury or property damage must be caused by physical contact of the hit-and-run vehicle with the insured or with an insured motor vehicle, or by a noncontact vehicle where the identity of both the driver and the owner of such vehicle are unknown. The accident must be reported to the police or proper governmental authority. The insured must notify his or her insurer within 30 days, or as soon as practicable thereafter, that the insured or his or her legal representative has a legal action arising out of the accident.[8]
[9]

         8. Additionally, a prerequisite to recovery pursuant to an uninsured motorist claim under 18 Del. C. § 3902, the Court must determine "whether an injury 'arose out of the use of a motor vehicle."[10] Under the Klug test the Court analyzes "(1) whether the vehicle was an active accessory in causing the injury, (2) whether there was an act of independent significance that broke the causal link between use of the vehicle and the injuries inflicted, and (3) whether the vehicle was used for transportation purposes."[11]

Klug Klug

         10.However, Defendant's argument is misplaced. Delaware case law shows that the first two prongs of the Klug test apply to the insured vehicle.[12] To be considered an active accessory, "the vehicle must be more than the mere situs of the injury, but can be less than the proximate cause of the injury."[13]"The active accessory prong is intended to exclude situations such as those at issue in Campbell v. State ...


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