DONALD R. JOHNSON, Plaintiff Below, Appellant,
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant Below, Appellee.
Submitted: May 2, 2018
Below: Superior Court of the State of Delaware C.A. No.
STRINE, Chief Justice; VALIHURA and VAUGHN, Justices.
T. Vaughn, Jr. Justice.
27th day of June 2018, upon consideration of the
parties' briefs and the record on appeal, it appears
Appellant, Donald R. Johnson, appeals from a Superior Court
opinion granting Appellee, State Farm Mutual Automobile
Insurance Company, summary judgment. Johnson makes one claim
on appeal. He contends the Superior Court erred when it found
he did not qualify as an "insured" for purposes of
an underinsured motorist claim against a State Farm policy
insuring a vehicle which struck him while he was walking
across the street as a pedestrian.
October 22, 2014, Fredia Brinkley struck Johnson with her
vehicle while Johnson was crossing the street on foot.
Johnson struck the hood of the vehicle and rolled off,
landing on the road. At the time of the accident, Brinkley
was insured by State Farm. On September 8, 2015, State Farm
paid Johnson the policy limit for Brinkley's liability
coverage. He also sought underinsured motorist coverage
("UIM") on the theory that he was an insured under
Brinkley's State Farm policy, but such coverage was
denied by State Farm. Johnson then filed suit against State
Farm in the Superior Court.
Brinkley's State Farm policy provides for underinsured
coverage for persons insured under the policy. The policy
defines "insured" as: "[the named
insured]"; "resident relatives"; and "any
other person while occupying . . . [the name insured's]
car." The policy goes on to state "[b]oth
the use and actual operation of such vehicle must be within
the scope of [the named insured's]
consent." The policy defines occupying as "in,
on, entering, or exiting [the vehicle]."
August 17, 2017, State Farm filed a motion for summary
judgment arguing that Johnson does not qualify as an insured
under the policy. On October 16, 2017, State Farm was granted
summary judgment, and this appeal followed.
"This Court reviews de novo the Superior
Court's grant or denial of summary judgment 'to
determine whether, viewing the facts in the light most
favorable to the nonmoving party, the moving party has
demonstrated that there are no material issues of fact in
dispute and that the moving party is entitled to judgment as
a matter of law.'” "When interpreting a
statute, Delaware courts must 'ascertain and give effect
to the intent of the legislature.'"
Appellant contends the Superior Court erred by finding he was
not entitled to UIM coverage as an "insured" under
the language of Brinkley's State Farm policy. Under his
theory, he qualified as an insured under the plain language
of the State Farm policy because he was occupying
Brinkley's vehicle in the sense that he was "in,
on, entering, or exiting" the vehicle. He
considers himself an occupant by way of the physical contact
he made when getting struck by the vehicle and being
on the vehicle's hood.
Appellant believes the Superior Court erred in applying the
"geographic perimeter" test when it found that he
was not "occupying" the vehicle even though he was
touching the vehicle when he was struck. We have fashioned a
two-prong test to determine if a person is an
"occupant" of a vehicle. The claimant must either
be "within a reasonable geographic perimeter of an
insured vehicle or engaged in a task related to the operation
of a vehicle at the time injuries are
sustained." To be within a reasonable geographic
perimeter, the claimant need be "in, entering, exiting,
touching or within reach of the covered
"geographic perimeter" test was never meant to
apply to a pedestrian who is struck by a vehicle.
Even though Appellant may have been "on" or
"touching" Brinkley's vehicle for a brief
second when he was hit, he fails to recognize that we have
found that Delaware's UIM statute provides that coverage
is personal to the insured. The purpose of that statute
"is to protect innocent parties injured by the
negligence of unknown tortfeasors or from those who have no
means for compensating the injured
persons." Title 18, Section 3902 allows "a ...