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Elliott v. Allstate Insurance

Court of Common Pleas of Delaware, Kent

January 28, 2019

BETH A. ELLIOTT, Plaintiff,
v.
ALLSTATE INSURANCE, Defendant.

          Submitted: November 2, 2018

          Arthur D. Kuhl, Esquire Reger Rizzo & Darnall LLP Attorney for Defendant

          Ms. Beth A. Elliott Self-Represented Plaintiff

          DECISION AND ORDER FOR DEFENDANT'S MOTION TO DISMISS

          Honorable Charles W. Welch, III J.

         The plaintiff, Beth A. Elliott, filed a personal injury action against the defendant, Allstate Insurance, on July 19, 2017, claiming damages resulting from an automobile accident with the defendant's insured that occurred on July 18, 2015. The defendant has filed a Motion to Dismiss pursuant to Court of Common Pleas Civil Rule 12(b)(6). The plaintiff filed correspondence discussing ongoing treatment in lieu of a response. On October 2, 2018, the Court gave the plaintiff additional time to file a proper response to the defendant's Motion to Dismiss. The plaintiff has failed to respond. After careful consideration by the Court, the defendant's Motion to Dismiss is granted.

         FACTS[1]

         On July 18, 2015, the plaintiff was stopped in traffic in the center lane on northbound Route 13 approximately forty feet south of Division Street, Dover, Kent County, Delaware. A vehicle driven by a fifteen-year-old female, the minor child of Patrick Schliesing and insured by Allstate Insurance, ("the insured") struck the plaintiffs vehicle from behind. The insured was cited for inattentive driving after admitting she was distracted while talking to a passenger prior to impact.

         The plaintiff had six passengers in her vehicle at the time of the accident. Only one injury, head pain suffered by a passenger in the plaintiffs vehicle, was reported at the time of the collision. The plaintiff now also alleges injuries from the accident, including a concussion, headaches, depression, post-traumatic stress disorder and financial harm. The plaintiff filed suit against the defendant on July 19, 2017, alleging that the insured was distracted and drove without an adult at least twenty-five years of age inside the vehicle. The plaintiff further alleges that the insured caused the plaintiff ongoing damages resulting from the accident, including medical issues, mental anguish and financial difficulties. Additionally, the plaintiff claims that the defendant lost paperwork numerous times to avoid settlement and that the plaintiff was transferred from agent to agent several times while attempting to deal with the situation.

         PARTIES' CONTENTIONS

         The defendant, Allstate Insurance, contends that the plaintiff has no direct claim against it because direct action may not be brought against a tortfeasor's insurer based upon the alleged negligence of the tortfeasor without first bringing suit against the alleged tortfeasor. The defendant further contends that the plaintiffs personal injury claims are barred by the applicable statute of limitations by one day.

         After being provided an opportunity to respond to the defendant's motion to dismiss by the Court, the plaintiff failed to file a response to the motion. Based on the Complaint and correspondence filed by the plaintiff in this matter, it appears to the Court that the plaintiff contends that she was never made aware of any time limitations or other action she needed to take.

         LEGAL STANDARD

         When deciding a motion to dismiss based on Court of Common Pleas Civil Rule 12(b)(6), "the Court must examine the complaint and accept all well-pleaded allegations as true."[2] "If the facts alleged in the complaint are sufficient to support a claim for relief, the motion should be denied."[3] "The test for sufficiency is a broad one, that is, whether a plaintiff may recover under any reasonably conceivable set of circumstances susceptible of proof under the complaint."[4] "An allegation, though vague or lacking in detail, is nevertheless ...


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