Submitted: July 15, 2019
Defendant USAA Casualty Insurance's Motion to Dismiss in
Lieu of Answer Denied.
A. Mason II, Esquire, The Freibott Law Firm, P.A.,
Wilmington, DE, Attorney for Plaintiff Below/Appellee.
M. Grubb, Esquire, Marshall Dennehey Warner Coleman &
Goggin, Wilmington, DE, Attorney for Defendant
Honorable Calvin L. Scott, jr.
Casualty Insurance ("Defendant") filed a Motion to
Dismiss in Lieu of Answer, arguing that Joseph Fosnaught
("Plaintiff) lacks standing. For the following reasons,
Defendant's motion is DENIED.
20, 2018, Plaintiff was injured in an automobile collision.
Plaintiff alleges he suffered injuries as a result of this
collision. Plaintiff subsequently received medical care from
Christiana Care for these injuries. At the time of the
collision, Plaintiff alleges he was insured by Defendant
under an automobile insurance policy that included personal
injury protection ("PIP") coverage with limits of
$300, 000/$500, 000.
the accident, Plaintiff alleges that Defendant failed to pay
the full amount of PIP costs to which Plaintiff was entitled
under the policy limits.Defendant alleges that it was only
obligated to pay an amount which it considered reasonable for
the services rendered. Plaintiff and Defendant engaged in
arbitration proceedings to resolve this matter. On April 15,
2019, a Department of Insurance Arbitration Panel awarded
Plaintiff $2, 394 in unpaid PIP expenses. Defendant appealed
this decision on May 8, 2019.
Complaint on Appeal, Plaintiff alleges Defendant's
conduct constitutes a breach of contract and violates 21
Del C. §§ 2118, 2118B. Plaintiff claims he
is entitled to special and statutory damages. In response to
Plaintiffs complaint, Defendant filed this motion to dismiss.
argues that Plaintiffs claim must be dismissed for lack of
standing. Defendant cites the Delaware Department of
Insurance's Bulletin 10 ("Bulletin 10") in
support of its argument that Plaintiff lacks
standing. Specifically, Defendant contends that
Bulletin 10 gives standing only to medical providers to bring
a claim for lack of payment.
response, Plaintiff argues that he has standing to bring this
claim as a matter of contract law. Plaintiff further contends
that Bulletin 10, as an advisory opinion, cannot trump
Delaware's statutorily-created financial responsibility
laws. Plaintiff also points to the existence of
regulations creating an arbitration process for actions
between an insured and an insurer as further proof of
Plaintiff s standing to bring a breach of contract claim
against his insurer.