IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
LOTOYA D. CHRISTIE, ) ) Plaintiff, ) ) v. ) C.A. No.: N23C-07-198 FWW ) KYHEIM L. PORTER, JOHN A. ) JOYCE, JERMAINE N. CLARKE, ) and STATE FARM MUTUAL ) AUTOMOBILE INSURANCE ) COMPANY, ) ) Defendants. )
Submitted: September 13, 2024 Decided: November 22, 2024
Upon the Motion for Summary Judgment of Defendants John A. Joyce and Kyheim L. Porter, DENIED.
ORDER
Gary S. Nitsche, Esquire, Rachel D. Allen, Esquire, NITCHE & FREDRICKS, LLC, 305 N. Union Street, Second Floor, Wilmington, DE 19899, Attorneys for Latoya D. Christie.
David G. Culley, Esquire, TYBOUT, REDFEARN & PELL, Rockwood Office Park, 501 Carr Road, Suite 300, Wilmington DE 19809, Attorney for Defendant Jermaine N. Clarke. Daniel P. Bennett, Esquire, MINTZER SAROWITZ ZERIS & WILLIS LLC, Citizens Bank Center, 919 North Market Street, Suite 200, Wilmington, DE 19801, Attorney for Defendant John A Joyce.
Erin K. Radulski, Esquire, LAW OFFICE OF DAWN L. BECKER, 200 Continental Drive, Newark, DE 19713, Attorney for Defendant Kyheim L. Porter.
Jeffrey A. Young, Esquire, YOUNG & McNELIS, 300 South State Street, Dover, DE 19901, Attorney for Defendant State Farm Mutual Automobile Insurance Company.
WHARTON, J.
2 This 22nd day of November 2024, upon consideration of the joint Motion for
Summary Judgment of Defendants John A. Joyce (“Joyce”) and Kyheim L. Porter
(“Porter”)1 (collectively “Movants”), Defendant State Farm Mutual Automobile
Insurance Company’s (“State Farm”) Response,2 Defendant Jermaine Clarke’s
(“Clarke”) letter response taking no position,3 Plaintiff Lotoya D. Christie’s
(“Christie”) Response,4 Movant’s Reply,5 and the record in this case, it appears to
the Court that:
1. On May 8, 2022, Clarke was operating a motor vehicle proceeding
southbound on I-95 near Newport, Delaware with Christie as a passenger.6 Joyce’s
vehicle and Porter’s vehicle were both parked near the Newport exit after being
involved in an accident.7 Christie alleges personal injuries from a collision that
occurred between Clarke’s vehicle and Joyce’s parked vehicle.8
2. At the time of the collision, Clarke held a motor vehicle insurance
policy with State Farm.9 On August 11, 2023, State Farm paid Christie the maximum
1 Mot. for Summ. J., D.I. 37. 2 State Farm’s Resp., D.I. 42. 3 Clarke’s Resp., D.I. 39. 4 Christie’s Resp., D.I. 45. 5 Movants’ Reply, D.I. 49. 6 Am. Compl. ¶ 6, D.I. 13. 7 Id. ¶ 7. 8 Id. ¶ 7, 11. 9 See Mot. for Summ. J. at Ex. D, D.I. 37. 3 liability benefits under Clarke’ policy and Christie executed a release in favor of
Clarke (“Release”) stating:
For and in consideration of the sum of twenty five thousand and 00/00- Dollars, Lotoya Christie hereby fully and forever release[s] and discharge[s] Jermaine Clarke, who does not admit any liability to the undersigned but expressly denies any liability, from any and all claims, demands, damages, actions, causes of action or suits of any kind or nature whatsoever, and particularly on account of all injuries known and unknown, which have resulted or may in the future develop from an incident on or about the 8th day of May, 2022, at or near I95, Newark, DE.
The undersigned agrees to be responsible for and to satisfy out of the proceeds of this settlement, any and all liens, known and unknown, and/or subrogated interests, for medical treatment, health care and related expenses, and attorney’s fees, incurred by, or on behalf of the undersigned, for any bodily injury arising from the accident described herein above. A Delaware Personal Injury Protection subrogation claim is not released where the tortfeasor knows of or has been placed on notice of the subrogation interest.
The undersigned hereby declares that the terms of this settlement have been completely read and are fully understood and voluntarily accepted for the purpose of making a full and final compromise adjustment and settlement of any and all claims, disputed or otherwise, known or unknown, on account of the injuries and damages above mentioned, and for the express purpose of precluding forever any further or additional claims arising out of the incident described above.10
10 Id. at Ex. C. 4 3. Separate text at the bottom of the Release states: “Plaintiff specifically
reserves any claims for UM/UIM and PIP benefits against any entity, including any
insurance company identified herein.”11 On September 11, 2023, State Farm advised
Christie’s counsel that it was accepting her claim for underinsured motorist benefits,
and it enclosed payment of $25,000.12 Christie’s counsel accepted this payment on
her behalf.13
4. Joyce and Porter moved for Summary Judgment on July 31, 2024.14
State Farm responded supporting the motion.15 Christie responded opposing the
motion.16 Clarke took no position.17 Joyce and Porter replied on September 13,
2024.18
5. In moving for summary judgment, Joyce and Porter assert that Christie
continues to impermissibly pursue claims against them despite receiving both the
liability limits and underinsured motorist benefit limits from State Farm.19 Movants
cite 18 Del. C. § 3902(b)(3) contending the exhaustion of all limits of all liability
11 Id. 12 Id. at Ex. D. 13 Id. at Ex. E. 14 Mot. for Summ. J., D.I. 37. 15 State Farm’s Resp., D.I. 42. 16 Christie’s Resp., D.I. 45. 17 Clarke’s Resp., D.I. 39. 18 Movants’ Reply, D.I. 49. 19 Mot. for Summ. J. at ¶ 4, D.I. 37. 5 policies is necessary to obtain underinsured motorist benefits.20 Movants argue that
it must be assumed that State Farm’s payment of liability limits in the amount of
$25,000 to Christie exhausted of all available limits in order for her to have been
eligible to receive underinsured motorist benefits.21 “Otherwise, State Farm would
have had no obligation to pay an additional $25,000 in underinsured motorist
benefits based upon the circumstances in this case.”22 Further, “State Farm’s
payment of the underinsured motorist benefits cannot be deemed gratuitous, even if
made voluntarily, but must be assumed that it was made pursuant to the statute.”23
6. Additionally, Movants assert that “[i]n addition to State Farm’s
payment having to be deemed made in accordance with 18 Del. C. § 3902(b)(3),
Plaintiff’s acceptance and cashing of such monies demonstrates an agreement that
such benefits were paid pursuant to 18 Del. C. § 3902(b)(3).”24 Movants argue that
Plaintiff has implicitly agreed through the acceptance of underinsured motorist
benefits that Clarke is solely responsible for the accident, and that no cause of action
should exist against the other Defendants.25
20 Id. ¶¶ 6-7. 21 Id. ¶ 8. 22 Id. 23 Id. 24 Id. ¶ 9. 25 Id. 6 7. Movants anticipate Christie arguing she is willing to provide a credit to
the other Defendants for the amounts previously received from State Farm.26
Movants argue, however, that this anticipated position has no basis in statutory or
case law.27 Ultimately, Christie chose to resolve her claim against Clarke and to
accept underinsured motorist benefits from State Farm, resulting in the full and
complete resolution of her claim.28 Therefore, Movants contend that Christie is
precluded from pursuing claims against them.29
8. For its part, State Farm contends Christie cannot both accept
underinsured motorist benefits and continue to assert additional liability claims
against Movants.30 State Farm argues that 18 Del. C. § 3902(b)(3) makes a plaintiff
ineligible for underinsured motorist benefits until after the limits of liability have
been exhausted.31 Therefore, Christie is statutorily barred from accepting or even
making a claim for underinsured motorist benefits if she asserts that there are other
liable parties from the accident that have available liability coverage for which she
is also making a claim.32
26 Id. ¶ 10 27 Id. 28 Id. 29 Id. 30 State Farm’s Resp. ¶ 1, D.I. 42. 31 Id. 32 Id. 7 9. State Farm also asserts that its tender of Christie’s underinsured
motorist benefit policy limits “was made based on the assumption (if not
representation) that no other liability coverage remained applicable to the case.”33
And, that her “acceptance of that tender would necessarily indicate her own belief
consistent with that statutory requirement.”34 State Farm contends Christie cannot
assert an underinsured motorist claim in advance of the resolution of other related
liability claims.35 Further, depending upon Joyce’s and/or Porter’s liability, State
Farm argues that there may be no viable underinsured claim at all.36 In State Farm’s
view “Plaintiff is left with the choice of pursuing the remaining alleged tortfeasors
and returning to State Farm the $25,000 paid pursuant to the Plaintiff’s underinsured
motorist coverage, or dismissing the balance of the case as a recognition that there
are no other liable parties.”37
10. In her Response, Christie provides a chronology of events:
The Clarke vehicle was insured by Defendant State Farm. In June 2023, State Farm on behalf of Clarke offered to tender the policy limits of $25,000 to resolve the claim against Clarke. Plaintiff requested on multiple occasions an Affidavit of No Additional Insurance, before Plaintiff could agree to that settlement. As the affidavit had not been provided, Plaintiff filed the present lawsuit which had claims against Porter, Joyce, and Clarke. Upon receipt
33 Id. ¶ 2. 34 Id. 35 Id. ¶ 3. 36 Id. 37 Id. 8 of the affidavit, Plaintiff was able to accept the settlement offer on behalf of Clarke and executed a release for the same. The release was specifically limited to Clarke, and did not release any other entity. Plaintiff then added State Farm to the pending litigation, so that if a fact finder found that Clarke’s portion of damages exceeded his liability limits, State Farm would stand in Clarke’s shoes for underinsured motorist benefits (“UIM”). This Amended Complaint was filed before State Farm made any offers on the UIM coverage.
On September 11, 2023, State Farm, sent Plaintiff’s counsel a payment of $25,000, stating that it was paying this based upon the information it had to date. As noted at the bottom of the page, State Farm was aware that there were claims against the other drivers being made at the time of the letter and yet State Farm did not condition the payment of the UIM benefits on withdrawal of those claims. Further, nothing in the letter states that the payment is for full and complete settlement of the claim, nor is there any request for a release. Instead, the letter invites additional information and documentation from Plaintiff.38
11. Christie argues that “[w]hen considering the facts in the light most
favorable to Plaintiff, it is possible that a jury could find that Clarke’s portion of
Plaintiff’s damages exceed Clarke’s insurance policy and still find Joyce and Porter
are also proportionally responsible but to a lesser amount.”39 Further, “[i]f that were
the case, Plaintiff would obtain recovery from Clarke, Clarke’s UIM, Porter, and
Joyce.”40 Additionally, she argues that the underinsured motorist statute must be
38 Christie’s Resp. ¶¶ 3-4 (internal citations omitted), D.I. 45. 39 Id. ¶ 5. 40 Id. 9 read in its entirety as 18 Del. C. § 3902(b)(4) specifically allows a plaintiff to settle
with one tortfeasor and still pursue claims against others.41 She argues the Court in
Townshend v. Liberty Mutual Insurance Co.42 noted the legislature amended 18 Del.
C. § 3902(b) by adding subsection (b)(4) to include a provision regarding multiple
tortfeasors.43 Christie argues that under this statute, Joyce and Porter remain jointly
and severally liable for her injuries, and any settlement with Clarke does not
extinguish her claims against them.44
12. Christie adds that there has been not been a determination of the parties’
respective degrees of responsibility, nor has there been a determination regarding the
extent of Christie’s damages.45 Christie asserts that when considering the facts in
the light most favorable to her, a fact finder could find that her damages exceed the
available insurance coverage.46 Moreover, State Farm’s decision to pay UIM
benefits does not signify that she has been fully compensated for her injuries.47 And,
Joyce and Porter still remain liable for their portion of any remaining damages as
41 Id. ¶ 6. 42 1998 WL 281265 (Del. Super. Ct. May 22, 1998). 43 Christie’s Resp. ¶ 6, D.I. 45 44 Id. ¶ 7. 45 Id. ¶ 8. 46 Id. 47 Id. 10 allowed under 18 Del. C. § 3902(b)(4).48 Christie contends that State Farm’s
Response reads like a Motion for Summary Judgment, and writes:
State Farm asserts that it was under the assumption when it tendered its UIM policy limits that all coverage had been exhausted, when State Farm’s own letter demonstrates that it was aware that there were other pending claims, did not know if the lawsuits had been withdrawn, and was still tendering its limits. State Farm, nowhere in its correspondence suggested, implied, or required that the pending claims with Joyce and Porter be withdrawn in order to obtain the UIM payment. Further, it should be noted that State Farm often advances what it believes is owed in UIM matters, and still allows for continued negotiation or litigation. Nothing in State Farm’s letter indicated that the payment would be for full and final settlement of the entire matter. At the very least the statement at the bottom of State Farm’s letter creates a factual question that will need deposition testimony from the author of the letter.49
13. Christie summarizes that “Delaware law specifically creates the ability
for Plaintiff to execute a release for one of multiple tortfeasors and then that
tortfeasor and UIM will be considered against the remaining tortfeasors under the
Joint Tortfeasor Act.”50 Further, “[t]he proper course of action at this time is to allow
a factfinder to assess the total damages, asses the portions of liability, and then if
there is a need for credits or offset, they can be made at that time.”51
48 Id. 49 Id. ¶ 9. 50 Id. ¶ 11 51 Id. 11 14. In their Reply, Movants first point out that they do not challenge
Christie’s ability to resolve her case against Clarke, and support her ability to do so.52
However, they contend that her acceptance of UIM benefits from State Farm is
directly contrary to statutory law, as is Christie’s continued pursuit of claims against
Movants.53 Movants assert that Christie’s intent in pursuing UIM benefits is at issue,
and the intent of State Farm in tendering its UIM limits is not at issue.54 Additionally,
on this point, Movants contend that it is clear that Christie was accepting the tender
of State Farm’s underinsured motorist limits.55 And, in order to do so, she cannot
accept such limits unless she has already exhausted all other underlying limits from
all other tortfeasors in accordance with 18 Del. C. § 3902(b)(3).56
15. Secondly, Movants reply that Christie’s reliance on 18 Del. C. §
3902(b)(4) is misplaced.57 In consideration of Townshend and the legislature’s
addition of subsection (b)(4) after the Delaware Supreme Court’s prior ruling in
Nationwide Mut. Ins. Co. v. Nacchia,58 Movants argue that it is now clear that a
reservation of rights need not have been present in the Release in order to pursue an
52 Joyce and Porter’s Reply ¶ 2, D.I. 49. 53 Id. 54 Id. 55 Id. 56 Id. 57 Id. ¶ 3. 58 628 A.2d 48 (Del. 1993). 12 underinsured action.59 Still, they add that this portion of the statute does not address
the present situation where a plaintiff continues to pursue other tortfeasors after
already accepting underinsured motorist benefits.60
16. Next, Movants point out that Ҥ 3902(b)(4) refers back to (b)(3),
meaning the parties have to act in accordance with (b)(3), and (b)(4) does not
override (b)(3).”61 Movants also point out that “[in] this instance, there were no
benefits paid with respect to either Mr. Joyce’s policy or Mr. Porter’s policy, let alone
the exhaustion of those policies, prior to Plaintiff accepting the underinsured policy
limits from State Farm.”62 Movants assert that neither the statute nor any case law
cited by Christie provides that an underinsured motorist carrier can be held jointly
and severally liable with other joint tortfeasors when those tortfeasors’ policy limits
have not been exhausted.63
17. Superior Court Civil Rule 56(c) provides that summary judgment is
appropriate if “there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.”64 The moving party initially bears
59 Joyce and Porter’s Reply ¶ 3, D.I. 49. 60 Id. 61 Id. 62 Id. ¶ 4. 63 Id. 64 Super. Ct. Civ. R. 56(c); Buckley v. State Farm Mut. Auto. Ins. Co., 139 A.3d 845, 847 (Del. Super. Ct. 2015), aff'd, 140 A.3d 431 (Del. 2016) (quoting Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979)). 13 the burden of demonstrating that the undisputed facts support its claims or
defenses.65 If the moving party meets its burden, the burden shifts to the non-moving
party to show that there are material issues of fact to be resolved by the ultimate
factfinder.66 When considering a motion for summary judgment, the Court's function
is to examine the record, including “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,” in the
light most favorable to the non-moving party to determine whether genuine issues
of material fact exist “but not to decide such issues.”67 Summary judgment will only
be appropriate if the Court finds there is no genuine issue of material fact. When
material facts are in dispute, or “it seems desirable to inquire more thoroughly into
the facts, to clarify the application of the law to the circumstances,” summary
judgment will not be appropriate.”68 However, when the facts permit a reasonable
person to draw but one inference, the question becomes one for decision as a matter
of law.69
18. Eighteen Del. C. § 3902(b) provides in relevant part:
(3) The insurer shall not be obligated to make any payment under this coverage until after the limits of liability under
65 Sizemore, 405 A.2d at 681. 66 Brzoska v. Olson, 668 A.2d 1355, 1364 (Del. 1995). 67 Super. Ct. Civ. R. 56(c); Merrill v. Crothall-Am., Inc., 606 A.2d 96, 99-100 (Del. 1992). 68 Ebersole v. Lowengrub, 180 A.2d 467, 468-69 (Del. 1962) (citing Knapp v. Kinsey, 249 F.2d 797 (6th Cir. 1957)). 69 Wooten v. Kiger, 226 A.2d 238, 239 (Del. 1967). 14 all bodily injury bonds and insurance policies available to the insured at the time of the accident have been exhausted by payment of settlement or judgments.
(4) An insured who executes a release of a single tortfeasor owner or operator of an underinsured motor vehicle in exchange for payment of the entire limits of liability insurance afforded by the tortfeasor's liability insurer shall continue to be legally entitled to recover against that tortfeasor for the purposes of recovery against the insured's underinsurance carrier. An insured who executes a release of 1 of multiple tortfeasors shall have rights against that tortfeasor and the insured's underinsurance carrier determined in accordance with the Uniform Contribution Among Joint Tortfeasors Act [Chapter 63 of Title 10] and paragraph (b)(3) of this section.
19. The chronology of events and the documents before the Court remove
some facts from dispute: (1) State Farm offered to pay Christie it’s liability policy
limits on behalf of Clarke; (2) at the time Christie accepted that tender and executed
the Release on August 11, 2023, she had filed a Complaint naming Clarke, Joyce,
and Porter as defendants;70 (3) the Release only discharged Clarke with Christie
reserving “any claims for UM/UIM and PIP benefits against any entity, including
any insurance company named herein;”71 (4) on September 11, 2023 State Farm
accepted Christie’s claim for $25,000 in UIM benefits after having evaluated her
claim for those benefits based on the information it had obtained at that time; 72 (5)
70 Compl., D.I. 1. 71 Mot. for Summ. J., at Ex. C, D.I.37. 72 Id. at Ex. D. 15 Christie accepted those UIM benefits;73 and (6) at the time it paid the UIM benefits,
State Farm was a codefendant in Christie’s Amended Complaint with Joyce and
Porter.74 Based on those indisputable facts, at least four scenarios come to mind --
State Farm either conducted a conscientious evaluation of the facts of the accident
and determined that no additional insurance was available because neither Joyce nor
Porter were negligent, it knew the limits of Joyce’s and Porter’s coverage and,
nonetheless, knew it still would have to pay Christie’s UIM benefits, it was misled
about the existence of additional liability coverage, or it prematurely and
improvidently provided UIM benefits it was not statutorily obligated to provide.75
20. Just as certain facts are known and indisputable, certain other facts are
not present in the record before the Court. Among them are: (1) whether Joyce
and/or Porter bear any liability for Christies’ injuries; (2) if so, how much and in
what relative proportions to each other and to Clarke; and (3) what representations,
if any, Christie made to State Farm regarding other liability insurance.
21. The Court is not convinced that, when read in pari materia,
§3902(b)(3), §3902(b)(4) and the Uniform Contribution Among Joint Tortfeasors
Act (10 Del. C. Ch. 63) prohibit Christie from continuing her claims against Joyce
73 Id. at Ex. E. 74 Amend. Compl. D.I. 13. 75 See, 18 Del. C. § 3902(b)(3): “[t]he insurer shall not be obligated to make any payment until after the limits of liability … have been exhausted by payment of settlement or judgments.” 16 and Porter. Sec. 3902(b)(3) addresses only when State Farm is obligated to make a
UIM payment to Christie. Certainly, the posture of the case would be different if
State Farm was refusing to make a UIM payment. Then, it might be the party
invoking § 3202(b)(3).76 Here, though, it is non-parties to State Farm’s contract with
its insured who seek collateral benefits from State Farm’s relationship with its
insured.
22. Nothing in the language of § 3902(b)(3) confers any rights on other
tortfeasors by virtue of State Farm’s payment of UIM benefits. Nor is it evident why
Joyce and/or Porter should benefit if State Farm made a non-judicial determination
that they bore no liability for Christie’s injuries, it would eventually be liable for
UIM benefits anyway, it was misled in believing no other liability coverage existed,
or it made an ill-advised UIM benefit payment. Movants characterize State Farm’s
UIM benefit payment as one made pursuant to § 3902(b)(3) and not made
gratuitously because “it must be assumed” that its payment of its own liability policy
limits exhausted all available liability limits.77 Similarly, they characterize Christie’s
acceptance of the UIM payment as an implicit agreement that Clarke is solely
responsible for the accident.78 But, the cases they cite fail to support those
76 See, e.g., Rostocki v. GEICO General Ins. Co., 2014 WL 663078 (Del. Super. Ct. Nov. 17, 2014) cited by Movants. 77 Mot. for Summ. J. at ¶ 8, D.I. 37. 78 Id. at ¶ 9. 17 characterizations. They cite Starun v. All American Engineering Co.79 for the
proposition that “State Farm’s payment of the underinsured motorist benefits cannot
be deemed gratuitous, even if made voluntarily, but must be that it was made
pursuant to the statute.”80 Starun was a worker’s compensation appeal where the
Delaware Supreme Court held that an employer who made compensation payments
to an employee for three years was deemed to have done so pursuant to an implied
agreement under the worker’s compensation statute for purposes of the statute of
limitations.81 Similarly, they offer H. H. Rosen Co. v. Chavin,82 in support of their
contention that Christie implicitly understood when she accepted the UIM payment
that Clarke was solely responsible for the accident.83 In that case, our Supreme Court
held that a tenant who remained in possession of a rental property and paid an
increased amount of rent implicitly exercised a renewal option despite not having
given the landlord the required notice.84 Neither case, however, speaks to any effects
the implied agreements had on any third parties rights vis-à-vis the litigants, and,
thus, are inapposite here.
79 350 A.2d 765, 766 (Del. 1975). 80 Mot. for Summ. J. at ¶ 8, n. 12, D.I. 37. 81 Starun, 350 A.2d at 766. 82 257 A.2d 228 (Del. 1968). 83 Mot. for Summ. J. at ¶ 9, n. 13, D.I. 37. 84 H.H. Rosin, Co., 257 A.2d at 230. 18 23. Movants are correct that § 3902(b)(4) was enacted in order to eliminate
the need to include a reservation of rights against a tortfeasor’s UIM insurance
carrier when releasing the tortfeasor from liability. Nonetheless, the second sentence
of § 3902(b)(4) provides:
An insured who executes a release of 1 of multiple tortfeasors shall have rights against that tortfeasor and the insured's underinsurance carrier determined in accordance with the Uniform Contribution Among Joint Tortfeasors Act [Chapter 63 of Title 10] and paragraph (b)(3) of this section.85
The clear import of the reference to the Uniform Contribution Among Joint
Tortfeasors Act, in the Court’s view, is that a plaintiff who releases a single tortfeasor
may have recourse to other remaining tortfeasors for compensation. The Act
specifically provides as much:
A release by an injured person of 1 joint tortfeasor, whether before or after judgment, does not discharge the other tortfeasors unless the release so provides; but reduces the claim against the other tortfeasors in the amount of the consideration paid for the release, or in any amount or proportion by which the release provides that the total claim shall be released, if greater than the consideration paid.86
24. Accordingly, the Court concludes the payment of UIM benefits to
Christie does not resolve the remaining genuine issues of fact concerning whether
85 18 Del. C. § 3902(b)(4). 86 10 Del. C. § 6304(a) 19 either of both Movants are liable for damages sustained by Christie, and if either
Movant is liable, in what amount.
25. The Court is mindful of State Farm’s position that it is entitled to a
refund of the UIM payment it made to Christie if Christie continues to pursue Joyce
and Porter. That issue is not before the Court. Resolution of that question must
await the development of additional facts, including, whether they have any liability
for Christie’s injuries and if so whether the amount of damages for which they are
liable exceeds their liability coverage limits.
THEREFORE, for the reasons stated above, Defendants John A. Joyce and
Kyheim L. Porter’s Motion for Summary Judgment is DENIED.
IT IS SO ORDERED
/s/ Ferris W. Wharton Ferris W. Wharton, J.