IN THE SUPREME COURT OF THE STATE OF DELAWARE
JAMES L. MARTIN, § § No. 590, 2013 Plaintiff Below- § Appellant, § § v. § Court Below—Superior Court § of the State of Delaware, NATIONAL GENERAL § in and for New Castle County ASSURANCE COMPANY, § C.A. No. N13C-01-020 § Defendant Below- § Appellee. §
Submitted: May 2, 2014 Decided: July 9, 2014
Before STRINE, Chief Justice, BERGER, and RIDGELY, Justices.
ORDER
This 9th day of July 2014, upon consideration of the parties’ briefs and the
record below, it appears to the Court that:
(1) The plaintiff-appellant, James L. Martin, filed this appeal from an
order of the Superior Court, dated September 27, 2013, denying Martin’s motion
for partial summary judgment and granting summary judgment to the appellee,
National General Assurance Company (“National”). We find no merit to the issues
Martin raises on appeal. Accordingly, we affirm the Superior Court’s judgment.
(2) Martin is a Delaware resident who had an automobile insurance policy
with National for personal injury protection (PIP) and uninsured/underinsured (UM/UIM) motor vehicle driver protection. Martin was involved in an accident
while riding his bicycle in an organized cycling event in New Jersey in September
2010. He was found lying by the side of the road with his bicycle on top of him.
He suffered broken teeth and a five inch cut to his face, which required emergency
medical care. Martin had no memory of what caused the accident, and there were
no eyewitnesses.
(3) Martin sought to recover benefits under his policy with National,
alleging that he had been the victim of a hit-and-run motor vehicle. National
denied coverage, finding no evidence that a motor vehicle was involved in
Martin’s accident. Martin then sought arbitration before an Insurance
Commissioner’s panel under 21 Del. C. § 2118(j). The arbitration panel found that
Martin’s evidence did not support a finding that a motor vehicle had been involved
in his accident. The panel, therefore, concluded that there was no applicable
insurance coverage.
(4) Martin then filed an appeal with the Superior Court seeking de novo
review under 21 Del. C. § 2118(j)(5). Martin’s complaint sought PIP benefits and
UM benefits, as well as exemplary damages for National’s bad faith denial of his
claim. After National filed a partial motion to dismiss and Martin filed a partial
motion for summary judgment, the Superior Court denied both motions without
prejudice pending the conclusion of discovery on Martin’s PIP claim. The
2 Superior Court also stayed further discovery and consideration of Martin’s UM and
bad faith claims pending the resolution of the PIP claim.
(5) In September 2013, upon completion of discovery, both parties filed
renewed motions for summary judgment on the PIP claim. The Superior Court
held a hearing on September 27, 2013. Martin argued that the Superior Court
should take judicial notice that Martin had been awarded $685.22 from the State of
New Jersey’s Victim of Crime Compensation’s Office (NJVCCO) and that this
award constituted an administrative tribunal’s decision that he had been involved
in a hit-and-run motor vehicle accident. Martin also argued that the experts’
reports all agreed that his bicycle, which was damaged beyond repair, had
impacted a stationary object and that the only known objects in the vicinity of the
accident site were automobiles. Martin expressly denied that there was any
material fact in dispute.
(6) In support of its motion for summary judgment, National argued that
there was no evidence of what happened to cause Martin’s bicycle accident.
National agreed that the evidence established that Martin’s bicycle had impacted a
stationary object, but that there was no evidence that the stationary object was a
motor vehicle. National asserted that the letters from the NJVCCO issuing
payments to Martin did not constitute a finding that a motor vehicle was involved
in Martin’s accident, and the NJVCCO’s payments were expressly made
3 conditional if Martin was later found to be ineligible. National further argued that
the only qualified expert’s report indicated that, while Martin had collided with a
stationary object, there was no material transfer from the stationary object to
Martin’s bicycle and thus no evidence to conclude that the impact was with a
motor vehicle.
(7) At the conclusion of the hearing, the Superior Court expressly noted
that the parties, by filing cross-motions for summary judgment, expressly agreed
that there was no material fact in dispute.1 The Superior Court found that the
NJVCCO’s letters did not constitute a finding of fact that a motor vehicle was
involved in Martin’s accident of which the court could take judicial notice under
Delaware Rule of Evidence 201(b).2 The Superior Court concluded that Martin’s
evidence in the record was only speculative and did not prove that a motor vehicle
was involved in his accident in order to trigger coverage under National’s policy.
Accordingly, the Superior Court denied Martin’s motion for summary judgment
and granted National’s motion for summary judgment. The trial court found the
remaining motions and claims to be moot. This appeal followed.
1 Superior Court Civil Rule 56(h) provides, “Where the parties have filed cross motions for summary judgment and have not presented argument to the Court that there is an issue of fact material to the disposition of either motion, the Court shall deem the motions to be the equivalent of a stipulation for decision on the merits based on the record submitted with the motions.” 2 Delaware Uniform Rule of Evidence 201(b) provides, “A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known with the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.”
4 (8) Martin raises three issues in his opening brief on appeal. First, he
contends that the Superior Court did not conduct a de novo review of his appeal
from the Insurance Commissioner’s panel’s ruling. Second, Martin appears to
argue that the Superior Court erred in granting National’s motion for summary
judgment because National had implicitly withdrawn its motion. Finally, Martin
argues that he should have been permitted to argue for summary reversal of the
Superior Court’s decision on appeal. We find no merit to any of Martin’s claims.
(9) Martin’s first contention—that the Superior Court did not consider his
appeal de novo—is based on the Prothonotary’s failure to add Martin’s motion for
partial summary judgment as to liability, which was manually filed by Martin on
March 1, 2013, to the Superior Court’s electronic docket. Martin argues that the
Superior Court could not have conducted a de novo review because the evidence
attached to his motion was never made part of the record. We disagree. Although
the Prothonotary may have mistakenly failed to add Martin’s filing to the
electronic docket, the record is clear that the Superior Court judge received a copy
of the motion (which he acknowledged in a letter to the parties) and considered it,
as well as National’s response, when the judge denied the motion without prejudice
to Martin’s right to re-file upon the completion of discovery.
(10) Martin, in fact, re-filed his motion for summary judgment.
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IN THE SUPREME COURT OF THE STATE OF DELAWARE
JAMES L. MARTIN, § § No. 590, 2013 Plaintiff Below- § Appellant, § § v. § Court Below—Superior Court § of the State of Delaware, NATIONAL GENERAL § in and for New Castle County ASSURANCE COMPANY, § C.A. No. N13C-01-020 § Defendant Below- § Appellee. §
Submitted: May 2, 2014 Decided: July 9, 2014
Before STRINE, Chief Justice, BERGER, and RIDGELY, Justices.
ORDER
This 9th day of July 2014, upon consideration of the parties’ briefs and the
record below, it appears to the Court that:
(1) The plaintiff-appellant, James L. Martin, filed this appeal from an
order of the Superior Court, dated September 27, 2013, denying Martin’s motion
for partial summary judgment and granting summary judgment to the appellee,
National General Assurance Company (“National”). We find no merit to the issues
Martin raises on appeal. Accordingly, we affirm the Superior Court’s judgment.
(2) Martin is a Delaware resident who had an automobile insurance policy
with National for personal injury protection (PIP) and uninsured/underinsured (UM/UIM) motor vehicle driver protection. Martin was involved in an accident
while riding his bicycle in an organized cycling event in New Jersey in September
2010. He was found lying by the side of the road with his bicycle on top of him.
He suffered broken teeth and a five inch cut to his face, which required emergency
medical care. Martin had no memory of what caused the accident, and there were
no eyewitnesses.
(3) Martin sought to recover benefits under his policy with National,
alleging that he had been the victim of a hit-and-run motor vehicle. National
denied coverage, finding no evidence that a motor vehicle was involved in
Martin’s accident. Martin then sought arbitration before an Insurance
Commissioner’s panel under 21 Del. C. § 2118(j). The arbitration panel found that
Martin’s evidence did not support a finding that a motor vehicle had been involved
in his accident. The panel, therefore, concluded that there was no applicable
insurance coverage.
(4) Martin then filed an appeal with the Superior Court seeking de novo
review under 21 Del. C. § 2118(j)(5). Martin’s complaint sought PIP benefits and
UM benefits, as well as exemplary damages for National’s bad faith denial of his
claim. After National filed a partial motion to dismiss and Martin filed a partial
motion for summary judgment, the Superior Court denied both motions without
prejudice pending the conclusion of discovery on Martin’s PIP claim. The
2 Superior Court also stayed further discovery and consideration of Martin’s UM and
bad faith claims pending the resolution of the PIP claim.
(5) In September 2013, upon completion of discovery, both parties filed
renewed motions for summary judgment on the PIP claim. The Superior Court
held a hearing on September 27, 2013. Martin argued that the Superior Court
should take judicial notice that Martin had been awarded $685.22 from the State of
New Jersey’s Victim of Crime Compensation’s Office (NJVCCO) and that this
award constituted an administrative tribunal’s decision that he had been involved
in a hit-and-run motor vehicle accident. Martin also argued that the experts’
reports all agreed that his bicycle, which was damaged beyond repair, had
impacted a stationary object and that the only known objects in the vicinity of the
accident site were automobiles. Martin expressly denied that there was any
material fact in dispute.
(6) In support of its motion for summary judgment, National argued that
there was no evidence of what happened to cause Martin’s bicycle accident.
National agreed that the evidence established that Martin’s bicycle had impacted a
stationary object, but that there was no evidence that the stationary object was a
motor vehicle. National asserted that the letters from the NJVCCO issuing
payments to Martin did not constitute a finding that a motor vehicle was involved
in Martin’s accident, and the NJVCCO’s payments were expressly made
3 conditional if Martin was later found to be ineligible. National further argued that
the only qualified expert’s report indicated that, while Martin had collided with a
stationary object, there was no material transfer from the stationary object to
Martin’s bicycle and thus no evidence to conclude that the impact was with a
motor vehicle.
(7) At the conclusion of the hearing, the Superior Court expressly noted
that the parties, by filing cross-motions for summary judgment, expressly agreed
that there was no material fact in dispute.1 The Superior Court found that the
NJVCCO’s letters did not constitute a finding of fact that a motor vehicle was
involved in Martin’s accident of which the court could take judicial notice under
Delaware Rule of Evidence 201(b).2 The Superior Court concluded that Martin’s
evidence in the record was only speculative and did not prove that a motor vehicle
was involved in his accident in order to trigger coverage under National’s policy.
Accordingly, the Superior Court denied Martin’s motion for summary judgment
and granted National’s motion for summary judgment. The trial court found the
remaining motions and claims to be moot. This appeal followed.
1 Superior Court Civil Rule 56(h) provides, “Where the parties have filed cross motions for summary judgment and have not presented argument to the Court that there is an issue of fact material to the disposition of either motion, the Court shall deem the motions to be the equivalent of a stipulation for decision on the merits based on the record submitted with the motions.” 2 Delaware Uniform Rule of Evidence 201(b) provides, “A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known with the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.”
4 (8) Martin raises three issues in his opening brief on appeal. First, he
contends that the Superior Court did not conduct a de novo review of his appeal
from the Insurance Commissioner’s panel’s ruling. Second, Martin appears to
argue that the Superior Court erred in granting National’s motion for summary
judgment because National had implicitly withdrawn its motion. Finally, Martin
argues that he should have been permitted to argue for summary reversal of the
Superior Court’s decision on appeal. We find no merit to any of Martin’s claims.
(9) Martin’s first contention—that the Superior Court did not consider his
appeal de novo—is based on the Prothonotary’s failure to add Martin’s motion for
partial summary judgment as to liability, which was manually filed by Martin on
March 1, 2013, to the Superior Court’s electronic docket. Martin argues that the
Superior Court could not have conducted a de novo review because the evidence
attached to his motion was never made part of the record. We disagree. Although
the Prothonotary may have mistakenly failed to add Martin’s filing to the
electronic docket, the record is clear that the Superior Court judge received a copy
of the motion (which he acknowledged in a letter to the parties) and considered it,
as well as National’s response, when the judge denied the motion without prejudice
to Martin’s right to re-file upon the completion of discovery.
(10) Martin, in fact, re-filed his motion for summary judgment. National
also re-filed its motion for summary judgment. Those cross-motions constituted a
5 stipulation by the parties that the record was complete and a decision on the merits
could be reached.3 Martin argued his renewed motion for summary judgment and
never raised an issue suggesting that the record was incomplete. In the absence of
plain error, Martin’s failure to raise this argument below constitutes a waiver of
this claim on appeal.4 We find no error, plain or otherwise, because it is clear from
the transcript of the hearing on the cross-motions for summary judgment that the
Superior Court considered all of Martin’s evidence de novo and simply found that
the evidence did not support his motion for summary judgment.
(11) Martin’s second argument on appeal is difficult to follow. He appears
to contend that the Superior Court erred in ruling on National’s motion for
summary judgment rather than deeming the motion to be withdrawn. Martin
asserts that National filed its cross-motion for summary judgment on September
13, 2013, indicating the absence of any factual dispute. Four days later, the parties
filed their pre-trial stipulation in which National represented to the court that, “The
parties in good faith believe there is a dispute of coverage preventing settlement of
the claims.” Martin argues that this statement is a concession that genuine issues
of material fact existed in the case, which the Superior Court should have
construed as National’s implicit withdrawal of its motion for summary judgment.
3 Del. Super. Ct. Civ. R. 56(h) (2014). 4 Del. Supr. Ct. R. 8 (2014).
6 (12) Martin never raised this argument below. In fact, both parties
represented to the Superior Court at the hearing on the cross-motions for summary
judgment that the record was complete, and there was no genuine issue of material
fact in dispute. National’s representation in the pre-trial stipulation that a legal
dispute existed as to insurance coverage in no way contradicts its representation in
its motion for summary judgment that there was no genuine issue of material fact.
There is simply no merit to Martin’s convoluted claim that the Superior Court
should not have considered National’s motion for summary judgment because of
the subsequently-filed pretrial stipulation.
(13) Martin’s final claim is that this Court should adopt a procedure to
permit an appellant to file for summary reversal on appeal. Martin seems to
suggest that his constitutional right to due process was violated because this Court
allows appellees to file summary affirmance motions under Supreme Court Rule
25 but does not have a corresponding rule to give appellants the same right to
request summary reversal. Martin’s argument is unrelated to the Superior Court’s
judgment on appeal and, consequently, need not be considered by the Court.5
Moreover, given that Martin has established no basis, after full briefing, for this
Court to reverse the Superior Court’s judgment on appeal, his suggestion that he
had a due process right to seek summary reversal clearly has no merit.
5 Del. Supr. Ct. R. 8 (2014).
7 NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED.
BY THE COURT:
/s/ Henry duPont Ridgely Justice