## SUPERIOR COURT

of the

STATE OF DELAWARE

Jeffrey J Clark Kent County Courthouse Resident Judge 38 The Green

Dover, DE 19901 Telephone (302)735

- 2111

Mr. Aaron Brown Mr. Michael K. DeSantis , Esquire

Ms. Nicole Miles

- Berry Law Office of Dawn L. Becker

119 Davis Circle Citizens Bank Center

Dover, DE 19904 919 Market Street, Suite 550
Wilmington, DE 19801

Submitted: August 30, 2022
Decision Deferred: September 28, 2022

RE: Aaron Brown, Nicole Miles

- Berry, Z. B., a minor, Z.B., a minor and
Z.B., a minor v. Geico Choice Insurance Company

K 20C

- 03

- 038 JJC

Dear Mr . Brown, Ms. Miles

- Berry and Mr. DeSantis :

Th is letter explains the Court ’s request for additional briefing before it decides

GEICO’s motion for partial summary judgment . At this point in the proceedings,

GEICO’s interpleader claim is reduced to the question of how much uninsured

motorist coverage is available to the Plaintiffs. S upplemental argument from the

parties addressing two issues would be helpful: (1) whethe r the General Assembly’s

2017 statutory amendment that increase d the minim um uninsured/underinsured

limits to $25,000/ $50,000 applies to the policy and accident at issue ; and if t h ose2

higher limits apply, (2) whether the Plaintiffs, who were insureds ( but not policy

holders )

, have standing to demand such coverage.

Regarding the first issue , the Delaware Supreme Court has defined what

changes to an insurance policy create a new policy. In State Farm Mutual Auto

Insurance Company v. Arms 1 and Maso n v. United Services Auto mobile

Association

, 2 the Court explained th at the inquiry rests up on whether an

endorsement , amendment, or change to the policy materially changed the policy. 3

If the changes were material, then there is a newly issued policy. 4 I n this case, if

GEICO materially changed the policy before the April 2018 accident

, it issued a new

policy befo re the accident

. If a new policy came into being before the accident, the n

the 2017 statutory amendment’s higher limits may apply to the Plaintiffs’ claims

because the higher limits are mandatory for all newly issued or renewed policies

“that occur [ed] after [ December 13, 2017 ]

. 5

Here, Plaintiffs contend that when GEICO issued a new endorsement, before

the accident , it created a new policy of insurance

. Accordingly, Plaintiffs believe

the higher minimum limits apply. In contrast, GEIC O d id not address this

endorsement in its briefing. As a result, the Court r equests supplemental argument

to address what effect, if any, the February 2018 policy change has on this claim. 6

The second issue involves GEICO’s challenge to Plaintiffs’ standing

. GEICO

argues that the Plaintiffs , as permissive users and occupants of the GEICO insured

vehicle

, are not entitled to the higher limits because they do not have standing to

seek to reform the policy. In support

, GEICO cites the Superior Court ’s decision in

1 477 A.2d 1060 (Del. 1984).

2 697 A.2d 388 (Del. 1997).

3 Arms , 477 A.2d at 1064

- 65.

4 Id

. 5 81 Del. Laws ch. 39 § 2 (2017).

6 See Pl. Supp. Filing , D.I. 50, Ex. B (attaching what appears to be an endorsement to the policy
and a new declaration page issued prior to the accident)

.3

Menefee v. State Farm

. 7 Th at decision, however, addresse d a plaintiff’s standing to

challenge the sufficiency and timing of a me aningful offer to increase UM coverage

under 18 D el

. C. § 3902 (b)

. Additional non

- mandatory Delaware State and federal

case decisions have also applied that approach. 8 This case, however, does not

implicate Section 3902(b)

. Rather, it involves t he statutory minimum coverage

guaranteed by 18 Del. C. § 3902(a) (2) and 21 Del. C. § 2902(b).

Accordingly, the Court invites both parties to address Plaintiffs’ standin g

more fully

. The submissions should address at least two matters

. At the outset,

they should address, in a general sense, whether a n insured, who is not a policy

holder, is foreclosed from reforming a ny portion of an insurance policy based upon

the Section 3902(b) related case law. Apart from th at, the parties should also focus

on whether a claim for statutory minimum benefits under Section 3902(a) (2) must

be evaluated differently than the offer

- acceptance mechanism examined in the cases

where a plaintiff sought reformation. In other words, should Section 3902(b) be

treated differently than Section 3902(a) (2) for purposes of determining an insured’s

standing to demand statutorily required minimum coverage ?

Third, and finally, the parties included portions of the relevant policy in the

summary judgment record. In the absence of a complete policy for the Court to

review , the record is incomplete. To provide additional context for the Court’s

decision

, GEICO must provide the Court (1) a certified complete copy of the policy

as it existed prior to February 4, 2018, and (2) a certified declaration page and a

complete copy of any endorsements to the policy that GEICO issu ed on February 6,

2018.

7 1986 WL 6590 (Del. Super. May 28, 1996).

8 See e.g.

, Starr v. Nationwide Mutual Ins. Co., 548 A.2d 22, 28 (Del. Ch. 1988), aff’d 575 A.2d

1083 (Del. 1990). On appeal, the Delaware Supreme Court affirmed the Court of Chancery’s

deci sion but did so without addressing the issue of standing of a plaintiff that did not appeal the

issue.4

The parties should provide their supplemental argument and information on

or before November 1, 2022. The y may submit their arguments in letter form in

the length the y believe appropriate to address these issues.

IT IS SO ORDERED.

Very truly yours,

/s/ Jeffrey J Clark
Resident Judge

JJC:klc
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