IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

DAVID NAUGHTON, )

)

Plaintiff, )

)

v. ) C.A. No. N19C-01-095 JRJ

 )

GEM AMBULANCE, LLC, )

and PROGRESSIVE CASUALTY )

INSURANCE COMPANY, )

)

 )

Defendants. )

MEMORANDUM OPINION

Date Submitted: February 2, 2021

Date Decided: April 29, 2021

Upon Defendants Gem Ambulance, LLC, and Progressive Casualty Insurance 

Company’s Motions for Summary Judgment: GRANTED.

Michael P. Minuti, Esquire, McCann & Wall LLC, 300 Delaware Avenue, Suite 

805, Wilmington, Delaware 19801, Attorney for Plaintiff.

Roger D. Landon, Esquire, Murphy & Landon, 1011 Centre Road, Suite 210,

Wilmington, Delaware 19805, Attorney for Defendant Gem Ambulance, LLC.

Kenneth M. Doss, Esquire, Casarino Christman Shalk Ransom & Doss, P.A., 1007 

North Orange Street, Suite 1100, Wilmington, DE 19899, Attorney for Defendant 

Progressive Casualty Insurance Company.

Jurden, P.J.
2

I. INTRODUCTION

This action arises from a no-contact motorcycle accident involving Plaintiff 

David Naughton (“Naughton”).1 Naughton alleges that an ambulance owned and 

operated by GEM Ambulance, LLC (“GEM”) forced his motorcycle off the road, 

causing him significant injuries.2 Naughton brings this action against GEM under 

the respondeat superior theory of liability,3alleging that GEM’s employee and/or 

agent acted negligently by (1) failing to maintain proper control of the ambulance, 

(2) operating the ambulance in a careless and/or imprudent manner without due 

regard for then-existing road and traffic conditions, and (3) failing to maintain a 

proper lookout.4 Naughton has also sued his uninsured motorist insurer Progressive 

Casualty Insurance Company (“Progressive”), alleging that Progressive must stand 

in the shoes of the uninsured phantom vehicle involved in the accident and is 

therefore liable to Naughton for the damages that he sustained.5 

Defendants have moved for summary judgment. GEM argues that the 

ambulance involved in Naughton’s accident was neither owned nor operated by 

GEM or an agent of GEM and that there is no evidence to the contrary.6 Progressive, 

1 Plaintiff’s Amended Complaint (“Am. Compl.”) ¶ 6 (Trans. ID 63005206).

2

Id. ¶ 17.

3

Id. ¶¶ 17-19.

4

Id. ¶ 15.

5

Id. ¶ 22.

6 Defendant GEM Ambulance’s Motion for Summary Judgment (“GEM Mot. Summ. J.”) ¶ 3

(Trans. ID 65951875).
3

and GEM in the alternative, argues that because Naughton failed to plead sufficient 

facts to prove the ambulance breached a duty owed to other drivers, and because

Naughton proximately caused the accident, Defendants are entitled to judgment as a 

matter of law.7

For the reasons set forth below, Defendants’ Motions for Summary Judgment 

are GRANTED. 

II. BACKGROUND

On March 29, 2017, Naughton was operating a motorcycle at the intersection 

of westbound Lancaster Pike and North Clayton Street in Wilmington, Delaware.8 

Naughton began to slow down for an ambulance that was approaching the 

intersection with its lights and sirens activated, but he realized that the ambulance 

appeared to be stuck in traffic.9 Believing that he had time to clear the intersection,

Naughton sped up to drive through the intersection.10 At the same time, the 

ambulance drove around the stopped cars and entered the intersection directly in the 

path of Naughton.

11

 To avoid colliding with the ambulance, Naughton “dropped” 

his bike thereby causing him to be trapped under the right side of the motorcycle.12 

7 GEM Mot. Summ. J. ¶ 10; Progressive’s Motion for Summary Judgment (“Prog. Mot. Summ. 

J.”) ¶ 14 (Trans. ID 65898215). Progressive takes no position on co-defendant GEM’s Motion 

for Summary Judgment. (Trans. ID 65994062).

8 Am. Compl. ¶ 6. 

9

Id. ¶ 7.

10 GEM Mot. Summ. J. ¶ 2.

11 Am. Compl. ¶ 8.

12 Id. ¶ 9. 
4

Naughton called the Wilmington Police Department, and an officer reported to the 

scene, but the officer was unable to determine the identity of the ambulance 

company.13 Naughton asserts that he sued GEM because he believed that the 

ambulance involved in the accident was green in color14 and that the ambulance may 

have been traveling to Saint Francis Hospital based on the proximity of the accident 

scene to that hospital.15 

III. PARTIES’ CONTENTIONS

A. Defendant Progressive Insurance

Defendant Progressive moves for summary judgment on two grounds—that 

Naughton is unable to prove that the ambulance driver breached its duty of care

13 Id. ¶¶ 11-12.

14 Naughton testified that he is familiar with the appearance of GEM Ambulances because his 

mother has been transported by GEM Ambulances when she was ill. Plaintiff’s Response to 

GEM’s Mot. Summ. J. (“Pl.’s Response to GEM Mot.”) ¶ 8 (Trans. ID 65988514) (citing 

Plaintiff’s Deposition Transcript (“Pl.’s Dep. Tr.”) 86:15-87:10). When asked to describe what 

the ambulance looked like, Naughton testified, “I just remember – you know, its not a tremendous 

recollection but just a big green what I would call like a box truck.” See Pl.’s Dep. Tr. 34:8-12. 

When asked to describe the shade of green on the ambulance, Naughton testified, “As I’m sitting 

here I would say dark [green] but I can’t be positive. I can’t be positive that it was dark or light.” 

See Pl.’s Dep. Tr. 34:15-21. Naughton was unable to recall how much of the ambulance was green 

or if there was any writing on the ambulance. See Pl.’s Dep. Tr. 34:23-35:6. 

15 Am. Compl. ¶ 13. Naughton testified that he originally named Saint Francis Hospital as a party 

to this suit because the ambulance involved in his accident “was heading towards [Saint Francis 

Hospital] and [. . . ] I’ve seen those ambulances that color that looked like that bring people in to 

[Saint Francis Hospital], and so I think I may, you know, generally just said, you know, it may 

have been a [Saint Francis Hospital] ambulance and that’s how I came to that – definitely 

resembled ambulances I’ve seen at [Saint Francis Hospital] for sure, just like GEM.” See Pl.’s 

Dep. Tr. 86:15-22; 87:3-10.
5

under 21 Del. C. § 4106 and that Naughton, not the ambulance driver, was the 

proximate cause of his own accident.16 

Progressive first argues that the phantom ambulance driver met the duty owed 

by drivers of emergency vehicles under 21 Del. C. § 4106(d), which reads:

The driver of an emergency vehicle is not liable for any damage to or 

loss of property or for any personal injury or death caused by the 

negligent or wrongful act or omission of such driver except acts or

omissions amounting to gross or willful or wanton negligence so long 

as the applicable portions of subsection (c) of this section have been 

followed.

Subsection (c) of 21 Del. C. § 4106 exempts emergency vehicles from liability for 

mere negligence only if the emergency vehicle is “making use of audible or visual 

signals meeting the requirements of this title[.]”17 Here, it is undisputed that the 

alleged ambulance driver made use of the vehicle’s emergency lights and sirens, so 

the vehicle qualifies as an “emergency vehicle” under the statute.

18

 With respect to 

its argument that the ambulance driver met the duty required under Section 4106(d), 

Progressive contends that Naughton has not and cannot claim that the ambulance 

driver was grossly negligent or acted in a manner amounting to willful or wanton

16 Prog. Mot. Summ. J. ¶ 5. 

17 21 Del. C. § 4106(c).

18 Pl.’s Dep. Tr. 19:8-9. Progressive argues that evidence that an emergency vehicle activated its 

lights and sirens while slowing down or stopping at red light traffic before proceeding through an 

intersection is sufficient to show the driver’s compliance with 21 Del. C. § 4106(c). Prog. Mot. 

Summ. J. ¶¶ 7-8 (citing Ballard v. Cesner, 2005 WL 1654333, at *1 (Del. Super. July 15, 2005)).
6

conduct.19 For this reason, Progressive argues that the ambulance driver cannot be 

held liable for his actions and, thus, Naughton’s claim must fail.20 

Second, Progressive argues that it was Naughton’s failure to yield the rightof-way pursuant to 21 Del. C. § 4134(a), not the ambulance driver’s conduct, that 

was the proximate cause of his accident.21 21 Del. C. § 4134(a) requires that, 

[u]pon the immediate approach of an authorized emergency vehicle 

making use of audible or visual signals . . . the driver of every other 

vehicle shall yield the right-of-way and shall immediately drive to a 

position parallel to, and as close as possible to, the right-hand edge or 

curb of the roadway clear of any intersections and shall relinquish the 

right-of-way until the authorized emergency vehicle has passed[.]

Progressive claims that Naughton failed to yield the right-of-way to the ambulance

because he attempted to continue through the intersection despite hearing and seeing 

emergency signals and watching the ambulance attempting to maneuver around 

traffic.22 Because Naughton had a duty to yield under 21 Del. C. § 4134(a) but failed 

to do so, Progressive argues, Naughton’s conduct is the only proximate cause of his 

accident.23

B. Defendant GEM Ambulance

19 Prog. Mot. Summ. J. ¶¶ 9-10. Progressive argues the record lacks any evidence to support a 

hypothetical claim that the ambulance driver was grossly negligent. Id. ¶ 10.

20 Id. ¶¶ 11-12.

21 Id. ¶¶ 12-13.

22 Id. ¶ 14.

23 Id.
7

Defendant GEM’s argument on summary judgment is that Naughton’s 

respondeat superior claim must fail because the ambulance was neither owned nor 

operated by GEM, nor was it being operated by an agent of GEM.24 GEM points to 

Naughton’s concession that he was unable to discern the identity or owner of the 

ambulance involved in his accident.

25

 GEM argues that Naughton has filed suit 

against GEM for an accident that GEM was not involved in because of his previous 

familiarity with GEM Ambulance26 and a few minor aesthetic similarities between 

the ambulance involved in Naughton’s accident and GEM’s ambulances; in other 

words, GEM maintains, this is a case of mistaken identity.27 GEM argues that 

Naughton was unable to provide a description of the ambulance involved in the 

accident identifying it as a GEM ambulance.

28

 All that Naughton could offer to 

identify the ambulance was that the vehicle was “a big green . . . box truck 

[ambulance].”29 Naughton testified that he could not recall seeing the word “GEM”

or any other writing on the ambulance and could not describe the shade of green or 

how much of the ambulance was painted green.30 

24 GEM Mot. Summ. J. ¶ 3.

25 Id. ¶ 3 (citing to Pl.’s Dep. Tr. 37:15-18).

26 GEM points to Naughton’s brief and limited description of the ambulance involved in the 

accident to show that Naughton sued GEM only because he was familiar with GEM ambulances 

from 2015, when GEM had transported Naughton’s sick mother numerous times. Id. ¶ 6.

27 Id.

28 Id.

29 Id. (citing Pl.’s Dep. Tr. 34:11-12); see also Pl.’s Dep. Tr. 19:8, 22:4, 84:15-87:15.

30 Id.
8

According to the testimony of GEM’s corporate designee, GEM owns and 

operates two types of ambulances, including the big-box type, the kind that 

Naughton described, but these ambulances are used only for transport in the State of 

Delaware.31 GEM is not authorized to respond to emergencies in Delaware, so 

although all GEM ambulances are equipped with emergency signals, drivers are not 

authorized to activate the signals while driving in Delaware.32 Further, GEM 

maintains that there is no evidence that a GEM ambulance was in the location where 

the accident took place at the time the accident occurred. Based on GEM’s 

computer-aided dispatch system (“CAD”), there were five GEM ambulances in the 

general Wilmington area around the time of Naughton’s accident.33 Only one of the 

five was the big-box type of ambulance that Naughton described as having been 

involved in the accident, and that particular ambulance marked its arrival at a 

destination approximately 6.4 roadway miles from the accident location, thirteen

minutes prior to the accident, and called in “complete” two minutes after the 

accident.34 Precise GPS data of the routes driven by each GEM ambulance is purged 

every 90 days, so the route taken by this particular ambulance on the day of 

Naughton’s accident is unavailable.35

31 Id. ¶ 7. Naughton does not dispute the testimony given by GEM’s corporate designee, Michael 

Hynes.

32 GEM Mot. Summ. J. ¶ 7. 

33 Id. ¶ 8.

34 Id.

35 Id.
9

Alternatively, GEM adopts and incorporates by reference the legal arguments 

put forth by Progressive in its Motion for Summary Judgment regarding the 

applicable standards of care and liability of the ambulance driver and the proximate 

cause of the accident.36 

C. Naughton’s Response

First, in response to GEM’s claim of mistaken identity, Naughton raises the 

possibility that a GEM ambulance driver operated a GEM ambulance outside the 

bounds of his or her employment by wrongfully activating the emergency signals in 

order to enter the intersection and avoid the traffic.37 Naughton argues that a genuine 

issue of material fact exists as to the owner and operator of the ambulance because 

there is no evidence in the record that any other ambulance was responding to 

emergency calls in the area around the time of the accident.38 

For this reason, Naughton also argues that GEM and Progressive’s reliance 

on the immunity privileges of 21 Del. C. § 4106 and § 4134 are misplaced.39 

Assuming, arguendo, that a GEM ambulance was involved in the accident, 

36 Id. ¶ 9. 

37 Pl.’s Response to GEM Mot. ¶ 3.

38 Id. ¶¶ 9-10. In its Motion for Summary Judgment, GEM points out that Plaintiff was unaware 

that one other ambulance company in the area, Mill Creek Fire Department, also had green 

ambulances. See GEM Mot. Summ. J. ¶ 6. Plaintiff argues GEM could have attempted but failed 

to offer any evidence that Mill Creek ambulances were in the area of the accident or near the 

closest hospital, St. Francis, around the time of the accident. Pl.’s Response to GEM Mot. ¶¶ 9-

10.

39 Pl.’s Response to GEM Mot. ¶¶ 11-18.
10

Naughton claims that GEM cannot rely on the immunity privileges afforded to 

emergency vehicles under 21 Del. C. § 4106 or § 4134 because the ambulance 

involved could not qualify as an “emergency vehicle” at the time of the accident.40 

Based on GEM’s testimony that its ambulances are not authorized to respond to 

emergency calls in Delaware, Naughton argues that when the ambulance drove 

through the intersection with its emergency signals activated, it was not doing so in 

response to a true emergency and so should not receive statutory immunity.41 For 

this same reason, Naughton refutes the claim that he failed to yield the right-of-way, 

arguing that the ambulance did not have the right-of-way because the driver was not 

responding to an emergency call.42

IV. DISCUSSION

A. Standard of Review 

On a motion for summary judgment, the Court views all facts in a light most 

favorable to the non-moving party and determines whether a genuine issue of 

material fact exists.43 Summary judgment is appropriate when there is no genuine 

issue of material fact and the moving party is entitled to judgment as a matter of 

40 Id. ¶¶ 11-16. 

41 Id.

42 Plaintiff’s Response to Prog. Mot. Summ. J. (“Pl.’s Response to Prog. Mot.”) ¶ 19 (Trans. ID 

65959449) (“[P]er its corporate designee, [GEM]’s ambulances do not respond to emergency calls 

in Delaware. So there simply was no ‘emergency’ in this case.”).

43 Marrero v. State Farm Fire & Cas. Co., 2015 WL 5440513, at *2 (Del. Super. Ct. Sept. 14, 

2015) (quotations omitted) (citation omitted).
11

law.44 If the record reveals that there is a material fact in dispute, or if the factual 

record has not been developed thoroughly enough to allow the Court to apply the 

law to the facts of the case, then summary judgment must be denied.45

B. Liability of the Ambulance Driver Under 21 Del. C. § 4106 & § 4134

Naughton’s argument that the ambulance driver’s wrongful conduct precludes 

Defendants’ claim to statutory immunity is not supportable. It is speculation on top 

of speculation. Naughton cannot create a genuine issue of material fact by 

speculating and surmising.46

With respect to the ambulance driver’s liability under 21 Del. C. § 4106, 

Naughton has pled neither gross negligence nor willful or wanton conduct on the 

part of the ambulance driver.47 21 Del. C. § 4106 permits liability for an emergency 

44 Super. Ct. Civ. R. 56(c).

45 Marrero, 2015 WL 5440513, at *2 (citation omitted).

46 In re Asbestos Litig., 2007 WL 1651968, at *16 (Del. Super. May 31, 2007) (“Where there is no 

precedent fact, there can be no inference; an inference cannot flow from the nonexistence of a fact, 

or from a complete absence of evidence as to the particular fact. Nor can an inference be based on 

surmise, speculation, conjecture, or guess, or on imagination or supposition.”).

47 In fact, Naughton testified at his deposition that the driver “was doing everything they probably 

should have done professionally if the car was in the way” when describing the driver’s efforts to 

maneuver around the traffic in front of it and proceed through the intersection. Pl.’s Dep. Tr. 32:6-

11. At oral argument, Plaintiff’s counsel stated that he believed that Naughton was referring only

to the ambulance driver’s use of lights and sirens, not the drivers’ driving actions, when Naughton

testified the driver “was doing everything they probably should have done professionally if the car 

was in the way.” Naughton made no indication in his testimony that he was referring only to the 

ambulance driver’s use of lights and sirens. Read in its totality, Naughton’s statement appears to 

describe the actions taken by the driver, including but not limited to the use of lights and sirens. 

See Pl.’s Dep. Tr. 31:20-32:11.

Q: So when you first hear the siren you don’t see the ambulance immediately; 

correct?

A: Yeah. That’s true.
12

vehicle driver only if the driver has been grossly negligent or demonstrated willful 

or wanton conduct. For this reason, Naughton’s claim against GEM and Progressive 

must fail under 21 Del. C. § 4106.

With respect to the claim that Naughton failed to yield the right-of-way, 21 

Del. C. § 4134(a) provides that drivers must yield the right-of-way to clear roadways 

and intersections “[u]pon the immediate approach of an authorized emergency 

vehicle making use of audible or visual signals[.]”48 Moments before his accident 

occurred, Naughton saw what he believed to be an emergency vehicle with its lights 

and sirens activated attempting to enter the intersection that he was in.

49

 It is clear

that he failed to yield the right-of-way to the emergency vehicle, as is required by 

statute, when he continued through the intersection.50 Because Naughton failed to 

comply with 21 Del. C. § 4134, his claim against GEM and Progressive must fail.

Q: And as you are getting sort of near the intersection, that’s when you first notice 

the ambulance off to your left; right?

A: The siren first, then the lights. The closer I get to the green light, ten, fifteen 

yards, I can see it now and it’s trying to get through.

Q: Okay. So he’s using both his lights and his sirens – his flashing lights and his 

siren, then, whoever’s driving the ambulance?

A: I think he or she was doing everything they probably should have done 

professionally if the car was in the way.

48 21 Del. C. § 4134(a).

49 See Green v. Millsboro Fire Co., Inc., 403 A.2d 286, 289 (Del. 1979) (“[B]efore a violation of 

21 Del. C. § 4134 can be established it must first be established that plaintiff was aware or should 

have been aware of the emergency vehicle.”).

50 At oral argument on February 2, 2021, Naughton’s counsel agreed that Naughton had a duty to 

yield to the ambulance if he deemed it an emergency vehicle and that nothing in the record 

suggested that Naughton did not believe that the ambulance was an emergency vehicle. 
13

C. Identity of the Ambulance Involved in Naughton’s Accident

On this Motion for Summary Judgment, GEM bears the initial burden of 

showing that there are no genuine issues of material fact.

51

 If and when GEM is able 

to meet its initial burden, the burden then shifts to Naughton to demonstrate that a 

genuine issue of material fact does exist.52 GEM has met its burden. GEM has 

produced testimony from its corporate designee stating that GEM is not authorized 

to conduct emergency transport or activate its vehicles’ emergency lights and sirens 

in the State of Delaware, it provided a map showing the location of the five GEM 

ambulances in the general Wilmington area around the time Naughton’s accident 

occurred, none of which were near the scene, and it identified at least one other 

ambulance company in the area with green ambulances, Mill Creek Fire Company.

53

 

The burden now shifts to Naughton to demonstrate that a genuine issue of material 

fact does exist.54

51 See Kovach v. Brandywine Innkeepers Ltd. P’ship, 2000 WL 703343, at *1 (Del. Super. Apr.

20, 2000); see also Talmo v. Union Park Automotive, 2011 WL 5335391, at *2 (Del. Super. Nov. 

1, 2011).

52 Id.; see also Talmo, 2011 WL 5335391, at *2 (“On a motion for summary judgment, the moving 

party bears the initial burden of showing that there are no material facts in dispute. If the moving 

party meets this burden, then the burden shifts to the non-moving party to set forth specific facts 

in its response to the motion for summary judgment that go beyond the bare allegations of the 

complaint.”).

53 GEM Mot. Summ. J. ¶¶ 6-8.

54 In re Asbestos Litig., 2007 WL 1651968, at *16 (“The moving party bears the initial burden of 

demonstrating that the undisputed facts support his claims or defenses. If the motion is properly 

supported, then the burden shifts to the non-moving party to demonstrate that there are material 

issues of fact for resolution by the ultimate fact-finder[.]”).
14

The only evidence in the record supporting Naughton’s claim that GEM is 

liable is his testimony that the “ambulance was green in color”55 and a CAD data 

entry showing that a GEM ambulance engaged in a call 6.4 miles away from the 

scene of the accident at the time the accident occurred.56 Naughton does not dispute 

the testimony provided by GEM’s corporate designee as to the location of the closest 

GEM big-box ambulance 6.4 miles away from the scene of the accident before and 

after the accident occurred.57 Rather, Naughton posits that material facts remain 

unresolved because there is no data available to show whether any of the five GEM 

ambulances in Delaware were within one mile of the scene of the accident on the 

day it occurred and because the data entry showing the location of the GEM 

ambulance 6.4 miles away from the scene of the accident was dependent on the 

ambulance driver accurately reporting his arrival and departure.58

Naughton attempts to create a genuine issue of material fact regarding whether 

the ambulance was GEM owned and operated by arguing that (1) GEM failed to 

provide evidence that another ambulance was operating within the area when the 

accident occurred; (2) GEM identified only one additional ambulance company in 

Delaware with green ambulances, but this company does not operate in the area 

55

 Am. Compl. ¶ 13; see Pl.’s Dep. Tr. 34:11-12.

56 GEM Mot. Summ. J. ¶ 8.

57 At oral argument on February 2, 2021, Naughton’s counsel stated that he has no reason to dispute 

the credibility of the testimony provided by GEM’s corporate designee.

58 Naughton’s counsel offered this theory at oral argument on February 2, 2021.
15

where the accident occurred; and (3) GEM was unable to show that any other 

ambulance company had been traveling to or from the closest hospital to the accident 

scene when the accident occurred.59 

These arguments do not satisfy Naughton’s burden to set forth facts showing 

the ambulance was a GEM ambulance.60 Naughton has not produced evidence to 

show that there may have been a GEM ambulance close to the scene of the accident 

when it occurred. He merely casts unsubstantiated assumptions on the evidence 

provided by GEM. 61 At this stage, it is Naughton’s burden, not GEM’s, to set forth 

facts showing that the ambulance was GEM owned and operated.62 Naughton has 

not produced sufficient evidence to show a genuine issue of material fact—in other 

words, evidence that could allow a reasonable jury to return a verdict in his favor.63 

For this reason, Naughton’s claim against GEM must fail.

V. CONCLUSION

For the forgoing reasons, the Court finds that Naughton has failed to 

demonstrate a genuine issue of material fact, and as such, Defendants are entitled to 

59 Pl.’s Response to GEM Mot. ¶¶ 4-10.

60 Kovach, 2000 WL 703343, at *1 (“The Court’s decision [on a motion for summary judgment] 

must be based solely on the record presented and not on all evidence ‘potentially possible.’”).

61 At oral argument on February 2, 2021, Naughton’s counsel conceded it is not GEM’s burden to 

prove the negative of Naughton’s argument.

62 Talmo, 2011 WL 5335391, at *2.

63 Gibson v. Metropolitan Grp. Prop. & Casualty Ins. Co., 2017 WL 5606714, at *3 (Del. Super. 

Nov. 15, 2017).
16

judgment in their favor as a matter of law. Consequently, Defendants’ Motions for 

Summary Judgment are GRANTED. 

IT IS SO ORDERED.

Jan R. Jurden

 Jan R. Jurden, President Judge

cc: Prothonotary