IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

KEVIN MCDONALD and : HILLARY MCDONALD, his wife : CIVIL ACTION : : Plaintiffs, :

: C.A. No.: N22C

- 02

- 204 FJJ v. : : GOVERNMENT EMPLOYEES : INSURANCE COMPANY (GEICO) : : : Defendant. :

Submitted: October 27, 2023 Decided: November 3 , 2023

OPINION AND ORDER
On the Parties ’ Cross Motions for Summary Judgment
Plaintiffs’ Motion GRANTED ; Defendants’ Motion DENIED

Bernard A. Van Ogtrop, Esquire, and Jared Green, Esquire, Wilmington, Delaware , Attorney

s for Plaintiffs Robert J. Cahall, Esquire, Newark, Delaware, Attorney for Defendant

Jones, J.1

This case involves a claim for Uninsured/ Underinsured Motorist b enefits (“UM/UIM”) under a policy issued to the P laintiffs, Kevin and Hillary McDonald (“Plaintiffs”) , by Government Employees Insurance Company (“GEICO”)

. The present issue before the Court is the parties’ C ross M otions for S ummary
J udgment on whether the P laintiffs may reform the policy to increase the UM/UIM

coverage to match the liability coverage. The question is whether GEICO
communicated to P laintiffs a meaningful offer of UM/UIM coverage up to the limits of their liability policy.
For the reasons stated below , this Court finds that GEICO did not make a meaningful offer of UM/UIM coverage to the P laintiffs and that the P laintiffs are
entitled to have t he policy reformed. GEICO’s Motion for Summar y Judgment is
DENIED

. Plaintiffs’ C ross M otion for Summary Judgment is GRANTED as to the
reformation issue

. STANDARD OF REVIEW Summary judgment is appropriate when the record “shows there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter
of law.” 1 The moving party bears the burden of establishing the nonexistence of
material issues of fact. 2 The burden then shifts to the nonmoving party to establish

1 Del. Super. Ct. Civ. R. 56(c). 2 See Moore v. Sizemore , 405 A.2d 679, 680 (Del. 1979).2

the existence of material issues of fact. 3 In considering the motion, the Court must
view the e vidence in a light most favorable to the nonmoving party and accept the nonmovant’s version of any disputed facts. 4
These well

- established standards and rules for summary judgment apply in full when the parties have filed cross

- motions for summary judg ment. 5 Cross

motions for summary judgement “ are not per se ” concessions that no material factual disputes exists. 6 But where cross

- motions for summary judgment are filed , and neither party argues the existence of a genuine issue of material fact, “ the Court shall deem the motions to be the equivalent of a stipulation for decision on the merits
based on the record submitted with them. ” 7 So, the questions before this Court are questions of law not fact, and the parties , by filing cross motions for summary judgment , have in effect stipulated that the issues raised by the motions are ripe for
a decision on the merits. 8
FACTS The parties have filed a stipulated set of facts which reveal the following :

3 See I d. at 681. 4 See Merrill v. Crothall

- American, Inc. , 606 A.2d 96, 99

- 100 (Del. 1992) (internal citations omitted). 5 Spivey v. USAA Ca sualty Ins. Co ., 2017 WL 3500402, at *4 (Del. Super. Aug 15, 20 1 7). 6 Unites Vanguard Fund, Inc. v. TakeCare, Inc

. , 693 A.2d 1076, 1079 (Del. 1997). 7 Del. Super. Ct. Civ. R. 56(h)

. 8 Id

.3

Plaintiffs have been insured by GEICO since November 22, 2013. In
November 2013 , P laintiffs elected liability coverage in the amount of $100,000/$300,000 and UM/UIM coverage in the amount of $25,000/$50,000.
After the in itial sign up with GEICO , all of Plaintiffs’ interactions with
GEICO , with respect to any material changes in the policy , w ere conducted online. On December 31, 2020 , a 2021 Mazda CX

- 5 was added to the policy. This
addition of the Mazda constituted the last material change to the policy prior to the motor vehicle accident of November 30, 202 1 that is at issue in this case. On or about January 1, 2021 , Kevin McDonald received email notification that his updated auto paperwork was being made available to him through his online
GEICO account , containing a link which, when selected, would allow the policyholder to review the corresponding insurance policy documents at the online
GEICO account. Once this link was utilized , Mr. McDonald was able to access and
review a document 9 that was 25 pages in length. The first 6 pages of the document contained a letter and the relevant insurance cards. Pages 7 through 9 contained the Declaration sheet. Page 1 2 and 1 3 contained the following document 10 :

9 See Kevin McDonald, et. al. v. GEICO , Exhibit H (Jan. 1, 2021). 10 See Kevin McDonald, et. al. v. GEICO , Exhibit H, at 12

- 13 (Jan. 1, 2021).46

Page 16 contained the following document 11 :

11 See Kevin McDonald, et. al. v. GEICO , Exhibit H, at 1 6 (Jan 1, 2021).7

The remaining pages contained additional material that is not relevant to the
instant motion.

18 Del
. C
. § 3902(b) and the “Meaningful Offer” Standard
18 Del

. C. § 3902(b) provide s in part :

Every insurer shall offer to the insured the option to purchase additional coverage for personal injury or death up to a limit of $100,000 per person and $300,000 per accident or $300,000 single limit, but not to exceed the limits for bodily injury liability set forth in the basic policy. Such additional insurance shall include underinsured bodily injury liability coverage. 12
Where the insured has liability limits above the minimum required under
Delaware law , an insurer has an affirmative duty to offer UM/UIM coverage in the same amount as the liability coverage. 13 When an insured makes a material change to the policy , § 3902(b) requires the insurer to make another offer of additional coverage beyond what the insured had already purchased. 14 Changing or adding vehicles to a policy is considered a material change. 15 If the offer language is challenged, the insurer bears the burd en of demonstrating compliance with § 3902(b). 16 To carry this burden, the insurer must demonstrate that the offer included: (1) the cost of the additional coverage; (2) a

12 18 Del

. C

. § 3902(b)

. 13 Shukitt v

. USAA , 2003 WL 22048222 (Del

. Super

. 2003)

. 14 State Farm Mut

. Auto

. Ins. Co. v. Arms , 477 A

. 2d 1060, 1065 (Del

. 1984) ; Mason v. USAA , 697 A

. 2d 388, 394 (Del. 1997); Vera v. Progressive Northern Insurance Company , 286 A

. 3d 967, 986

- 987 (Del. Super. 2022). 15 Shukitt , 200 3 WL 22048222; Patilla v. Aetna Life & Casualty Co ., 1993 WL 189473 (Del

. Super

. 1993). 16 Shukitt, 2003 WL 22048222 , at *3.8

communication to the insured which clearly offers UM/UIM coverage; and (3) an
offer for UM/UIM is made in the same manner and with the same emphasis as the insurer’s other coverage. 17 If the insurer cannot meet this burden, then Delaware courts treat the offer as a continuing offer for additional coverage, which the insured may accept , even after the insured’s accident. 18 It is presumed that the policyholder would accept the coverage. 19 Thus, if no meaningful offer has been made, the Court must reform the policy to increase the policyholder’s UM/UIM coverage to match
the liability coverage limits. 20
Several cases have addressed what constitutes a meaningful offer. The leading case is Mason v

. USAA

. 21 In Mason , the Supreme Court held that USAA
fa i led to satisfy its burden of proving that it made a meaningful offer for add itional UM/UIM coverage. 22 USAA sent a 50

- page insurance renewal packet to the insured every six months. 23 The Supreme Court found that USAA’s offers were ambiguous
because of the location of the offers in the packet , as well as , the offer’s lack of emphasis. 24 Of relevance to the instant case , the Supreme Court in Mason wrote:

“ The relevant language was not in a separate section nor highlighted in any manner, but loosely spread throughout eight pages of text. Mos t importantly, t he text (did) not

17 Shukitt, 2003 WL 22048222; Hudson v. Colonial Penn In s. Co ., 1993 WL 331168 , at *7 18 Id

. 19 Id

. 20 Id

. 21 Mason v. United Service Auto. Ass’n

. , 697 A

. 2d 388 (Del. 1997)

. 22 Id . at 394. 23 Id . at 390. 24 Id . at 39 4

.9 clearly state that an offer of additional insurance (was) being made. Rather the materials merely obliquely indicated that additional coverage was available. ” 25 Knapp v

. USAA 26 and Shukitt v

. USAA 27 followed Mason

. Both Knapp and
Shukitt turned on the lack of a clear offer. In Shukitt , Judge Slights recognized that , while the language was not buried in the paperwork as it was in Mason , the language failed to contain a clear offer of additional coverage. 28 Judge Slights wrote:

“ ...[m]ost importantly, the text [did] not clearly state that an offer of additional insurance [was] being made.” The court considered these deficiencies in the context of the doctrine of contra proferendum : “[if] an insurance contract is ambiguous (as here) it must be construed against the insurance carrier that drafted it.” 29
In contra st to the trio of the USAA cases cited above are the decisions in
Brin tzenhoff v

. Hartford Underwrites Ins

. Co

. 30 and Spivey v USAA 31 . In Brintzenhoff

, the Court found that the carrier had met its burden because the language sent to the policyholder stated in bold print that Hartford recommended that its policyholder include UM/UIM coverage in his policy at limits equal to his liability limits. 32 Simila rly, in Spivey , the Court found that the carrier had met its

25 Id. 26 Knapp v. United Service Auto. Ass’n. , 1997 WL 719340 (Del. Super. 1997). 27 Shukitt , 2003 WL 22048222

. 28 Id . at *4. 29 Id. 30 2004 W L 2191184 (Del . S uper
. 2004)

. 31 2017 WL 3500402 (Del

. Super

. 2017)

. 32 Brintzenhoff

, 2004 WL 2191184 , at *3.10

burden because in the “UM coverage selection options section” it said “ we offer the following limits for UM. ” 33 Having the benefit of this guidance , I now turn to the materials involved in
the in stant case. There is no question that GEICO advised the P laintiffs of the cost of the additional UM/UIM coverage. The question is whether the materials in the December 31, 2021 email made it clear that an offer was being made. There is simply no language in the GEICO documents , as in Brintzenhoff or Spivey , that says an offer was being made. There is no “recommendation , ” nor is there language that
it is an “offer .” The language used by GEICO is more akin to the language in Mason , Knapp , and Shuk

itt . GEICO’s language is merely a succinct recitation of the requirements of § 3902(b) , with no clear recitation that an offer of additional coverage was being made. In short, a clear offer is lacking. Given the lack of a clear offer being made , this C our t must conclude that GEICO did not comply with the requirements of § 3902(b). As such , P laintiffs are entitled to reform their UM/UIM coverage to $100,000/$300,000 , which would be applicable to the accident in question.

33 Spivey , 2017 WL 3500402 , at *7.11

IT IS SO ORDERED

.

/s/ Francis J. Jones, Jr. Francis J. Jones, Jr., Judge

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