the City is not a signatory to an arbitration agreement in this case, but is subjected
to mandatory arbitration for subrogation matters under the statute. As there is no
written agreement to arbitrate between the parties, the plain language of this statute
does not appear to afford the City with an avenue for relief before the Court of
Chancery.””

GEICO next suggests that the City is deemed to be a signatory to arbitration
agreements pursuant to the Delaware Administrative Code. See 18 Del. Admin. C.
§§603(10.1); 603(10.2). GEICO’S argument has several flaws. First, Section 10.1
specifically refers to “insurers” and not self-insureds. Second, this section
addresses mandatory intercompany arbitration subject to “the insurance industry
forums” and self-insureds in Delaware are not required to arbitrate by statute with
the industry forum but rather with the Insurance Commissioner. Third, the statute
intentionally does not limit the rights of insurers and specifically carves out

obligations and positions of “signatory companies”.
8 Pp gnatory ip

° The Court of Chancery also has general jurisdiction to hear and determine matters and causes
in equity pursuant to 10 Del. C. §341. However, the Court of Chancery recognizes that it lacks
subject matter jurisdiction if there is an adequate remedy at law or if a sufficient remedy is
available by common law before another court or jurisdiction. 10 Del. C. §342. Gladney v. City
of Wilmington, 2011 WL 6016048, at *4-5 (Del. Ch. Nov. 30, 2011) (dismissing case when writ
of certiorari was better remedy for seeking review of inferior tribunal decision); Family Court v.
Dept. of Labor and Indus. Relations, 320 A.2d 777 (Del. Ch. 1974) (holding availability of full,
fair and complete legal remedy, such as a writ, when there is no right of appeal, will deprive the
court of jurisdiction),

14


jurisdiction. Curiously, although AFI had previously recognized that it lacked
subject matter jurisdiction over the dispute, AFI declined to reconsider its
judgment against the City and stated “AF is authorized to correct only those
decisions where a clerical or jurisdictional error was made by AF or the arbitrator.
Unfortunately, the issue you raised does not constitute a clerical or jurisdictional
error.”®

On September 23, 2015, the City filed an appeal with this Court from AFI’s
decision.© On August 29, 2016, the City filed a Motion to Convert to Writ of
Certiorari.’ On that same date, the City moved to consolidate this matter with Case
2 (summarized below).* On September 26, 2016, the Court granted the request to
consolidate.? To date, GEICO-Govt has not appeared in this matter nor filed a
response.

Civil Action No. N16C-05-261 (“Case 2”)

On December 14, 2015, GEICO Advantage Insurance Company (““GEICO-
AIC”) filed another subrogation lawsuit in the Court of Common Pleas against the

City that was subsequently voluntarily dismissed after the City again argued that

° Case 1, Docket No. 1, Exhibits,
® Case 1, Docket No. 1.
7 Case 1, Docket No. 6.
5 Case 1, Docket No. 7.

° Case 1, Docket No. 10; Case 2, Docket No. 17.
3


In any event, GEICO’s argument of improper service is not compelling.
GEICO relies upon a case that addressed service of a complaint upon the insurer,
not an appeal/writ where the insurer (such as GEICO) was the original moving
party as presented here.” In filing the matters with the Superior Court, the City
was responding to GEICO’s actions, rather than initiating its own actions. In
anticipation of pursuing an appeal, the City complied with then Superior Court
Civil Rule 72(c) which provided that notice of appeal shall be given by the
Prothonotary by mailing copies to all parties to the proceeding below, however, the
failure of the Prothonotary to give notice of the appeal shall not affect the validity
of the appeal. Further, pursuant to this rule, notification was to be given by
mailing a copy to the party’s attorney of record, or, if the party is not represented
by an attorney, then to the party at the party’s last known address. In addition, 8
Del. C. §321 also allows service upon an officer, director or registered agent of the
corporation. Notice of the appeal was given to GEICO, who was shown as
unrepresented below, by way of its registered agent and there is no dispute that
GEICO timely received actual notice of the City’s appeal. Delaware has adopted
the “modern view that, where possible and where there is no prejudice, appeals
should not be dismissed on technicalities.” Di’s, Inc. v. McKinney, 673 A.2d 1199,

1202 (Del. 1996). Converting the appeal to a writ of certiorari does not change the

3 See Shipley v. State Farm Mut. Auto. Ins. Co., 2006 WL 1096790 (Del. Apr. 24, 2006).

18


(Del. Supr., 1988). AFI’s refusal to consider the City’s arguments and recognize
the “jurisdictional error” was contrary to law.

Despite AFI’s prior decision that it did not have jurisdiction, the clear effect
of the statute, and the applicable legal authority demonstrating that the arbitration
was improper, GEICO asserts that the City should not be afforded any relief from
GEICO’s improper actions. It is evident however, that AFI did not have
jurisdiction to conduct the arbitration and a writ is an appropriate remedy under the
facts and circumstances presented in this case. Here, the Court can correct AFI’s
jurisdictional error without addressing the liability issues of the dispute.

Although the City originally filed appeals in the Superior Court in both
cases, it now moves to convert the appeals to petitions for writs of certiorari on the
basis that AFI lacked jurisdiction. GEICO correctly relies on City of Wilmington v.
Nationwide for its proposition that the City has no right of appeal.'* In City of
Wilmington v. Nationwide, this Court held that the Superior Court lacks subject
matter jurisdiction to hear an appeal from the mandatory arbitration statute.’
However, notably, this same decision buttressed the error of GEICO and AFI in
this matter and recognized that “[w]hen a self-insured entity is involved, the

dispute is resolved in the manner set forth for disputes involving insured persons —

8 Although this matter is presently on appeal, this Court will apply this decision and its holding
that, at this time, there is no right of appeal to the Superior Court under these circumstances.

'° City of Wilmington v. Nationwide, at * 4.
10


to a Writ of Certiorari.'? GEICO-AIC opposed the Motion to Convert!’ and oral
argument was held on August 9, 2016. At the conclusion of the hearing, the
parties were directed to submit supplemental briefing that is now complete."

CONCLUSIONS OF LAW

At the outset, it is important to note that jurisdiction to hear and determine
disputes between an insurer and self-insured has been specifically carved out by
statute and the correct forum for litigation of such disputes is mandatory arbitration
before the Delaware Insurance Commissioner, not AFI. The second clause of 21
Del. C. §2118(g)(3) provides that:

Disputes among insurers as to liability or amounts paid
pursuant to paragraphs (1) through (4) of subsection (a)
of this section shall be arbitrated by the Wilmington Auto
Accident Reparation Arbitration Committee or its
successors. Any disputes arising between an insurer or
insurers and a self-insurer or self-insurers shall be
submitted to arbitration which shall be conducted by the
Commissioner in the same manner as the arbitration of
claims provided for in subsection (j) of this section.

(emphasis added).'° See also State Farm Mut. Auto. Ins. Co. v. UPS, 2012 WL

1495338, at *1 (Del. Super., Apr. 30, 2012) (citing the definition of self-insured in

"2 Case 2, Docket No. 6.
3 Case 2, Docket No. 8.

'4 Although GEICO has not appeared in Case 1, the arguments in the City’s Motion to Convert
are almost identical to those raised in Case 2.


the appropriate forum to litigate the dispute was arbitration before the Delaware
Insurance Commissioner. Thereafter, and up through February 10, 2016, the
parties’ counsel engaged in back and forth communications including discussions
addressing whether the applicable statute, 21 Del. C. §2118(g)(3), directs
subrogation claims, such as the one brought by GEICO-AIC, to be arbitrated
before the Insurance Commissioner. During this time, unbeknownst to the City,
GEICO-AIC filed a claim with AFI on December 26, 2016 and obtained a decision
in its favor, by default, on February 17, 2016. Upon learning of the decision, the
City appealed to AFI and argued both a clerical error with respect to improper
service, as well as lack of jurisdiction. AFI denied the appeal on the basis that the
City should have raised the issue in response to the complaint.

This matter was then brought before this Court by way of a Notice of Appeal
filed by the City on May 26, 2016.'° Similar to Case 1, the City argues AFI lacked
jurisdiction over the City as a self-insured entity, and lacked jurisdiction over the
subject matter of the litigation, under the subrogation statute. On June 16, 2016,
GEICO-AIC filed a Motion to Dismiss the appeal in Case 2.'' The City filed an

Opposition to the Motion to Dismiss and simultaneously filed a Motion to Convert

"© Case 2, Docket No. 1.

"Case 2, Docket No. 2.


nature of the action in that such a writ is the functional equivalent of an appeal
differing only by being confined to the record.** After the notice of appeal was
filed in Case 2, service was made in a timely manner. GEICO was able to swiftly
move to dismiss the appeal, and to object to the motion to convert. GEICO has not
demonstrated any prejudice with respect to service in Case 2 and has not moved to
dismiss for improper service in Case 1. Upon conversion of the appeal to a writ of
certiorari, the Court may issue the writ and service should be made as appropriate
under the applicable statutes and rules of the Court. GEICO’s motion to dismiss
should be denied for these reasons as well.

For all the foregoing reasons, it is recommended that GEICO’s Motion to
Dismiss be DENIED, and the City’s Motions to Convert to a Writ of Certiorari be

GRANTED.

oc: Prothonotary
Susan A. Fruehauf, Esquire
Christofer C. Johnson, Esquire
Amanda T. Dobies, Esquire

*4 Di’s, Inc. v. McKinney, 673 A.2d 119, 1202 (Del. 1996).
19


the benefits afforded to an “insured person,” not to make a finding that the City
was for all purposes an “insurer.” In its decision, the Court repeatedly recognized
the City’s status as a “self-insured entity.”'’ Furthermore, GEICO has not offered
anything to support an inference that the City of Wilmington — a governmental
entity — is anything other than a “self-insured” entity or that it meets the definition
of an “insurer”.

Therefore, the proper forum for the underlying litigation — a dispute between
an insurer and a self-insured entity — was arbitration before the Delaware Insurance
Commissioner, not AFI. Indeed, AFI recognized it was not the proper forum when
it granted the City’s motion to dismiss for lack of jurisdiction. Incredulously, even
after AFI issued a decision dismissing GEICO’s application for lack of
jurisdiction, GEICO simply re-filed the same complaint with AFI. AFI then erred
when it assumed jurisdiction over the underlying disputes. AFI again erred later
when it refused to allow the City to present the jurisdictional argument on the basis
that the City had not raised it as an affirmative defense. “Subject matter
jurisdiction, which comprises a tribunal’s authority to hear the claim before it,
cannot be waived by the parties.” Canal Ins. Co. v. Donovan, 1997 WL 817881, at

*3 (Del. Super., June 6, 1997) citing Sternberg v. O'Neil, 550 A.2d 1105, 1109

"7 See e.g., City of Wilmington v. Nationwide, at * 2 (“entities that are self-insured, such as
Wilmington...”), and *4 (“[a]ll parties concede that Wilmington is a self-insured entity...”).


IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

INSURANCE COMPANY, a
Foreign Corporation,

CITY OF WILMINGTON, )
)

) C.A. No. N16C-05-261 PRW

Plaintiff, ) Consolidated

)
v. )
)
GEICO ADVANTAGE )
)
)
)
)

Defendant.

CITY OF WILMINGTON,

Appellant/
Defendant Below,

V.

GEICO GOVERNMENT
EMPLOYEES INSURANCE
COMPANY,

Appellee/
Plaintiff Below.

SSS SS HS HS HS WS HS YS GS

Submitted: September 26, 2016
Decided: November 22, 2016

COMMISSIONER’S REPORT AND RECOMMENDATION THAT
DEFENDANT’S MOTION TO DISMISS BE DENIED AND PLAINTIFF’S
MOTIONS TO CONVERT TO WRIT OF CERTIORARI BE GRANTED


power or the declaration of an improper remedy behind all inferior tribunals.”
However, review on a writ of certiorari is different from review on appeal. With a
writ of certiorari, review is on the record without weighing the evidence or
reviewing the lower tribunal’s factual findings.”> The record is reviewed to
determine “whether the lower tribunal exceeded its jurisdiction, committed errors
of law, or proceeded irregularly.”** While reviewing the conduct of the lower
tribunal, a decision will be reversed on jurisdictional grounds if the record fails to
show that the matter was within the lower tribunal’s personal and subject matter
jurisdiction.” In reviewing an application for a common law writ, an arbitration

panel is considered a lower tribunal.”

2 Drake v. State, 2010 WL 3706874 (Del. Super., Sept. 14, 2010), at *3, citing Maddrey, 956
A.2d at 1214; Dover Historical Soc’y v. City of Dover Planning Comm'n, 2004 WL 1790164, at
*6 (Del. Super., July 30, 2004) (“A writ of certiorari’s purpose is to correct errors of law, to
review proceedings not conducted according to law, and to restrain an excess of jurisdiction”);
Shoemaker y. State, 375 A.2d 431, 437 (Del. 1977) (recognizing function of certiorari is to
provide a remedy to a party alleging a lower court had acted without or in excess of its
jurisdiction or without compliance with the requirements of law).

23 Adijile v. City of Wilmington, 875 A.2d 632, at *2 (Del. 2005).

** Td (internal citations omitted).

>5 Jordan y. Town of Milton, 2012 WL 5494667, at *3 (Del. Super., Oct. 31, 2012), quoting
Christiana Town Center v. New Castle County, 2004 WL 2921830, at * 2 (Del., Dec. 16, 2004).

26 Fouracre v. White, 102 A. 186, 196 (Del. Super. 1917) (recognizing the great weight of
authority that a writ can issue against inferior courts and tribunals whose duties are judicial or
quasi judicial); Family Court v. Dept. of Labor and Indust. Relations, 320 A.2d 777 (Del. Ch.
1974) (interpreting writ of prohibition to apply to inferior judicial tribunals and quasi-judicial

tribunals). See also, LG Electronics, Inc. y. Interdigital Commc’n, Inc., 98 A.3d 135 (Del. Ch.
2014) (finding the term “tribunal” to be broad enough to include arbitral tribunals), aff'd 114

A.3d 1246. Woolley’s Practice in Civil Actions, Vol. 1, §896 (providing that the scope of the

12


arbitration before the Commissioner.” /d. at *2. GEICO cherry-picks from
controlling case law and asks this Court to rely on this case to deny the City’s right
of appeal but to turn a blind eye to the remainder of this decision that the proper
forum was before the Insurance Commissioner and not AFI. Indeed, AFI
recognized that it lacked statutory jurisdiction over the City, as a self-insured. It is
hard to comprehend why AFI would refuse to later correct its own “jurisdictional
error.” Regardless, both GEICO and AFI seem to have disregarded the applicable
jurisdictional limitations.

The question though is whether this Court can afford relief in the form of a
writ of certiorari. Section 562 of Title 10 provides that the Superior Court may
frame and issue all remedial writs, including writs of habeas corpus and certiorari,
or other process, necessary for bringing the actions in that court to trial and for
carrying the judgments of the Court into execution. The Superior Court has the
power to grant a writ of certiorari if (1) the judgment below is final;?° and (2) there
is no other available basis for review.?' Review by writ of certiorari allows the

court to confirm an irregularity in asserting jurisdiction, an improper exercise of

»° The parties do not dispute that the judgment at issue here is final.

2! Drake v. State, 2010 WL 3706874, at *3 (Del. Super., Sept. 14, 2010), citing, Maddrey v.
Justice of the Peace Court 13,956 A.2d 1204 (Del. 2008).

11


the Arbitration Forum Rules and recognizing that the proper venue for the dispute
was arbitration by the Insurance Commissioner, not AFI); New Hampshire Ins. Co.
v. State Farm Ins. Co., 643 A.2d 328, 329 (Del. Super. 1994) (observing that the
second clause of Section 2118(g)(3) requires a dispute between an insurer and a
self-insurer, to be conducted by the Insurance Commissioner rather than the
industry forum (AFI)).

The Court will first address the City’s status as a self-insured entity and the
implication that the underlying disputes fall within the scope of the second clause
of the statute. GEICO relies on City of Wilmington v. Nationwide Ins. Co., 2016
WL 3129421 (Del. Super., May 25, 2016),'° to argue that the City should be
treated as an “insurer” and not a “self-insured.” Although the Court in this case
stated that the City “is treated as an insurer for the purpose of mandatory
arbitration under the Subrogation Statute,” it is evident from the decision that the
term “insurer” here was used solely for the purpose of differentiating between an
“insurer/self-insured” ~ subject to mandatory arbitration, and an “insured person” —
for whom the arbitration statute is optional. /d. at *2, 3. In other words, the

purpose of the discussion was to support a finding that the City does not receive

'S AF] is the successor to the Wilmington Auto Accident Reparation Arbitration Committee,
Williams v. AAA Mid-Atlantic Ins. Grp., 2011 WL 5299239 (Del. Super., Mar. 14, 2011).

'6 This matter is currently pending on appeal before the Supreme Court of Delaware, Case No.
318,2016.


the grounds that the court lacked jurisdiction and argued that pursuant to 21 Del. C.
§2118(g)(3) the proper forum for a dispute between an insurer (GEICO-Govt) and
a self-insured entity (the City) is arbitration before the Delaware Insurance
Commissioner. The Court of Common Pleas granted the motion and dismissed the
matter without prejudice to it being re-filed in the appropriate arbitration venue.

On October 20, 2014, without notice to the City’s counsel, GEICO-Govt re-
filed its complaint by commencing a subrogation action against the City before
Arbitration Forums, Inc. (“AFI”) ~ not the Insurance Commissioner. Upon
learning of the filing, the City again moved to dismiss the matter arguing AFI
lacked jurisdiction because the complaint should have been brought before the
Insurance Commissioner. On February 9, 2015, AFI dismissed the filing and
upheld the City’s affirmative defense of lack of jurisdiction.‘

In complete disregard for AFI’s ruling, and again without notice to the
City’s counsel, GEICO-Govt re-filed its previously dismissed complaint with AFI.
The City claims it did not receive notice of this new complaint nor afforded an
opportunity to respond. On July 2, 2015, an adverse judgment was entered by
default against the City in the amount of $25,000.00. When the City learned of the
decision, it filed a request for reconsideration with AFI and moved to vacate the

decision on the basis that, consistent with AFI’s previous decision, it lacked

4 Case 1, Docket No. 6, Exhibit F.


The case law cited by GEICO also does not advance its position because the
cases relied upon involved parties that had entered into a written agreement to
arbitrate.*° GEICO also cites heavily to Zurich Am. Ins. Co. v. St. Paul Surplus
Lines, 2009 WL 4895120 (Del. Ch. Dec. 10, 2009). However, in that case the
Court of Chancery held that although AFI’s decision was contrary to the legislative
intent, the arbitrator did not exceed his authority or materially abuse his discretion
because his decision was consistent with the AF PIP Arbitration Rules and the AF
PIP Agreement applicable to the matter. Jd. at *9, The Court of Chancery also
recognized that “the Delaware Legislature has provided that, in a case such as this,
the Court of Chancery may only vacate or modify arbitral decisions pursuant to the
limited authority found in the Delaware Uniform Arbitration Act.” 7d. at *4.

In contrast, in rendering its decisions below, AFI exceeded its jurisdictional
authority because neither the AFI’s arbitration procedures, nor the statute,

conferred jurisdiction upon AFI to hear the underlying matters.’' These matters

* See Ruggiero v. State Farm Mut. Auto. Ins. Co., 1999 WL 499459 (Del. Ch., June 23, 1999);
New Hampshire Ins. Co. v. State Farm Ins, Co., 643 A.2d 328 (Del. Super. 1994), GEICO also
cites State Farm Mut. Auto. Ins. Co. v. Adamson Car & Truck Rental d/b/a Budget Rent a Car of
Birmingham, 2011 WL 2178638 (Del. Super., May 31, 2011), for the proposition that this Court
has already held that self-insurers are required to submit to arbitration before AFI on subrogation
claims. The Court’s discussion on this issue was purely “academic” and not an issue in the case.
Thus, this case is not controlling of the issues presented here.

*! See State Farm Mut. Auto. Ins. Co. v. UPS, 2012 WL 1495338, at *1 (Del. Super. Apr. 30,
2012) (quoting AFI’s rules that a self-insured entity is “an entity that meets the state
requirements of being self-insured, one that assumes the risk directly for covering losses
involving its property, or one whose deductible or retention is equal to or exceeds the amount of
loss in dispute” and AFI’s determination that it lacked jurisdiction over the self-insured entity).

15


to serve the Insurance Commissioner. In Case 1, although it is questionable
whether service was ever properly made to the City, it is undisputed that GEICO
never notified the City’s counsel of the pending arbitration even though
discussions were ongoing with respect to this very issue. In Case 2, the City again
contends that service was improper below. It is also disturbing that GEICO was
engaged in communications with the City for months, while the AFI arbitrations
were pending, and yet appears to have never brought the complaints or the pending
arbitrations to the attention of the City’s counsel. Despite this, and the implication
that the City may not have received service at all, let alone, properly made, GEICO
now argues that service upon it on appeal was improper. The irony cannot be
overlooked.

Pursuant to 18 Del. C. §524, GEICO, as an insurer, was required to appoint
the Insurance Commissioner as its attorney to receive service of legal process
issued against it. 18 Del. C. §524(a). Service of process against a foreign insurer
shall be made only by service thereof upon the Commissioner. 18 Del. C. §524(c).
However, service upon a domestic insurer may be made in any other manner
provided by law. 18 Del. C. §524(d). Interestingly, if GEICO’s argument that the
City is an “insurer” is correct, then the Court questions whether service upon the
City by mail, care of the “Claims Department”, which the City attests does not

exist, was properly made by GEICO when it filed the complaints with AFI.

17


This 22nd day of November 2016, upon consideration of the issues

presented in these matters,' it appears to the Court that:
INTRODUCTION

The facts and history of these cases are set forth below and present a
troubling set of circumstances. It is evident from a review of the record that the
lower tribunal lacked subject matter jurisdiction over the parties’ disputes. Despite
this, the lower tribunal not only assumed jurisdiction after previously
acknowledging it was lacking, but GEICO? would have this Court deny the City of
Wilmington any avenue for review. For the reasons discussed herein, GEICO’s
Motion to Dismiss is denied and the City’s Motions to Convert to a Writ of
Certiorari are granted.

FINDINGS OF FACT & PROCEDURAL HISTORY

Civil Action No. N15C-09-218 (“Case 1”)

On April 14, 2014, GEICO- Government Employees Insurance Company
(“GEICO-Govt”) filed a subrogation lawsuit against the City of Wilmington (the

“City”), in the Court of Common Pleas.’ The City moved to dismiss the lawsuit on

' Civil Action No. NI5C-09-218 was consolidated with Civil Action No. N16C-05-261.

> Although the GEICO entities involved in these two matters appear to be two separate entities,
where appropriate, they are collectively referred to as “GEICO”.

° The facts for Case 1 were primarily taken from the City’s Motion to Convert to Writ of
Certiorari.


Sarah A. Fruehauf, Esquire, and Christofer C. Johnson, Esquire, Assistant City
Solicitor, Louis L. Redding City/County Building, 800 French Street, 9"" Floor,
Wilmington, Delaware

Amanda T. Dobies, Esquire, The Law Office of Dawn L. Becker, Citizens Bank
Center, 919 Market Street, Suite 725, Wilmington, Delaware

Commissioner, Mayer


Before a writ can be granted though, the Court needs to examine whether the
City had any other available avenue for relief. As set forth above, under the
present legal authority, the City could not have filed an appeal. However, GEICO
argues that the City could have sought relief from the Court of Chancery pursuant
to 10 Del. C. §§5714 and 5715.

Pursuant to 10 Del. C. §5714, “[u]pon complaint...the Court [of Chancery]
shall vacate an award where...the arbitrators exceeded their powers, or so
imperfectly executed them that a final and definite award upon the subject matter
submitted was not made.”’’ The City though argues that Section 5714 is part of
Chapter 57 which governs the Uniform Arbitration Act, and thus the statute only
applies to situations where the parties have agreed to arbitrate. The City’s
argument is persuasive. At its inception, and throughout Chapter 57, the statute

repeatedly refers to written agreements to arbitrate.® There is no dispute here that

remedy of a writ of certiorari extends to and embraces inferior legal tribunals having the power
to determine legal rights and being capable of committing legal error).

27 See also, Ruggiero v. State Farm Auto. Ins. Co., 1999 WL 499459 (Del. Ch., June 23, 1999)
(holding that arbitrator’s award can be vacated if arbitrator exceeded its powers, there was
material procedural abuse, or lack of binding obligation to arbitrate); Zurich Am. Ins. Co. v. St.
Paul Surplus Lines, 2009 WL 4895120 (Del. Ch., Dec. 10, 2009) (finding that arbitrator’s
decision may be overcome by strong and convincing evidence that the arbitrator clearly
exceeded or imperfectly executed her authority).

28 See, 10 Del. C. §5701 referring to “[a] written agreement to submit to arbitration...”; and 10
Del. C. §5702(a) bestowing jurisdiction for an “agreement described in §5701 of this title
specifically referencing the Delaware Uniform Arbitration Act [§ 5701 et. seq. of this title] and
the parties’ desire to have it apply to their agreement....”.

13


involve a self-insured entity, subject to the second clause of Section 2118(g)(3), an
arbitrator that exceeded its jurisdictional authority (after recognizing it lacked
jurisdiction), and a situation that is not clearly subject to the Court of Chancery’s
limited powers to vacate or modify decisions under the Delaware Uniform
Arbitration Act. Therefore, GEICO has failed to persuade the Court that the City
could have sought relief from the Court of Chancery.

In summary, this Court may issue a writ of certiorari when appeals are
prohibited on other grounds, and the party has no other avenue for relief.” A this
time, the City cannot appeal the AFI decisions and GEICO has not established that
the City has any other available means to seek relief from the AFI decisions.
Based upon the facts and circumstances presented here, the City should be afforded
relief under the limited circumstances of review under the common law writ of
certiorari. Therefore, the Motions to Convert should be granted and the Motion to
Dismiss denied.

Lastly, GEICO, who never gave the City’s attorney notice of the pending
arbitration proceedings, moved to dismiss the appeal in the Superior Court with
respect to Case 2 for insufficiency of service of process (but did not so move in

Case 1) and argues that service upon GEICO was improper because the City failed

» Drake v. State, 2010 WL 3706874, at *4 (Del. Super. Sept. 14, 2010) (finding that a writ may
be issued even though the court generally lacks jurisdiction to hear an appeal from a board);
Shoemaker vy, State, 375 A.2d 431, 438 (Del. 1977) (allowing writ of certiorari proceedings when
Superior Court properly refused to consider the case on appeal).

16