IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

NEYDA GARCIA GALARZA, ) Individually and as Guardian Ad Litem for ) KARLA GALARZA and MARIA B. ) CEBRERO

- GARCIA, ) ) Plaintiffs, ) v. ) C.A. No. N18C

- 04

- 091 CEB ) LEE DAVID OLMSTEAD, ) MOISES GARCIA

- CASTELLANOS and ) NATIONWIDE PROPERTY & ) CASUALTY INSURANCE COMPANY , ) ) Defendants. )

Submitted: January 13 , 2020 Decided: April 19 , 2020
MEMORANDUM OPINION Defendant Nationwide Property & Casualty Insurance Company’s

Motion for Summary Judgment. GRANTED
. Jonathan B. O’Neill, Esquire, KIMMEL, CARTER, ROMAN, PELTZ & O’NEILL, P.A., Christiana, Delaware

. Attorney for Plaintiff s
. Amy M. Taylor, Esquire, HECKLER & FRABIZZIO, Wilmington, Delaware

. Attorney for Defendant Lee David Olmstead.
Moises Garcia

- Castellanos, Wyoming, Delaware. Pro Se Defendant. Donald M. Ransom, Esquire, CASARINO CHRISTMAN SHALK RANSOM & DOSS, P.A, Wilmington, Delaware. Attorneys for Def endant Nationwide Property and Casualty Insurance Company. BUTLER, R. J.2 FACTS AND PROCEDURAL HISTORY This dispute is really about insurance coverage, so let us begin there.
Moises Garcia

- Castellanos (“ Husband ”) and Neyda Garcia Galarzo (“ Wife ”)

are married with one Child

. Husband and Wife had an auto insurance policy with
Nationwide Insurance. Nationwide and Husband came to a parting of the ways, causing Nationwide, Husband and Wife to write a “named driver exclusion” into the insurance policy whereby Husband was excluded from coverage under the policy, thus making wife the only insured driver

. 1 The policy’s “Authorization to Exclude a Driver” stated: “the company has agreed to issue or continue coverage . . . provided that coverage is exclude d while: Moises Garcia is operating any of the vehicles to which the policy applies.” 2 Notwithstanding his absence on the auto insurance policy, Husband was driving the family vehicle with the insured Wife and Child in the car when
Husband ’s negligent driving caused an accident in which Wife and the Child were injured.

1 While no mention of why this exclusion was applied to Husband is made in these pleadings, such exclusions typically follow a bad driving record of a particular driver in the household. 2 Compl., Ex. E, D.I. 65853541.3

The second car was driven by Lee David Olmstead , but save for his participation in the accident, he is not relevant to this motion. It is conceded for our purposes that Husban d ’s negligence was the sole cause of the collision.
Wife and Child have sued Husband , the uninsured driver, for uninsured motorist coverage under Wife ’s policy for the injuries suffered by Wife and Child

. ISSUE PRESENTED
Defendant Nationwide moves for summary judgment, arguing that Nationwide is not required to provide uninsured motorist benefits for the conduct of
the excluded driver. In response, Wife and Child argue summary judgment is inappropriate because Nationwide is relying on an exclusion from coverage that is
unenforceable as a matter of Delaware law

. STANDARD OF REVIEW This Court will grant summary judgment where “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter
of law.” 3 The moving party bears the initial burden of showing that the undisputed facts make judgment appropriate. 4 If the burden is satisfied, the burden shifts to the

non
- moving party to demonstrate that there are material issue s of fact that must proceed to trial. 5

3 Super. Ct. Civ. R. 56(c). 4 Moore v. Sizemore , 405 A.2d 679, 680 (Del. 1979). 5 Brzoska v. Olson , 668 A.2d 1355, 1364 (Del. 1995).4 ANALYSIS In order to get to the heart of the matter, we will assume that the reader is familiar with the basics of Delaware’s “no fault” auto insurance law, by which all motorists on Delaware roads are required to c arry insurance against liability in the event they are responsible for injuries to others. 6 It is called “no fault” because th e insurance mandated by the statute also covers injuries to the policy holder in the event the driver himself is negligent. 7
Th is dispute is a layer beyond the ordinary: what happens when a policy holder is injured by a hit and run driver? Or a driver who is himself uninsured? To protect policy holders from such a risk, 18 Del. C

. § 3902 require s the insurance company to offer u ninsured motorist coverage ; that is, the policy purchased by the insured must offer the option for the policy holder to cover the risk of being injured by a driver who is not insured. That coverage, however, is not mandatory and the policy holder may opt out of uninsured motorist c overage, so long as doing so is clearly indicated in the policy documents. 8 On the other hand, when the policy holder elects uninsured motorist coverage, it is presumed that the purpose of the coverage is to protect the innocent policy holder from damage s caused by unknown

6 21 Del. C. § 2118(a)(1). 7 21 Del. C. § 2118(a)(2). 8 18 Del. C. § 3902

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or impecunious negligent tort

- feasors and limitations on such protection are narrowly construed. 9 The permissibility and scope of exclusions from coverage under an uninsured motorist provision have been disputed from time to time. For example, in Frank v.
Horizon Assur. Co. the Delaware Supreme Court held that Horizon could not exclude the policy holder from relief under her uninsured motorist policy with Horizon just because she had a similar policy on a different vehicle with a diffe rent insurance company which was in an accident with an uninsured driver. 10 In State
Farm Mut. Auto Ins. Co. v. Abramowicz , the plaintiff sought uninsured motorist coverage for injuries she sustained when she veered to avoid a driver that fled the

scene. The insurance company attempted to limit uninsured motorist coverage by pointing to a policy provision that limited uninsured motorist coverage to drivers
that actually struck the insured vehicle. The Supreme Court voided the contractual provision of the policy, saying it unlawfully limited the scope of the uninsured
motorist coverage required by the statute

. 11

9 See, e.g., Lomax v. Nationwide Mut. Ins. Co., 964 F.2d 1 3 43 , 1346 (3d Cir. 1994); Miller v. State Farm Auto Ins. Co., 993 A.2d 1049 , 1053

- 54 (De l . 2010); Bryant v. Progressive Northern Ins. Co. , 2008 WL 4140686 , at *3 ( Del. Super. Jul. 28, 2008),
rear g., denied , 2008 WL 4899419 , at *1 (Del. Super. Sept. 16, 2008). 10 553 A.2d 1199 , 1200 (De l . 1989)

. 11 386 A.2d 670 , 674 (De l . 1978)

.6

18 Del. C. § 3909 authorizes named driver exclusions, which ensure continued coverage of an automobile where the driving record of a household member warrants

non
- issuance or cancellation of a policy

. 12 Delaware’s driver exclusion statute
allow s an insurance carrier to withhold coverage from individuals who pose an unreasonably high risk of liability to the carrier. 13
But even named driver exclusions are read narrowly, as we see in the case of
State Farm Mut

. Ins. Co. v. Washington

. 14 In Washington , the son of Mr. Washington was excluded by name from his father’s insurance policy. The son was injured while driving his aunt’s c ar and the injury was caused by the negligence of
the other driver. He sought coverage as a member of his father’s household. The Supreme Court repudiated State Farm’s arg ument that the son could not recover because he was a named driver excluded from coverage under the policy. Washington thus had some of the elements before us, but not all of them. Wife
and Child , like Washington, were innocent victims. But unlike Was hington , the
named excluded driver was the tort

- feasor. Indeed, Husband makes no claim of a right to insurance coverage in this case. Adding to the mix, 18 Del. C. § 3909 (c) provides that :

12 18 Del. C. § 3909; State Farm Mut

. Ins. Co. v. Washington , 641 A.2d 449, 451

- 52 (Del. 1994)

. 13 State Farm Mut

. Ins. Co. v. Washington , 1993 WL 1626510, at *6 (Jun. 29, 1993). 14 641 A.2d at 451.7

With respect to any person excluded from coverage under thi s section, the policy may provide that the insurer shall not be liable for damages, losses or claims arising out of this operation or use of the insured motor vehicle, whether or not such operation or use was with the express or implied permission of a per son insured under the policy

. 15
Husband was a “person excluded from coverage under this section.” The statute permits the insurer to provide that it shall not be liable for “damages, losses or claims” arising from Husband ’s operation of the vehicle

. In the face of this clear language, Wife has argued to the Court that the provision that the insurer “shall not be liable” refers to Nationwide’s liability policy, not the uninsured motorist provision. But the statute under consideration is the
uninsured motorist of Title 18, not the liability provisions of Title 21

. And t he legislature clearly intended to p ermit the insurer to exclude all “damage s, losses or claims,” whether they are liability claim s or uninsured motorist claim s
. Kivlin v. Nationwide Ins. Co. involved a claim against the insurer of a motorist
who was a named excluded driver. 16 Kivlin was injured in an accident caused by a

teena ge son (and excluded driver) of insured parents. Kivlin named the son’s parents as defendants by virtue of 21 Del. C. §§ 6105 and 6106, which together impute the youthful driver’s negligence on the parents. Kivlin also sued Nationwide, arguing that Nationwide had a duty to insure the parents should they be found liable to

15 18 Del. C. § 3909(c). 16 765 A.2d 536 , 538 (De l . 2000)

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Kivlin. Nationwide resisted, pointing to section 3909(c) and the “Voiding Endorsement” in its policy that specifically excluded coverage for the
teenage son. The Supreme Court dispatched Kivlin’s arguments, holding that the plain meaning of section 3909(c) is that when the named excluded driver is operating the vehicle, there is, in effect, no coverage. While public policy is un necessary to su pport the plain, clear meaning of the
statute, Kivlin brings the public policy home. In Kivlin, t he defendant family’s personal fortunes were put directly at risk by the son’s negligent driving of the
vehicle as they could not look to their auto insurer t o cover the damages from his negligence. On the other hand, the family was in the best position to keep him from behind the wheel of the family vehicle and the family was well aware of his
exclusion as a driver. So while the named driver exclusion does l imit the availability
of insurance , and limitations are to be narrowly construed, Kivlin and this case
demonstrate that when the exclusion compels the insured to control who is driving the insured car without a remedy in insurance, we might conclude that t he statute and the policy are in harmony

– or at least not so out of harmony as to hurt one’s

ears. In sum, Wife and Child ha ve not convinced the Court that they are entitled to
uninsured motorist coverage for claims arising out of Husband ’s operation of the9

insured vehicle. As such, defendant Nationwide is entitled to judgment as a matter
of law

. CONCLUSION The motion of Nationwide Property and Casualty Insurance Company for summary judgment is GRANTE D

. IT IS SO ORDERED.

Charles E. Butler , Resident Judge