IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

USAA CASUALTY INSURANCE )

COMPANY, )

)

Defendant Below/Appellant, )

)

v. ) C.A. No. N23C-08-084 FWW

)

HENRY HAMILTON, )

) 

 Plaintiff Below/Appellee. )

Submitted: January 25, 2024

Decided: January 26, 2024

Upon the Motion for Summary Judgment of Plaintiff Below/Appellee

Henry Hamilton

DENIED.

Upon the Motion for Summary Judgment of Defendant Below/Appellant

USAA Casualty Insurance Company

DENIED.

ORDER

M. Claire McCudden, Esquire, and Lisa M. Grubb, Esquire, MARSHALL

DENNEHEY, P.C., 1007 N. Orange Street, Suite 600, P.O. Box 8888,

Wilmington, DE 19899-8888, Attorneys for Defendant Below/Appellant USAA

Casualty Insurance Company.

Brian E. Lutness, Esquire, SILVERMAN, MCDONALD & FRIEDMAN, 

Brandywine East Plaza, 1523 Concord Pike, Suite 400, Wilmington, DE 19803, 

attorney for Plaintiff Below/Appellee Henry Hamilton. 

WHARTON, J.
2

This 26th day of January, 2024, upon consideration of the Motion for 

Summary Judgment of Plaintiff Below/Appellee Henry Hamilton (“Hamilton”),1

the Response in Opposition to Appellee’s Motion for Summary Judgment and 

Appellee’s Request for Summary Judgment of USAA Casualty Insurance Company 

(“USAA”),2and the record in this case, it appears to the Court that:

1. On August 9, 2023, USAA appealed to this Court from a Decision of 

the Arbitration Panel of the Insurance Commission.3 The Docket shows that 

Hamilton served interrogatories and a request for production on USSA on September 

13, 2023,4summons were signed and picked up by USSA’s attorneys to serve 

themselves on September 28th,5and then...nothing. Finally, on December 14th, the 

Court sent a stall letter to counsel.6

2. USAA responded first on December 27th.

7

It recited the filing of the 

appeal, service on Hamilton, and service of Hamilton’s discovery requests on it.8 

Then, it noted, “As of this date, no Complaint or other pleading has been filed.”9 

1 Hamilton’s Mot. for Summ. J., D.I. 7.

2 USAA’s Resp. to Mot. for Summ. J., D.I. 13.

3 D.I. 1.

4 D.I. 2.

5 D.I. 3.

6 D.I. 4.

7 D.I. 5.

8

Id.

9

Id.
3

The Court noted USAA’s letter and stated that it awaited further action by either 

party.10

3. The next action by either party was Hamilton’s Motion for Summary 

Judgment.11 The motion explains how Hamilton came to be injured when the ladder 

he had placed in the bed of his truck and against the wall of a garage at Hilton Marine 

slipped when he was attempting to fix rotten wood over the garage.12 As a result of 

these undisputed facts, Hamilton argues that USAA, as his PIP carrier, is obligated 

to compensate him for his injuries.13

4. USAA was directed to respond.14 It did on January 25, 2024, opposing 

Hamilton’s summary judgment motion and requesting summary judgment in its 

favor.15 USAA, argues that under the facts set out by Hamilton, his injuries were in 

no way caused by the use or operation of the vehicle, entitling it to summary 

judgment.16 

5. An unsuccessful party before an automobile arbitration panel of the 

Department of Insurance “shall have a right to appeal de novo to the Superior Court 

if notice of such appeal is filed with that Court in the manner set forth by its rules 

10 D.I. 6.

11 Hamilton’s Mot. for Summ. J., D.I. 7.

12 Id. at ⁋⁋ 1, 2.

13 Id. at ⁋⁋ 3,4.

14 D.I. 12. 

15 USAA’s Resp.to Mot. for Summ. J., D.I. 13.

16 Id. at ⁋ 8. 
4

within 30 days of the date of the decision being rendered.”17 Appeals de novo are 

governed by Superior Court Civil Rule 3(c):

(c) Appeals De Novo. When an appeal de novo is 

permitted by law, an action is commenced in the Superior 

Court by the appellant filing with the Prothonotary a 

praecipe within the time prescribed by statute for the filing 

of an appeal. If no time is prescribed by statute, the 

praecipe shall be filed within 15 days from the entry of the 

final judgment, order, or disposition from which an appeal 

is permitted by law. When the appellant is the party having 

the duty of filing the complaint or other first pleading on 

appeal, the appellant shall file such pleading with 

praecipe. When the appellee is the party having the 

duty of filing the complaint or other first pleading on 

appeal, the appellee shall serve a copy of such pleading 

within 20 days after service of the process on appeal, 

or if appellee has not been served, within 40 days after 

the date of the process, and thereafter the pleadings 

shall proceed as in other actions.18

6. Hamilton never filed a complaint on appeal. Because there is no 

complaint, there is nothing upon which the Court may grant judgment for either 

party. Accordingly, both motions for summary judgment are DENIED.

19

 

17 21 Del. C. § 2118(j)(5).

18 Super. Ct. Civil R. 3(c) (emphasis added).

19 Given the basis for the Court’s decision and because it denies USSA’s motion for 

summary judgment, it finds it unnecessary to solicit Hamilton’s response.
5

THEREFORE, Plaintiff Below/Appellee Henry Hamilton’s Motion for 

Summary Judgment is DENIED. Defendant Below/Appellant USAA Casualty 

Insurance Company’s Motion for Summary Judgment is DENIED.

IT IS SO ORDERED.

/s/ Ferris W. Wharton

Ferris W. Wharton, J.