IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

USAA CASUALTY INSURANCE ) COMPANY
, ) ) Defendant Below/Appellant
, ) )

v. ) C.A. No. N 23 C

- 08

- 084 FWW ) HENRY HAMILTON
, ) ) Plaintiff Below/Appellee

. )

Submitted: January 25, 2024 Decided : January 26 , 202 4

Upon the Motion for Summary Judgment of Plaintiff Below/Appellee Henry Hamilton DENIED.
Upon the Motion for Summary Judgment of Defendant Below/Appell ant

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 198 99

- 8888
, Attorney s 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.

W HARTON , J.2

This 26 th day of January , 202 4
, upon consideration of the Motion for
Summary Judgment of Plaintiff Below/Appellee Henry Hamilton (“Hamilton”), 1

the R esponse in Opposition to Appellee’s Motion for Summary Judgment and
Appellee’s Request for Summary Judgment of USAA Casualty Insurance Company
(“US A A”), 2 and the record in this case, it appears to the Court that:

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

the A rbitration Panel of the Insurance Commission. 3 The Docket shows that
Hamilton served interrogatories and a request for prod uction on USSA on September

13, 2023, 4 summons were signed and picked up by USSA’s attorneys to serve
themselves on September 28th, 5 and then...nothing. Finally, on December 14 th , the

Court sent a stall letter to counsel. 6

2. US A A responded first on Decem ber 27 th

. 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 US A A’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 explain s 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 a rgue s that US A A , as his PIP carrier, i s obligated
to compensate him for his injuries. 13

4. US A A 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 US A A
, 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 ha ve 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 US A A’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 f or 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 dut y 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

TH EREFORE
, Plaintiff Below/Appellee Henry Hamilton’s Motion for
Summary Judgment is DENIED

. Defendant Below/Appellant US A A Casualty
Insurance Company’s Motion for Summary Judgment is DENIED.

IT IS SO ORDERED.

/s/ 

### Fe rris W. Wharton F erris W. Wharton, J.