IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE INSURANCE )

COVERAGE OFFICE, )

)

 Appellant, )

)

 v. ) C.A. No. N21C-09-211 CEB

) 

GARRISON PROPERTY AND )

CASUALTY INSURANCE COMPANY, )

)

 Appellee. )

Submitted: February 25, 2022

Decided: April 25, 2022

Upon Consideration of 

Appellant’s Motion for Judgment on the Pleadings,

DENIED.

MEMORANDUM OPINION

Robert M. Kleiner, Esquire, and Sarah Fruehauf, Esquire, Deputy Attorneys 

General, DEPARTMENT OF JUSTICE, Wilmington, Delaware. Attorneys for 

Appellant State of Delaware Insurance Coverage Office.

Krista E. Shevlin, Esquire, WEBER GALLAGHER SIMPSON STAPLETON 

FIRES & NEWBY, LLP, New Castle, Delaware. Attorney for Appellee Garrison 

Property and Casualty Insurance Company.

BUTLER, R.J.
2

A Department of Insurance arbitration panel (the “Panel”)1awarded Appellee 

Garrison Property and Casualty Insurance Company reimbursement for personal 

injury and vehicle damage losses it covered under a personal injury protection (“PIP” 

or “Section 2118”) policy. In doing so, the Panel applied a three-year statute of 

limitations to Garrison’s vehicle damage claim. On appeal, Appellant State of 

Delaware Insurance Coverage Office (“ICO” or the “State”) argues that the Panel 

should have applied a two-year statute of limitations instead. Because the Panel 

applied the correct time bar, ICO’s motion will be denied.

BACKGROUND2

A. The Accident

This case arises from a rear-end collision involving a government vehicle. On 

January 8, 2019, Erica Kearse was driving westbound on Lorewood Grove Road 

until a traffic flagger directed her to stop. As Kearse decelerated, Jessica Henry,

1 Delaware law requires opposing insurers to arbitrate their Section 2118 disputes 

within the Department of Insurance. See 21 Del. C. § 2118(g)(3) (2021). This Court 

has appellate jurisdiction over the Panel’s decisions. See id. § 2118(j)(5). 

2 The Court has taken this case’s background and procedural history from the parties’ 

pleadings, including Garrison’s answer, Jiménez v. Palacios, 250 A.3d 814, 827 

(Del. Ch. 2019), aff’d, 2020 WL 4207625 (Del. July 22, 2020), and, more 

“limitedly,” from the documents integral to, or incorporated by reference into, their 

pleadings, Intermec IP Corp. v. TransCore, LP, 2021 WL 3620435, at *8 (Del. 

Super. Ct. Aug. 16, 2021). The Court has drawn reasonable factual inferences from 

the record in the light most favorable to Garrison. See infra Standard of Review.
3

who was driving a New Castle County van, crashed into Kearse from behind. Kearse 

incurred personal injuries and vehicle damage in the accident.

Garrison insured Kearse under a PIP policy that covered personal injury and 

collision damages. Garrison paid approximately $29,000 in coverage and then 

turned to ICO, Henry’s insurer, for reimbursement. ICO refused, so Garrison sued.

B. The Arbitration 

On March 4, 2021—over two years after the accident—Garrison brought a 

subrogation action against ICO to recover the amounts it paid to Kearse in coverage. 

Garrison’s complaint alleged two losses: (1) personal injury (e.g., Kearse’s medical 

expenses); and (2) property damage (i.e., Kearse’s vehicle repair expenses). The 

State denied liability and raised as a defense to the vehicle damage claim the twoyear limitations period governing claims for “personal property” damages.

3

 

The parties arbitrated their dispute before the Panel. Having considered all 

the evidence, the Panel found Henry “100% liable” and awarded Garrison damages 

for both its losses.

4

 In doing so, the Panel rejected the State’s statute of limitations 

defense. The Panel reasoned that the vehicle damage claim derived from Section 

2118(a)(4)5and so was subject to a three-year limitations period on statutory claims.

6

 

3 See generally 10 Del. C. § 8107 (1960).

4 D.I. 1, Ex. A (Arb. Award).

5 See generally 21 Del. C. § 2118(a)(4) (defining “compensation for damage to the 

insured motor vehicle” as a PIP benefit).

6 D.I. 1, Ex. A (Arb. Award). See generally 10 Del. C. § 8106 (2014).
4

The Panel based its reasoning on the Delaware Supreme Court’s decision in Harper 

v. State Farm Mutual Automobile Insurance Company.

7

C. This Appeal

The State has appealed and renewed its statute of limitations arguments. 

Moving for judgment on the pleadings, the State contends that Garrison’s vehicle 

damage claim is not statutory, but rather is a common law claim for personal 

property damage governed by a two-year limitations period. Garrison counters that

a subrogation claim for vehicle damage is provided by Sections 2118(a)(4) and (g)

and so is a statutory claim governed by a three-year limitations period.

ICO accepts that, as will be discussed shortly, Garrison’s personal injury 

claim is subject to a three-year limitations period.8 And ICO does not contest that 

Section 2118(g) confers Garrison’s subrogation rights.

9

 ICO instead argues that a 

vehicle damage claim subrogated by a PIP insurer is subject to a different time bar 

than a personal injury claim subrogated by the same insurer in the same case. Put 

another way, ICO asks the Court to apply a different time bar to each category of 

PIP benefits depending on the underlying subject matter of the benefit subrogated.

No Delaware court has held that Section 2118 subrogation claims for personal 

injury and for property damage are timed by two separate clocks. But an absence of 

7 703 A.2d 136 (Del. 1997).

8 See id.

9 See 21 Del. C. § 2118(g).
5

cases addressing a specific issue does not necessarily mean that the issue is novel or 

unsettled. Indeed, the Delaware Supreme Court has hinted in dictum that it would 

be “incongruous” for “personal injury and property damage claims” brought under 

the same statute and in the same proceeding to be “governed by” two “different 

statute[s] of limitations.”10 More than incongruous, the State’s position contradicts 

Section 2118’s text and purpose, resurrects overruled precedent, and would cause

impractical consequences. Accordingly, the Court will deny ICO’s motion.

STANDARD OF REVIEW

A party may move under Rule 12(c) for judgment on the pleadings.11 In 

considering a Rule 12(c) motion, the Court accepts as true all well-pleaded factual 

allegations and draws all reasonable factual inferences in favor of the non-moving 

party.12 The Court therefore “accords the party opposing a Rule 12(c) motion the 

same benefits as a party defending a motion to dismiss under Rule 12(b)(6).”

13

 

Accordingly, judgment on the pleadings may be granted “only where” there are no 

material facts in dispute and the movant is entitled to judgment as a matter of law.14

10 Allstate Ins. Co. v. Spinelli, 443 A.2d 1286, 1291 n.10 (Del. 1982).

11 Del. Super. Ct. Civ. R. 12(c).

12 Desert Equities, Inc. v. Morgan Stanley Leveraged Equity Fund II, L.P., 624 A.2d 

1199, 1205 (Del. 1993). 

13 Aveanna Healthcare, LLC v. Epic/Freedom, LLC, 2021 WL 3235739, at *11 (Del. 

Super. Ct. July 29, 2021). 

14 W. Coast Opportunity Fund, LLC v. Credit Suisse Sec. (USA), LLC, 12 A.3d 1128, 

1131 (Del. 2010).
6

ANALYSIS

ICO’s motion involves statutory interpretation. A statute’s proper 

interpretation is a question of law, even when first answered by the agency below.

15

 

“When interpreting a statute, Delaware courts must ascertain and give effect to the 

intent of the legislature.”16 “Where the statutory language is clear on its face . . . the 

unambiguous text will be construed” according to its plain meaning unless the 

resulting construction “is so absurd that it cannot be reasonably attributed to the 

legislature.”17 There is “no room” to vary the language of an unambiguous statute.

18

 

A motion for judgment on the pleadings supplies an appropriate framework 

for determining an unambiguous statute’s proper interpretation.19 As explained 

below, the applicable statutes unambiguously impose a three-year limitations period

on Garrison’s vehicle damage claim. ICO’s contrary arguments must be rejected.

A. Under Section 2118, subrogation actions brought against a tortfeasor’s 

insurer to recover “compensation for damage to the insured motor vehicle” 

must be brought within three years.

Title 21 does not contain time bars, but Title 10 does. Under Title 10, Section 

8107, claims for “personal property” damages must be brought within two years

15 E.g., Sweeney v. Del. Dep’t of Transp., 55 A.3d 337, 342 (Del. 2012).

16 State Farm Mut. Auto. Ins. Co. v. Davis, 80 A.3d 628, 632 (Del. 2013) (internal 

quotation marks omitted).

17 Progressive N. Ins. Co. v. Mohr, 47 A.3d 492, 495–96 (Del. 2012).

18 City of Wilmington v. Nationwide Ins. Co., 154 A.3d 1124, 1129 (Del. 2017)

(internal quotation marks omitted).

19 E.g., Strougo v. Hollander, 111 A.3d 590, 594–95 (Del. Ch. 2015).
7

(“Section 8107”).

20 And under Title 10, Section 8106, claims “based on a statute” 

must be brought within three years (“Section 8106”).

21

 The fundamental question 

here is which time bar governs when a subrogation claim is both based on a statute 

and seeks personal property damages.

The Panel relied on Harper for the answer. ICO says the Panel was wrong 

because Harper was not a property damage case. That is true factually, but irrelevant

analytically. Harper reconciled Section 2118’s subrogation provisions with Title 

10’s time bars. This case requires the same task, so Harper controls. 

1. Under Harper, subrogation claims for “PIP benefits” are “statutory in 

origin” and so are subject to Section 8106.

Harper was decided after Nationwide Insurance Company v. Rothermel.

22

 

Relevant here, Rothermel considered whether, under the 1972 iteration of Section 

2118, a subrogation claim for personal injury damages was subject to the two-year 

time bar governing negligence claims23 or to Section 8106. The Rothermel court 

found that Section 2118 “did not change the nature” of personal injury claims, which 

have a common law origin.24 The Rothermel court also observed that, at common 

20 10 Del. C. § 8107.

21 Id. § 8106.

22 385 A.2d 691 (Del. 1978). 

23 10 Del. C. § 8119 (1970).

24 385 A.2d at 693.
8

law, an insurer has the same rights as the insured on whose behalf it subrogates.25 

Taken together, Rothermel held that the PIP insurer’s subrogation claim was a 

common law claim for personal injury subject to the same two-year limitations 

period governing negligence claims brought by an individual plaintiff. In the court’s 

view, creating a “different and longer limitations period” would have been an 

“unreasonable anomaly[.]”26

Harper saw things differently. Rather than the 1972 version, Harper 

reviewed an amended version of Section 2118.27 Having analyzed the amendments, 

Harper concluded that Section 2118, “as it is currently written[,]” provides an 

exclusively “statutory remedy for PIP related causes of action.”28 Using this

conclusion, Harper reasoned that “lawsuits for PIP benefits[,]” including “the PIP 

insurer’s cause of action for subrogation against the tortfeasor’s liability insurer[,]” 

are “entirely statutory in origin.”29 In contrast to Rothermel, Harper determined that 

Section 2118 transformed common law subrogation claims and rights into statutory

subrogation claims and rights: 

25 Id. See generally 16 Couch on Insurance § 222:5, Westlaw (3d ed. database) (last 

updated Dec. 2021) (“[A] subrogated insurer stands in the shoes of an insured, and 

has no greater rights than the insured, for one cannot acquire by subrogation what 

another . . . did not have.” (citations omitted)).

26 385 A.2d at 693.

27 703 A.2d at 139.

28 Id. at 139–40 (emphasis added).

29 Id. at 140.
9

Although a claim for PIP benefits still arises from a personal injury, [Section 

2118] . . . demonstrate[s] an unambiguous legislative intention to 

completely separate all litigation regarding the statutory right to PIP benefits 

from any independent cause of action at common law against a tortfeasor for 

personal injury . . . . [Section 2118 has] completely separated common law 

actions against a tortfeasor for personal injury from both actions by an insured 

for PIP benefits and the statutory actions by the PIP insurer for subrogation 

against the tortfeasor's liability insurer.30

Accordingly, Harper held that an insurer’s “PIP related” subrogation claim brought

against the tortfeasor’s insurer for “reimbursement” of coverage paid in “PIP 

benefits” under the insured’s policy is a statutory claim subject to Section 8106.

31

 

Harper overruled Rothermel. Harper held that Section 2118 subrogation 

actions are statutory actions, not common law actions. As a result, Harper crafted a 

new test that controls here. Under Harper, PIP-related subrogation actions brought 

against a tortfeasor’s insurer are subject to Section 8106 if the subrogated “PIP

benefit” (i) is defined in Section 2118; and (ii) was covered under the insured’s 

policy by the subrogee. No one disputes that Garrison’s subrogation rights derive 

from Section 2118(g). Nor does anyone dispute that, if Section 8106 applies, then 

Garrison’s vehicle damage claim is timely. So Garrison’s subrogated vehicle 

damage claim is a timely, statutory claim under Section 8106 if vehicle damage is a 

defined PIP benefit and was covered under Kearse’s policy. It is and it was.

30 Id. at 139–40.

31 Id. 
10

2. Garrison’s vehicle damage claim is a timely statutory claim.

Section 2118(a) defines four “recognized” categories of PIP benefits.32 Under 

Section 2118(a)(4), “[c]ompensation for damage to the insured motor vehicle” is one 

of them.33 Indeed, the parties would not have arbitrated before the Panel if it were 

not. Under Section 2118, arbitration between opposing insurers based on “damages 

to a motor vehicle, including an insured motor vehicle,” is compulsory.

34

Here, Garrison arbitrated subrogation claims against ICO. It sought

reimbursement for the vehicle damage it covered under Kearse’s PIP policy. 

Because Garrison’s vehicle damage claim is based on a defined PIP benefit under 

Section 2118(a)(4), Garrison had three years to bring it under Section 8106. 

Garrison brought its claim within three years. So the Panel correctly ruled that 

Garrison’s vehicle damage claim was timely. Accordingly, ICO’s motion is denied.

3. The State’s contrary caselaw is inapposite.

In searching for a way around this result, the State found Harper’s second 

footnote and two Delaware Court of Common Pleas decisions. Each is inapposite.

32 Kelty v. State Farm Mut. Auto. Ins. Co., 73 A.3d 926, 929 (Del. 2013).

33 21 Del. C. § 2118(a)(4). See D.I. 1, Ex. A (Arb. Award) (citing Section 

2118(a)(4)). See also 21 Del. C. § 2118(a)(1) (requiring insurance policies to 

indemnify “property damage arising out of . . . use of the vehicle”).

34 21 Del. C. § 2118(j). See id. § 2118(g)(3) (requiring arbitration of claims for 

“amounts paid pursuant to [Section 2118](a)(1)–(4)” made by and against insurers); 

see generally supra note 1.
11

Citing Harper’s second footnote, the State argues that Harper carved all

property damage claims out from Section 8106.

35

 But in footnote two, the Court 

mentioned that claims for “‘alleged personal injuries’ are governed by a two-year 

statute of limitations[.]”36 The point of that was to distinguish common law claims 

from PIP subrogation claims. Harper did not rule on property damage time bars.

As to its CCP cases, ICO first cites State Farm Mutual Automobile Insurance 

Company v. Baron.

37 Baron involved a PIP insurer’s subrogation action to recover

personal injury and property damages caused by a motorcycle accident. The court 

said it was “clear” that the property damage claim was subject to Section 8107.38 In 

reaching that conclusion, the court did not cite Harper. Instead, the court drew a 

distinction between “subrogation recovery of property damage benefits” and 

“subrogation recovery of PIP benefits.”39 Based on its understanding of that

distinction, the court held that the insurer’s personal injury claim, unlike its property 

damage claim, was a “statutory” claim subject to Section 8106.

40

35 See D.I. 12 ¶ 3 (Appellant’s Reply Br.) (“The statute of limitations for a property 

damage claim is two years from the date of the accident.” (citing Harper, 730 A.2d 

at 137 n.2)); D.I. 15 at 1 (Appellant’s Suppl. Br.) (“The Harper court specifically 

identified the statute of limitations period for property damage claims as two years.” 

(citing Harper, 730 A.2d at 137 n.2)).

36 Harper, 730 A.2d at 137 n.2 (emphasis added) (quoting 10 Del C. § 8119 (personal 

injury statute of limitations)).

37 2002 WL 32007217 (Del. Ct. Com. Pl. July 26, 2002).

38 Id. at *1.

39 Id.

40 Id. at *1–2.
12

The Baron decision gave very little attention to Section 2118 and to Harper. 

The court tacitly treated all “property damage benefits” as non-PIP benefits. But the 

court’s categories overlook Section 2118(a)(4), which specifically allows for 

property and vehicle damage recovery,

41 and the fact that a PIP policy covering 

property damage was central to the case.42

Moreover, the court classified the insurer as a statutory subrogee with respect 

to its personal injury claim and as a common law subrogee with respect to its property 

damage claim. This distinction exhumed Rothermel.

43 Harper, however, deemed

Rothermel’s analysis inapplicable to “Section 2118, as it is currently written.”44 

Under Harper, a “PIP insurer’s right of subrogation” to pursue “PIP related claims” 

is “entirely statutory in origin,” not common law in origin.

41 See 21 Del. C. § 2118(a)(4); see also Kelty, 73 A.3d at 929–30 (identifying four 

categories of PIP benefits under Section 2118(a), which include, but are not limited 

to, “the PIP mandate” in Section 2118(a)(2)).

42 Indeed, the court did not explain why the “property damage benefits” provided 

under the insurer’s motorcycle policy, Baron, 2002 WL 32007217, at *1, did not 

qualify as “PIP benefits” derived from one of the very type of Section 2118 

“automobile contracts” Harper found to be “statutory in origin and operation[,]”

Harper, 730 A.2d at 140.

43 See Rothermel, 385 A.2d at 693 (“[Section 2118] did not change the nature of the 

plaintiff’s claim from a claim for damages arising from personal injury . . . . It would 

create an unreasonable anomaly to hold that a claim against an insurer for no-fault 

benefits arising out of a personal injury is subject to a different and longer limitations 

period than the insurer's subrogation right against the tortfeasor.” (citation omitted)).

44 Harper, 730 A.2d at 140. 
13

To be sure, Baron properly recognizes that common law claims for personal

property damage are subject to Section 8107. This decision does not hold otherwise. 

But Baron assumed subrogation claims made by a PIP insurer for personal property 

damage always are grounded on the common law.

45 Baron, then, ultimately does

not answer the question presented in this case, i.e., whether, under Section 

2118(a)(4), a subrogation claim for vehicle damage is subject to Section 8106.

Baron has not been cited by any case except the State’s second one, GEICO 

v. Bryant.

46 Bryant is a three-paragraph letter decision resolving an underinsured 

motorist (“UIM”) claim, not a PIP claim. The Bryant court held that Harper “does 

not apply” to subrogated UIM claims.

47

 Without Harper, the court concluded that 

the UIM insurer’s personal property damage claim was subject to Section 8107, not 

Section 8106.48 Here, however, Garrison’s claim is not based on the UIM statute. 

So Bryant is no help to the State either.

45 But see, e.g., DeVincentis v. Md. Cas. Co., 325 A.2d 610, 612 (Del. Super. Ct. 

1974) (Section 2118 “assure[s] prompt payment to an injured party for medical 

expenses . . . and property damage.” (emphasis added)). 

46 2003 WL 22939219 (Del. Ct. Com. Pl. Aug. 15, 2003). Bryant itself has not been 

cited by another case.

47 Id. at *1. But see Spinelli, 443 A.2d at 1291 n.10 (observing in a UIM case that it 

would be “incongruous” for personal injury and personal damages claims brought 

under the same statute and in the same case to be timed by two different statutes of

limitations).

48 Bryant, 2003 WL 22939219, at *1.
14

Neither ICO’s cases nor any logical policy supports differentiating the time 

bars applicable to PIP claims for personal injury and PIP claims for property damage. 

To the contrary, applying different time bars would undermine Section 2118’s goals.

B. Applying different time bars to Section 2118 subrogation claims would 

disturb the balance Section 2118 struck between insured and insurer interests.

Section 2118 is a bit of “compromise” legislation that reflects divergent 

interests.49 It primarily was designed to “enable persons who have been injured in 

automobile accidents to receive from their insurance carriers the economic benefit 

of immediate payment without awaiting protracted litigation.”50 By mandating nofault coverage, Section 2118 saved insureds from “the expense and uncertainty of 

automobile accident litigation.”51 

These benefits came with a price. Under ordinary contract norms, insurers 

would be free to condition coverage on a no-fault finding. But Section 2118 

“significantly constrain[ed] . . . the scope and content” of insurance policies.52 In 

49 Hall v. Russell, 2020 WL 5051444, at *2 (Del. Super. Ct. Aug. 26, 2020). See, 

e.g., Nationwide Mut. Ins. Co. v. Wooters, 1996 WL 280778, at *8–9 (Del. Super. 

Ct. Jan. 31, 1996) (identifying various policy considerations).

50 Devaney v. Nationwide Mut. Ins. Co., 679 A.2d 71, 74 (Del. 1996) (internal 

quotation marks omitted). Cf. Nat’l Union Fire Ins. Co. v. Fisher, 692 A.2d 892, 

895 (Del. 1997) (“Recovery . . . should be based not upon whether there should be 

compensation at all, but should be based upon the type of coverage for which the 

insured has contracted.”). 

51 Nationwide Gen. Ins. Co. v. Hertz Corp., 2006 WL 2673057, at *2 (Del. Super. 

Ct. Sept. 18, 2006) (internal quotation marks omitted). 

52 Selective Ins. Co. v. Lyons, 681 A.2d 1021, 1024 (Del. 1996).
15

Delaware, PIP insurers contractually must bear “not only primary but ultimate 

liability” for loss regardless of the insured’s fault.

53

 

For these reasons, Section 2118 makes a PIP insurer the “proper plaintiff” in

a statutory subrogation action brought against a tortfeasor’s insurer for 

reimbursement.

54

 It also forces the insurers into a regulated arbitration procedure.55 

In exchange, Section 2118 affords PIP insurers a longer limitations period for 

subrogating their claims than they would have had at common law. For both insurers 

and insureds, Section 2118 plainly aims to reduce risk and to strengthen recovery.

The State’s position would undermine these goals. For example, applying

Section 8107 to Section 2118 subrogation actions that allege both personal injury 

and property damage effectively would shrink the personal injury claim’s three-year 

time bar. To preserve their personal property claims, insurers would need to bring

their personal injury claims within two years. Otherwise, they would need to divide 

their claims into two separate lawsuits, with each timed on its own watch. Between 

53 Fisher, 692 A.2d at 895 (internal quotation marks omitted). See, e.g., State Farm 

Mut. Auto. Ins. Co. v. Nalbone, 569 A.2d 71, 75 (Del. 1989) (“[T]he policy goals of 

no-fault insurance can best be served by application of . . . contract rather than tort 

law.”); accord Miller v. State Farm Mut. Auto. Ins. Co., 993 A.2d 1049, 1055 (Del. 

2010).

54 Int’l Underwriters, Inc. v. Blue Cross & Blue Shield of Del., Inc., 449 A.2d 197, 

199 (Del. 1982). (internal quotation marks omitted). See State Farm Mut. Auto. Ins. 

Co. v. Kulow, 483 A.2d 1121, 1124 (Del. 1984) (“[O]nly the no-fault carrier has 

standing to sue third part[ies]” for “damages” paid under no-fault insurance.).

55 See 21 Del. C. § 2118(g)(3), (j).
16

that rock and hard place, insurers could lose their statutory right to recover all the 

payments they were compelled to make.

56

 If insurers procedurally default,

tortfeasors gain. They would escape liability for property damage unscathed.

57

 

The Court cannot ignore “the objectives of Section 2118 and [the] interpretive 

case law” construing its text.

58

 Nor may the Court read an unambiguous statute to

produce “absurd consequences.”

59 And the Court cannot “alter . . . existing statutory 

policy in favor of” a litigation position.

60

 By enacting Sections 2118(a)(4) and (g), 

56 But see Wooters, 1996 WL 280778, at *9 (“In enacting Section 2118, the Delaware 

legislature made a specific determination to reimburse insurers” by recognizing their 

“right of subrogation.”). 

Impairing insurers’ subrogation rights also could lead insurers to diversify by 

increasing premiums. Cf. Willis v. Cont’l Cas. Co., 649 F. Supp. 707, 714 (D. Del. 

1986) (“A . . . major policy supporting the no-fault system is the effect of lowering 

the cost of insurance by eliminating the legal expenses that arise from tort suits.”). 

By logical extension, some cases caution that Section 2118 should not be read to 

cause a regulatory pushout of operating costs. See Wooters, 1996 WL 280778, at *9

(identifying moral hazards); see also Bass v. Horizon Assurance Co., 562 A.2d 1194, 

1196 (Del. 1989) (identifying emergency care as a sector vulnerable to downstream 

costs). These concerns might overemphasize rational markets; empirical studies

have not been adduced in this case. But the Supreme Court has not discredited the 

existence of supportive data. See Nalbone, 569 A.2d at 74.

57 But see Waters v. United States, 787 A.2d 71, 73 (Del. 2001) (“[T]he legislature 

had several policy goals in mind in enacting [Section 2118], one of which was to 

hold the tortfeasor liable by granting the insurer a subrogation right.”); but see also 

Nalbone, 569 A.2d at 74 (“[S]ubrogation will eventually place the loss upon the 

tortfeasor . . . [and] serve[s] the policy of deterring negligent conduct by making 

tortfeasors bear the full cost of their acts.”).

58 Crum & Forster Ins. Grp. v. Wright, 634 A.2d 373, 376 (Del. 1993) (internal 

quotation marks omitted).

59 Reddy v. PMA Ins. Co., 20 A.3d 1281, 1288 (Del. 2011) (internal quotation marks 

omitted).

60 Nationwide Mut. Ins. Co. v. Krongold, 318 A.2d 606, 609 (Del. 1974).
17

the General Assembly unambiguously intended PIP insurers to recover all their 

vehicle damage losses without having to absorb or abandon them. The State’s

position would unjustly strip or curtail PIP insurers’ statutory recovery rights and 

lead to absurd consequences. Accordingly, the Court must deny ICO’s motion.

C. This is not a common law tort lawsuit.

Finally, there is a suggestion in the parties’ briefing that a decision on the 

State’s motion could impact tort statutes of limitations. To be clear, this is not a 

negligence case brought by Garrison (as Kearse’s subrogee) against Henry (as 

tortfeasor) or by the State (as Henry’s subrogee) against Kearse (as tortfeasor). Nor 

could it be. A PIP subrogee cannot sue an insured tortfeasor directly to recover PIP 

benefits it paid in coverage.

61

 As a result, this decision only addresses time bars on

subrogation actions brought under Section 2118 by insurers against insurers. 

CONCLUSION

The Panel correctly found that Garrison’s vehicle damage claim was timely. 

Accordingly, ICO’s motion for judgment on the pleadings is DENIED.

IT IS SO ORDERED.

Charles E. Butler, Resident Judge

61 E.g., Harper, 703 A.2d at 140. PIP insurers can sue tortfeasors directly if they are 

self-insured—a status not implicated in this case. E.g., Waters, 787 A.2d at 73–74.