IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

NATIONWIDE PROPERTY & )

CASUALTY INSURANCE )

COMPANY, )

)

Plaintiff, )

 v. ) C.A. No.: N18C-02-167 PRW

)

ANGEL IRIZARRY, JR., )

)

Defendant. )

Submitted: November 21, 2019

Decided: January 31, 2020

Upon Plaintiff Nationwide Property & Casualty Insurance Company’s

Motion for Summary Judgment,

DENIED.

MEMORANDUM OPINION AND ORDER

Louis J. Rizzo, Esquire, Reger Rizzo & Darnall LLP, Wilmington, Delaware, 

Attorney for Plaintiff. 

Scott E. Chambers, Esquire, Gary E. Junge, Esquire, Schmittinger & Rodriguez, 

P.A., Dover, Delaware, Attorneys for Defendant.

WALLACE, J.
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Plaintiff, Nationwide Property & Casualty Insurance Company brings this 

declaratory judgment action against Defendant, Angel Irizarry, Jr., seeking to affirm 

Nationwide’s denial of coverage obligation to Mr. Irizarry for 

uninsured/underinsured (“UI/UIM”) motorist benefits. Mr. Irizarry counterclaims 

for declaratory judgment that UI/UIM benefits are available to him.

Currently before the Court is Nationwide’s Motion for Summary Judgment. 

The parties seek the Court’s determination whether policy provisions purporting to 

preclude payment are valid and enforceable, or whether they are precluded pursuant 

to Delaware’s UM statute (“§ 3902”) and its UIM subsection (“§ 3902(b)”).

1

For the reasons stated below, Nationwide’s summary judgment motion is 

DENIED.

I. FACTUAL AND PROCEDURAL BACKGROUND

Nationwide and Mr. Irizarry do not dispute the material facts in this action 

and jointly submitted a “Statement of Undisputed Material Facts and Procedural 

History” setting forth those uncontested facts as set forth below.

2

 This Stipulation 

includes the undisputed text of the subject insurance policy.

 

1 DEL. CODE ANN., tit. 18 § 3902 (2018).

2 D.I. 16 [referred to and cited hereinafter as “Stipulation”].
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A. FACTUAL BACKGROUND

Luis Velez obtained an automobile insurance policy3from Nationwide on 

December 9, 2016.

4

 Mr. Velez, solely through his own negligence, lost control of 

the insured vehicle while driving it on April 2, 2017, causing a one-vehicle accident 

on Barley Mill Road in New Castle, Delaware.5 Mr. Irizarry was an innocent

passenger in the vehicle and sustained an injury to his right hand.6 The Policy 

covered Mr. Irizarry as a guest passenger.

7

 This coverage includes personal injury, 

bodily injury, and UM/UIM coverage.8

The Policy’s UIM provision extends the definition of “uninsured motor 

vehicle” to include: 

“[O]ne which is underinsured. This is a motor vehicle for which there 

may be bodily injury liability coverage in effect, but the limits of bodily 

injury liability coverage under all bonds and insurance policies 

applicable at the time of the accident are less than the damages 

sustained by the insured.”9

 

3 Stipulation, Ex. A [referred to and cited hereinafter as the “Policy”].

4 Stipulation ¶ 1.

5

Id. ¶¶ 3, 5.

6

Id. ¶¶ 3-4.

7

Id. ¶ 6.

8

Id. ¶ 2.

9 Policy, at U2. Bold words occur in the original, and indicate terms defined in the Policy.
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The Policy goes on to exclude from its definition “any motor vehicle insured under 

the liability coverage of this policy,” and asserts that “[Nationwide] will make no 

duplicate payment to or for any insured for the same element of loss.”10

Nationwide paid Mr. Irizarry’s medical providers the Personal Injury 

Protection (“PIP”) limit of $15,000,

11 and later settled a Bodily Injury (“BI”) claim 

for the policy limit of $15,000 with Mr. Irizarry.12 The BI claim settlement followed 

a demand letter from Mr. Irizarry through counsel for a sum larger than the policy 

limit.13 Having exhausted those forms of coverage, Mr. Irizarry demanded UIM

payment from Nationwide for the alleged excess.

14

 Nationwide denied Mr. Irizarry’s 

UIM claim via letter. According to Nationwide, Mr. Irizarry could not combine 

UIM and BI coverage as the passenger in a one-car accident.

15

 

 

10 Id.

11 Stipulation ¶ 8.

12 Id. ¶11.

13 Id. ¶¶ 9-11.

14 The parties stipulate only that Mr. Irizarry asserts damages and demands compensation 

over and above the $30,000 Nationwide already paid. Whether Mr. Irizarry’s injuries actually 

exceed that amount is a disputed factual question not resolved here. 

15 Id. at 13.
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B. PROCEDURAL HISTORY

Nationwide commenced this action seeking a declaratory judgment 

supporting its denial decision.

16

 Mr. Irizarry answered the Complaint with a 

counterclaim.

17

After submitting the Stipulation, the parties submitted their respective briefs 

on Nationwide’s Motion for Summary Judgment.18 Following argument, the Court 

reserved decision and later received certain requested and unsolicited supplemental 

submissions.

19

II. STANDARD OF REVIEW

Summary judgment is appropriate when the record shows no genuine issue as 

to any material fact and that the movant is entitled to judgment as a matter of law.20 

The record is viewed in the light most favorable to the non-movant,21 as the purpose 

of summary judgment is to determine whether genuine issues of material fact exist

 

16 Id. ¶ 15.

17 Id. ¶ 16.

18 See Nationwide Prop. & Cas. Ins. Co.’s Br. in Supp. (D.I. 17) [hereinafter “Nationwide’s 

Br.”]; Angel Irizarry Br. in Opp’n. (D.I. 18).

19 E.g. Nationwide Prop. & Cas. Ins. Co.’s Ltr. Br. (D.I. 23) [hereinafter “Nationwide’s Ltr.”]; 

Angel Irizarry Ltr. Br. (D.I. 24); D.I. 27-28; D.I. 31; D.I. 33-34. 

20 Brzoska v. Olson, 668 A.2d 1355, 1364 (Del. 1995) (citing Super. Ct. Civ. R. 56(c)).

21 Jones v. Crawford, 1 A.3d 299, 301-02 (Del. 2010).
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rather than to resolve them.22 The Court accepts as true the factual stipulations of 

the parties.23 

The proper construction of a contract is purely a question of law.24 “[W]hen 

the language of an insurance contract is clear and unequivocal, a party will be bound 

by its plain meaning because creating an ambiguity where none exists could, in 

effect, create a new contract with rights, liabilities and duties to which the parties 

had not assented.”25 “A contract is not rendered ambiguous simply because the 

parties do not agree upon its proper construction. Rather, a contract is ambiguous

only when the provisions in controversy are reasonably or fairly susceptible of 

different interpretations or may have two or more different meanings.”26 The true 

test of a contract’s potential ambiguity is not what the parties to the contract intended 

it to mean, but what a reasonable person in the position of the parties would have 

thought it meant.27

 

22 Merrill v. Crothall-American, Inc., 606 A.2d 96, 99 (Del. 1992) (citing United States v. 

Diebold, Inc., 369 U.S. 654 (1962)).

23 S. G. Williams of Dover, Inc. v. Diamond State Vinyl, Inc., 430 A.2d 794, 796 (Del. Super. 

Ct. 1981).

24 Aetna Cas. & Sur. Co. v. Kenner, 570 A.2d 1172, 1174 (Del. 1990).

25 Hallowell v. State Farm Mut. Auto. Ins. Co., 443 A.2d 925, 926 (Del. 1982).

26 Rhone-Poulenc Basic Chems. Co. v. American Motorists Ins. Co., 616 A.2d 1192, 1196 

(Del. 1992) (internal citation omitted).

27 Steigler v. Ins. Co. of North America, 384 A.2d 398, 401 (Del. 1978).
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Lastly, this Court applies settled principles of statutory interpretation, giving 

effect to the plain language of an unambiguous statute, and applying the literal 

meaning of the statute’s words.28 “[T]he meaning of a statute must, in the first 

instance, be sought in the language in which the act is framed, and if that is plain . . . 

the sole function of the courts is to enforce it according to its terms.”29 A statute is 

ambiguous only if it is “reasonably susceptible to different interpretations, or if 

giving a literal interpretation to the words of the statute would lead to an 

unreasonable or absurd result that could not have been intended by the legislature.”30

III. DISCUSSION

On five occasions before five different judges, beginning with Baunchalk v. 

State Farm, this Court has applied and interpreted the interactions between § 3902(b)

UIM coverage with other forms of coverage under the same policy when the victim 

is a passenger or pedestrian not expressly named in the policy.

31

 In every case, this 

 

28 See Arnold v. State, 49 A.3d 1180, 1183 (Del. 2012) (citing Dennis v. State, 41 A.3d 391, 

393 (Del. 2012)).

29 Friends of H. Fletcher Brown Mansion v. City of Wilmington, 34 A.3d 1055, 1059 (Del. 

2011) (quoting Caminetti v. United States, 242 U.S. 470, 485 (1917)).

30 See Arnold, 49 A.3d at 1183 (citing Dennis, 41 A.3d at 393).

31 Baunchalk v. State Farm Mutual Auto. Ins. Co., 2015 WL 12979117 (Del. Super. Ct. Oct. 

26, 2015). The other cases are Brown v. Everett, 2019 WL 2361539 (Del. Super. Ct. Jun. 4, 2019); 

Perez v. State Farm Mutual Auto. Ins. Co., 2018 WL 2473152 (Del. Super. Ct. Jun. 1, 2018); 

Johnson v. State Farm Mutual Auto. Ins. Co., 2017 WL 4652061 (Del. Super. Ct. Oct. 16, 2017); 

and Tillison v. GEICO Secure Ins. Co., 2017 WL 2209895 (Del. Super. Ct. May 15, 2017).
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Court found § 3902(b) defines “underinsured” solely in terms of the magnitude of 

the injury the victim suffered relative to the total coverage paid out, irrespective of 

the source of those payments.32 Where an innocent passenger of the policyholderdriver has injuries in excess of BI or PIP limits, the policyholder-driver’s UIM 

coverage applies as well.33 

This interpretation of has been consistent; any policy language putatively 

narrowing the coverage terms of a UIM policy governed by § 3902(b) is superseded 

and void.34 This Court has specifically addressed both types of narrowing language 

Nationwide invokes here, finding both are superseded by and void under § 3902(b). 

Even while this matter was pending, the Court again addressed the types of 

contractual provisions Nationwide seeks to invoke to avoid payment. It again found 

them superseded by § 3902(b).35 

 

32 Baunchalk, 2015 WL 12979117 at *5. Under the “Unknown Phantom Vehicle” rule, UIM 

benefits may be combined with BI and PIP for hit-and-run cases with unidentified assailants, even 

prior to the 2013 amendments to § 3902. Id. at *2 (citing Pankowski v. State Farm Mut. Auto. Ins. 

Co., 2013 WL 5800858 (Del. Super. Ct. Oct., 10, 2013)). Nationwide does not challenge this older 

rule, and premises its denial of UIM coverage on the accident in this case being single-vehicle. 

Stipulation ¶ 14.

33 Baunchalk, 2015 WL 12979117 at *5.

34 Id.

35 See Brown, 2019 WL 2361539 at *2-3 (negating non-duplication clauses and contractual 

definitions of terms that would deny coverage these types of circumstances).
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Nationwide concedes that Baunchalk and its progeny set mandatory minimum 

coverage terms for UIM clauses, that if the Court here applied its earlier precedents 

the additional UIM coverage for Mr. Irrizary is mandated, and therefore summary 

judgment for Nationwide would be precluded.

36

A. STARE DECISIS’S ROLE IN CONSTRUING § 3902(b) HERE.

The doctrine of stare decisis in Delaware provides that a point of law settled

by a judicial decision is thereafter controlling precedent for the same Court and is 

to be reexamined only upon a showing of both (1) “urgent reason” and (2) a “clear 

manifestation of error.”

37

 Of course, while not done lightly, such a decision—and 

those of the same Court following it—may be departed from, overruled, or set aside 

by a higher appellate tribunal.38 But undoubtedly, deference to prior decisions is a 

 

36 See Nationwide’s Br., at 14 (“In sum, these cases conclude that policy provisions designed 

to limit UM/UIM coverage, such as the “non-duplication clause” at issue in this case, are contrary 

to public policy.”).

37 Oscar George, Inc. v. Potts, 115 A.2d 479, 481 (Del. 1955). 

38 See Gatz Properties, LLC v. Auriga Capital Corp., 59 A.3d 1206, 1219 (Del. 2012) (“It is 

axiomatic, and we recognize, that once a trial judge decides an issue, other trial judges on that 

court are entitled to rely on that decision as stare decisis. Needless to say, as an appellate tribunal 

and the court of last resort in this State, we are not so constrained.”) (internal citations omitted). 

It is likewise elementary to the structure of the American legal system that lower courts are 

absolutely bound by prior decisions of law made by higher courts, even if those prior decisions 

are manifestly improper. E.g. Gebhart v. Belton, 87 A.2d 862, 865 (Del. Ch. 1952) (Chancellor 

Seitz expressing and supporting the view that the ‘separate but equal’ doctrine laid down by the 

United States Supreme Court in Plessy v. Ferguson was contrary to the United States Constitution, 

but nevertheless inescapably binding on lower courts); see also Brown v. Bd. of Education of 

Topeka, 347 U.S. 483, 494-95 (1954) (approving of the Chancellor’s analysis in Gebhart on 

appeal, and overruling Plessy).
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necessary manifestation of the principle that individuals must be afforded “an 

opportunity to know what the law is and to conform their conduct accordingly.”

39

 

The United States Supreme Court has gone so far as to describe stare decisis as being 

“of fundamental importance to the rule of law.”40 

Of particular note here: the Baunchalk line of cases are decisions on statutory 

interpretation. Any concerted judicial misconstruction of a statute is subject to 

corrective tuning by the legislature, and thus prior statute-interpreting rulings gain 

approving harmony from ensuing legislative silence.

41

 The Court in Baunchalk-type

innocent-passenger cases has previously answered Delaware insurers’ policy 

arguments by urging them “to pursue legislative clarification,” since the statutory 

language is unambiguous and controlling.42

 

39 State v. Barnes, 116 A.3d 883, 891 (Del. 2015) (quoting Landgraf v. USI Film Products, 

511 U.S. 244, 265 (1994)); Oscar George, Inc., 115 A.2d at 481 (Stare decisis’s “support rests 

upon the vital necessity that there be stability in our courts in adhering to decisions deliberately 

made after careful consideration.”).

40 Hilton v. South Carolina Public Railways Comm’n, 502 U.S. 197, 202 (1991) (quoting 

Welch v. Texas Dep’t of Highways and Public Transp., 483 U.S. 468, 494 (1987)); Payne v. 

Tennessee, 501 U.S. 808, 827 (1991) (Stare decisis is “the preferred course because it promotes 

the evenhanded, predictable, and consistent development of legal principles, fosters reliance on 

judicial decisions, and contributes to the actual and perceived integrity of the judicial process.”).

41 See Barnes, 116 A.3d at 892; see also Illinois Brick Co. v. Illinois, 431 U.S. 720, 736 

(1977) (“[C]onsiderations of stare decisis weigh heavily in the area of statutory construction, 

where Congress is free to change this Court’s interpretation of its legislation.”).

42 Tillison v. GEICO, 2017 WL 2209895, at *3.
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B. NATIONWIDE’S INVOCATION OF STATE FARM v. KELTY.

Nationwide urges the Court to view the UIM coverage under the Policy as a 

supplemental policy offering excess coverage outside of the strictures of § 3902(b)

entirely.

43

 Nationwide interprets Baunchalk as forbidding excess UIM policies 

outside of the narrow terms permitted by § 3902(b), which in its view contravenes 

Delaware public policy encouraging insurance coverage and protecting freedom of 

contract.44

Nationwide relies heavily on State Farm v. Kelty, which addressed 

supplemental clauses.45 The Kelty policy included an excess PIP provision with a 

pedestrian exclusion that itself made an exception for family members of the 

insured.46 Such exclusions would be invalid on baseline PIP coverage, but the Kelty 

Court found that, because the policy at issue contained baseline coverage with a 

conforming PIP clause up to the minimum requirement, the excess PIP clause could 

 

43 See Nationwide’s Ltr., at 2. (arguing that “Limitations on excess coverage that do not 

restrict policyholders from obtaining additional coverage at market price are not a cause for 

concern under the UM/UIM statute.”) (citations omitted).

44 Id. at 3 (citing NAF Holdings, LLC v. Li & Fung (Trading) Ltd., 118 A.3d 175, 180 (Del. 

2015)).

45 State Farm Mutual Auto. Ins. Co. v. Kelty, 126 A.3d 631 (Del. 2015).

46 Id. at 634.
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permissibly include limitations and exclusions that would be impermissible for 

baseline PIP.47

Nationwide emphasizes that UIM coverage: (a) is supplemental and 

optional—not compulsory like no-fault insurance generally; (b) is opt-in rather than 

opt-out;

48 and (c) permits motorists to obtain varying levels of coverage, down to 

nothing at all.49 As purely excess coverage, Nationwide argues that Baunchalk and 

its progeny erred by failing to recognize Kelty controls, and thereby permits insurer 

and insured to negotiate more limited UM/UIM coverage than § 3902(b).50

C. NATIONWIDE NEVER OFFERED CONFORMING UM/UIM COVERAGE.

But there is a chink in Nationwide’s Kelty armor. While insurer and insured 

have the capacity to create a policy that conforms to Delaware law without any 

UM/UIM coverage, doing so requires the insured to explicitly reject UM coverage 

“in writing, on a form furnished by the insurer.”51 There are fewer formalities for 

 

47 Id. at 636-37.

48 Compare DEL. CODE ANN., tit. 18 § 3902(a)(1) (2018) (requiring UM coverage as a 

component of all automobile insurance policies, but providing an exception for written opt-out by 

the insured) and id. at § 3902(b) (requiring automobile insurers to offer the option of UIM coverage 

to customers).

49 Nationwide’s Br., at 7-8. In contrast, UM coverage, if obtained, must be for “not be less 

than the minimum limits for bodily injury and property damage liability insurance provided for 

under the motorist financial responsibility laws of this State.” DEL.CODE ANN., tit. 18 § 3902(a)(2) 

(2018).

50 Nationwide’s Br., at 8-9; Nationwide’s Ltr. At 2-3.

51 DEL. CODE. ANN., tit. 18 § 3902(a)(1).
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rejecting UIM coverage, but the insurer is nevertheless obligated to offer a 

conforming UIM package.52 This offer must be detailed enough to permit the 

insured to make an informed decision, must include a price term, and the insurer 

bears the burden of showing that the offer of UIM coverage was made and 

declined.53 

Had Nationwide offered Mr. Velez UIM coverage conforming to § 3902(b), 

and had Mr. Velez affirmatively rejected that coverage, he and Nationwide could 

have thereby created a valid automobile insurance policy adhering to Delaware law 

yet offering no UIM coverage. If the provisions at issue were contained in a 

supplementary excess rider after conforming UM/UIM had been declined, 

Nationwide’s Kelty theory might properly be before the Court. But Nationwide 

presents no signed form from Mr. Velez opting out of conforming UM coverage. 

Nor does Nationwide submit evidence demonstrating Mr. Velez declined a 

conforming UIM policy. 

Where Delaware law requires an automobile insurer to offer an optional 

coverage provision and the insurer fails to do so, “the insurer is deemed to have made 

 

52 See DEL. CODE ANN., tit. 18 § 3902(b) (2018) (“Every insurer shall offer to the insured the 

option to purchase” a conforming UIM policy) (emphasis added).

53 Humm v. Aetna Cas. & Sur. Co., 1994 WL 465553, at *2 (Del. Super. Ct. Jul. 20, 1994), 

aff’d, 656 A.2d 712 (Del. 1995).
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a continuing offer of such additional coverage to the insured” that “remains open 

even after an accident occurs.”54 Thus, even if the Court accepted Nationwide’s 

Kelty argument that the UM/UIM clause in the Policy is a nonconforming 

supplementary provision outside § 3902(b), having not shown that conforming 

coverage was offered and rejected likely permits Mr. Velez to retroactively reform 

the Policy post-accident to add precisely that conforming UM/UIM coverage 

Nationwide seeks to avoid.

55

D. NATIONWIDE’S KELTY GLOSS CANNOT OVERCOME STARE DECISIS.

Nationwide neither discloses any “urgent reason” nor unveils any “clear 

manifestation of error” justifying discard of this Court’s now-well-settled § 3902(b)

jurisprudence.

56

 

Nationwide makes no showing that it offered conforming UM/UIM coverage 

which Mr. Velez rejected. As such, Nationwide’s argument that the UM/UIM 

coverage in the Policy is a supplementary rider § 3902(b) would simply subject the 

Policy to reformation to add conforming UM/UIM coverage with the precise 

 

54 State Farm Mutual Auto. Ins. Co. v. Arms, 477 A.2d 1060, 1064 (Del. 1984) (quoting and 

adopting as “a correct interpretation of Delaware law” O’Hanlon v. Hartford Acc. & Indem. Co., 

522 F.Supp. 332 (D. Del. 1981)). 

55 Parson v. State Farm Mutual Auto. Ins. Co., 2011 WL 7052137, *3 (Del. Super. Ct. Dec. 

30, 2011) (citing Arms); Davis v. State Farm Mut. Auto. Ins. Co., 2011 WL 1379562, *5 (Del. 

Super. Ct. Feb. 15, 2011) (same).

56 Oscar George, Inc., 115 A.2d at 481. 
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benefits for Mr. Irizarry that Nationwide now seeks to challenge. So the same result 

flows from both Nationwide’s Kelty theory and adherence to the Baunchalk cases. 

Nationwide thus cannot demonstrate error of any kind, let alone a “clear 

manifestation of error.”

Neither can Nationwide demonstrate “urgent reasons” to revisit Baunchalk.

Like prior insurers in the innocent-passenger UIM cases, Nationwide argues that the 

Baunchalk rule makes coverage conforming to § 3902(b) more expensive and 

thereby disincentivizes it in a manner contrary to public policy.

57

 Had Nationwide 

in fact offered both conforming § 3902(b) coverage as well as a nonconforming 

alternative that excludes Baunchalk passengers, the difference in price between the 

provisions might possibly substantiate this oft-made policy argument and in the 

proper case justify to this Court or one higher to set Baunchalk aside. But that didn’t 

happen.

Lastly, stare decisis gains force when the legislature and private citizens have 

ordered their affairs in reliance on previous decisions.

58

 Contrary to Nationwide’s 

assertion that “outside of the courtroom, there is no individual or societal reliance 

 

57 Nationwide’s Br., at 15.

58 Hilton, 502 U.S. at 202 (Noting that “[s]tare decisis has added force when the legislature, 

in the public sphere, and citizens, in the private realm, have acted in reliance on a previous 

decision, for in this instance overruling the decision would dislodge settled rights and expectations 

or require an extensive legislative response.”).
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on Baunchalk,” policyholders like Mr. Velez have precisely manifested and 

procured such an interest. Mr. Velez obtained the Policy from Nationwide more 

than a year after Baunchalk was handed down. At the time they formed the Policy, 

Nationwide and Mr. Velez are presumed to have been aware that the UM/UIM 

clause would combine with the PIP and BI coverage in the event of an accident 

injuring an innocent passenger of Mr. Velez.

59

 When underwriting the policy, 

Nationwide is presumed to have taken such considerations in to account.60 Mr. 

Velez could reasonably expect that he was purchasing insurance to cover his 

passengers according to the Baunchalk rule, and thus overturning the rule necessarily 

gives Nationwide a windfall of the premiums it collected for coverage of which it 

was later relieved.

IV. CONCLUSION.

First, since Baunchalk was first decided the General Assembly has had almost 

four years to correct any interpretive error by this Court. It hasn’t. Insurers like 

 

59 See Koval v. Peoples, 431 A.2d 1284, 1285 (Del. Super. Ct. 1981) (“In the law of contracts, 

it is a recognized principle that existing laws form a part of a contract.”); Trader v. Jester, 1 A.2d 

609, 613 (Del. Super. Ct. 1938) (“The rule is well established that the laws in force at the time and 

place of making the contract enter into, and form a part of it as if they had been expressly referred 

to, or incorporated in, its terms. The obligation of the contract is measured by the standard of the 

laws existing at the time of the making of the contract.”). 

60 See Osborn ex rel. Osborn v. Kemp, 991 A.2d 1153, 1159 (Del. 2010) (“Delaware adheres 

to the ‘objective’ theory of contracts, i.e. a contract’s construction should be that which would be 

understood by an objective, reasonable third party.”). An objective, reasonable Delaware insurer 

would be aware of Delaware law, hence of the meaning and import of the UM/UIM provisions.
- 16 -

Nationwide have offered UM/UIM policies thereafter fully aware of the Baunchalk

rule and presumably priced accordingly. 

Second, Nationwide cannot escape Mr. Irizzary’s claim via its alternative 

theory that the UM/UIM provisions at issue constituted some supplemental 

nonconforming coverage outside the scope of § 3902 as construed by Baunchalk 

without a showing that it offered, and Velez rejected, a conforming policy.

So, Nationwide’s Motion for Summary Judgment is DENIED.

IT IS SO ORDERED.

/s/ Paul R. Wallace

Paul R. Wallace, Judge