IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

YVONNE GREEN, WILMINGTON 

PAIN & REHABILITATION CENTER, 

and REHABILITATION ASSOCIATES, 

P.A., on behalf of themselves and all 

others similarly situated,

 Plaintiffs, 

 v. 

GEICO GENERAL INSURANCE 

COMPANY,

 

 Defendant.

 

)

) 

) 

) 

) C.A. No.: N17C-03-242 EMD CCLD

) 

) 

) 

)

)

)

)

)

)

Submitted: September 13, 2019

Decided: September 23, 2019

ORDER GRANTING DEFENDANT GEICO GENERAL INSURANCE COMPANY’S 

APPLICATION FOR CERTIFICATION OF INTERLOCUTORY APPEAL

OF THIS COURT’S OPINION GRANTING PLAINTIFFS’ MOTION

FOR CLASS CERTIFICATION

This 23rd day of September, 2019, upon consideration of Defendant GEICO General 

Insurance Company’s Application for Certification of Interlocutory Appeal of This Court’s 

Opinion Granting Plaintiffs’ Motion for Class Certification (the “Motion”) filed by Defendant 

GEICO General Insurance Company (“GEICO”) on September 5, 2019; Plaintiffs’ Response to 

Defendant GEICO General Insurance Company’s Application for Certification of Interlocutory 

Appeal of This Court’s Opinion Granting Plaintiffs’ Motion for Class Certification (the 

“Response”) filed by Yvonne Green, Wilmington Pain & Rehabilitation Center and 

Rehabilitation Associates, P.A., on behalf of themselves and others similarly situated 

(collectively, the “Plaintiffs”) on September 13, 2019; the Court’s decision dated August 27, 

2019 (the “Opinion”); Supreme Court Rule 42 (“Rule 42”); and this civil action’s entire record, 
2

the Court GRANTS the Motion and enters this Order certifying an interlocutory appeal of the 

Opinion: 

BACKGROUND

The Plaintiffs filed suit against GEICO. As alleged, GEICO uses two computerized 

models (collectively, the “Rules”) to evaluate personal injury protection (“PIP”) claims of its 

insureds. The Plaintiffs argue that GEICO uses the Rules to deny valid claims without 

evaluating the facts underlying the claims. The Plaintiffs seek certification of a class action 

under Superior Court Civil Rule 23.

As part of the Civil Rule 23 process, the Plaintiffs filed their Plaintiffs’ Motion for Class 

Certification (the “Class Motion”). After extensive briefing and a one-day hearing where the 

parties presented evidence and arguments on May 10, 2019, the Court issued the Opinion. The 

Opinion grants the relief sought in the Class Motion. GEICO noted an interlocutory appeal of 

the Opinion on September 6, 2019.

Previously, on September 5, 2019, the Plaintiffs submitted a proposed implementing 

order (the “Proposed Order”). GEICO has opposed entry of the Proposed Order, arguing that the 

Proposed Order is merely a disguised motion to reconsider the Opinion. The Plaintiffs have 

countered and contended that, under Superior Court Civil Rule 23(d), the Court has broad 

authority to manage “the course of proceedings or prescribing measures to prevent undue 

repetition or complication in the presentation of evidence or argument” and “to deal [] with 

similar procedural matters. The orders...may be altered or amended as may be desirable from 

time to time.1 

 

1 Del. Super. R. Civ. P. 23(d).
3

Given that GEICO noted an appeal, the Court does not feel it is appropriate to address the 

Proposed Order. The Court is concerned with jurisdictional issues based on the appeal and Rule 

42. The Court is apprehensive, though, that GEICO’s appeal is premature given that the Court 

has not addressed issues like “claimant classes,” “class representatives” and “class counsel” (the 

“Open Issues”)—all of which the Court anticipated dealing with subsequent to issuing the 

Opinion. As such, the Supreme Court may not have an entire record to review on appeal and any

decision may warrant remand to address the Open Issues.

APPLICABLE STANDARD

Rule 42(b) dictates the standard for certifying an interlocutory appeal. “No interlocutory 

appeal will be certified by the trial court or accepted by this Court unless the order of the trial 

court decides a substantial issue of material importance that merits appellate review before a 

final judgment.”2 In deciding whether to certify an interlocutory appeal, the trial court must 

consider: (1) the eight factors listed in Rule 42(b)(iii);3(2) the most efficient and just schedule to 

resolve the case; and (3) whether and why the likely benefits of interlocutory review outweigh 

the probable costs, such that interlocutory review is in the interests of justice.4 “If the balance 

 

2 Del. Supr. Ct. R. 42(b)(i).

3 Delaware Supreme Court Rule 42(b)(iii) provides that the trial court should consider whether;

(A) The interlocutory order involves a question of law resolved for the first time in this State;

(B) The decisions of the trial courts are conflicting upon the question of law;

(C) The question of law relates to the constitutionality, construction, or application of a statute of this State, 

which has not been, but should be, settled by this Court in advance of an appeal from a final order;

(D) The interlocutory order has sustained the controverted jurisdiction of the trial court;

(E) The interlocutory order has reversed or set aside a prior decision of the trial court, a jury, or an 

administrative agency from which an appeal was taken to the trial court which had decided a significant 

issue and a review of the interlocutory order may terminate the litigation, substantially reduce further 

litigation, or otherwise serve considerations of justice;

(F) The interlocutory order has vacated or opened a judgment of the trial court;

(G) Review of the interlocutory order may terminate the litigation; or

(H) Review of the interlocutory order may serve considerations of justice. 

 See Del. Supr. Ct. R. 42(b)(iii).

4

Id.
4

[of these considerations] is uncertain, the trial court should refuse to certify the interlocutory 

appeal.”5

DISCUSSON

The Court does not agree with many contentions in the Motion. GEICO continually 

attempts to “recharacterize” the pleadings in this civil action to fit a situation previously 

addressed by this Court and the United States District Court for the District of Delaware. The 

Plaintiffs, however, have crafted a complaint and asserted claims recognized as potentially valid 

by this Court and adopted by, among others, the United States District Court for the District of 

New Jersey. The Court previously addressed those legal issues in GEICO’s motion to dismiss 

(the “MTD”) the Plaintiffs’ Amended Complaint. The Court denied the MTD in an opinion 

issued on April 24, 2018 (the “MTD Opinion”). GEICO noted an interlocutory appeal of the 

MTD Opinion, however, the Supreme Court denied GEICO’s request for an interlocutory 

appeal. Accordingly, the Court does not believe that Rule 42(b)(iii)(A)-(F) criterion apply.

Instead, the Court is granting the Motion and entering this Order certifying an 

interlocutory appeal because the Opinion: (i) “decides a substantial issue of material importance 

that merits appellate review before a final judgment;”

6

and (ii) implicates Rule 42(b)(iii) (G) and 

(H). 

SUBSTANTIAL ISSUE

The “substantial issue of material importance” prong of Rule 42 requires that the matter 

decided goes to the merits of the case.7 The focus, here, is not on the merits of legal arguments, 

but rather on whether the trial court’s decision determined a substantial issue. This case involves 

 

5

Id.

6

Id. 42(b)(i).

7

Id.
5

the application of 21 Del. C. § 2118 to GEICO’s Rules through a Civil Rule 23 class action. The 

Opinion is not addressing a minor issue like a discovery dispute, but rather the viability of class 

certification. The Court concludes, therefore, that the substantial issue criterion is met in 

GEICO’s request for certification. 

LEGAL RIGHT

A legal right is established when a court determines an issue essential to the positions of 

the parties regarding the merits of the case, i.e., “where one of the parties’ rights has been 

enhanced or diminished as a result of the order.”8 Arguably, the Opinion does not determine an

essential issue regarding the merits of the case. The Court notes that the Opinion addresses the 

Plaintiffs’ request to certify classes and not the validity of the claims asserted in Plaintiffs’ 

Amended Complaint.

RULE 42(b)(iii)

Even if the Court finds that GEICO satisfied the substantial issue of material importance 

requirement, GEICO must also meet at least one of the requirements of Rule 42(b)(iii). Here, the 

Court finds that the Motion meets at least one of the Rule 42(b)(iii)(A)-(H) criterion. 

The Court cannot find that the Opinion involves a question of law resolved for the first 

time in Delaware under Rule 42(b)(iii)(A) and (B). Despite GEICO’s contentions, the Opinion 

merely allows the Plaintiffs to proceed under Civil Rule 23. This is hardly novel in Delaware. 

The Court has already addressed the validity of the claims pled by the Plaintiffs and 

GEICO’s purported split in trial court opinions on those claims. In the MTD Opinion, the Court 

addressed: (i) whether the Amended Complaint was well pled; and (ii) the applicability of

Wilmington Pain & Rehab. Ctr., P.A. v. USAA Gen. Indem. Ins. Co.9and Johnson v. Geico 

 

8 Sprint Nextel Corp. v. iPCS, Inc., 2008 WL 2861717, at *1 (Del. Ch. Sept. 26, 2007).

9 2017 WL 8788707, at *7 (Del. Super. Oct. 17, 2017)(Jurden, P.J.), appeal refused, 176 A.3d 124 (Del. 2017).
6

Casualty Co.10 As noted above, the Supreme Court did not accept an interlocutory appeal of the 

MTD Opinion. 

Arguably, the Opinion could be seen to relate to the “construction, or application of a 

statute of this State, [21 Del. C. § 2118,] which has not been, but should be, settled by this Court 

in advance of an appeal from a final order.”11 However, the Opinion does not substantially go 

into the construction or application of 21 Del. C. § 2118 to the Amended Complaint’s claims. 

The Court addressed whether the Plaintiffs could proceed as a class under Civil Rule 23. GEICO 

attacked the viability of the Amended Complaint in the MTD, the Court addressed that in the 

MTD Opinion and the Supreme Court refused a request for interlocutory appeal of the MTD 

Opinion.

The Court does find that the Motion meets the criterion of Rule 42(b)(iii)(G) and (H). 

The Opinion follows similar decisions of the Federal District Courts.12 However, such a class 

has never been certified in Delaware. Wilmington Pain & Rehab. Ctr., P.A. discussed its 

availability but did not rule upon it.13 A decision by the Supreme Court on the viability of the 

type of classes certified in the Opinion could serve to terminate the class portion of this 

litigation.14 The Court believes this because if GEICO is right on appeal and the Plaintiffs 

cannot proceed as a class, then both forms of class certification—the one advanced in

Wilmington Pain & Rehab. Ctr., P.A. and the one advanced in the Amended Complaint—with 

respect to the Rules will not be available in Delaware. This does not mean that the entire 

litigation will terminate as the Plaintiffs would still be able to proceed on the Amended 

 

10 Johnson v. GEICO Casualty Co., 310 F.R.D. 246, 254 (D. Del. 2015), aff’d, 672 Fed. Appx. 150 (3d Cir. 2016). 

11 Rule 42(b)(iii)(C).

12 See, e.g., DeMaria v. Horizon Healthcare Servs., Inc., 2015 WL 3460997, at *7 (D.N.J. June 1, 2015).

13 2017 WL 8788707, at *7.

14 Rule 42(b)(iii)(G).
7

Complaint, just not under Civil Rule 23. The Court finds that Rule 42(b)(iii)(H) is necessarily 

implicated because of the analysis relating to Rule 42(b)(iii)(G). In other words, determining

whether the type of class certified in the Opinion is available in Delaware, will serve the 

considerations of justice. 

As stated above, the Court is concerned that without the Proposed Order (or a modified 

Proposed Order) the Supreme Court may be addressing an interlocutory appeal not fully formed 

or defined. However, the Court feels that addressing the Proposed Order is jurisdictionally 

problematic since GEICO noted the interlocutory appeal prior to any action on the Proposed 

Order. 

CONCLUSION

IT IS HEREBY ORDERED that certification to the Supreme Court of the State of 

Delaware for disposition in accordance with Rule 42 sought under the Motion is GRANTED.

Dated: September 23, 2019

Wilmington, Delaware

/s/ Eric M. Davis

Eric M. Davis, Judge

cc: File&ServeXpress