Windom v. Capital Trail Jr. Football League, Inc. t/a NCCFL, et al.
Annotate this Case
Download PDF
IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW C ASTLE COUNTY DEBORA H J. WINDOM , as next friend BRAND ON W INDOM , a minor, Plaintiff, v. CAPITAL TRAIL JR. FOOTBALL LEAGU E, INC. t/a NCCFL, a Delaware corporation; WILLIAM C. UNGERER, W.C. UNGERER INSURANCE AGENCY, MICHAEL T. ALPAUGH, MICHAEL T. ALPAUGH INSURAN CE AGEN CY; and PAWTUCKET MUTUAL INSURAN CE COMP ANY, a foreign corporation, Defendants. ) ) ) ) ) ) ) C.A. No. 01C-10-196 MMJ ) ) NON ARBITRATION CASE ) JURY TRIAL DEMANDED ) ) ) ) ) ) ) ) ) ORDER Submitted: June 28, 2004 Decided: July 22, 2004 Motion for Sum mary Judgm ent of Defendants W illiam C. Ungerer and W . C. Ungerer Insurance GRANTED Motion for Sum mary Judgm ent of Defendants M ichael T. Alpaugh and M ichael T. Alpaugh Insurance A gency GRANTED The following is the Court s decision concerning the Motions for Summary Judgment brought by Defendants William C. Ungerer,W. C. Ungerer Insurance Agency, Michael T. Alpaugh and Michael T. Alpaugh Insurance Agency. The initial complaint was filed on October 22, 2001, by Plaintiff Deborah J. Windom, as next friend of Brandon Windom, a minor, for damages allegedly resulting from the neglig ence of D efendan ts Capital T rail Jr. Fo otball Le ague, In c., t/a NC CFL , a Delaware corporation ( NCCFL ); William C. Ungerer ( Ungerer ) and W.C. Ungerer Insurance Agency ( Ungerer IA ); Michael T. Alpaugh ( Alpaugh ) and Michael T. Alpaugh Insurance Agency ( Agency IA ); and Pawtucket Mutual Insurance Company, a foreign corporation ( Pawtucket ). Defendant NCCFL failed to appear, p lead or otherw ise defend. O n Decem ber 12, 200 2, Plaintiff s Motio n for D efault Jud gment a gainst N CCFL was granted . NCCFL subsequently assigned all of its rights in this litigation to Plaintiff. For purposes of this motion, the Court assumes that the assignment from NCCFL to the Plaintiff is valid and enforceable. FACTUAL SUMMARY From 1986 and through A ugust of 1999, NCCFL procured insurance coverage through A lpaugh, an exclusive agent for N ationwide Insurance Co mpany. After issuance of a general liability insurance policy to NCCFL for the policy 2 period through September 1, 1999, Nationwide determined that it would not renew the policy upon its expiratio n on S eptemb er 1, 199 9. By correspondence dated May 25, 1999, NCCFL received the notice of nonrenewal from Nationwide. Alpaugh learned of the non-renewal on September 14, 1999 and explained to the president of NCCFL, that as an exclusive agent for Nation wide, A lpaugh could n ot seek co verage f or NC CFL from o ther carrie rs. Alpaugh provided Verucci with the names of three other insurance companies from whom NCC FL co uld seek general lia bility insur ance cov erage. Subse quently, A lpaugh asked U ngerer, a n acqua intance an d insura nce agen t, wheth er Ung erer repr esented a ny insur ance com panies th at might b e able to provid e genera l liability insu rance co verage f or NC CFL . Acting on this conversation, Ungerer IA contacted Pawtucket with a proposal for insurance coverage for NCCFL. On September 27, 1999, Alpaugh received from Ungerer a proposal for insurance coverage. NCCFL accepted the proposal and provided the necessary information to Alpaugh, and included a check in the amount of $600 for the initial insurance premium. Alpaugh passed the information to Ungerer and Unge rer prep ared the a pplication . Alpau gh sent N CCF L a Cer tificate of L iability Insuran ce dated S eptemb er 29, 19 99. 3 Ungerer received a fax from Pawtucket on October 7, 1999, stating that Pawtucket determined not to provide insurance to NCCFL. Upon learning of Pawtucket s decision to decline coverage to NCCFL, Ungerer sent a letter to the NCCFL at the street address on the Certificate of Insurance and enclosed the applicatio n check , advising NCC FL of Pawtu cket s dec ision to d ecline cov erage. Although the letter was never returned and the application check had never been cashed, NCCFL asserts that it did not receive notice from Pawtucket of its decision to decline their insurance application until several months later. NCCFL stated that it has no system for checking for mail sent to the street address. Instead, correspondence with NCCFL ordinarily is sent to its post office box, the mailing address on the insurance application. Alpaugh did not receive Pawtucket s notice that Pawtu cket was de clining covera ge and A lpaugh w as not copied on Ung erer s fax to NCCFL. ANA LYSIS The law in Delaware is clear that summary judgment shall be granted if the pleadings, depositions, admissions, and affidavits demonstrate that there is no genuine issue of material fact and that the movan t is entitled to judgment as a matter of law. O rdinarily, th e questio n of neg ligence an d its causa l relationsh ip to an alleged injury are issues of fact for th e jury. H owev er, whe n undis puted fa cts 4 compel only one conclusion, the Court has a duty to enter a judgment consistent therew ith. 1 The A lpaug h Def endan ts NCC FL claim s that Alp augh s a ctions to h elp NC CFL procur e substitu te general liability insurance constituted the actions of a professional insurance broker or agent, engaged in transacting the business of insurance. Acting as a professional broker or agent, NCCFL claims that Alpaugh and Alpaugh IA owed a legal duty to NCCFL to notify them of Pawtucket s decision to decline coverage. The Court assumes without deciding, for purposes of this argument, that Defendant Alpaugh acted as a broker with respect to NCCFL. Section 1702(5) of title 18 of the Delaware Code defines an insurance Broker as a licensee of the Department, who, for compensation, negotiates on behalf of others contracts for insurance from companies to whom he or she is not appointed. Even assuming that Alpaugh acted as a broker with respect to NCCFL, the course of dealing between Alpaugh IA and NCCFL did not create an affirmative legal duty requiring Alpaugh to notify NCCFL that its insurance application had been denied by Pawtu cket. Alpau gh wa s not con tacted by P awtuck et regard ing the d ecision to 1 Jones v. Diamond Ice & Fuel Co., Del. Super., C.A. No, 79C-OC-60, Bifferato, J. (September 17, 1981)(citing Faircloth v. Rash, 317 A.2d 871 (1974)). 5 decline coverage. Ungerer did not inform Alpaugh of Pawtucket s decision. There is no statute or case law that would demonstrate that Alpaugh had an affirmative legal duty under the specific circumstances presented to inform NCCFL of Pawtu cket s dec ision. There is nothing in the record that forms the basis for a prima facie case of negligence by Alpaugh. Alpaugh has adequately met his burden of providing evidence to show that the facts are not in dispute and that from those facts only one conclusion can be drawn. As a matter of law, there is no evidence of negligent conduct by Alpaugh. THEREFO RE, Alpaugh is entitled to judgment as a matter of law and Defenda nts Michae l T. Alpaug h s and M ichael T. Alp augh Insu rance Ag ency s Motion for Su mmary Judgm ent is hereby GRA NTE D. The case against Michael T. Alpaugh and Michael T. Alpaugh Insurance Agency is dismissed with prejudice. The U ngerer Defen dants With regard to Defendants William C. Ungerer and W. C. Ungerer Insurance Agency s Motion for Summary Judgment, the Court finds that Ungerer IA gave NCCFL appropriate notice of its decision to decline NCCFL s insurance application. In contrast to a decision to terminate coverage, there is no statutory requirement that a decision to decline an insurance application be sent by certified 6 mail. While it may have been a better business practice for Ungerer to have telephoned NCCFL to notify NCCF L that the insurance application had been denied by Pawtucket, there is no statutory or common law duty to do so. The Co urt finds that it w as not unreas onable for U ngerer to use NCC FL s proper ty addres s instead o f NCC FL s P .O. Bo x mailing address . It was en tirely within th e contro l of NC CFL wheth er it chose to check its offices f or mail delivery. NCCFL s property address was the one listed on the Certificate of Insuran ce. A letter proper ly addres sed with a pre-pa id postag e, and no t returned , is presumed to be duly received by the addressee.2 The letter was ne ver retur ned to Ungerer and Ungerer had no way of knowing that NCCFL did not check the mailbox located o n their pr operty. THEREFO RE, Ungerer is entitled to judgment as a matter of law and Defendants William C. Ungerer s and W. C. Ungerer Insurance Agency s Motion 2 Graham v. Commercial Credit Co., 194 A.2d 863, 865 (Del. 1963), aff d, 200 A.2d 828 (Del. 1964) 7 for Summary Ju dgment is hereby GRA NTE D. The case against William C. Ungerer and W. C. Ungerer Insurance Agency is dismissed with prejudice.3 IT IS SO ORDERED. __________________________________________ Judge Mary M. Johnston 3 At this juncture, the Court need not to resolve whether NCCFL had implied insurance during the period between the date Pawtucket accepted NCCFL s application and deposit, and the date NCCFL received notice that Pawtucket decided to decline NCCFL s insurance application. No motion was filed by Pawtucket in this matter, therefore, there is nothing before the Court to decide with regard to Pawtucket at this time. 8
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
