Kennedy v. Encompass Indemnity Co. v. Government Employees Insurance Co.
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
JUDI KENNEDY,
Plaintiff,
v.
ENCOMPASS INDEMNITY CO.,
Defendant/Third-Party
Plaintiff,
v.
GOVERNMENT EMPLOYEES
INSURANCE CO.,
Third-Party Defendant.
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C.A. No. N09C-06-271 MMJ
Submitted: January 19, 2012
Decided: February 28, 2012
On Defendant Encompass Indemnity Company’s Motion for Reargument or to
Modify Judgment
ORDER
Kevin G. Healy, Esquire, Morris James LLP, Newark, Delaware, Attorneys for Plaintiff
Arthur D. Kuhl, Esquire, Reger Rizzo & Darnall LLP, Wilmington, Delaware, Attorneys
for Defendant
Dawn L. Becker, Esquire, Law Office of Dawn L. Becker, Wilmington, Delaware,
Attorney for Defendant GEICO
JOHNSTON, J.
1.
On November 4, 2011, the Court heard oral argument on the
Motion for Summary Judgment filed by Defendant Encompass Indemnity
Company (“Encompass”). By Order dated December 9, 2011, the Court
denied Encompass’s Motion for Summary Judgment, for the reasons set
forth on the record.
2.
Encompass has moved for reargument, claiming that the Court
erred in relying on the Delaware Supreme Court’s decision in State Farm
Mut. Auto. Ins. v. Patterson. 1 According to Encompass, Patterson is not
applicable until a factual finding is made that Plaintiff Judi Kennedy was
injured by an uninsured motorist.
3.
The purpose of reargument is to seek reconsideration of
findings of fact, conclusions of law, or judgment of law. 2 Reargument will
usually be denied unless the moving party demonstrates that the Court
overlooked a precedent or legal principle that would have a controlling
effect, or that it has misapprehended the law or the facts in a manner
affecting the outcome of the decision. “A motion for reargument should not
be used merely to rehash the arguments already decided by the court.” 3
1
7 A.3d 454 (Del. 2010).
Hessler, Inc. v. Farrell, 260 A.2d 701, 702 (Del. 1969).
3
Wilmington Trust Co. v. Nix, 2002 WL 356371, at *1 (Del. Super.).
2
1
4.
The Court has reviewed and considered Defendant’s motion.
The Court did not overlook a controlling precedent or legal principle, or
misapprehend the law or the facts in a manner affecting the outcome of the
decision.
5.
The Court finds that its reliance on Patterson was appropriate.
The undisputed record establishes that Plaintiff’s claim was denied by
Defendant’s automobile insurance company – Government Employee
Insurance Company (“GEICO”) – on May 20, 2009.
GEICO denied
Plaintiff’s claim after finding that her injuries were not sufficiently
“permanent” to pierce the “verbal threshold” under New Jersey’s Verbal
Tort Threshold Statute. 4 Further, as part of litigation in New Jersey, an
arbitrator found that Plaintiff failed to meet the “verbal threshold.” A New
Jersey tribunal having determined the “verbal threshold” issue, under
Patterson, Delaware law entitles Plaintiff to pursue Uninsured Motorist
benefits from her automobile insurance company – Encompass.
THEREFORE, Defendant Encompass Indemnity Company’s Motion
for Reargument is hereby DENIED.
4
N.J.S.A. § 39:6A-8.
2
IT IS SO ORDERED.
/s/ Mary M. Johnston
The Honorable Mary M. Johnston
3
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