Graham v. Nationwide Ins. Co.

• Decision Date: 08 February 1982
• Citation: 444 A.2d 286
• Parties: Martin GRAHAM and Ada Graham, Plaintiffs, v. NATIONWIDE INSURANCE COMPANY, Defendant.
• Court: Delaware Superior Court

Page 286

444 A.2d 286

Martin GRAHAM and Ada Graham, Plaintiffs, v. NATIONWIDE INSURANCE COMPANY, Defendant.

Superior Court of Delaware Sussex County.

Submitted Nov. 9, 1981.

Decided Feb. 8, 1982.

Robert C. Wolhar, Jr., Georgetown, for plaintiffs.

Mason E. Turner, Jr., Wilmington, for defendant.

WRIGHT, Judge.

This is an action brought by the plaintiffs for no-fault insurance benefits pursuant to 21 Del.C. Sec. 2118.

Plaintiff, Ada Graham, is a self-employed deliverer of the Delaware State News and has been for twelve years. On October 30, 1978 she was involved in an automobile accident. As a result of injuries sustained in the accident plaintiff missed sixteen weeks of work and at different times, hired two helpers to deliver the newspapers for her.

Defendant has paid all medical bills submitted to it by plaintiff which were incurred within two years of the accident. It contends, however, that it is not obligated pay for any medical expenses incurred after October 30, 1980. Plaintiff, however, argues that under 21 Del.C. Sec. 2118(a)(2) a defendant is liable for plaintiff's future medical expenses. Plaintiff also contends, and defendant denies, that defendant is liable for lost earnings sustained by plaintiff.

In order to resolve the issue of defendant's liability for plaintiff's medical expenses incurred after October 30, 1980, it is necessary to consider 21 Del.C. Sec. 2118(a)(2) a.3. That section provides in pertinent part:

(a) No owner of a motor vehicle registered in this State ... shall operate or authorize any other person to operate such vehicle unless the owner has insurance on such motor vehicle providing the following minimum insurance coverage:

* * *

(2) a.3. Cost of dental or surgical procedures, medical expenses including related treatment and the net amount of lost earnings, the necessity of which have been medically ascertained within 2 years from the date of the accident but which are impractical or impossible to perform during that period and as to which verification that such procedures or treatments will be necessary has been made in writing by a qualified medical practitioner within 2 years from the date of the accident. The payment of this cost shall be either at the time they are ascertained or at the time they are actually incurred, at the insurer's option.

This statutory provision has already been considered by the Superior Court in Carucci v. Van Dyke, Del.Super., 394 A.2d 246 (1978). In that case the Court interpreted the language of Sec. 2118(a)(2) a.3. to set forth three factors which must be present in order to establish the liability of the insurer. These factors are: (1) ascertainment of the necessity of incurring medical expenses before expiration of the two year period, (2) impracticality or impossibility of performing the procedures or treatment within the two year period and (3) written verification within the two year period that the procedures or treatment will be necessary.

In the present action plaintiff relies on a written statement dated October 29, 1980 and signed by Dr. Italo Monteleone. This statement indicated Dr. Monteleone's belief that plaintiff necessarily would incur further medical expenses after October 30, 1980, which were impractical or impossible to perform prior to that date.

Defendant contends that this written verification is not sufficiently precise to require defendant to provide benefits for medical expenses incurred by plaintiff more than two years after the accident. I cannot agree. In reviewing the statutory requirements found in 21 Del.C. Sec. 2118(a)(2) a.3. and plainly spelled out in Carucci, it is clear that the letter signed by Dr. Monteleone is sufficient to...