Larue v. Permanent Gen. Ins. Co., C. A. N22C-07-092 FJJ

CourtSuperior Court of Delaware
Writing for the CourtFrancis J. Jones, Jr., Judge
Docket NumberC. A. N22C-07-092 FJJ
Decision Date22 November 2022

CALVIN LARUE, Plaintiff,


C. A. No. N22C-07-092 FJJ

Superior Court of Delaware

November 22, 2022

Order Upon Consideration of Defendant's

Motion to Dismiss


Kenneth M. Roseman, Esquire

Periann Doko, Esquire

Francis J. Jones, Jr., Judge

Having considered Defendant Permanent General Insurance Company ("Permanent")'s Motion to Dismiss and Plaintiff Calvin LaRue's Response, it appears to the Court that:

1. Mr. LaRue filed a first party insurance action against Permanent, seeking no fault and uninsured motorist coverage for a car accident that occurred on December 1, 2020 Permanent has moved to dismiss the claim on the grounds that Mr. LaRue was not an insured at the time of the accident
2. Permanent's motion to dismiss is premised upon its contention that Mr. LaRue's automobile insurance policy with Permanent did not take effect until one day after Mr LaRue's accident. According to Permanent, the record as it stands is adequate to grant dismissal because the policy declaration sheet shows an effective date of December 2, 2020. Permanent did not submit any other materials or affidavits with its motion.
3. In Mr. LaRue's response to the motion, he attached a banking sheet indicating a payment was made to Permanent on November 28, 2020.
4. At this point in time, the parties have not engaged in discovery to determine: (1) whether the November 28 payment was for the Permanent policy in question; (2) when Permanent received the payment; and (3) when the policy should have become effective given the date of payment.
5. When matters outside the pleadings are included with the moving papers on a motion to dismiss under Superior Court Civil Rule 12(b)(6), the motion is considered to be a motion for summary judgment.[1]
6. Summary judgment is not appropriate when the Court does not have sufficient facts in the record to enable it to apply the law to the facts before it.[2]
7. Against this background, the Court finds summary judgment to be premature at this stage in the proceedings. The record, as it stands, is undeveloped and insufficient to answer the questions presented above. Therefore, Permanent's motion is DENIED without prejudice.
8. The Court will permit a follow-up motion for summary judgment after the parties establish a more complete record. At that time, the Court will attempt to answer the above

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