Nationwide Ins. Co. v. Rothermel
| Decision Date | 21 March 1978 |
| Citation | 385 A.2d 691 |
| Court | Supreme Court of Delaware |
| Parties | NATIONWIDE INSURANCE COMPANY, Defendant below, Appellant, v. Herbert M. ROTHERMEL, Plaintiff below, Appellee. |
Upon appeal from Superior Court.
Reversed and remanded.
Mason E. Turner, Jr. of Prickett, Ward, Burt & Sanders, Wilmington, for defendant below, appellant.
Harry H. Rhodes, III, of Brown, Shiels & Barros, Dover, for plaintiff below, appellee.
Before HERRMANN, C. J., and DUFFY and McNEILLY, JJ.
In this suit for recovery of personal injury protection benefits, defendant insurance company appeals from an order of the Superior Court granting plaintiff's motion for partial summary judgment on the issue of liability. In reaching our decision, we find it necessary to address only the issue of whether the applicable statute of limitations has run its course so as to bar the suit. The majority of this Court are of the opinion that the limitations period for plaintiff's cause of action has expired, and, therefore, we reverse.
On March 22, 1972, plaintiff was injured while riding in a vehicle driven by the insured when the car collided with another automobile. Plaintiff, after lengthy negotiations, recovered damages for his injuries from the driver of the other vehicle, and granted the driver a general release from further liability. However, plaintiff made no recovery from the defendant insurer of the vehicle in which he had been riding of the compensation to which he had a statutory right under 21 Del.C. § 2118(a) 1, known as the "no-fault" personal injury protection (PIP) benefits. Indeed, plaintiff made no claim for PIP benefits until after the settlement and release. Plaintiff negotiated with defendant concerning payment of the benefits, and when the talks proved non-productive, plaintiff instituted suit, filing in the Superior Court on March 5, 1975. Defendant's appeal followed the Superior Court's order granting summary judgment on the issue of liability in plaintiff's favor.
The Superior Court determined that plaintiff's cause of action arose under the provisions of 21 Del.C. § 2118, and being statutory in nature, the Court reasoned that the suit was governed by the three year limitation period expressed in 10 Del.C. § 8106. 2 Plaintiff was injured on March 22, 1972, and filed suit for personal injury protection benefits on March 5, 1975, within three years from the date of the accident. Therefore, the Superior Court ruled that the suit was timely.
The difficulty with the Superior Court decision is that it ignores the proviso contained in the final sentence of 10 Del.C. § 8106 which makes the entire section, inter alia, subject to the provisions of 10 Del.C. § 8119. 3 Compare Tilden v. Anstreicher, Del.Supr., 367 A.2d 632 (1976). Section 8119 provides a two year period of limitations for "any action for the recovery of damages upon a claim for alleged personal injuries". While plaintiff's claim is statutory in nature, it is based upon his alleged personal injuries, and thus, falls within the ambit § 8119 through the "subject to" proviso of § 8106, and is governed by the limitations period expressed in § 8119.
The No-Fault Statute did not change the nature of the plaintiff's claim from a claim for damages arising from a personal injury; the Statute simply permitted limited recovery for the personal injury, without regard for fault.
Plaintiff's suit was filed after two years had expired from the date of the accident, and consequently, the action is barred by 10 Del.C. § 8119.
This conclusion is consistent and harmonious with the two-year limitation period controlling the insurer's right of subrogation, based as it is upon the statute of limitations applicable to the injured party's tort claim, i. e., § 8119. It would create an unreasonable anomaly to hold that a claim against an insurer for no-fault benefits arising out of a personal injury is subject to a different and longer limitations period than the insurer's subrogation right against the tort feasor. It would give rights to both an injured party and his insurer arising out of the same event but subject them to different statutes of limitations. This result, we believe, is unreasonable and could not have been the legislative intent.
Reversed and Remanded with instructions to dismiss the action.
I regret that I cannot agree with the Court's analysis of the legal problem before us, nor with its conclusion.
Basically, I think that Judge Walsh's construction of the "no-fault" statute, announced in Webster v. State Farm Mutual Automobile Ins. Co., Del.Super., 348 A.2d 329, 332 (1975), and followed by him in this case, is correct; he said this:
One who is injured while riding as a passenger in an automobile, as was the plaintiff, thus has two causes of action: one against the alleged tort-feasor based upon traditional negligence principles, and another against the insurance company based upon the no-fault statute. 21 Del.C. § 2118.
I understand the Court's desire to harmonize the statutes of limitations applicable to those two separate causes of action, but we may not engage in judicial legislation to effect that result when the provisions of the applicable statutes are clear and unambiguous. Cf. Layton v. Allen, Del.Supr., 246 A.2d 794, 798 (1968). In my view, they are quite clear and we should follow them. To begin, 10 Del.C. § 8106 plainly applies a three-year limitations period to an "action based on a statute." 1 It is undisputed that, but for the no-fault law, plaintiff would not have a cause of action against Nationwide Insurance Company. Thus his "action is based" on § 2118 and governed by the three-year period.
A majority of the Court, however, concludes that the no-fault statutory claim is not a statutory claim but is, rather, a claim "for personal injuries" and thus subject to the § 8119 exception which appears in § 8106. 2
The Court's reasoning appears to be that plaintiff's claim is statutory in nature but is governed by § 8119 because it is based upon alleged personal injuries. That is a distinction which is not made by the Statutes. Section 8106 does not exclude from the three-year provision a claim which is only statutory in nature, and § 8119 does not include in the two-year provision a claim based upon alleged personal injuries. Section 8119 applies, in so many words, to "a claim for alleged personal injuries" (emphasis added).
This action is for the recovery of medical expenses and lost earnings; it is not for the recovery of damages for personal injuries. The whole rationale of the no-fault concept, as I understand it, is that the "personal injury" aspect of a negligence claim is litigated in the same way as it was before the no-fault statute became law. But in an action for those damages, that is, for the personal injuries, a claim may not be made against the tort-feasor for damages for which compensation is available under 21 Del.C. § 2118(a)(2) or (3). 3
As the Trial Judge pointed out, the result he reached shows a limitations anomaly but it is legislatively conceived and should not be judicially eliminated.
I would affirm the judgment of the Superior Court. 4
1 21 Del.C. § 2118(a) reads in full as follows:
(a) No owner of a motor vehicle registered in this State, other than a self-insurer pursuant to § 2906 of this title, 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:
(1) Indemnity from legal liability for bodily injury,...
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