Nationwide Ins. Co. v. Graham

• Decision Date: 27 May 1982
• Citation: 451 A.2d 832
• Parties: NATIONWIDE INSURANCE COMPANY, Defendant Below, Appellant, v. Martin GRAHAM and Ada Graham, Plaintiffs Below, Appellees. . Submitted:
• Court: United States State Supreme Court of Delaware

Page 832

451 A.2d 832

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

Supreme Court of Delaware.

Submitted: May 27, 1982.

Decided: Sept. 30, 1982.

Upon appeal from Superior Court. Affirmed.

Mason E. Turner, Jr. (argued), Prickett, Jones, Elliott, Kristol & Schnee, Wilmington, for defendant-appellant.

Robert C. Wolhar, Jr. (argued), Wolhar & Moore, Georgetown, for plaintiffs-appellees.

Before HERRMANN, C.J., McNEILLY and QUILLEN, JJ.

McNEILLY, Justice:

This appeal and cross-appeal concerns construction of 21 Del.C. § 2118(a)(2) ¹ Delaware's no-fault insurance law, and an automobile insurance policy's no-fault coverage benefits. There are two issues presented for our consideration. (1) Whether 21 Del.C. § 2118(a)(2)a.3. requires an insurer to pay routine, recurring medical expenses for a period of time more than two years after an automobile accident where the costs of such treatment cannot be ascertained, and (2) whether appellee under the circumstances presented is entitled to compensation for lost earnings pursuant to 21 Del.C. § 2118(a)(2)a.2.

I

On October 30, 1978, appellee Ada Graham was involved in an automobile accident. As a result of injuries sustained in the accident appellee missed sixteen weeks of work as a self-employed deliverer of the Delaware State News and incurred various medical bills.

It is undisputed that at the time of the accident appellee was insured by appellant under an automobile insurance policy complying with the provisions of 21 Del.C. § 2118. Prior to October 30, 1980 appellee submitted to appellant a statement signed by her physician, Doctor Italo Monteteone. In essence, the statement asserted that it would be necessary for appellee to incur further costs of surgical procedures and medical expenses including related treatments which were impractical or impossible to perform by October 30, 1980. The statement concluded that the costs of these treatments were impossible to estimate in that they depended on the appellee's response to therapy.

While appellant paid all medical bills submitted by appellee which were incurred prior to October 30, 1980, it has refused to pay for medical expenses incurred after this date. Additionally, appellant has denied all liability for any lost wages suffered by appellee.

II

As to whether 21 Del.C. § 2118(a)(2)a.3. requires an insurer to pay routine, recurring medical expenses for a period of time more than two years after an accident where the costs of such treatment could not be ascertained, the Court below found that it did. 444 A.2d 286. The Court ruled that the statement by Dr. Monteleone complied with the decision in Carucci v. Van Dyke, Del.Super., 394 A.2d 246 (1978) and that it is only the necessity of medical expenses which must be ascertained and not their costs. We affirm. ²

In Carucci it was held that in order for an insurer to be liable under § 2118(a)(2)a.3. all of the limiting factors stated in subparagraph 3 must be fulfilled, namely, "(1) ascertainment of necessity before expiration of the 2-year period; (2) impracticability or impossibility of performing the procedures or treatments within the 2-year period; and (3) written verification within the 2-year period that the procedures or treatment will be necessary." 394 A.2d at 248.

At issue in the instant case is the first factor. Appellant would have us construe this factor to require that the cost of any medical procedures in treatment must be ascertained within two years of the date of the accident. It is appellant's contention that it is not obligated to pay the costs after October 30, 1980 in that the statement by Dr. Monteleone failed to ascertain the costs of medical treatments or procedures within two years of the date of the accident.

Any interpretation of the statute must give full effect to all of the pertinent statutory language and produce the most consistent and harmonious result under the wording of the section. Martin v. American Potash & Chemical Corp., Del.Supr., 33 Del.Ch. 234, 92 A.2d 295 (1952); Nationwide Mutual Insurance Co. v. Krongold, Del.Supr., 318 A.2d 606 (1974). The only interpretation which conforms to these canons of statutory construction is one which finds that what must be ascertained within two years is the necessity of the medical expenses and not their costs.

A review of the statutory language reveals that the phrase "necessity of which have been medically ascertained" modifies "dental or surgical procedures, medical expenses including related treatment" and does not modify the word "cost".

This conclusion is buttressed by the last sentence of § 2118(a)(2)a.3. which permits the insurer to make payment either at the time the cost is ascertained or when the expense is incurred. This language does not require that costs be ascertained within the two year period and it contemplates that the insurer may pay the costs at the time they are ascertained, whether during the two year period or thereafter or when they are actually incurred. If appellant's construction was adopted, the statute would require the insurer to pay within two years and it would eliminate the insurer's option of waiting until the costs are actually incurred. This is clearly at odds with the statute.

Appellant next contends that § 2118(a)(2)a.3. does not include "routine, recurring medical expenses." This interpretation is contrary to the plain statutory language. As Judge Stiftel stated in Kemske v. Ohio Casualty Insurance Company, Del.Super., C.A. 80C-MY-4 (June 18, 1981) (unreported), this contention is without merit:

"... § 2118(a)(2)a.3. states that it covers "dental and surgical procedures, medical expenses including related treatment and the net amount of lost earnings...". Worded in the conjunctive, 21 Del.C. § 2118(a)(2)a.3. clearly set off medical expenses as an item separate from dental and surgical procedures. This conclusion is further...