Burkhardt v. Progressive Select Insurance Company, N20C-04-248 FWW

Background

Plaintiff Lindsay L. Burkhardt, a Maryland resident, was injured in a motor-vehicle accident in Delaware while driving a vehicle registered and insured in Maryland.
Maryland law requires insurers to offer PIP but allows the first-named insured to waive PIP in writing; Burkhardt executed such a waiver under her Maryland Progressive policy.
Progressive denied Burkhardt’s claim for medical expenses (~$22,227), prompting this suit for PIP benefits under Delaware law (21 Del. C. § 2118).
§ 2118(b) requires out-of-state vehicles operated in Delaware to carry insurance equal to the minimum required by the state where the vehicle is registered, or, if that state requires no minimum, the Delaware minimum.
Burkhardt’s policy contains an out-of-state (extraterritorial) clause that, for jurisdictions requiring compulsory coverage, provides the greater of the required minimum/types of coverage or the policy limits.
The Superior Court granted Burkhardt’s motion for summary judgment and denied Progressive’s cross-motion, holding Progressive must provide Delaware PIP benefits ($15,000) for the Delaware accident.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether §2118(b) requires the state of registration to mandate PIP specifically (to avoid Delaware minimums)	§2118(b) requires the home state to require PIP; if home state allows waiver, Delaware’s minimum PIP applies	§2118(b) requires the state to mandate insurance generally; Maryland’s framework still amounts to a requirement	Court found §2118(b) ambiguous as to the type of insurance and did not rest the decision on a holding that §2118(b) requires PIP from the home state
Whether Maryland “requires” PIP despite a valid written waiver	Because Maryland permits written waiver and Burkhardt waived, Maryland did not require PIP for her	Maryland’s statutory scheme still mandates PIP be offered and is effectively mandatory (analogy to Delaware UM precedent)	Court held Maryland does not require PIP for an insured who validly executes the statutory waiver; Burkhardt’s waiver was effective as to Maryland
Whether Burkhardt’s Maryland PIP waiver prevents PIP coverage for a Delaware accident	Waiver is limited to Maryland; the policy’s out-of-state clause triggers Delaware minimum PIP for accidents in Delaware	Waiver should apply everywhere; insurer should not be forced to provide coverage for which insured paid no premium	Court held the policy’s extraterritoriality clause requires Progressive to provide the greater of Delaware’s required minimum/types of coverage or policy limits for a Delaware accident, so the waiver is ineffective to avoid Delaware PIP in that context
Effect of the policy’s out-of-state/extraterritorial clause	The clause obligates Progressive to provide Delaware’s minimum PIP when the accident occurs in Delaware	The clause should not supersede the insured’s valid waiver or impose unexpected coverage	Court interpreted the clause to require providing the required minimum/types of coverage for states like Delaware; Progressive must provide $15,000 PIP for this Delaware accident

Key Cases Cited

Frank v. Horizon Ins. Co., 553 A.2d 1199 (Del. 1989) (holds policy provisions that conflict with statutorily mandated coverage or waiver framework are invalid)
Brzoska v. Olson, 668 A.2d 1355 (Del. 1995) (describes summary judgment burden-shifting standard)
Ebersole v. Lowengrub, 180 A.2d 467 (Del. 1962) (addresses when summary judgment is appropriate where facts permit only one inference)
Wooten v. Kiger, 226 A.2d 238 (Del. 1967) (explains legal questions arise when only one reasonable inference from undisputed facts exists)