*1 COMPANY, a ALLSTATE INSURANCE duly
corporation existing under the laws Delaware, Defendant Be- the State low, Appellant, Sr., SPINELLI,
Clyde Plaintiff Below, Appellee. Court of Delaware. Supreme Dec. 1981.* Submitted 22, 1982. Decided March & Becker (argued), D. Ferri
Dennis A., appellant. Ferri, Wilmington, for P. R. James (argued), and B. Potter Stephen A., Carmine, Wil- P. Leonard, & of Potter appellee. mington, Justice, HERRMANN, Chief Before DUFFY, McNEILLY, QUILLEN and HOR- en Justices, SEY, constituting the Court banc. Court, with
HORSEY, Justice, DUFFY, Justice, concurring: the determination appeal
This concerns over of limitations re- coverage” claims for “uninsured * Supplemental briefing, following argument, was completed until Feb.
quired under 18 3902(a).1 Del.C. contract, The to actions for breach rather § Court of Chancery plaintiff’s found to than 10 Del.C. our limitations stat- § be contractual in nature. From this find- ute controlling personal inju- tort claims for ing, the ry.3 Court ruled applicable agree the also with We the Chancellor 8106,2 statute of limitations timely was 10 Del.C. the instant suit was filed. § However, prescribes we three-year disagree the limitations Chancellor period. as to three-year The Court when the limitation then ruled that under begins to on an mo- plaintiff’s run § § claim for uninsured vehi- torist We such cle benefit claim. hold that coverage benefits would accrue accrue, hence of action does not against plaintiff’s automobile’s insurance begin to limitation of 8106 does not carrier, § Allstate Insurance Company, until run, coverage and until the insurer denies the “uninsured motorist status of the tort- rejection any claim notifies its insured of feasor Hence, is ascertained.” the three- for such benefits. year period 8106 did not § begin to run until that date. Applying
those to rulings case, facts I found the suit to have been August 28, On Clyde Spinelli, Sr. timely filed and denied Allstate’s motion to (plaintiff) injured was in an ac- automobile dismiss. We affirm judgment below. operated cident when his wife by vehicle We conclude that an by action an insured was in by struck the rear a vehicle driven against his automobile insurance carrier by (Gilday). The Eugene Gilday purported recover uninsured motorist benefits essen- Gilday insurer driven by automobile tially sounds in contract rather than in tort. Kemper Company (Kemper). Insurance the timeliness of suit for unin- by vehicle was insured sured motorist by is controlled (Allstate) with Insurance 8106, our statute of policy the named insured. included 3902(a) 1. 18 Del.C. reads in full as follows: to 3 limitation. 8106. Actions “§ trespass, damages for No action recover “(a) policy insuring against liability arising No possession personal regain chat- no tels, action ownership, out of the maintenance or use of action a debt not evidenced no to recover by any motor vehicle shall be delivered or issued seal, by no or an instrument under record delivery for in this State with action based statement on a detailed registered principally garaged vehicle or mutual demands in the nature of debit coverage provided in this State unless there- arising parties credit between al promise, out of contractu- supplemental in protection or thereto for relations, fiduciary persons no on a or action based insured thereunder who are en- statute, and no no on a action based damages oper- titled to recover from owners or injury damages action to recover caused ators of uninsured or hit-and-run motor vehi- unaccompanied resulting bodily injury, or indirect- disease, cles cluding with force or in- sickness death, ly be defendant shall property damage from act of the years brought expiration resulting after the of 3 from ownership, from maintenance or action; subject, accruing use of of the cause of such uninsured or hit-and-run motor 8108-8110, however, Except, provisions of coverage §§ vehicle. required that no such shall be supplemental policy in 8127 of to a 8119 and this title.” where rejected writing, on a form furnished follows: in full as 8119 reads Del.C. describing coverage insurer by being rejected, therein, upon any upon insured named damages re- “No action for the newal then coverage of such injuries unless the alleged personal shall be a claim for requested writing years the named in- expiration brought of 2 after the required may sured. The alleged herein that such date which it is claimed ” coverage.’ referred however, ‘uninsured sustained; subject, injuries were provisions of this title.” of 8127 2. 10 Del.C. states: arbitration, complaint, caused answered “uninsured motorists.”4 on the pleadings and moved on its limitation Allstate relied defenses. More than 20 months after date of acci- primarily on limitation of dent, Spinelli filed personal injury suit alternative, contended, 8119 but in the against Gilday Negotia- in Superior Court. *3 by that if the action controlled were Kemper tions ensued plaintiff between and the the suit also time-barred because (Gilday’s purported insurer). However, Spi- of action on the date of cause accrued Kemper’s attorney entering deferred injury, nelli’s accident. date appearance court Gilday until Novem- Spinelli then action in the 30,1978. filed this Court later, Kemper, ber But days on Chancery seeking compelling an order 13, 1978, December disclaimed third-party and staying Superior arbitration Court liability coverage on the automobile that proceedings, including determination of All- Gilday was operating at the time of the pending judgment state’s motion for on the accident. by pleadings. moving Allstate countered Spinelli continued pursue his pending as barred ei- Chancery dismiss suit against Gilday March, suit and in ther 8106. §§ obtained a default judgment against Gil- stated, the denied the mo- As day. September, 1979, In following an in- first, ruled: that the claim was tion and quisition damages, as to Spinelli was award- right rather than based on contract $16,000 ed a against Gilday. the three- injury; and therefore tortious October, 1979, In proved after the judgment 8106 con- year contract uncollectible, to be Spinelli, for the first trolled; second, liability accrued and that time, informed Gilday’s Allstate of run began not on and hence Spinelli sured status. sought also informa- but upon occurrence the accident tion as to the provisions uninsured motorist ascertainment of the status “the of his Allstate policy, though apparently appealed. the tortfeasor.” Allstate then making without upon formal demand All- the timeliness of only issue before us is state for uninsured motorist bene- suit. fits. On December (39 1979 months after II accident), Spinelli Supe-
date of filed suit in rior Court Allstate for un- Chancery Allstate claims the Court der his policy uninsured motorist bene- (1) legal to both issues: committed error as parties fits. The agreed stay then limitations control- applicable statute of dispute suit and to arbitrate their under the ling Spinelli’s claim for uninsured benefits; provisions poli- arbitration the Allstate when the date However, cy.5 before an arbitration hear- of action and the statute of accrued held, ing could be began Allstate withdrew from run on his claim. As to upon person, Appendix pertinent provisions written demand of such the mat- 4. See A for the concerning person policy upon of the Allstate insurance un- ter or matters which coverage. agree insured motorist do not be settled arbitra- Allstate shall rules of the Ameri- tion accordance with the provision poli- 5. The arbitration of the Allstate judgment upon can Arbitration Association cy reads in full as follows: may arbitrators be the award rendered any person making having jurisdiction “Arbitration. If claim here- there- entered court agree per- under agree and Allstate do person that such not each of. Such and Allstate damages son is entitled by any to recover be bound consider itself bound and to operator the owner or of an uninsured automo- pursuant made to this award the arbitrators bodily injury bile because coverage.” agree payment do not as to the amount of owing coverage, then, under this statute, issue, the applicable contends, Allstate On first understandably stated, responds Chancery that the Court of cor that Spinelli’s claim is based rectly appro determined 8106 to be injury. argues priate controlling statute of limitations that statute of limitations is Spi claim for uninsured motorist benefits. 10 DeLC. 8119 because it controls all ac reasons, below, nelli as did the Court that tions based on for per claims an uninsured motorist claim is founded in sonal injury.6 Allstate argues this tort; contract, is, the claim exists Court’s 1978 decision in Nationwide Insur only by provisions reason of the of his in ance Rothermel, Del.Supr., 385 Hence, Spi surance Allstate. (1978), A.2d 691 for, calls requires, if not argues, nelli since action is based on a Rothermel, result. In this Court ruled bargained-for promise, timeliness that suits on based personal inju claims for governed by action should be the contract ry protection (PIP benefits) are controlled language of 10 Del.C. *4 by the time limitation of 10 Del.C. 8119 § issues, Spinelli responds On both that and not that of argues 8106. § Allstate reasoning applied Rothermel’s to PIP that this Court’s ratio decidendi Rother- pertinent claim benefits is not to a for mel applies equal with force to accidents for uninsured motorist benefits. Rothermel subrogation an reasoned that since insurer’s uninsured motorist benefits. it con rights against subject a tortfeasor are tends, Spinelli’s claim for uninsured bene 8119, two-year period the limitation § fits based on personal injury should also be insured’s PIP suit for benefits should also controlled by the time limitations of 8119. § subject period. be to the same limitation As to issue, the second Spinelli’s when that argues Rothermel either cause of action accrued and the statute distinguishable. should be overruled or is began claim, to run on his Allstate contends agree distinguishable We that Rothermel is that under 8119 the clearly claim time- and ques- should not control the limitation barred it tions here presented relating because was to uninsured brought not within However, coverage motorist benefits.7 two we years of the date of the accident and agree cannot our that decision in Rothermel Spinelli’s alleged injuries. the In alterna- should be overruled. tive, argues that even 8106 were found to be the governing statute of Ill limitations, Spinelli’s suit is still time- A. barred the because limitation of three-year 8106 also the date should run from We that recovery conclude a suit for accident-injury. of uninsured motorist benefits is more near- third-party personal injury, We that related claims for understand personal against Gilday against claim injuries was confined whether tort claims asserted a third property damage party not include a against and did claims asserted a claim Further, party insurer, claim. we note that neither ad- ant’s own either for PIP {Roth- as to what statute limita- ermel) dresses the issue (this or for uninsured motorist benefits a mixed claim for tions injury case); would control (2) and the on all to have time limitation damages asserted under and the claims run from same date—the date coverage. (See motorist uninsured Allstate’s accident, easily of the motor vehicle as 3.) footnote get that all such certainable date claims in would also reasonably promptly. The court res previously panel Court 7. The argu persuasive ervation lack was: the of a otherwise; is, appeal concluded that heard this of action ment for a time limitation and accrual claim should that uninsured distinction between claims for PIP benefits and 8119; limitation of § the be and that his claim running coverage for bene claims uninsured motorist accrued, purposes for However, fits. the benefit further brief statute, date of from the ing reargument, Banc now and the Court en injury. causing his Two motor vehicle accident objectives panel in error. concludes that the decision was underlay one reservation that objectives apply were: The decision. ftwo-year) same to all rule
1290
obligations,
akin
with contractual
as
ly
to a contract claim than a tort
hence,
and,
company
action
insurance
ex
by
should be controlled
serted
coverage
solely
our
rather
tort
reason of the
isting
by
contract
than our
Thus,
provided
we
absent
by
policy,
limitations.
hold that
three-
the insurance
no
period
8106 determines
which there could be
conceivable basis
insurer,
recovery against
timeliness
this suit for
Deluca
We
Accident
hereby
uninsured motorist benefits.
v. Motor Vehicle
Indemnifica
adopt the
held
majority
Corp.,
view
tion
268 N.Y.
N.Y.
N.Y.2d
[17
289],
jurisdictions
based on unin-
N.E.2d 482
actions
S.2d
—that
personal injuries
plaintiff
sured motorist
claims are
suffered
actions
ex
basis of the cause of
contractu and
such are controlled
are thus
measuring
the basis
merely
of limita-
but
contract statute
action
sustained,
See,
In
Appleman,
tions.
Insurance Law
Nationwide
Rothermel,
Practice,
also,
(2d
1962);
Del.
Ed.
see
surance
Annot.,
dis
(Duffy,
J.
(1969).8
Supr.,
ment to an controversy that a property justiciable dam- contract penses earnings and lost Maryland exists. Casualty v. age,” De Vincentis Co., (1974); A.2d Del.Super., 325 Here, justiciable we conclude is de- “[ujninsured until Allstate de controversy did arise innocent, injured persons signed protect Spinelli’s nied claim for recompense are obtain from
who unable indi Spinelli. so The record informed negligent tortfeasors.” Abramowicz No sometime in cates that that occurred Co., Mutual Insurance Del.Su- Farm State vember, Spinelli’s 1979. suit Booth, (1977); supra. per., A.2d following month Allstate filed stated, we Thus, PIP conclude that while timely filed under are controlled 10 Del.C. benefit claims Affirmed. 8119, uninsured motorist benefits claims by 10 Del.C. 8106. are controlled A
APPENDIX
B.
II
SECTION
remaining
think the answer to the
We
unin-
cause
action for
question—when
PROTECTION AGAINST BODILY
benefits accrues and the
sured motorist
INJURY AND
begins to
three-year limitation of
na-
follows from the contract
logically
run —
ture of the action.
BY
DAMAGE
UNINSURED
PROPERTY
AUTOMOBILES
ruled
In-
Motorists
COVERAGE SS—Uninsured
accrued
of action for breach of contract
surance
“ascertainment
which the insured
pay
will
all sums
We disa-
sured status of the tortfeasor.”
representative
or his
shall be
legal
gree.
entitled
recover as
uninsured automo-
operator
owner or
of an
of contract
general principles
Under
injury,
bodily
bile because of
sickness
law, the
a contract claim
time limitation of
disease,
resulting there-
including death
to run from
begins
limitation statute
from,
“bodily injury”,
hereinafter called
date of breach of contract. Worrel v.
dam-
by the insured
sustained
Dela., Del.Supr.,
Farmers Bank
430 A.2d
out of
arising
age,
caused
(1981);
Nat.
Pioneer
Title Ins. Co. v.
of such
ownership,
maintenance
use
Inc., Del.Supr., 401
(1979);
A.2d
Child
*7
automobile.
Del.Ch.,
v. Lynch,
Artesian Water Co.
against any known
(1971);
No default
Pioneer Nat.
A.2d
Title Ins. Co.
legally
alleged to be
Sabo,
person
organization
or
Del.Super.,
(1978);
v.
2. “insured automobile” a means motor (c) an underinsured automobile vehicle: defined; (a) described in the declarations as an provided a vehicle involved motor insured automobile to which the bodily presumed to be accident shall be injury liability coverage of if no of finan- sured automobile evidence applies; supplied the de- responsibility cial (b) while temporarily used aas substi- of motor vehicles or the Com- partment tute for an insured automobile as de- Vehicles, missioner of Motor case scribed in subparagraph (a) above when be, days within after the accident withdrawn from normal use because of occurs; its breakdown, repair, servicing, loss or the term “uninsured automobile” but destruction; shall include: (c) while being operated aby named automobile; (i) an insured insured spouse or if a resident of (ii) or a motor vehicle which is owned household; the same operated by a self-insurer within but the term “insured automobile” shall financial meaning any not include: law, law or motor carrier responsibility (i) an public automobile while used as law; any similar or livery conveyance; (iii) which is owned motor vehicle (ii) an automobile being used Canada, America, United States without permission owner; of the state, any political sub-division (iii) under subparagraphs (b) (c) agency or an government above, an automobile owned foregoing; named or any resident (iv) trailer vehicle or land motor insured; same household as such operated on rails crawler-treads (iv) under subparagraphs (b) (c) *8 or while use as a residence located for above, an automobile for furnished vehicle; as a or premises and not
regular use named insured or (v) equipment a tractor or type farm resident the same household. public designed principally for use off 3. “uninsured automobile” means: roads, pub- actually upon except (a) a motor vehicle with to the respect lic roads. ownership, maintenance or use of a is, which automobile” means there at least amounts 4.“hit-and-run specified inju- bodily the financial which causes responsibility motor vehicle and insur- liability bonds
bodily injury physical out of ry arising an insured time of at the applicable policies ance with the of such automobile contact less than the the accident is insured or with an automobile insurance; liability under limits of at time of occupying the insured is however, limits of provided, accident, or which causes Coverage SS—Uninsured liability arising physical out of contact damage decla- Coverage in the stated Motorists property, pro- of such vehicle with such specified the amounts rations exceed (a) or operator vided: the owner by the finan- liability bodily injury is un- such “hit-and-run automobile” of the state law responsibility cial diligence known or after reasonable princi- automobile which the insured found; or (b) cannot be insured garaged. pally have re- someone on his behalf shall “occupying” word Occupying. a ported the accident within 24 hours to entering into or upon or in or means police, peace judicial or officer or from. alighting Vehicles of the Commissioner of Motor includes word “state” 7. State. The equivalent State of Delaware or Columbia, or territory pos- District the acci- department in the state where States, of the United session occurred, dent and shall have filed with of Canada. province after the acci- days Allstate within that the dent a statement under oath (concurring): DUFFY, Justice legal representative has insured of the Court. in the I concur arising of action out of such person persons who are unknown after found, diligence cannot be reasonable setting support forth the facts in
thereof; (c) request, Allstate’s at legal representative or his inspection available for
makes was occu- which the insured automobile so, accident. at the time pying, means automobile” 5.“underinsured own- which the use of maintenance or ership, under all liability the limits of sum of