Donaldson v. Progressive Advanced Insurance Company ( 2022 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
CRAIG DONALDSON, )
)
Plaintiff, )
)
v. )
) C.A. No. N21C-10-203 CLS
PROGRESSIVE ADVANCED )
INSURANCE COMPANY, )
)
Defendant. )
)
)
Date Submitted: January 15, 2022
Date Decided: March 29, 2022
Upon Defendant’s Motion to Dismiss. GRANTED.
ORDER
Lawrance Spiller Kimmel, Esquire and Amanda K. Dobies, Esquire, Kimmel,
Carter, Roman, Peltz & O’Neill, Newark, Delaware, 19702, Attorney for Plaintiff,
Craig Donaldson.
Anthony N. Forcina,, Esquire, Casarino Christman Shalk Ransom & Doss, P.A.,
Wilmington, Delaware, 19899, Attorney for Defendant, Progressive Advanced
Insurance Company.
SCOTT, J.
1
This 29th day of March 2022, upon consideration of Defendant Progressive
Advanced Insurance Company’s (“Progressive”) Motion to Dismiss for Lack of
Personal Jurisdiction, and Plaintiff Craig Donaldson’s (“Mr. Donaldson”) Response,
it appears to the Court that:
1. Mr. Donaldson filed a Declaratory Judgment Complaint, seeking the Court
find he is entitled to personal injury protection (“PIP”) benefits equal to the
minimum coverage for motorcyclists mandated by Delaware law.
2. Mr. Donaldson, who is insured by a Pennsylvania policy, was involved in
an accident while on his motorcycle in the State of Delaware. Pennsylvania
does not require PIP for motorcyclists.
3. On a motion to dismiss for lack of personal jurisdiction, the plaintiff bears
the burden to make a prima facie showing that the defendant is amenable to
the jurisdiction of a Delaware court, pursuant to Delaware's long-arm statute.1
The Court must accept the plaintiff's allegations as true and draw all
reasonable inferences in favor of the plaintiff.2 Additionally, the Court is not
1
Boone v. Oy Partek Ab, 724 A.2d 1150, 1154 (Del.Super.1997).
2
Id. at 1155; Aeroglobal Capital Management, LLC v. Cirrus Indus., Inc., 2003
WL 77007, *3 (Del.Super.).
2
limited to the pleadings and may consider affidavits, briefs, and the results of
discovery.3
4. Jurisdiction exists by way of general jurisdiction or specific jurisdiction.
General jurisdiction exists when a defendant is “essentially at home” in the
forum state.4 To meet this standard, “a defendant's contacts with the forum
state are ... ‘continuous and systematic’”5 Specific jurisdiction over a
defendant exists when a case “arises out of or relates to the defendant's
contacts with the forum.”6 To determine whether this standard is met,
Delaware courts apply a two-prong analysis.7 First, the Court “must
determine whether Delaware's long-arm statute, 10 Del. C. § 3104(c), is
applicable.”8 Second, if the first prong of the analysis is met, the Court then
3
Hartsel v. Vanguard Group, Inc., 2011 WL 2421003, *7 (Del. Ch.) aff'd, 38 A.3d
1254 (Del.2012) cert. denied, 133 S.Ct. 32 (2012).
4
Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011).
5
Dunfee v. KGL Holdings Riverfront, LLC, 2017 WL 6000495, at *4 (Del. Super.
Nov. 29, 2017) (quoting Goodyear, 564 U.S. at 919; citing Genuine Parts v.
Cepec, 137 A.3d 123, 130 (Del. 2016)).
6
Dunfee, 2017 WL 6000495, at *4 (quoting Daimler AG v. Bauman, 571 U.S. 117,
119, 134 S. Ct. 746, 750, 187 L. Ed. 2d 624 (2014); citing Genuine Parts, 137 A.3d
at 130; Bristol–Myers Squibb Co. v. Superior Court of California, San Francisco
Cty., 137 S.Ct. 1773, 1780 (2017); Burger King Corp. v. Rudzewicz, 471 U.S. 462,
464 (1985)).
7
Herman v. BRP, Inc., 2015 WL 1733805, at *3 (Del. Super. Apr. 13, 2015)
(citing AeroGlobal Capital Mgmt., LLC v. Cirrus Indus., Inc., 871 A.2d 428, 437
(Del. 2005)).
8
White v. Sharabati, 2019 WL 2897913, at *1 (Del. Super. July 2, 2019) (citing
Herman, 2015 WL 1733805, at *3). See 10 Del. C. § 3104(c)
3
“must consider whether subjecting the nonresident to jurisdiction in Delaware
violates the Due Process Clause of the Fourteenth Amendment.”9
5. Delaware's long-arm statute lists six circumstances under which any
nonresident or personal representative thereof, who in person or through an
agent, is considered amenable to the jurisdiction of Delaware courts.10 The
statute is a “single act,” meaning jurisdiction may be imposed on non-resident
defendant who engages in a single transaction in the State of Delaware.11 The
statute is also “broadly construed to confer jurisdiction to the maximum extent
possible under the due process clause.”12
6. Progressive relies on Eaton v. Allstate and Cas. Ins. Co. and Rosado v. State
Farm Mut. Ins. Co. to argue this Court does not have general or specific
9
Id. (quoting Herman, 2015 WL 1733805, at *3)
10
10 Del. C. §§ 3104(b) and 3014(c).
Those six circumstances include if the non-resident defendant: (1) Transacts any
business or performs any character of work or service in the State; (2) Contracts to
supply services or things in this State; (3) Causes tortious injury in the State by an
act or omission in this State; (4) Causes tortious injury in the State or outside of the
State by an act or omission outside the State if the person regularly does or solicits
business, engages in any other persistent course of conduct in the State or derives
substantial revenue from services, or things used or consumed in the State; (5) Has
an interest in, uses or possesses real property in the State; or (6) Contracts to insure
or act as surety for, or on, any person, property, risk, contract, obligation or
agreement located, executed or to be performed within the State at the time the
contract is made, unless the parties otherwise provide in writing.
11
State Farm Mut. Auto. Ins. Co. v. Dann, 794 A.2d 42, 47 (Del. Super. Ct. 2002).
12
Aeroglobal Capital Management, 2003 WL 77007 at *4.
4
personal jurisdiction over it. In Eaton, a North Carolina resident plaintiff was
insured by a North Carolina issued policy was involved in an accident on
Delaware roads.13 The plaintiff filed suit in Delaware seeking underinsured
motorist benefits from the insurance company.14 When the insurance
company filed a motion to dismiss for lack of personal jurisdiction, the Court
concluded it had no general personal jurisdiction over the insurance company
because there was no other connection to Delaware “other than ‘doing
business’” here.15 Moving to specific jurisdiction, the plaintiff argued under
10 Del. C. § 3104(c)(3), the defendant caused a tortious injury in the State by
an act or omission in Delaware because he suffered tortious injury which
occurred because of the accident in Delaware. The Court found the basis of
plaintiff’s claim against Allstate did not arise out of the accident, rather it
arose from the contractual obligation owed by the insurance company.16
Because there was no germane connection to Delaware stemming from the
duty of the insurance contract, the court determined the Plaintiff was unable
to establish specific personal jurisdiction.17
13
Eaton v. Allstate Prop. & Cas. Ins. Co., 2021 WL 3662451, at *1 (Del. Super.
Ct. Apr. 28, 2021)
14
Id.15
Id.16
Id. at *2
17
Id. at *3
5
7. In Rosado, this Court granted an insurance company’s motion to dismiss
for lack of personal jurisdiction. In that case, the plaintiff was a resident of
Maryland, and was insured by an Illinois incorporated insurance company and
by way of a contract, signed and executed in Maryland, including
underinsured motorist coverage.18 The car accident at issue took place in
Maryland with a tortfeasor who was described as a resident of Delaware and
Maryland.19 Thus, the Court found that the only relationship between
Delaware and the defendant was that the tortfeasor may have been a Delaware
resident.20 On this basis, the Court found that Plaintiff sought to bring the
insurance company into a Delaware Court based on conduct that was
unrelated to Delaware.21 The Court concluded that it lacked personal
jurisdiction, both general and specific, over the insurance company.
8. Mr. Donaldson argues this Court has general jurisdiction over Progressive
because it is licensed to do business in Delaware, performs work or service
within the State and transacts business in Delaware. Mr. Donaldson further
18
Rosado v. State Farm Mut. Ins. Co., 2020 WL 3887880, at *1 (Del. Super. July
9, 2020).
19
Id.20
Id.21
Id.6
argues these facts fall under 10 Del. C. § 3104(c)(4) because the company
solicits business or derives substantial revenue from the State.
8. Eaton and Rosado contain similar facts to this one. First, like the previous
cases, Plaintiff’s only argument for general jurisdiction is Progressive does
business in Delaware and simply “doing business” is not enough to raise a
credible argument that this Court can properly exercise general jurisdiction
over Progressive. Therefore, the Court cannot properly exercise general
jurisdiction over Progressive in this case.
9. Regarding specific jurisdiction, this claim arises out of Progressive’s
contractual obligations relating to a contract executed in the Commonwealth
of Pennsylvania. Like the previous cases and this one, the claim arose out of
contractual disputes, the policy provision in question is the Out-Of-State
coverage.22 The Out-Of-State Coverage contractually obligates Progressive
22
OUT-OF-STATE COVERAGE
If an accident to which this Part I applies occurs in any state, territory, or
possession of the United States of America or any province or territory of Canada,
other than the one in which a covered motorcycle is principally garaged, and the
state, province, territory, or possession has:
1. a financial responsibility or similar law requiring limits of liability for bodily
injury or property damage higher than the limits shown on the declarations page,
this policy will provide the higher limits; or
2. a compulsory insurance or similar law requiring a non-resident to maintain
insurance whenever the non-resident uses a motorcycle in that state, province,
territory, or possession, this policy will provide the greater of:
a. the required minimum amounts and types of coverage; or
7
to provide the “required minimum and types of coverage” when the covered
vehicle is involved in accidents occurring in states which require non-resident
drivers to maintain insurance when operating the vehicle in that state. In
Eaton and Rosado, both plaintiff’s arguments for specific jurisdiction were
founded in 10 Del. C. § 3104(c)(3), while Mr. Donaldson’s argument for
specific jurisdiction is found in 10 Del. C. § 3104(c)(4). The previous
decisions are still instructive. 10 Del. C. § 3104(c)(3) allows for personal
jurisdiction of a non-resident when he “causes tortious injury in the State by
an act or omission in this State” and 10 Del. C. § 3104(c)(4) allows for
personal jurisdiction of a non-resident when “causes tortious injury in the
State or outside of the State by an act or omission outside the State if the
person regularly does or solicits business, engages in any other persistent
course of conduct in the State or derives substantial revenue from services, or
things used or consumed in the State.” The language this Court focuses on is
“causes tortious injury in the State by an act or omission in this State.” In
Eaton, this Court found that even if an insured was in an accident in Delaware,
the basis of their claim against their insurance company is not for the accident,
it is for the contractual obligations the insured is owed. Therefore, there was
no tortious injury in the State caused by an act or omission in this State. In
b. the limits of liability under this policy.
8
this case, the only consideration is Progressive’s duty to perform under the
contract, which does not have a germane connection to Delaware. For these
reasons, the Court may not exercise specific jurisdiction over Progressive.
For the foregoing reasons, Progressive’s Motion to Dismiss is GRANTED.
IT IS SO ORDERED.
/s/ Calvin L. Scott
Judge Calvin L. Scott, Jr.
9