American Independent Insurance Company v. James Gilmore, III

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

AMERICAN INDEPENDENT ) INSURANCE COMPANY, ) ) ) Respondent/Appellant, ) ) C.A. No.: N23A-11-003 CEB v. ) ) JAMES GILMORE, III, ) ) ) Claimant/Appellee. )

Submitted: November 15, 2024 Decided: January 31, 2025

ORDER DISMISSING COMPLAINT ON APPEAL

For the reasons below, this complaint on appeal is dismissed.

1. This dispute began when a car owned and operated by Mr. Gilmore

suffered approximately $2,300 in damage when it was grazed by a car driven by a driver named Kevin Stewart. Mr. Stewart stopped and provided that his insurer was American Independent Insurance Company (“AIIC”). Although AIIC acknowledges such a client, it does not appear that Mr. Stewart has made any appearance ever since.

2. Gilmore filed a claim with AIIC, and Mr. Stewart submitted photos of

his car for review by AIIC.1 Eventually, and without hearing from Mr. Stewart,

AIIC denied the claim. 2

3. Gilmore made a claim against AIIC before an Arbitration Panel with

the Delaware Department of Insurance. 3 He named only AIIC as a respondent

Mr. Stewart did not appear and his version was unavailable. The Arbitration

Panel noted, “Respondent [AIIC] presented no evidence to refute Mr. Gilmore’s

version of events. Furthermore, damage on the vehicle aligns with Mr. Gilmore’s

recollection of how the accident occurred.” 4 The Arbitration Panel granted what

essentially amounted to a default judgment for Mr. Gilmore5 and an award of

$2,319.55.6 AIIC timely appealed to this Court.

4. Gilmore’s de novo complaint on appeal names only AIIC.7

1 D.I. 20 Appellee Compl. on Appeal De Novo at 1-9 (Oct. 3, 2024), Trans. ID 74664614 [hereinafter Appellee Compl. on Appeal De Novo]. 2 Id. at 3. 3 Id. at 9. 4 Id. 5 Id. 6 Id. 7 Appellee Compl. on Appeal De Novo at 1.

5. AIIC has responded to the Complaint with a motion to dismiss, arguing

that “a plaintiff may not directly sue an insurer in tort for the allegedly negligent

conduct of the insurer’s insured.”8

6. Granting a motion to dismiss is appropriate if the pleadings fail to

“state a claim upon which relief can be granted.” 9 Courts “must accept all well-

pled allegations in the complaint as true and draw all reasonable inferences in the

light most favorable to the non-moving party.”10 If a complaint is “without merit

as a matter of fact or law,” then it should be dismissed. 11 A 12(b)(6) dismissal is

appropriate when “it appears with reasonable certainty that the plaintiff could not

prove any set of facts that would entitle him to relief.”12

7. Delaware “is not one of those states where direct action is permitted by

an injured party against a tortfeasor's liability insurer.”13 Procedurally, the

8 D.I. 21 Appellant’s Mot. to Dismiss Appellee’s Compl. on Appeal at 2-3 (Oct. 16, 2024), Trans. ID 74774095 (citing Delmar News, Inc. v. Jacobs Oil Co., 584 A.2d 531, 534 (Del. Super. 1990)). 9 Super Ct. Civ. R. 12(b)(6). 10 USAA Cas. Ins. Co. v. Fosnaught, 2019 WL 5110415, at *1 (Del. Super. Oct. 14, 2019) (citing Yu v. GSM Nation, LLC, 2018 WL 2272708, at *4 (Del. Super. Apr. 24, 2018)). 11 Diehl-Guerrero v. Hardy Boys Constr., LLC., 2017 WL 886786, at *2 (Del. Super. Feb. 28, 2017) (citing Diamond State Tel. Co. v. University of Delaware, 269 A.2d 52 (Del. 1970)). 12 Ramunno v. Cawley, 705 A.2d 1029, 1034 (Del. 1998) (citing Spence v. Funk., 396 A.2d 967, 968 (Del. Super. 1978)). 13 Willis v. City of Rehoboth Beach, 2004 WL 2419143, at *1 (Del. Super. Oct. 14, 2004) (citing Kaufmann v. McKeown, 193 A.2d 81, 83) (Del. 1963); Rodriguez v. Great Am. Ins. Co., 2022 WL 591762, at *5 (Del. Super. Feb. 23, 2022) (citing Walden v. Allstate Ins. Co., 913 A.2d 570 (Del.

plaintiff is the master of his or her own complaint,14 so “‘a plaintiff decides,

among other things, who to sue, who not to sue, where to sue and what claims to

bring.’”15 Also, the “losing party of an insurance arbitration has a right to appeal

de novo to this Court.” 16

8. Another car accident case, Nadir v. Nationwide Auto Insurance 17 is

instructive. In Nadir, plaintiff, pro se, alleged that he was injured when a car

struck his leg after the car drove away from an auto body shop. 18 The plaintiff

claimed that Nationwide Insurance was the auto body shop’s insurer.19 In the

complaint, the Plaintiff named one defendant: Nationwide Insurance.20 But

2006) (TABLE)) (“In Delaware, as a general rule, an injured third-party may not bring a direct cause of action against a tortfeasor's insurer.”); Empire Fire & Marine Ins. Co. v. Miller, 2012 WL 1151031, at *4 (Del. C. P. Apr. 5, 2012) (citing Delmar News, 584 A.2d at 534) (“Delaware law does not permit an injured party to maintain a direct action against the alleged tortfeasor's insurer.”). 14 Staples, Inc. v. Cook, 35 A.3d 421, 425 (Del. Ch. 2012) (footnote omitted). 15 Smartmatic USA Corp. v. Newsmax Media, Inc., 2023 WL 5551026, at *3 (Del. Super. Aug. 23, 2023) (quoting Germaninvestments AG v. Allomet Corp., 2020 WL 6870459, at *1 (Del. Ch. Nov. 20, 2020)). 16 Nationwide Mut. Ins. Co. v. Am. Indep. Ins. Co., 2018 WL 2263653, at *2 (Del. Super. May 17, 2018). 17 Nadir v. Nationwide Auto Ins., 2022 WL 1640805, at *1 (Del. Super. May 24, 2022). 18 Id. 19 Id. 20 Id. at 2.

plaintiff did not state a cause of action against Nationwide Insurance.21

Nationwide Insurance filed a motion to dismiss “because an injured person has

no direct cause of action against a tortfeasor's insurer based on the tortfeasor's

negligence.” 22 Plaintiff’s response to Nationwide Insurance’s motion to dismiss

also failed to name the underlying tortfeasor as a defendant. 23 The Superior Court

dismissed plaintiff’s complaint because the “motor vehicle accident described in

the complaint allegedly involved Nationwide's insured, but Plaintiff cannot

maintain a cause of action directly against Nationwide for alleged negligence by

Nationwide's insured.” 24

9. In this case, Appellant had two opportunities – first the before the

Arbitration Panel and second before this Court – to name the tortfeasor: Mr.

Stewart. Appellant was the master of his own complaint, but he omitted to name

the appropriate party. Appellee argued that he did name Mr. Stewart as a

respondent,25 but the record before the Court contradicts Mr. Stewart’s assertion.

21 Id. at 1. 22 Id. 23 Id. 24 Id. at 2 (citing Kaufmann, 193 A.2d at 83). 25 D.I. 23 Answer to Mot. to Dismiss Appellee’s Compl. on Appeal at 1-2 (Nov. 15, 2024), Trans. ID 75015524.

And even if he did name Mr. Stewart before the Department of Insurance, he did not in his de novo Complaint on appeal to this Court. 10. As in Nadir, Mr. Gilmore has fatally misaligned the parties by suing the insurance company instead of suing the insured, Mr. Stewart. It was Mr. Stewart whose car stuck Gilmore’s. AIIC is merely the insurer, not the tortfeasor. AIIC’s motion to dismiss the complaint on appeal is GRANTED.

IT IS SO ORDERED.

/s/ Charles E. Butler Charles E. Butler, Resident Judge