Spivey v. USAA Casualty Insurance Co.

SUPERIOR COURT
oF THE

STATE OF DELAWARE

VlleN L. MEI)lNlLLA LEoNARD L. WlLLlAMs JusTlcE CENTER
JUDGE 500 NoRTH KlNG STREET, sulTE 10400

WlLMlNGToN, DE 19801-3733

TELEPHONE (302) 255-0626

August 15, 2017

Christian G. Heesters, Esquire Robert M. Greenberg, Esquire
Schuster Jachetti LLP Tybout, Redfearn & Pell

3407 Lancaster Pike, Suite A 750 Shipyard Drive, Suite 400
Wilmington, DE 19805-5543 P.O. BoX 2092

Wilmington, DE 19899

Re: Spivey v. USAA Casualty Insurance Co.
Case I.D. No.: N15C-10-200 VLM

Dear Counsel:

The insureds in this case seek to reform the insurance policy to increase the
limits of their Uninsured/Underinsured Motorist (“UM/UIM”) coverage liability
limits to the equivalent limits of their bodily injury liability coverage. This is the
Court’s ruling on the parties’ cross-motions for summary judgment, filed on June l,
2017. For the reasons stated below, Plaintiffs Richard Spivey and Jerry Brooks-
Spivey’s Motion for Summary Judgment is DENIED; Defendant USAA Casualty
Insurance Co. (“USAA”)’s Motion for Summary Judgment is GILANTED.

Factual Background

The facts underlying this insurance contract dispute are largely undisputed
Plaintiffs, Mr. and Mrs. Spivey, Were involved in a January 20, 2013 automobile
accident When another driver struck their 2006 Lincoln Tovvn Car. The other driver
Was charged With DUI, driving across a median, and driving on the Wrong side of
the roadway. His insurance carrier tendered the statutory minimum liability
insurance limits to Plaintiffs and provided an affidavit stating that there Was no other
insurance available to them under his policy.

Plaintiffs’ vehicle was insured with USAA. From 1993 until 2013, Plaintiffs
had insured a total of 28 vehicles with USAA.l

Several years before the accident, on June l2, 2009, USAA sent Plaintiffs a
semi-annual renewal packet for their automobile insurance policy. This packet
included a Declaration Page with a list of coverage limits and associated premium
costs, and USAA’s Form 999DE(18).2

Form 999DE(18) is essentially a menu of various insurance coverage options
with associated costs. The form is conspicuously titled, “DELAWARE OFFER
OF INSURANCE COVERAGE.”3 lt is eight pages in length and appears
immediately after an enclosed Cover Page and Declaration Page.4 Form 999DE(18)
represents the eighteenth version of USAA’s offer of additional coverage.5

On July 25, 2009, Mr. Spivey signed and returned his Form 999DE(18).6 In
so doing, he first selected the minimum Delaware Personal lnjury Protection (“PIP”)
limits with a $250 deductible.7 On the next page, he checked a box to add additional
PIP coverage by $35,000/$70,000.8 This selection meant that Plaintiffs’ premium
would increase by the amount listed immediately next to Mr. Spivey’s selection_a
semi-annual increase of $7.89.

lmmediately below the additional PIP coverage selection, on the fourth page
of the Form 999DE(18), there is a section entitled, “UM COVERAGE

l Plaintiffs’ Motion for Summary Judgment at 2 (Del. Super. June l, 2017) [hereinafter Plaintiffs’
Motion].

2 See id. at 2-3.
3 Plaintiffs’ Motion at Exhibit E, 3 [hereinafter Form 999DE(18)] (emphasis in original).

4 Ia’. See also USAA’s Motion for Summary Judgment at 8-9 (Del. Super. June l, 2017)
[hereinafter USAA’s Motion] (describing size of Form 999DE(18)).

5 USAA’s Response to Plaintiffs’ Motion at 5 (Del. Super. July 5, 2017) [hereinafter USAA’s
Response].

6 Form 999DE(18) at 14-15 (copy of letter and “Acknowledgement of Coverage Selections”
executed by Mr. Spivey).

7 Ia’. at 16.

8 Id. at l7.

SELECTION OPTIONS.”9 This is where the dispute in the motions lies. The
salient portion of this section is reproduced below in approximate scale:

UM COVERAGE SELECTION OPTIONS

We initially issue UM coverage with limits equal to your Bodily lnjury
liability limits. lf you want to change your UM coverage limits, you
must check the appropriate box below, “UM Coverage Selection
Option,” and sign and date the “Acknowledgement of Coverage
Selections” at the end of this form.

Semi-annual premium per policy

We offer the following limits for Ul\/l. l want the UM limits checked

below:

Limits Limits

Per person/per accident Per person/per accident

\:\ $15,000/$30,000 $51.82 m $100,000/$300,000 $119.88
m $20,000/$40,000 $60.32 r:\ $300,000/$500,000 $183.31
m $25,000/$50,000 $65.75 \:\ $500,000/$500,000 $236.68
m $50,000/$100,000 $83.54 [omitted]

m 3100,000/$200,000 $116.03 [omitted]

NOTE:

¢ The UM limits you select must not exceed your policy’s Bodily
lnjury liability limits.

0 To reject UM Coverage, you must check the box below, “UM
Coverage Rejection Option,” and sign and date the
“Acknowledgement of Coverage Selections” at the end of this
form.10

Mr. Spivey checked the second box, selecting $20,000/$40,000 in UM/UIM
coverage at an associated cost of $60.32.ll Prior to 2009, Mr. and Mrs. Spivey’s

9 See id. (emphasis in original).
10 Ia’. (emphasis in original).

'l Id.

UM/UIM coverage limits were consistent with their bodily injury coverage limits at
3100,000/$300,000.12

He completed the rest of Form 999DE(18) and signed the final page,
“ACKNOWLEDGMENT OF COVERAGE SELECTIONS.”13 lmmediately
above his signature, the following relevant language reads:

Uninsured Motorists (UM Coverage)

I further understand and agree that my selection of either the UM
Coverage Selection Option or the UM Coverage Rej ection Option shall
be applicable to all vehicles on my policy, all future renewals of the
policy, and all future policies issued to me because of a change of
vehicle or coverage or because of an interruption of coverage, unless l
subsequently request a change in coverage in writing. If l change my
liability limits to an amount less than my elected UM limits, l
understand that my UM limits will automatically be lowered to the
same amounts.14

Mr. Spivey returned the packet to USAA.15 The changes became effective on
August 2, 2009.16 The policy continued to reflect the lowered UM/UIM limits from
that date until the date of the accident.17 Between the effective date of the change
and the accident date, Plaintiffs received l7 similar packets from USAA.18

At their depositions, Mr. and Mrs. Spivey attested to their na'i`veté regarding
this change. Mr. Spivey stated that he generally did not review the insurance

12 USAA’s Motion at 13.

13 Form 999DE(18) at 15 (emphasis in original).
14 Id. (emphasis in original).

15 See id. at 14-15.

16 USAA’s Motion at i4.

11 Id.

111 1a at 15.

policy.19 lnstead, he believed his wife would review the policy information20 Mrs.
Spivey testified that, “most of the time” She was the one making changes to the
policy, not Mr. Spivey.21 She infrequently communicated those changes to Mr.
Spivey.22 Nevertheless, she did not regularly review the information sent to her from
USAA because she “really didn’t understand it” and she typically made changes to
the policy over the phone.23

Proceduml Background

The parties filed cross-motions for summary judgment on June l, 2017.
USAA filed its response to Plaintiffs’ motion on July 5, 2017. Plaintiffs failed to
timely file their response brief, and the parties agreed to augment the briefing
schedule. Plaintiffs filed their response on July l7, 2017. USAA filed its reply brief
on August l, 2017.24 A hearing on the motions occurred on August 10, 2017.

Contentions of the Parties

The sole material issue in this Motion is whether USAA made a meaningful
offer in accordance with 18 Del. C. § 3902(b) and Delaware case law interpreting
this provision.

Plaintiffs’ principal contention is that Form 999DE(18) is unclear as to its
offer of additional UM/UIM coverage up to Plaintiffs’ bodily injury coverage limits.
First, they claim that this Court has previously ruled that USAA’s Form 999DE has

19 Transcript of Deposition of Richard B. Spivey at 44:9-47:3 (Aug. 15, 2016) (attached as Exhibit
F to Plaintiffs’ Motion).

211 Id. at 46;2-7.

21 Transcript of Deposition of Jerry Brooks-Spivey at 33218-20 (Aug. 15, 2016) (attached as
Exhibit G to Plaintiffs’ Motion).

22 [d. at 34:22-35:9.
23 ld. at 37:5-22.

24 Plaintiffs’ counsel did not file a reply brief to USAA’s Response because counsel believed that
a reply brief would be unnecessarily “cumulative” and redundant That may be so; however,
counsel did not advise the Court of this position until questioned by the Court at oral argument In
the future, the Court recommends that counsel advise the Court within the timeframe set in the
briefing schedule that counsel does not intend to file a brief in accordance with the Court’s
schedule

failed to meet the “meaningful offer” standard, citing the decades-old cases of
Mason v. United Services Automobile Association,25 Knapp v. United Services
Automobile Association,26 and Shukz'tt v. United Services Automobile 121ss0ciati0n.27
Plaintiffs argue that the subject version of Form 999DE in this case is “substantially
similar” to the versions held insufficient in the aforementioned cases.28 Second,
Plaintiffs argue that, other than the Declaration Page, Plaintiffs’ coverage for bodily
injury is not listed; thus, Plaintiffs were not reasonably informed about their
available coverage when changing the limits of their UM/UIM coverage Finally,
Plaintiffs contend that they were unaware of the changes to the UM/UIM coverage
limits and at no time knew that their limits were augmented downward in 2009.29

USAA counters Plaintiffs’ contention that the subject version of Form
999DE(18) is “substantially similar” to the forms held insufficient in earlier cases.
USAA contends that the present form was changed because of those earlier cases
and now complies with § 3902(b).30 USAA cites Brintzenhojj‘ v. Hartfora'
Underwriters Insurance C0.31 as a more apt analogy to the present case. Second,
USAA argues that Plaintiffs’ inability to comprehend or understand the effect of
their selections on their UM/UIM limits is immaterial because they have a duty to
read the policy.32 What is more, USAA argues that the time between the change and
the accident, as well as the number of times they added or removed cars while
insured by USAA, cuts against their claims of ignorance of the insurance policy
provisions.33

25 697 A.2d 388 (Dei. 1997).

26 1997 WL 719340 (Del. Super. Sept. 12, 1997), rev ’a' on other grounds, 708 A.2d 631, 1998 WL
171073 (Del. Mar. 19, 1998) (TABLE) (holding trial court remedy was unauthorized under

§ 3902(b)).

21 2003 wL 22048222 (Dei. super. Aug. 13, 2003).
28 Plaintiffs’ Motion at 9, 12.

29 See id. at 3-5.

30 USAA’s Response at 5, 8, 12.

31 2004 WL 2191184 (D€l. Super. Aug. ll, 2004).
32 USAA’s Response at 15-18.

33 Id.

Stamlard of Review

On cross-motions for summary judgment under Delaware Superior Court
Civil Rule 56, the court must determine whether any genuine issues of material fact
exist.34 Summary judgment will not be granted if there is a material fact in dispute
or if “it seems desirable to inquire thoroughly into [the facts] in order to clarify the
application of the law to the circumstances.”35 “All facts and reasonable inferences
must be considered in a light most favorable to the non-moving party.”36

Thus, the standard of review on cross-motions for summary judgment is
equivalent to the situation where one party moves for summary judgment.37
Moreover, cross-motions for summary judgment “are not per se” concessions that
no material factual disputes exist.38 “Rather, a party [cross-]moving for summary
judgment concedes the absence of a factual issue and the truth of the nonmoving
party’s allegations only for the purposes of its motion, and does not waive its right
to assert that there are disputed facts that preclude summary judgment in favor of the
other party.”39

Discussion
I. 18 Del. C. § 3902(b) and the “Meaningful Offei"’ Standard
Section 3902(b) states in part:

Every insurer shall offer to the insured the option to

34 See DEL. SUPER. CT. CIV. R. 56(0); Capano v. Lockwooa', 2013 WL 2724634, at *2 (Del. Super.
May 31, 2013) (citing Rule 56(c)); Wilmington Trust Co. v. Aetna, 690 A.2d 914, 916 (Del. 1996)).

33 Ebersole v. Lowengrub, 180 A.2d 467, 469-70 (Del. 1962).

36 Nun v. A. C. & S. Co., Inc., 517 A.2d 690, 692 (Del. super. 1986) (citing M@chell v. Palmer, 343
A.2d 620, 621 (Del. 1975); Allstate Auto Leasing Co. v. Cala'well, 394 A.2d 748, 752 (Del. Super.

1978)).

37 See Unitea' Vanguara' Fund, Inc. v. TakeCare, Inc., 693 A.2d 1076, 1079 (Del. 1997); Capano,
2013 WL 2724634, at *2; Total Care Physicians, P.A. v. O’Hara, 798 A.2d 1043, 1050 (Del.

Super. 2001).
38 Um`ted Vanguara' Fund, Inc., 693 A.2d at 1079.

39 Id.

purchase additional coverage for personal injury or death
up to a limit of $100,000 per person and $300,000 per
accident or $300,000 single limit, but not to exceed the
limits for bodily injury liability set forth in the basic
policy. Such additional insurance shall include
underinsured bodily injury liability coverage.40

The insurance carrier has an “affirmative duty to offer the insured additional
coverage, above the 815,000 minimum amounts, ‘so that the insured can make an
informed decision’ regarding the limits of coverage.”41 “An informed decision can
be made only if all of the facts reasonably necessary for a person to be adequately
informed to make a rational, knowledgeable and meaningful determination have
been supplied.”42 “The burden of proof in establishing compliance with the statutory
mandate is on the insurer.”43 “Delaware courts have strictly enforced Section
3902(b)'s requirement that insurance carriers clearly communicate offers of
additional UM/UIM coverage to their policyholders.”44

A meaningful offer requires the insurer to demonstrate: “(l) the cost of the
additional coverage; (2) a communication to the insured which clearly offers
[UM/UIM] coverage; and (3) an offer for uninsured motorist coverage made in the
same manner and with the same emphasis as the insurer's other coverage.”45 lf the
insurer fails to meet this burden, then the offer is treated as “a continuing offer for
additional insurance, which the insured may accept even after the insured’s
accident.”46

411 is Del. C. § 3902(b) (2015 & supp. 2016).

41 Mason v. United Servs. Auto. Ass’n, 697 A.2d 388, 393 (Del. 1997) (quoting Morris v. Allstate
Ins. Co., 1984 WL 3641, at *3-4 (Del. Super. July 10, 1984)).

42 ld. (quoting Mom's, 1984 wL 3641, at *4).

43 Ia'. (citing Patilla v. Aetna Life & Cas. Ins. Co., 1993 WL 189473, at *1 (Del. Super. Apr. 22,
1993)).

44 Brintzenho]jfv. Hartford Una'erwriters Ins. Co., 2004 WL 2191184, at *1 (Del. Super. June 4,
2004) (quoting Shukitt v. Unitea1 Servs. Auto. Ass’n, 2003 WL 22048222, at *3 (Del. Super. Aug.
13, 3003)).

45 Id. (quoting Shukiz¢, 2003 wL 22048222, at *3).

45 1a (quoting Shukiz¢, 2003 wL 22048222, at *3).
8

II. DelaWare Cases Interpreting § 3902(b)

The leading case in this area is the 1997 decision ofMason v. USAA. There,
the Delaware Supreme Court held that USAA failed to satisfy its burden of proving
it made a meaningful offer for additional UM/UIM coverage. The insurance policy
with USAA had $100,000/$300,000 bodily injury coverage, but only
$15,000/$30,000 for UM/UIM coverage USAA sent a 50-page insurance renewal
packet to the insured every six months. The insured admitted that she did not read
the policy.

The Mason Court found USAA’s offer ambiguous because of the offer’s
location in the packet as well as the offer’s lack of emphasis First, the Court held
the offer was “buried” in the fifty-page packet. The offer in the Form 999DE at that
time appeared on the forty-first page. Second, the Court found the offer’s language
insufficient under § 3902(b):

The relevant language was not in a separate section nor
highlighted in any manner, but loosely spread throughout
eight pages of text. Most importantly, the text [did] not
clearly state that an offer of additional insurance [was]
being made Rather, the materials merely obliquely
indicate[d] that additional coverage was available47

Knapp and Shukitt followed Mason, both chronologically and analytically. ln
Knapp, the Superior Court similarly held that USAA failed to meet its burden of
proving that it meaningfully offered the insured UM/UIM coverage to a level equal
to the bodily injury liability limits.48

The Shukitt Court again found that USAA failed to meet its burden of proving
it made a meaningful offer to the insured for additional UM/UIM coverage49 The
Shukitt plaintiff had $15,000/$30,000 UM/UIM coverage limits and
$100,000/$200,000 bodily injury liability limits. In reaching its holding that no
meaningful offer was made, the Court reviewed Mason and Knapp. In contrast to
Mason, the Court noted that, “[a]lthough the offer language in the forms sent to Mr.
Shukitt was not as ‘buried’ in the packets as the language at issue in Mason, Mr.

47 Mason, 697 A.2d at 394.
43 The version applicable in Knapp was Form 999DE(02). USAA’s Response at 11.

49 The version of Form 999DE in Shukitt is not explicitly referenced, but is likely version seven or
eight ofUSAA’s form. USAA’s Response at 11-12 & n.ll.

9 .

Shukitt's Forms [sic] 999(DE) fail the most important consideration recognized in
Mason: they fail to contain a clear offer of additional coverage.”3°

Beyond these three cases that dealt with some earlier iteration of USAA’s
Form 999DE, the Superior Court in Brintzenhoij held that another insurance
company’s offer of additional UM/UIM coverage to its insured was compliant with
§ 3902(b). Distinguishing Mason on its facts, the Court noted that the insurer in
Brintzenhoff offered a tiered additional UM/UIM coverage menu with corresponding
premium costs:

Along with the other coverage choices available to
Brintzenhoff, page 5 of the application lists three tiers of
UM/UIM coverage amounts and the corresponding
increase in premium. Following the [PIP] Coverage
Options, the application also explains [UM/UIM]
Coverage in the same manner as Brintzenhoffs other
coverage

Unlike the application at issue in Mason, language in the
Hartford application not only states that additional
coverage is available, it also states, in bold print, that
Hartford recommends that Brintzenhoff include UM/UIM
coverage in his policy at limits equal to his liability limits.
. . . On page 9 of the application, there is a Change Section
for UM/UIM coverage following the Change Section for
[PIP] coverage, where Brintzenhoff was able to accept the
amount of UM/UIM coverage or reject it. Following this
section on page 9, Brintzenhoff and his wife signed the
application, thereby confirming their selections for
Personal lnjury Protection coverage and UM/UIM
coverage51

III. Analysis

This Court finds that USAA made a meaningful offer to Plaintiffs in
conformity with § 3902(b) and the string of cited cases beginning with Mason. The
Court reaches this conclusion for several reasons.

30 Shukitt, 2003 WL 22048222, at *4.

51 Brintzenhojj: 2004 wL 2191184, at *3.
` i0

First, USAA has met its burden of offering the “cost of additional coverage”
to Plaintiffs Form 999DE(18) lists the available UM/UIM limits that USAA offers
On this issue, Brintzenhojjr is directly on point. The form in that case listed the
coverage options and premium costs side-by-side.52 The same is reflected in
USAA’s form that Mr. Spivey reviewed before making his selection.53 Reviewing
the form, the Court is at a loss to perceive of a clearer way to list the “cost of
additional coverage”_the effect of the insured selection is immediately quantifiable
with the premium listed adjacent the coverage limits selected.

With respect to USAA’s burden under the first of the three three-pronged
§ 3902(b) showing, Plaintiffs contend that Form 999DE(18) should have displayed
Plaintiffs’ current bodily injury liability limits This Court disagrees USAA
repeatedly explained to Plaintiffs in the form that their UM/UIM limits depended on
their bodily injury liability limits On page 2 of Form 999DE(18), USAA explained
that, “[UM/UIM coverage] is not mandatory, but must be offered to all
policyholders UM coverage limits are initially issued in limits equal to the [Bodily
Injury] Liability limits However, you may select UM coverage limits lower than
your [Bodily Injury] Liability limits . . .”34 On page 4, in the “UM COVERAGE
SELECTION OPTIONS” section, the note immediately following the insured’s
selection stated: “The UM limits you select must not exceed your policy’s Bodily
lnjury liability limits.”55 The Declaration Page, included with every packet, also
listed the level of bodily injury liability limits and UM/UIM coverage limits for
Plaintiffs56

While Plaintiffs are correct that it would be clearer to list the insured’s then-
existing bodily injury liability limits explicitly in the “UM COVERAGE
SELECTION OPTIONS” section, this does not, ipso facto, defeat USAA’s
showing that it communicated the “cost of additional coverage” to Plaintiffs Rather,
the above-quoted language clearly implores the insured to confirm the level of bodily
injury liability limits in the insured’s policy before making coverage selections

32 See id. at *3 n.l8.

33 Form 999DE(18) at 6.
34 Ia’. at 4.

33 Id. at 6.

551d.atii.
ii

Because the Court finds that the language clearly demonstrates the cost of additional
coverage notwithstanding Plaintiffs’ contention, USAA has satisfied its burden
under the first prong of § 3902(b).37

Second, the present Form 999DE(18) is distinguishable from the earlier
versions of the forms at issue in Mason, Knapp, and Shukitt The form in this case
now begins with the caption, “DELAWARE OFFER OF INSURANCE
COVERAGE.”38 In Masori and Knapp, the subject form read: “AUTO
INSURANCE IN DELAWARE.”39 ln Shukitt, the first form sent to the insured was
captioned, “AUTO INSURANCE IN DELAWARE,” while the Court noted that this
form was later amended to read: “Offer of Insurance Coverages.”60 Form
999DE(18) is far clearer in its caption and provides the insured with reasonable
notice that the insured is being offered insurance coverage options

Further, the location of Form 999DE(18) is distinguishable from the “buried”
offers in Mason, Knapp, and, to a lesser extent, Shukitt. In Mason, the offer began
on page 41. ln Shukitt, a description of UM/UIM coverage began on page 18, but
the actual offer was on page 21. Here, the form begins immediately after the Cover
Page and Declaration Page UM coverage is discussed on page two. The offer is on
page 4.61 The insured must sign on page 7, which contains another warning to the
insured that he or she may be changing the policy’s UM coverage limits based on

37 What is more, USAA explained at oral argument that an insured, in the same form, may increase
or decrease his or her bodily injury liability limits in the same way he or she may change other
aspects of the policy above mandatory thresholds. Were the insured to change the bodily injury
limits earlier in Form 999DE(18), a section which precedes the “UM COVERAGE SELECTION
OPTIONS” section, Plaintiffs’ proposal of explicitly providing the then-existing bodily injury
limits in the latter section would be rendered moot. What confusion would arise from this new
problem is hypothetical, but the Court is not convinced that Plaintiffs’ proposed remedy to this
section is a sound one

33 Form 999DE(18) at 3 (emphasis in original).
39 Mason, 697 A.2d at 391 (emphasis in original). See USAA’s Response at 10-11.

50 Shukitt 2003 wL 22048222, at *i. The Shukitt Court noted that this change was positive, in
that the old caption “would not alert a policyholder that the packet contained an offer of additional
insurance.” Ia’. at *5 n.38.

61 Plaintiffs’ counsel represented at oral argument that USAA’s offer began on page 23 of a 50-
page packet. However, Plaintiffs’ counsel could not cite to support in the record for this
proposition. A review of the exhibits in both Motions reveals that USAA’s offer does not begin
on page 23, but on page 4.

12

the insured’s selections These differences in the offer’s placement show that the
present form did not “bury” the offer in a sea of other insurance policy provisions

Additionally, the Mason Court noted that the “most important” aspect of the
meaningful offer standard violated in that case was the substance of the “offer.” In
contrast to the offer found wanting in Masori, Knapp, and Shukitt, the “UM
COVERAGE SELECTION OPTIONS” section here contains the following
emphasized language immediately above the available coverage limits: “We offer
the following limits for UM.”62 The intent to convey an offer is far clearer in the
subject form than the earlier versions deemed insufficient in Masori and its progeny.
Thus, the Court finds that USAA has met its burden of showing a clearly
communicated offer to Plaintiffs in conformity with the second prong of § 3902(b).

Third, and for similar reasons as stated above, the Court finds that USAA has
met its burden with respect to the third prong § 3902(b): USAA made the offer to
Plaintiffs for UM/UIM coverage “in the same manner and with the same emphasis
as [Plaintiffs’] other coverage.”63 The PIP, additional PIP, and UM/UIM coverage
selection options, among others, follow a description of the types of coverage
options from which the insured must select. Page 3 of the form is entitled,
“DELAWARE ORDER FORM,” and takes the insured through the various
coverage options that were explained in the preceding pages There appears to be
no sleight of hand; the form lists the coverage neutrally and logically. Moreover,
after signing the acknowledgement page, the form states: “lt is not the intent of this
statement to limit or discourage the purchase of increased limits of liability and [PIP]
coverage, or other additional coverages [that] may be available from the company.’764

Finally, though sympathetic as the Court may be to Plaintiff’s lack of
sophistication when it comes to insurance contracts, this argument is undercut for
two significant factual reasons

On July 25, 2009, Mr. Spivey selected additional PIP coverage, adding
835,000/$70,000 in PIP coverage to the statutory limits Due to the 2013 accident,
Plaintiffs appropriately received the benefit of this additional PIP coverage from

62 Form 999DE(18) at 6 (emphasis in original). Prior to version 12 of Form 999DE, Defense
counsel represented to the Court that the “we offer” language did not appear in this section.

63 Shukitt, 2003 WL 22048222, at *3 (quoting Hua’sor¢ v. Colom`al Penn Ins. Co., 1993 WL 331168,
at *3 (Del. Super. July 21, 1993)).

64 Form 999DE(18) at 9.
13

USAA. Of course, Plaintiffs seek to reform only the UM/UIM coverage limits, as
this is the relevant analysis under § 3902(b). Nevertheless, it is noteworthy that,
while Plaintiffs accept as crystal clear the additional PIP coverage benefits, they
contest and argue ambiguity as to the UM/UIM coverage offer. Accepting this
position under Rule 5 6, the Court notes that Mr. Spivey’s selection of additional PIP
coverage benefits undermines, to some extent, this argument that Plaintiffs’ were
unaware with respect to the UM/UIM coverage selection section.

Moreover, the effective date of the change was August 2, 2009. Seventeen
packets arrived in the mail between that date and the accident in 2013. Plaintiffs
continued to augment the policy by adding or dropping certain vehicles from the
policy. However, despite receiving these packets and the accompanying Declaration
Page listing their UM/UIM coverage limits, they never sought to rectify what they
argue today was in error. This, too, cuts against any inadvertence on the part of
Plaintiffs when augmenting their Ul\/l/UIM limits65

For the foregoing reasons, the Court finds that USAA has met its burden of
proving it made a “meaningful offer” to Plaintiffs in July 2009 consistent with
§ 3902(b). As such, the Court finds that no genuine issues of material fact exist and
reformation of the insurance policy to state UM/UIM coverage limits of
$100,000/$300,000 is not warranted

Conclusion

Plaintiffs’ Motion for Summary Judgment is DENIED and Defendant
USAA’s Motion is GRANTED.

IT IS SO ORDERED.

Sincerely,

oc: Prothonotary

63 Moreover, the lower cost to Plaintiffs for reducing their UM/UIM covera : is another
element that cuts against Plaintiffs’ inadvertence: the difference in cost between
8100,000/$300,000 in UM/UIM coverage and $20,000/$40,000 was a $59.56 reduction to the
semi-annual premium based on the values reflected in the July 2009 Form 999DE(18).

14