Lesniczak v. State Farm Mut. Auto. Ins. Co., No. S18C-10-032 RFS, 2019 WL 4034351 (Del. Super. Ct. Aug. 26, 2019)

PIP coverage is not applicable where the insured stepped into a drainage hole while cleaning his vehicle at a self-serve car wash.

The plaintiff alleged that he was injured after stepping into a drainage hole while cleaning his vehicle at a self-serve car wash. He used a power washer to remove pollen and debris from the motor and radiator of his vehicle. The vehicle was running while the plaintiff cleaned the car. He then stepped into the drainage hole in the wash bay and fell. The plaintiff applied for PIP benefits through his automobile carrier, claiming that his injuries triggered coverage per Delaware’s PIP statute codified at 21 Del. C. 2118. While the parties agreed he was an “occupant” of the vehicle per the Delaware Supreme Court’s Fisher test, the court granted summary judgment in favor of the insurance carrier, holding that the vehicle was not an “active accessory” in causing the injury and, instead, the vehicle was the mere situs of the injury. Therefore, the plaintiff was not entitled to PIP benefits. 

 

Case Law Alerts, 4th Quarter, October 2019

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