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[T] Waters v. United States12/12/2001
une from any harm they caused to other motorists. It may be assumed that the Delaware General Assembly did not intend such a result.
Our decision in this case is not restricted by Harper v. State Farm. The issue decided by Harper concerned the correct statute of limitations, not the right to subrogation. The statement that Delaware law "no longer permits a claim for subrogation by the PIP insurer against the individual tortfeasor..." was made in dicta, as part of the rationale rather than the actual holding of the case. The statement therefore does not control the present case.
Moreover, our interpretation of Section 2118(g)(1) is not inconsistent with Harper, which concerned a suit by an insured against her insurance company. In the context of the facts in Harper, the statement made by the Court was accurate. When two parties are involved in an accident, and both are insured, the insurance company does not have "a statutory right of subrogation for reimbursement against the individual tortfeasor...." Although this is the operating paradigm for the vast majority of accidents, it does not apply when one of the parties is self-insured.
Based on the foregoing analysis, we conclude that, under Delaware law, the insurer does have the right to right to recover from a "private individual" in subrogation. Accordingly, we answer the certified question in the affirmative.
State Farm has advanced, as an alternative argument, that notwithstanding the application of Section 2118(g), it may assert a common law right of subrogation against the United States. We decline to address that contention for two reasons. First, the certified question seeks our view of State Farm's subrogation rights under the statute, not generally. Secondly, whether the United States is subject to a subrogation claim based solely on common law principles implicates a question of federal law, beyond the jurisdiction of a State court. In any event, our construction of State Farm's entitlement to subrogation under the statute renders unnecessary our interpretation of State Farm's subrogation rights in other respects.
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