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Harper v. State Farm Mut. Auto. Ins. Co.11/26/1997
expressed in Rothermel, about a PIP insurer's right of subrogation against the individual tortfeasor, is no longer a relevant consideration because of the subsequent amendments to Section 2118. Delaware's current No-Fault Insurance Statute no longer permits a claim for subrogation by the PIP insurer against the individual tortfeasor. Instead, the PIP insurer's right of subrogation is limited exclusively to the tortfeasor's liability insurance coverage. 21 Del. C. section 2118(g)(1). Consequently, the PIP insurer's cause of action for subrogation will only involve litigation with the tortfeasor's liability insurer.
An analysis of the present statute reflects why the PIP insurer's cause of action for subrogation against the tortfeasor's liability insurer does not accrue until PIP payments are made. In some circumstances, the PIP insurer must pay benefits more than two years after the date of accident. For example, the statute provides that certain bills for medical treatment may be presented to the PIP carrier more than 90 days after the two-year anniversary date of the accident. 21 Del. C. section 2118(a)(2)i.2. Additionally, surgical bills incurred more than the two years after the accident are compensable as PIP benefits, if a doctor certifies their necessity within two years of the accident date. 21 Del. C. section 2118(a)(2)a.3.
If the accrual of a PIP insurer's cause of action for subrogation began on the date of the accident, rather than upon payment of PIP benefits, the PIP insurer could not pursue subrogation regarding certain claims submitted pursuant to 21 Del. C. section 2118(a)(2)i, or with regard to surgical and dental procedures incurred in compliance with Section 2118(a)(2)a.3. That construction would make the amended statute unworkable. Consequently, the General Assembly could not have intended that the PIP insurer's cause of action for subrogation rights would accrue on the date of the accident. See Opinion of the Justices, Del. Supr., 295 A.2d 718, 721-22 (1972).
In this opinion, we have held that the PIP carrier's right of subrogation is a statutorily created cause of action. We have also held that the applicable statute of limitations for that cause of action is the three-year provision in 10 Del. C. section 8106. We further hold that a cause of action for the PIP insurer's statutory right of subrogation, against the tortfeasor's liability insurer, does not accrue until the PIP benefit is paid to or for its insured. See Chesapeake Utils. Corp. v. Chesapeake & Potomac Tel. Co., Del. Super., 401 A.2d 101, 102 (1979).
This Case Harper's PIP Action Timely
Harper first gave her PIP carrier, State Farm, notice of her injuries soon after the October 17, 1992 accident. Harper presented all requests for payment of PIP benefits to State Farm within two years of receiving them. Harper did not sustain an actionable wrong until there was a denial of her claim for PIP benefits by State Farm.
Harper's cause of action against State Farm for PIP benefits accrued when State Farm denied her request for payment. Harper had three years from that date to file a lawsuit against State Farm. 10 Del. C. section 8106. Accordingly, the complaint Harper filed in the Superior Court against State Farm for PIP benefits was timely.
Conclusion
The judgment of the Superior Court is reversed. This matter is remanded for further proceedings, in accordance with this opinion.
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