In two recent cases, claimants opposed the employer’s efforts to enforce and/or obtain information relating to credits from third-party claims. Pursuant to 19 Del. C. § 2363(e), any amounts received by a claimant from a third party in relation to a work accident are deemed an advance payment by the carrier. The practical result is this becomes a credit against future benefits. The carrier is entitled to both investigate the amount and details of that credit and to assert the right to utilize the credit in the future.

In Maclary v. James Malin Plumbing, the employer sought to enforce a known credit, which it intended to use if the Board found there was liability for additional workers’ compensation benefits. Claimant opposed because, according to him, the issue was premature when there was no order for benefits and there was no signed Agreement. The Board agreed with our argument that nothing in the statute or the case law requires a signed Agreement before a credit is available for use. As for the timing issue, again, there did not need to be any benefits owed at the time to enforce the employer’s right to use a credit in the event benefits are owed in the future. Because of the waxing and waning nature of workers’ compensation claims, it is inevitable there will be periods where nothing is owed, but something may be owed in the future. Further, because it is possible to waive a credit, the Board noted it was wise of us to assert our credit and to litigate the issue, as doing so eliminated any potential claim of waiver. The Board granted the Motion.

In Teletor v. First State Inc. of Delaware, the carrier learned of a third-party settlement at mediation and requested documentation on the amount of the settlement and documentation relating to same. After months of receiving no response, the carrier filed a Motion to Compel. Claimant opposed the Motion, arguing the carrier was not entitled to the information because the carrier had not been found responsible for benefits and was not the employer, as this was a general contractor liability claim. He also argued the information was protected by a confidentiality agreement (an issue only identified the week of the Motion Hearing). The Board again rejected this argument and again noted it was wise of the carrier to file the Motion to avoid any claim of waiver. The Board did acknowledge the carrier may need to enter into a confidentiality agreement, but that did not extinguish the carrier’s right to the information requested. As such, the Motion to Compel was granted.

 Should you have any questions regarding this Decision, please contact Nick Bittner, or any other Attorney in our Workers’ Compensation Department.

Maclary v. James Malin Plumbing, IAB No. 1515598, Jun. 17, 2024

Teletor v. First State Inc. of Delaware, IAB No. 1520638, Jan. 17, 2025

EMPLOYMENT LAW UPDATE

Delaware Superior Court Grants Unemployment Insurance Appeals Board’s Motion to Dismiss: Actual Notice Not Required for Due Process

In October 2023, Claimant was suspended from his employment with Chimes Metro, Inc., and he subsequently sought unemployment insurance benefits.

During the claim process, Claimant was found to be still employed by the Employer and was denied benefits. As a result, Claimant filed an appeal with the Unemployment Insurance Appeals Board, and the board accepted Claimant’s request for a hearing even though Claimant filed his appeal six months after such appeal request was due.

The Board scheduled a hearing to commence on July 31, 2024, and neither the Claimant nor a representative from the Employer attended the hearing. Since it was Claimant’s appeal, the Board issued a dismissal Order due to Claimant’s failure to prosecute. The Board’s decision was mailed to the Claimant at his address of record and included language therein indicating that the Board’s decision would become final on August 15, 2024.

On or about September 18, 2024, the Claimant filed an appeal with the Delaware Superior Court, citing that he experienced car troubles on the date of the Board hearing.

The Board filed a Motion to Dismiss Claimant’s appeal before the Delaware Superior Court arguing that Claimant’s appeal was untimely and inexcusably late.

The Delaware Superior Court held that it had no jurisdiction to hear Claimant’s appeal because it was untimely. Specifically, the Claimant’s timeline to file an appeal to the Delaware Superior Court was within ten days after the Board’s decision became final.

The Claimant argued, among other things, that he did not have actual notice of Board’s Decision from the July 31, 2024 hearing attempt until September 17, 2024.

The Court explained its prior analysis of notice in the “context of UIAB appeals, [that] due process does not require proof that a party actually received notice after it was mailed.” Further that there is a “rebuttable presumption” of notice as long as the mailing was properly issued by the Board. The Court reasoned further that inadequate notice could be found if there was a delivery error of a notice caused by the Board.

In this case the Board issued the notice to the Claimant’s address of record that was used on his prior filings. There is nothing in the record indicating that his address had changed. There is nothing in the record indicating that there is any fault that could be ascribed to the Board.

As such, Claimant’s appeal to the Superior Court of Delaware was late and therefore the Court had no jurisdiction as to the merits of his claim

If you have any questions concerning this case or Delaware Unemployment Insurance hearing procedure, please contact an attorney in our liability department.

Michael Payne v. Chimes Metro, Inc. & Unemployment Insurance Appeals Board C.A. No. K24A-09-002 NEP (Del. Super. February 25, 2025)

LITIGATION LAW UPDATE

UM/UIM Coverage Waiver Found Valid: Court Analyzes “Material Change” and “Meaningful Offer” Requirements under 18 Del. C. § 3902

The Superior Court granted defendant’s motion to dismiss, finding that plaintiff was not entitled to UM/UIM coverage for a motor vehicle accident while operating a Suzuki motorcycle. At issue was whether defendant failed to make a “meaningful offer” of UM/UIM coverage under the Suzuki policy when the policyholder’s separately held insurance policy for a Chevrolet was modified.

The Court analyzed subsections (a) and (b) of 18 Del. C. § 3902 and, citing Humm v. Aetna Cas. & Sur. Co., reasoned that “an insurance carrier’s duty to provide a minimum level of uninsurance coverage under subsection (a) is separate and distinct from its duty, under subsection (b), to offer additional uninsured/underinsured coverage up to the amount of the basic liability policy.” The Court determined that the policy holder had affirmatively and validly waived UIM coverage on the Suzuki under subsection (a). The Court then reasoned that the requirements of subsection (b), to make a meaningful offer of additional coverage, are not triggered.

Although the change in covered vehicles under the Chevrolet policy would have constituted a “material change” requiring a “meaningful offer” of additional coverage for the Suzuki under subsection (b), there is no such material change requirement under subsection (a). Thus because the policyholder validly waived UM/UIM coverage under subsection (a), there was no duty on the part of the insurance carrier to make a meaning offer of additional insurance under subsection (b). The Court declined to order reformation of coverage under the Suzuki policy and plaintiff’s case was dismissed.

Francis Henry White III v. LM General Insurance Company, C.A. no. N22C-12-124 PAW, March 19, 2025