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SUPERIOR COURT
OF THE

STATE OF DELAWARE E. SCOTT BRADLEY
JUDGE 1 The Circle, Suite 2 GEORG ETOW N, DE 19947

February 15, 2013

Peter K. Schaeffer, Jr., Esq. Avenue Law 1073 S. Governors Avenue Dover, DE 19904

Michael Logullo, Esq. Heckler & Frabizzio, P.A. 800 Delaware Avenue P.O. Box 128 Wilmington, DE 19899

Robert M. Greenberg, Esq. Tybout, Refearn & Pell 750 Shipyard Drive, Suite 400 P.O. Box 2092 Wilmington, DE 19899 RE: William Bennett & Debra Bennett v. USAA Casualty Ins. Co., et al. C.A. No: S10C-02-010 Dear Counsel: This is my decision on the Cross-Motions for Summary Judgment in this case involving a dispute over insurance coverage for a condominium unit that was damaged when a toilet inside it broke, allowing water to run throughout the unit. The plaintiffs, Debra and William Bennett, own a condominium unit at the Plantations East condominium complex in Lewes, Delaware. They have an insurance policy with defendant USAA Casualty Insurance Company, covering both the real
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and personal property in their condominium unit. The Plantations East Condominium Association, Inc. has an insurance policy with defendant Philadelphia Indemnity Insurance Company. Both insurance companies have refused to pay the Bennetts' claims, resulting in the plaintiff filing suit against both of them. 1 USAA argues that its policy with the Bennetts is secondary to the PIIC policy and that it does not have an obligation to pay until the PIIC policy is exhausted. PIIC argues that its policy with the condominium association does not cover the Bennetts' claims. STANDARD OF REVIEW This Court will grant summary judgment only when no material issues of fact exist, and the moving party bears the burden of establishing the non-existence of material issues of fact.2 Once the moving party meets its burden, the burden shifts to the non-moving party to establish the existence of material issues of fact.3 The Court views the evidence in a light most favorable to the nonmoving party. 4 Where the moving party produces an affidavit or other evidence sufficient under Superior Court

Both insurance companies, despite their current positions, offered to pay certain portions of the Bennetts' claims. The Bennetts' damages are discussed in detail in a report prepared by McHenry Adjustment Company, Inc.
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Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979). Id. at 681. Id. at 680. 2

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Civil Rule 56 in support of its motion and the burden shifts, the non-moving party may not rest on its own pleadings, but must provide evidence showing a genuine issue of material fact for trial.5 If, after discovery, the non-moving party cannot make a sufficient showing of the existence of an essential element of the case, then summary judgment must be granted.6 If, however, material issues of fact exist or if the Court determines that it does not have sufficient facts to enable it to apply the law to the facts before it, then summary judgment is not appropriate.7 DISCUSSION The USAA Policy, Section I,

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