Megill v. Atlantic States Insurance Company

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
MICHAEL MEGILL,
K20C-06-021 WLW
Plaintiff,
V.
ATLANTIC STATES INSURANCE :
COMPANY, a Pennsylvania
insurance company,
Defendant.
Submitted: September 17, 2020
Decided: December 16, 2020
ORDER
Upon Defendant’s Motion to Dismiss
Count II of Plaintiff's Complaint
Granted.
David A. Boswell, Esquire of Hudson Jones Jaywork & Fisher, LLC, Lewes,
Delaware; attorney for Plaintiff.
Colin M. Shalk, Esquire of Casarino Christman Shalk Ransom & Doss, P.A.,
Wilmington, Delaware; attorney for Defendant.
WITHAM, R.J.
Michael Megill v. Atlantic States Ins. Co.
C.A. No. K20C-06-021 WLW
December 16, 2020
Defendant, Atlantic States Insurance (hereafter “Atlantic”), filed a Motion to
Dismiss Count 2 of Plaintiff's Complaint pursuant to Superior Court Civil Rule
12(b)(6). The Plaintiff, Mr. Michael Megill (Megill), alleges in Count 2 of his
complaint that Atlantic’s provision that insureds are limited to filing claims for
Uninsured/Underinsured Motorist (hereafter “UM/UIM”) coverage to two (2) years
after the date of the accident unless the insureds meet two exceptions: (1) violations
of Delaware Code § 3902(b) of Title 18 and (2) against public policy. On September
17, 2020, this Court heard oral arguments on the issue of Atlantic’s Motion to
Dismiss. Based on the record of the case, the arguments of the parties, and the
statutory and case law involved, this Court GRANTS Atlantic’s Motion to Dismiss
Count 2 of Plaintiff’s Claim.
Facts and Procedural History
1. The facts of this case are undisputed and are recited as they were presented
by the pleadings. On or about August 2, 2018, Megill was involved in an automobile
accident while operating a work van associated with Megill’s company, M & D
Plumbing. The accident resulted in Megill receiving medical treatment that is still
on-going. The at-fault driver was insured by a policy that carried with it the
minimum limits of bodily liability coverage then permitted by law, $25,000 per
person. Megill received advance written acknowledgment and agreement from
Atlantic that acceptance of the at-fault driver’s settlement of the at-fault driver’s
policy limit of $25,000 would not affect negatively Megill’s claims under his
UM/UIM policy with Atlantic. Based on that reassurance from Atlantic, Megill
Michael Megill v. Atlantic States Ins. Co.
C.A. No. K20C-06-021 WLW
December 16, 2020
accepted the tender of $25,000 from the at-fault driver’s insurance. On or about
November 6, 2019, Megill then executed a release of all claims against the at-fault
driver.
2. Megill holds a policy with Atlantic that provides coverage to Megill
personally and for the vehicle he was driving on the date of the accident for claims
involving UM/UIM up to $300,000. Atlantic issued this policy to Megill covering
the time period of May 7, 2018, to May 7, 2019. This policy includes terms that
restrict policy holders from claiming UIM coverage beyond two years from the
collision unless the policy holder (1) files a timely suit against the at-fault driver, or
(2) the policy holder and Atlantic agree to arbitrate.' Megill did not claim UIM
coverage through his policy with Atlantic because Megill continued to receive
treatment for injuries incurred during the accident. On April 26, 2020, Megill asked
that Atlantic waive the 2-year limitation, and Atlantic declined to do so. On June 17,
2020, Megill filed a 2-Count complaint against Atlantic.
Megill’s Count 1
3. Megill’s Count 1 against Atlantic is a breach of contract action. In
paragraph 23 of his complaint, Megill states that Atlantic is liable under the
underinsured motor vehicle coverage provisions of Megill’s policy and Title 18,
Section 3902(b) of the Delaware Code.’ The policy provided Megill UIM coverage
up to $300,000 per person and per accident and was available to Megill at the time
‘ Plaintiff's Response at n 1.
7 Plaintiff's Complaint at ¥ 23.
Michael Megill v. Atlantic States Ins. Co.
C.A. No. K20C-06-021 WLW
December 16, 2020
of the collision on or about August 2, 2018.7 Count 1 seeks to compel Atlantic to
cover Megill’s damages up to $300,000 arising out of the collision and exceed the at-
fault driver’s liability coverage of $25,000.4
Megill’s Count 2
4. Megill’s Count 2 is a request for declaratory judgment from this Court
declaring Atlantic’s 2-year policy limitation running from the date of an accident
unreasonable and against public policy.” Megill relies on Title 10, Section 8106 and
Title 18, Section 3902 of the Delaware Code to support his allegation that Atlantic’s
2-year policy limitation is against the purpose of the statute guaranteeing injured
parties protection from underinsured at-fault motorists.° Megill also relies on
Flanagan v. Nationwide, 1989 WL 89537 (Del. Super. July 7, 1989) to support his
notion that Atlantic’s 2-year policy limitation is against public policy because the
limitation period would conclude before the statutory limitation period would even
begin to run, which is at the time the demand for UIM coverage is denied by the
insurer.’
Atlantic’s Motion to Dismiss Count 2
5. Atlantic filed a Motion to Dismiss Count 2 of Plaintiff's Complaint on July
27, 2020. On August 25, 2020, Megill responded. On September 17, 2020, this
Court heard oral arguments of the parties. Atlantic argued that Megill’s Count 2 (1)
: Id. at 9 15 - 16.
‘ Id. at § 23.
° Id. at 9 34 — 35.
8 Id. at § 26.
a Id. at § 30.
Michael Megill v. Atlantic States Ins. Co.
C.A. No. K20C-06-021 WLW
December 16, 2020
is an improper request for an advisory opinion; (2) is a moot issue because Megill
complied with the policy period of limitations via his claim in Count 1; and (3) there
is no actual controversy and the complaint lacks justiciability. Megill framed the
issue as being one of anticipatory breach of contract and asserted that Atlantic’s
policy provision is unreasonable for failing to meet the statutory standards for limits
on filing a UM/UIM claim in Delaware and is against public policy.
Applicable Legal Standard
6. Superior Court Civil Rule 12(b)(6) requires that the movant “bears the
burden of demonstrating that ‘under no set of facts which could be proven in support
of its complaint would the plaintiff be entitled to relief.”’® When considering a
12(b)(6) Motion to Dismiss, this Court will accept all well-pleaded facts as true, even
vague allegations if the allegations provide the opposing party notice of the claim;
will make reasonable inferences as to these well-pleaded facts in favor of the party
not moving to dismiss; and will dismiss only where the plaintiff would not be entitled
to recovery based on any reasonably provable circumstances.’ Finally, “conclusions
will not be accepted as true without specific allegations of fact to support them.”!”
Insurance in Delaware
7. Delaware statutory law places the time limitations to bring an action “caused
by an injury...resulting indirectly from the act of the defendant shall not be brought
8 Geo-Technology Associates, Inc., 2020 WL 2557139 at *2 (citations omitted).
7 Td.
7 Solomon y. Pathe Communications Corp., 672 A. 2d 35 at 38 (Del. 1996).
5
Michael Megill v. Atlantic States Ins. Co.
C.A. No. K20C-06-021 WLW
December 16, 2020
after the expiration of 3 years from the accruing of the cause of such action.”"’ For
the purposes of disputes arising from UIM coverage, Delaware law affords a statute
of limitations of three (3) years from the time that the UIM coverage is denied by the
insurance company.'* Delaware treats insurance policies as contracts, and, thus, time
limitations to bring an action involving insurance policy disputes do not start to run
until the contractual obligation to perform has been denied or the request for
insurance coverage has been denied. In Delaware, every insurer is obligated to offer
options to purchase coverage for personal injury or death up to $300,000 including
additional coverage for under insured bodily injury liability coverage."
8. Delaware views “insurance policies [as] contracts of adhesion.”!* “Because
an insurance policy is a contract of adhesion...the policy will be read in a way that
2915
satisfies the reasonable expectations of the average consumer. In Delaware,
contracts of adhesion can be declared unenforceable by courts if they find the terms
to be unconscionable under Delaware statute. '° To declare a contract unconscionable,
whether one of adhesion or not, the “court must find that the party with superior
bargaining power used it to take unfair advantage of his weaker counterpart.”'’
i 10 Del. C. § 8106(a).
2 Flanagan v. Nationwide Ins. Co., 1989 WL 89537 *1 (Del. Super. 1989).
8 18 Del. C. § 3902(b).
4 Flanagan v. Nationwide Ins. Co., 1989 WL 89537 at *2 (Del. Super. 1989).
6 Continental Ins. Co. v. Burr, 706 A.2d 499 at 500 — 01 (Del. 1998).
. Graham vy. State Farm Mut. Auto. Ins. Co., 565 A.2d 908 at 912 (Del. 1989). The statute
referenced is 6 Del. C. § 2-302 which details what a court can do to contracts found to be
unconscionable and how the parties may prove or disprove claims of unconscionableness.
a Td.
Michael Megill v. Atlantic States Ins. Co.
C.A. No. K20C-06-021 WLW
December 16, 2020
Insurance policies that have, as a provision, a limit shortening the time in which an
insured may bring a claim for UIM coverage must adhere to the public policy goals
of the UIM coverage statute or the provisions will be held voidable."®
9. An under insured driver is “one for which there may be bodily injury
liability coverage in effect, but the limits of bodily injury liability coverage...[is] less
than the damages sustained by the [injured party].”"® Delaware views this statutory
definition as “operat[ing] as a prerequisite to a right of recovery from the claimant's
20 Delaware has codified this UIM provision
underinsurance motorist policy.
because of a public policy desire to “protect innocent persons from impecunious
tortfeasors.””! In advancing this public policy, Delaware Courts have declared void
any provision in the insurance policy that is “designed to reduce or limit the coverage
to less than that prescribed by Delaware statute, 18 Del. C. § 3902.”” Finally, the
statute has a logical function that first mandates insureds be offered supplemental
coverage in the case of bodily harm caused by an UM/UIM vehicle; then second
obligates the insured to first exhaust all avenues of recovery both from the UM/UIM
7 Flanagan, 1989 WL 89537 at n. 9.
"9 18 Del. C. § 3902(b)(2).
70 Nationwide Mut. Ins. Co. v. Williams, 695 A.2d 1124 at 1126 (Del. 1997) citing Nationwide
Mut. Auto. Ins. Co. v. Peebles, 688 A.2d 1374 at 1378 (Del. 1997).
= Lukk v. State Farm Mut. Auto. Ins. Co., 2014 WL1891000 at *3 (Del. Super. 2014) quoting
Frank v. Horizon Assur. Co., 553 A.2d 1199 at 1201 (Del. 1999).
22 Hurst v. Nationwide Mut. Ins. Co., 652 A.2d 10 at 12 (Del. 1995) quoting Frank v. Horizon
Assur. Co., 553 A.2d 1199 at 1201 - 02 (Del. 1999).
7
Michael Megill v. Atlantic States Ins. Co.
C.A. No. K20C-06-021 WLW
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driver as well as “any other ‘bodily injury' insurance available to the claimant; and,
finally, ifnecessary, the insurer pays out up to the policy requirements of Sec. 3902."
Discussion and Analysis
10. At the center of this dispute is the policy provision that limits when an
insured can bring a suit against Atlantic under the insured’s UM/UIM policy. That
provision states:
Any legal action against us under this Coverage Form must be brought
within two years after the date of ‘accident’...[unless] (a) the parties
enter an agreement to arbitrate; or (b) the insured files a timely suit
against the tortfeasor.”
Appeals to Public Policy
11. Megill states that the “unnecessary fomentation of premature litigation”
caused by the 2-year policy limitation “violates public policy.”” Megill points to
Atlantic’s admission that “plaintiffs often file injury suits against tortfeasors in order
to comply with the applicable 2-year personal injury statute of limitations,” and
claims that this is a scenario that, if allowed to commence by insurers, would “flood”
Courts with “claims that otherwise may be resolved between an insurer and its
policyholder.””° Because of this, Megill asserts that their request for declaratory
judgment should be granted out of public policy concerns.
23 Hurst, 652 A.2d at 13 — 14 (Del. 1995). See also, Nationwide Mut. Ins. Co. v. Williams, 695
A.2d 1124 at 1126 (Del. 1997).
7 Plaintiff's Response at n 1.
= Plaintiff's Complaint at 4 34.
76 Pl.’s Response at 5.
Michael Megill v. Atlantic States Ins. Co.
C.A. No. K20C-06-021 WLW
December 16, 2020
12. The other public policy at stake here is what is enshrined by Section 3902
of Title 18 of the Delaware Code, which is “ensuring the availability of uninsured and
underinsured motorist coverage” to those harmed by such tortfeasors.”’ However,
this statutory protection is predicated on the injured party acting to demand such
coverage by that party’s insurer. In Flanagan, the injured parties in that case made
a claim for additional damages under their UIM policy, but the insurer there did not
respond to the claim.” Although the Court in that case alluded to this not being a
denial by the insurer, the act of making a claim by the insured was present. Because
of this, the Court found that “the limitation period in the policy expired before the
statutory limitation period had even started to run. In these circumstances, the
provision in the policy is unreasonable and will not be enforced.””? “These
circumstances” included the act of making that initial claim by the insureds.
13. Megill’s circumstances do not include any attempts on his part to make
such a claim for UIM coverage. Megill settled with the at-fault driver for the
maximum coverage available under the at-fault driver’s policy, and then sought a
waiver from Atlantic regarding the 2-year policy limitation in his own UIM policy.
Megill’s explanation for not filing a claim under his UIM policy was that he had not
reached maximum medical improvement. However, as Atlantic explained, it is quite
common for insureds to file for UIM coverage before ever reaching maximum
’ Lukk v. State Farm Mut. Auto. Ins. Co., 2014 WL1891000 at *3 (Del. Super. 2014) quoting
Frank v. Horizon Assur. Co., 553 A.2d 1199 at 1201 (Del. 1999).
28 Flanagan, 1989 WL 89537 at *1.
7 Flanagan, 1989 WL 89537 at *2.
Michael Megill v. Atlantic States Ins. Co.
C.A. No. K20C-06-021 WLW
December 16, 2020
medical improvement. In other words, Megill did nothing to act and, therefore,
cannot be said to have accrued a cause of action starting the limitation period to run.
Additionally, Megill settled with the at-fault driver after reaching that driver’s policy
limits within plenty of time to file for UIM coverage before the end of the 2-year
policy limitation.
14. In Flanagan, the Court explicitly states that there needs to be a denial by
the insurer of the insured’s claim to UIM coverage in order for there to be a cause of
action. Denials are predicated on there being a claim to coverage. However, in
Flanagan, there was no explicit denial of coverage because there was no response at
all to the claim made by the insureds. The implicit ruling of Flanagan then becomes,
where a policy provision that shortens the statutory limitation period when there is
a claim made for coverage by the insured, and when the insurer, in an attempt to
circumvent the statutory limitation period which begins when there is a denial,
decides simply to not reply until the policy limitation period expires and argues that
no claim was made will be found unreasonable and against public policy. It must be
stressed that there must be first a claim made by the insured. Megill never made a
claim despite having opportunities to do so before the 2-year policy limitation was
reached.
Improper Request for Advisory Opinion
15. Megill requests a declaratory judgment from the Court on the grounds that
Atlantic’s policy provision is “unreasonable under the facts.”°’ Atlantic makes the
30 Plaintiff's complaint at 10.
10
Michael Megill v. Atlantic States Ins. Co.
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assertion that Megill is requesting an improper advisory opinion through the
Declaratory Judgment Act. Although Atlantic acknowledges that this Court has
discretion when awarding declaratory judgments, it must do so in accordance with the
long recognized criteria that there be an “actual controversy.”*’ Atlantic also lays out
the four (4) elements Courts must consider when deciding grants of declaratory
judgment:
(1) It must be a controversy involving the rights or other legal relations of the
party seeking declaratory relief; (2) it must be a controversy in which the claim
of right or other legal interest is asserted against one who has an interest in
contesting the claim; (3) the controversy must be between parties whose
interests are real and adverse; (4) the issue involved in the controversy must be
ripe for judicial determination.””
16. The Declaratory Judgment Act is not an instrument used to allow advisory
opinions.** This Court will not participate in decisions of cases that have either
become moot or amount to advisory opinions.** Absent a controversy meeting the
criteria listed above, rendering an advisory opinion would be exactly what this Court
would offer. “Before the court should declare the rights of parties in a dispute, it
must not only ‘be convinced that litigation sooner or later appears to be unavoidable,’
a Def.’s Mot. to Dismiss at 5.
#2 Id. citing XL Specialty Ins. Co., et al. v. WMI Liquidating Trust, 93 A.3d 1208, 1215
(Del.2014).
88 Stroud v. Milliken Enterprises, Inc., 552 A. 2d 476 at 479 (Del. 1989); quoting Ackerman
v. Stemerman, 201 A. 2d 173 at 175 (Del. 1964).
= Stroud, 552 A. 2d at 480; citing State v. Mancari, 223 A. 2d 81 at 82 — 83 (Del. 1966).
11
Michael Megill v. Atlantic States Ins. Co.
C.A. No. K20C-06-021 WLW
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but also that the material facts are static and that the rights of the parties are presently
defined rather than future or contingent.”*»
17. Both Megill and Atlantic admit that there is not an actual controversy in
this case. Megill states this with regard to Count 1 in his response to Atlantic’s
motion, and Atlantic states that there is no actual controversy in Count 2 because
Megill has complied with the policy provision. If there is no breach, which is the
cause of action for Count 1, and there is compliance with the policy provision, which
is the basis for Megill claiming there is a breach, then it cannot be said that there is
a controversy in this case. Absent an actual controversy, Atlantic’s arguments that
Count 2 is both moot and not justiciable are supported by the admissions of Megill.
Atlantic Argues Megill’s Claim is Moot
18. The doctrine of mootness applies when a controversy between parties no
longer exists and there could be no relief which a court could grant.*® The Court
maintains discretion to hear a moot case where the harm could be repeated, and yet,
evade review if dismissed when there exists a “sufficient personal stake” in the case
moving forward.*” Furthermore, if the litigant continues to suffer harm despite the
controversy being made moot, “[a] justiciable controversy remains.”*®
88 Stroud, 552 A. 2d at 481 (internal citations omitted).
36 B/E Aerospace, Inc. v. J. A. Reinhardt Holdings, LLC, 2020 WL 4195762 at *2 (Del. Super.
July 21, 2020); quoting State Farm Mut. Auto. Ins. Co. v. Davis, 80 A. 3d 628 at 632 (Del.
2013) (internal citation omitted).
7 B/E Aerospace, Inc.,2020 WL 4195762 at *2; quoting Stratton v. American Independent Ins.
Co., 2011 WL 3812570 at *3 (Del. Super. Aug. 12, 2011).
%8 B/E Aerospace, Inc., 2020 WL 4195762 at *2; quoting NAMA Hdgs., LLC v. Related World
Market Center, LLC, 922 A. 2d 417 at 435 (Del. 2007).
12
Michael Megill v. Atlantic States Ins. Co.
C.A. No. K20C-06-021 WLW
December 16, 2020
19. Atlantic’s claim of mootness is based on the fact that Megill complied with
the very contractual provisions for which Megill now seeks declaratory judgment.
This compliance, Atlantic explains, removes any notion of there being in existence
a controversy or claim for which this Court can grant relief under Count 2 of the
complaint. Atlantic argues that since there is no controversy, there is no reason to
strike the policy provision as void or unenforceable because to do so would “have no
effect whatsoever on this case.”*”
20. Megill counters that he had to file Count 1 because failure to do so would
lead to him being prevented from filing a UIM claim by the 2-year limitation
provision of his policy because he had not reached maximum medical improvement.
As Megill explained in his response, “The extent of his damages is unknown and
unknowable at present. He therefore cannot make a claim for underinsured motorist
benefits against Defendant yet.“ Atlantic’s response is that Megill’s inability to
know the extent of the treatment he needs to reach maximum medical improvement
would not preclude him from filing a claim for UIM coverage under his policy and
notes that this assertion is supported by Megill reaching a settlement with the at-fault
driver “despite any uncertainty in his medical condition.”*' Megill maintains that
“there was no need for [Megill] to reach maximum medical improvement for both he
and the [at-fault driver’s] auto insurer to know that his claims exceeded the [at-fault
38 Defs.’ Mot. to Dismiss at 4.
7 Plaintiff's Response at 3.
7 Def.’s Mot. to Dismiss at 3.
13
Michael Megill v. Atlantic States Ins. Co.
C.A. No. K20C-06-021 WLW
December 16, 2020
driver’s] coverage.”** How can it be so that Megill knows enough about his injuries
to warrant settling on the basis that they exceed $25,000 but not know enough about
them to file a claim for UIM coverage under his policy?
21. In fact, Megill could have opened a UIM claim on his policy the moment
the at-fault driver’s liability coverage limit was reached without waiting to reach
maximum medical improvement. Atlantic’s motion explains that, contrary to
Megill’s assertion that not reaching maximum medical improvement prevents him
from making a UIM claim, filing before reaching an improved condition is “common
in personal injury litigation - undefined damages based upon his present medical
condition.”
22. Megill admits that no controversy exists with regard to breach of contract
“because Defendant has yet to be called upon to perform.”“* Megill’s fears that
Atlantic will not honor its obligation as the insurer are further discredited by the fact
that Megill has not made an attempt to demand that Atlantic perform. As the facts
rest at this moment, even if Megill’s request for declaratory judgment was granted,
Megill would still be in the exact same position because he has not made a claim
under his policy with Atlantic. This Court can find that the basis for Count 2 is moot.
There is no reason for a declaratory judgment, because there is no controversy to
cause Megill harm.
Justiciability
a Plaintiff's Response at 7.
48 Def.’s Mot. to Dismiss at 3.
“4 Plaintiff's Response at 4.
14
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C.A. No. K20C-06-021 WLW
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23. Mootness and justiciability are similar in that both call on the Court to
determine whether “the dispute is currently concrete enough to justify adversarial
9945
litigation. Again, relying on the notion that a lack of controversy removes
jurisdiction from this Court, Atlantic claims that this case is “not ripe for judicial
determination under the procedural posture, facts, and applicable law.’*®
24. Megill points out that there are facts and applicable law that make this case
justiciable. First, Megill relies on this Court’s ruling in Flanagan v. Nationwide,
which found that policy limitations that run counter to Delaware statute limitations
violate public policy. In Flanagan, the deciding factor was when the statutory
limitation period begins to run versus when the policy limitation began. In Flanagan,
identical to this case, the policy limitation began to run on the date of the automobile
accident and expired after two years. However, Flanagan would help Megill if the
facts there were similar to the facts here. In Flanagan, the plaintiffs/insureds
“claimed additional damages under the underinsured motorist coverage of their
policy,”*’ but here, the only action taken by Megill with regard to his UIM coverage
has been to ask Atlantic to waive the 2-year limitation period of the policy. This
distinction is important because the statutory language, as well as the language in
Flanagan, require that there be a demand for coverage and a denial, since the insurer
cannot deny that which has not been demanded. Megill attempts to conflate the facts
of his case with the facts of Flanagan, but it simply cannot be done where there is a
7 B/E Aerospace, Inc., 2020 WL 4195762 at *2.
46 Defs.’ Mot. to Dismiss at 7.
Y Flanagan, 1989 WL 89537 at *1.
15
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C.A. No. K20C-06-021 WLW
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claim for additional coverage by the insureds and no response from the insurer and
one where there has been no claim, no demand, and thus no denial. As this Court
stated in Flanagan, “[t]he cause of action accrues when the insurance company denies
the claim.””°
25. As such, this case cannot be said to possess a ripe controversy for this
Court to resolve because there has not been a cause for action by Atlantic. Megill
states, “Count 2 is not only an actual controversy; at this time, it is the only dispute
»49 However,
or controversy between the parties which is ripe and justiciable.
Megill’s request for relief of this sort is predicated on there being a Count 1, which
Megill willingly admits is not a “justiciable case or controversy.”°? Megill further
admits that “there is not yet a ripe case or controversy regarding breach of contract”
under Count 1.°’ Without a cause of action, i.e., a controversy, Megill is requesting
an advisory opinion rather than a declaratory judgment.
Conclusion
26. Delaware law is clear that the statutory limitations for bringing a cause of
action against an insurer regarding a UIM claim brought by the insured does not
begin to run until after there is a denial of UIM benefits by an insurer. However,
ignoring a claim by the insured will result in declaring policy provisions that shorten
the statutory limitations period unreasonable and against public policy. Neither
> Flanagan, 1989 WL 89537 at *1.
“9 Plaintiffs Response at 7.
* Id. at 5.
7 Id. at 4.
16
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scenario can be reviewed until there is a claim to coverage because there must be a
cause of action to bring before the Court.
27. Atlantic’s claims of improper request for advisory opinion, mootness, and
lack of justiciability are admitted to by Megill. Advisory opinions will not be made
by this Court and there are no controversies to which Megill can point to prompt this
Court to elevate the current case to the level of making a declaratory judgment.
28. Count 1 of Megill’s complaint is an action against Atlantic for breach of
contract for lack of performance; however, Megill admits that it has not asked
Atlantic to perform. Count 2 is a request for declaratory judgment rendering
Atlantic’s policy limitations period of 2 years as unreasonable and against public
policy. Megill states that the only Count that matters is Count 2, but this Count is
dependent on there being a controversy since Count 2 asks for a declaratory
judgment. Having admitted that there is no controversy, and that the first count of his
complaint has no merit, Megill cannot receive a declaratory judgment from this Court.
WHEREFORE, this Court GRANTS Defendant’s Motion to Dismiss
Plaintiffs Count 2.
IT IS SO ORDERED.
/s/ William L. Witham, Jr.
Resident Judge
WLW/dmh
17