IN THE SUPREME COURT OF THE STATE OF DELAWARE

GEICO GENERAL INSURANCE § COMPANY, § § Nos. 389, 2019 Defendant Below, § Appellant, § Court Below—Superior Court § of the State of Delaware v. § § C.A. No. N17C-03-242 YVONNE GREEN, WILMINGTON § PAIN & REHABILITATION § CENTER, and REHABILITATION § ASSOCIATES, P.A. on behalf of § themselves and all others similarly § situated, § § Plaintiffs Below, § Appellees. § §

Submitted: September 24, 2019 Decided: October 8, 2019

Before VALIHURA, SEITZ, and TRAYNOR, Justices.

ORDER

Upon consideration of the notice and supplemental notice of interlocutory

appeal and the documents attached thereto, it appears to the Court that:

(1) Plaintiffs Yvonne Green, Wilmington Pain & Rehabilitation Center,

and Rehabilitation Associates, P.A filed a complaint, on behalf of themselves and

others similarly situated, against GEICO General Insurance Company. Plaintiffs

alleged that GEICO used two computerized models to deny valid personal injury protection (“PIP”) claims of its insureds without evaluating the facts underlying the

claims. Plaintiffs argued that this practice violated Delaware law and the terms of

GEICO’s insurance policies. After briefing and a hearing on Plaintiffs’ motion for

class certification, the Superior Court certified a class for the limited purpose of

determining whether GEICO’s use of the two different models was a breach of

contract or bad faith breach of contract and to rule on a declaratory judgment.1 The

Superior Court ruled that it would not determine individual liability or damages.2

(2) On September 5, 2019, GEICO filed an application for certification of

an interlocutory appeal. GEICO argued that the Superior Court’s decision

determined a substantial issue of material importance. As to the Rule 42(b)(iii)

criteria, GEICO argued that the Superior Court decision: (i) involved a question of

law decided for the first time in Delaware—certification of a contested PIP class

action;3 (ii) conflicted with decisions of the Superior Court, the United States District

Court for the District of Delaware, and the United States Court of Appeals for the

Third Circuit;4 and (iii) related to the construction and application 21 Del. C. § 2118

and Superior Court Civil Rule 23, which has not been settled, but should be, before

1 Green v. GEICO Gen. Ins. Co., 2019 WL 4039609, at *12 (Del. Super. Ct. Aug. 27, 2019). 2 Id. 3 Supr. Ct. R. 42(b)(iii)(A). 4 Supr. Ct. R. 42(b)(iii)(B). 2 an appeal from a final order.5 GEICO also contended that review of the interlocutory

order could terminate the litigation6 and would serve the interests of justice.7

(3) Plaintiffs opposed the application for certification. They argued that

GEICO’s attacks on the Superior Court’s analysis lacked merit and that the Superior

Court’s decision did not involve a novel question of law, did not conflict with other

cases, and did not relate to the unsettled construction of 21 Del. C. § 2118 or Rule

23. Finally, they contended that interlocutory review would not terminate the

litigation or serve considerations of justice.

(4) On September 23, 2019, the Superior Court granted the application for

certification.8 The Superior Court found that the class certification determined a

substantial issue.9 As to the Rule 42(b)(iii) criteria, the Superior Court concluded

that the class certification arguably related to the construction of a statute and that

interlocutory review could terminate the class portion of the litigation and would

serve the interests of justice.10

(5) Applications for interlocutory review are addressed to the sound

discretion of the Court.11 In the exercise of our discretion and despite the Superior

5 Supr. Ct. R. 42(b)(iii)(C). 6 Supr. Ct. R. 42(b)(iii)(G). 7 Supr. Ct. R. 42(b)(iii)(H). 8 Green v. GEICO Gen. Ins. Co., 2019 WL 4643937, at *4 (Del. Super. Ct. Sept. 23, 2019). 9 Id. at *2. 10 Id. at *3. 11 Supr. Ct. R. 42(d)(v). 3 Court’s granting of the application for certification, this Court has concluded that

the application for interlocutory review does not meet the strict standards for

certification under Supreme Court Rule 42(b). The case is not exceptional,12 review

of the order will not terminate the litigation,13 and the potential benefits of

interlocutory review do not outweigh the inefficiency, disruption, and probable costs

caused by an interlocutory appeal.14

(6) NOW, THEREFORE, IT IS ORDERED that the interlocutory appeal

is REFUSED.

BY THE COURT:

/s/ Gary F. Traynor Justice

12 Supr. Ct. R. 42(b)(ii). 13 Supr. Ct. R. 42(b)(iii)(G). 14 Supr. Ct. R. 42(b)(iii)(G).

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