Mickens v Horace Mann Insurance - Summary Judgment Denied

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE R OBE RT MICKENS,)) Plain tiff,)) v.) C.A. No. K24 C - 03 - 035 NEP)) HO RAC E MAN N PR OPE RT Y) AND C ASU ALT Y INS UR ANCE) COMPANY, a foreign corpor ation,)) Defe nda nt.) S ubmit ted: Januar y 6, 2026 Decide d: Februa ry 16, 202 6 MEMORANDU M OPINI ON Upon Defen dan t Ho race Mann Prope r ty and C asu al ty Insu ra nce Com pan y’s Moti on F or Sum mar y Jud gmen t DENIE D W illia m D. Fle tc her, Jr., Esquire, Sc hmit tin ger a nd Ro drig uez, P.A., At torney fo r Plaint iff. M iran da D. C lif ton, Esquire, Heckle r and Fra bizz io, At tor ney for Defe nda nt. Pr imos, J.

2 This a ction aris es from a m otor - vehic le inci dent in which Plaintiff Robert Micke ns (“M ic kens”) was str uck by t ortf easor Alto n J. L atch um (“La tc hum”) while work ing a s a roa d - co nstr ucti on fla gge r dir ect ing tra ffi c thr ough an act ive wor k zone. After exhaustin g Latch um ’s bo dily - injury lia bili ty c overa ge, Mic kens see ks under ins ure d mot oris t (“UI M”) be nef its under Latchu m ’s aut om obile insur ance polic y iss ued by Defe nd ant Horac e Ma nn P roper ty a nd Ca sua lty I ns uranc e Com pa ny (“Horace Ma nn”). Horace Mann has moved for summ ary ju dgme nt pur sua nt to Super ior Co ur t Civi l Rule 5 6, con ten din g that M icke ns is not e ntit led to U IM benef its be cau se Mi cke ns doe s not q uali fy as an “insured” as a matter of law. 0F 1 Th e central que sti on bef ore the C ourt i s whether, v iewing the record in the light most favor abl e to M ick ens, a rea sona ble fa ctf in der c oul d conc lud e tha t Mic ken s was a n “occ upa nt” of the ins ure d vehic le a t the ti me of th e acc ide nt be cause he was e nga ged in a ta sk re late d to t he op era tion of tha t v e hicle. For the rea sons th at f ollo w, the Cour t find s tha t ge nuine issue s of mater ial fac t exis t as t o w hether M icke ns wa s e ngag ed i n a ta sk re la ted t o th e oper at ion of t he insur ed ve hic le at t he tim e of th e acc ide nt, suc h tha t he ma y be dee med a n “occupa nt” under Delaware law fo r purp oses of UIM benefi ts. Accordi ngly, Hor ace Mann’ s Motio n for S ummary Judgme nt is DE NIED. FACT UAL AND PRO CEDURAL BACK GRO UND 1F 2 On Aug ust 24, 2 021, Mickens was st anding i n the road way at the inter section of P e ars ons C orner Roa d and Ce ntral Church R oad while worki ng as a tra ffic - control flagge r. 2F 3 Mic kens was authoriz ed to stop, slow, or other wise co ntro l and re gula te 1 The Horace Mann policy defines an “insured” for purposes of UIM coverage to include, inter alia, “any other person” while “occ upying” a covered vehicle. Mot. For Summary Judgment ¶¶ 5–6. 2 Citations in the form of “D.I. ___” refer to docket items. 3 Compl. at ¶ 2 (D.I. 1); Mickens Dep. 33:24, 34:1–10 (D.I. 32).

3 traff ic by direc ting a traf fic - c ontro l sign to ward inco ming vehic les. 3F 4 At the same time, Latchum was ope rati ng a pick up truc k traveli ng on Centra l Church R oad at i ts inter sectio n with P earson s Corne r Roa d. 4F 5 Micke ns directe d Latchum to stop, but, d espit e Micke n’s di rectio ns, Lat chum bega n making a left - hand t urn ont o Pearsons Corne r Road, st riking Mickens a nd prop elli ng him into a di tch off the r oadwa y. 5F 6 Micke ns settle d his tort lia bility c laim a gain st L atchum through La tchum’s insur er Horace M ann for the liab ility po licy li mit of $1 00,000 on or about Ju ly 20, 2023. 6F 7 Alleging t hat the $10 0,000 p olic y lim it was ins ufficien t to fully co mpensat e him, Micke ns sou ght payme nt of U IM benefi ts under Hor ace Man n’s policy, which Horac e Ma nn ref used to prov ide. 7F 8 Micke ns comm ence d the instant ac tion by filing a c omplain t on Marc h 28, 2024, seeking r ecover y of UIM be nefits fr om Hora ce M ann ar ising o ut of the Augus t 24, 202 1, inci dent. 8F 9 O n May 14, 2024, H orace Ma nn file d a Motio n to Dis miss. Th e Court denied the Mot ion on Jul y 19, 20 24. 9F 10 On July 26, 20 24, Horace Ma nn fil ed its Ans wer, asser ting, in ter al ia, tha t Micke ns’s cla ims ar e barre d by the term s of the polic y and pre clu ded by 18 Del. C. § 3902. 10F 11 4 Compl. at ¶¶ 3 –4; See M ickens Dep. 35:22–24, 36:1–3, 44:1–3 (D.I. 32). 5 Compl. at ¶ 4 (D. I. 1). 6 Compl. at ¶ 4 (D.I. 1); Mickens Dep. 37:13– 16; 41:19 –21; 43:1; 44:1–6; 45: 2–18; 47:1–8; 48:23–24, 49:1–5 (D.I. 32). Latchum died several months after the incident from unrelate d causes. Resp. in Opposition to Mot. for Summ. J. at ¶ 2. As a result, Latchum never provided sworn testimony regarding the circumstances of the incident, including whether he observed Mickens or responded to Micken’s signaling. Id. 7 Compl. at ¶ 11 (D.I. 1). 8 Compl. at ¶ ¶ 11–13 (D. I. 1). The Del aware S upr eme Court has confi rmed that an individual may pursue both a liability c laim and a UIM clai m under the same policy. See Nationwide Prop. & Cas. Ins. Co. v. Irizarry, 2020 WL 525667, at *3–6 (Del. Super. Jan. 31, 2020), aff’d, 238 A.3d 191 (Del. 2020) (TABLE). 9 D. I. 1. 10 D. I. 13. 11 Answer at 2. (D.I. 16).

4 On Nove mber 18, 2025, H orace M ann fi led the Insta nt Motion f or Summa ry Judgm ent purs uant to Su perior Cou rt Civil R ule 56. 11F 12 Ho race Mann argu es that Micke ns canno t recover UIM ben efits be cause he d oes n ot qualify a s an insur ed under t he polic y, and specifi cally that M ickens d oes not qua lify as an “ occu pant” because he wa s not e ngaged in a task re lat ed to th e operati on of the veh icle whe n he was str uck. 12F 13 Horace Mann further notes t hat accep ting Micke ns’s the ory wou ld impro perly ex pand th e definit ion of occ upancy b y renderi ng flagg ers “ insta nt and cons tant ‘occ upants’” of some vehic le at any g iven tim e. 3F 14 Micke ns filed his Res ponse to Horace Mann’s Motion f or Summ ary Ju dgmen t on De cember 5, 20 25, argui ng that h is acti ng as a flagger ope rates a s a task re lated to opera tion of La tch um ’s vehicle, rendering hi m an occupan t by law and e ntitling him t o UIM be nefits un der Hora ce Man n’s policy. 14F 15 The Cou rt heard ora l arg umen t on the M otion for Summ ary Judgm ent on Jan uary 6, 202 6, and too k the ma tter unde r advis ement. 15F 16 STANDARD OF REVI EW Summa ry judgm ent is appr opr iate if, when viewing the facts in t he lig ht most favor able to the non - moving party, “ the pl eadings, depositi ons, an swers to interr ogator ies, and a dmis sions on file, together w ith the af fidavits, if any, sh ow th at there is no gen uine issue as to any m ater ial fact and tha t the movin g party is ent itled to a j udgment a s a matt er of la w. 16F 17 The movant be ars th e in itia l burden of showing 12 D. I. 26. 13 Mot. for Summ. J. at ¶¶ 3, 7–10, 16 (D.I. 26). As discussed later in this Opinion, a person is deemed an “occu pant” u nder Dela ware law if he or she i s either (a) wit hin a reason able geograph ic peri meter o f th e vehicle or (b) eng aged in a task related t o the o peratio n of the vehicle. See infra notes 27 to 28 and accompanying text. 14 Id. at ¶ 15. 15 Resp. to Mot. for Summ. J. at ¶¶ 6 –8 (D.I. 28). 16 D. I. 31. 17 Del. Super. Ct. Civ. R. 56(c); Moore v. Sizemore ¸ 405 A.2d 679, 680 (De l. 1979).

5 that there are no gen uine iss ues of ma terial fa ct. 17F 18 I f the movant meets its burden, the non - mova nt must s how ther e is a “ gen uine i ssue for trial.” 18F 19 To deter min e whet her a gen uine issue exis ts, the Court c onstr ues the fac ts in the li ght mo st favor able to th e non - mova nt. 19F 20 Altho ugh summa ry judgme nt is encourag ed whe n possib le, the re is no “right ” to su mmary judgme nt. 20F 21 The Cou rt will not gr ant summ ary judgm ent if “it see ms desir able to inq uire thor oughly in to [the fact s] to c larify the applic ation of the la w to th e circ umsta nces.” 21F 22 If the Cou rt finds t hat no ge nuine iss ues of ma teria l fact e xist, and t he moving party h as demo nstrated its enti tlement to judgm ent as a matte r of law, summar y judg ment is appr opriate. 22F 23 DISC USSION Dispu tes aris ing und er u ninsure d an d underin sured m otorist c overage mu st be resol ved by care ful atte ntio n to the spec ific fact s presente d. As th is Court ha s obser ved, “a naly sis of [oc cu pancy ] is high ly relia nt upon t he in divid ual fac ts of a given case.” 23F 24 In analy zin g occupan cy for insur ance pur poses, the Delaw are Supre me Court ha s hel d that the ter m “o ccupant” must be co nstrue d libe rall y to refle ct the Gener al Assem bly’s in tent t o ensure mea ningful co verage for injur ed 18 Moore ¸ 405 A.2d at 680 (citing Ebersole v. Lowengrub ¸ 180 A.2d 467, 470 (Del. 1962)). 19 Del. Super. Ct. Civ. R. 56(e); see also Brzoska v. Olson, 668 A.2d 1355, 1364 (Del. 1995) (“If the facts permit reasonable persons to draw from them but one inference, the question is ripe for summary judgment.”). 20 Judah v. Del. Tr. Co., 378 A.2d 624, 632 (Del. 1977) (citation omitted). 21 US Dominion, Inc. v. Fox News Network, LLC, 293 A.3d 1002, 1034 (Del. Super. 2023) (quoting Telxon Corp. v. Meyerson, 802 A.2d 257, 262 (Del. 2002) (internal quotation marks and citation omitte d)). 22 Ebersole ¸ 180 A.2d at 4 68– 69 (citatio n omitted). 23 Brooke v. Elihu-Evans ¸ 199 6 WL 659491, at *2 (Del. Aug. 23, 1996) (citing Oliver B. Cannon & Sons, Inc. v. Dorr- Oliver, Inc., 312 A.2d 322 (Del. S uper. 1973)); see also Jef fries v. Kent C ty. Vocational Tech. Sch. Dist. Bd. of Educ. ¸ 743 A.2 d 675, 677 (Del. Super. 1999) (“However, a matter should be disposed of by summary judgment whenever an issue of law is involved and a trial i s unneces sary. ”) (ci ting S tate ex rel. Mitch ell v. Wolcott, 83 A.2d 759, 761 (Del. 1951)). 24 Buckley v. State Farm Mut. Auto. Ins. Co., 139 A.3d 845, 851 (Del. Super. 2015), aff’d, 140 A.3d 431 (Del. 2016).

6 perso ns and avoi d arbi trary dis tinctio ns that wou ld foreclo se injured per sons from recovery. 24F 25 The ava ilabili ty of over lapp ing or potentia lly dupl icative c overage, such as wor kers’ com pensati on benef its, is no t dispo sitive of whethe r UIM bene fit s are availa ble to a n otherwi se qual ifying cla imant. 25F 26 A. Occupancy Re quire ment Pur suant To Fishe r The Del aware Su preme Cour t provide d the occu pancy tes t at issue in Nat’l Union Fire Ins. Co. of Pit tsburgh v. Fisher. 26F 27 This is a disjunctive t wo - pron g ed te st where by a cla iman t will be co nsidere d an occu pant of a vehicle “ if he or sh e is eithe r: (a) wi thin a reasona ble geogra phic per imeter of the vehic le, or (b) e ngaged in a tas k rela ted to t he operat ion of the ve hicle.” 27F 28 Mickens r epre sented a t oral a rgume nt, thro ugh coun sel, that he is n ot as serting c overage under the ge ograp hic peri meter pron g. There fore, the Court co nfines i ts analy sis here to th e seco nd, or task - rel ated, prong. Under t he task - rel at ed pro ng, court s must “ caref ully dis tinguish between job - rela ted tas ks for whic h one’ s vehicle i s an inte gral tool an d tasks dire ctly relate d to the oper ati on of one’s vehicl e.” 28F 29 Only ta sks that are d irectly re lated to t he opera ti on of the ve hic le will suf fice under the sec ond pron g of the F isher analys is. 29F 30 In oth er words, ta sks such as “handi ng a pac kage to a c ustomer at his fr ont do or, a tow tr uck opera tor sweeping debris fr om a road way, or an am bulanc e driv er admin ister ing aid 25 Nat. Union Fire Ins. Co. of Pittsburgh v. Fisher, 692 A.2d 892, 896 (Del. 1997). Whil e the Delawar e Suprem e Court in Fisher applied the liberal construction of “occupant” in the pe rson al injury protection (“PIP”) context, the Court also made clear that the liberal construction of “ occupan t ” applied to both PIP and UIM coverage. Id. 26 Friel v. Hartford Fire Ins. Co., 2014 WL 1813293, at *2 (Del. Super. May 6, 2014), aff’d, 108 A.3d 1225 (Del. 2015). See also Irizarry, 2020 WL 525667, at *3–6 (claimant may pur s ue both a liability cla im and a UIM claim under the same policy). 27 692 A.2d at 896–98. 28 Id. at 896. 29 Id. at 897–98. 30 Id. at 898.

7 to a per son o n the ro adsi de” may be “ job - rela ted tasks” for whic h a ve hicle is a n “inte gral tool,” but the y are like ly not tasks rela ted to the oper ation of a veh icle. 30F 31 Delaware cour t s have identifi ed a varie ty of tasks tha t would qu alify as task s rela ted to t he operat ion of a vehic le for occ upancy pur poses. The se inclu de p umping gaso line into a vehi cle, 31F 32 check ing that vehicles loaded on a trai ler were secured, 32F 33 direc ting the move ment of a ve hicle f or towi ng purpo ses, 33F 34 and cros sing a roa dwa y at the d irectio n of a vehic le operat or in order to boa rd the ve hic le. 34F 35 Across th ese conte xts, the decisive consid eration is whe ther the clai mant’s a cti ons at the time of injur y were und ertaken for the purpose of i nfluenc ing how the partic ular ve hicle would m ove, fu nction, or be o perated. B. Mickens W as Engag ed In A Ta sk Relate d To The Op eration Of Latchu m’s Vehi cle View ing the recor d in the light m ost favor able to Mickens, a reason able factf inder cou ld conclud e tha t Mick ens was en gaged i n a task r elat ed to the opera tion of Latc hum’s ve hic le at the mome nt he was str uck. Micke ns was not a pa ssive pedes trian or a bystan der inci dental ly pr esent near tra ffic, bu t a n author ized roadway flagge r, 35F 36 sta tioned in an ac tive wor k zone, a nd acti vely dire cting traf fic p ursuan t t o his as signed du ties. 36F 37 Moreover, i mm edi ately be fore the incid ent, Mickens w as wav ing a red an d white stop s ign towar d Latch um’s vehic le in an effor t to mak e 31 Id. 32 Selecti ve Ins. Co. v. L yons, 681 A.2d 1021, 1026 (Del. 1996); Fisher, 692 A.2d at 898. 33 Walker v. M & G C onvoy, Inc., 1989 WL 158511, at *1 (Del. Super. Nov. 2, 1989); Fis her, 692 A.2d at 898. 34 Wagner v. State Farm Mut. Auto. Ins. Co., 2001 WL 34083818, at *2–3 (Del. Super. Oct. 25, 2001). 35 Buckley, 139 A.3d at 851. 36 See Mickens Dep. 12:18–14:10 (D. I. 32) (explaining licensure of roadway flaggers). 37 Id. at 28:18–32:24.

8 Latch um stop. 37F 38 This c onduct wa s underta ken for the e xpress p urp ose of co ntro llin g the movement of Latc hum’ s vehi cle throu gh the inte rsectio n. Horace Man n argues that be cause Latchum allege dly failed to see Micke ns before the inc ide nt, M ick en s could no t have bee n enga ged in a task “ affecti ng” the opera tion of Latchum ’s v ehicle and ther efore ca nnot q ualify as an “ occupa nt.” 38F 39 That pre mis e misc onstrue s Dela ware’s task - r elated in quir y, whic h turns on th e claim ant’ s object ive co nduct and its rela tionshi p to vehicl e oper atio n, not on the tortfe asor’ s perce ption of, aware ness of, or com pliance w ith that co nduc t. Moreover, t he tes t is not whet her the plai ntiff’s ta sk - related actio n s “affected” t he operation of the sub ject vehic le, but whether they were “rela ted to” the o peration of the vehicle. Delaw are cour ts recogn ize tha t tasks ne ed not inv olve phy sical con tact w ith a vehic le to satisf y the tas k - re lat ed p rong, 39F 40 nor doe s a task need t o be succe ssfull y compl eted in ord er to satisf y that pron g. 40F 41 Rath er, the key inquir y is exami ning the tas k the p laintif f was en gaged in, not the tor tfeasor. E.g., i n Sele ctive Ins urance Co. v. Lyons, t he Dela ware Supr eme Cour t expla ined that a claim ant pump ing gas int o a vehic le was en gaged in a task re lated to the oper ati on of the ve hicle and the ref ore an “occ upa nt” of the ve hicle. 41F 42 Under the fac ts of t he case, “[w]hi le Lyons wa s 38 Id. at 37:5–38:16, 41:4-5, 43:17–44:6. Mickens testified th at prior to th e incident he was “swinging [the stop sign] up and down” at Latchum’s vehicle to try to get his attention. Id. at 44:1-4. 39 Mot. for Summ. J. at ¶ 10. There is n o eviden ce i n the reco rd that Latchu m failed to see Mickens prior to the incident other than Mickens’s testimony that immediately a fter the incident Latchum apologized and stated that he “didn’t see” him. Mickens Dep. 48:17–18, 52:21–23 (D.I. 32). Even assuming that this stateme nt w ere admissible, it w ould not eliminate a genuine issue o f material fact, i.e., a factfinder would still be required to assess Latchum’s credibility and determin e whether L atchum’s statemen t was truthful or m erely an attempt to exculpa te himself. 40 See, e.g., Wagner, 2001 WL 34083818, at *2 (explaining that the plaintiff was engaged in a task related to the operation of a tow truck, namely, directing the tow truck, while standing ten to fifteen f eet aw ay). 41 See, e.g., Walker, 1989 WL 158511, at *1 (plaintiff was in process of making sure cars loaded on to trailer were secured when he slipped and fell, giving rise to PIP coverage). 42 681 A.2d at 1026.

9 stan ding beh ind hi s vehic le fillin g it wit h gasoli ne, with h is hand o n the ga soline hose an d the nozz le inserte d into his au tomobi le’s gas - ta nk fille r neck, [the dr iver of a seco nd ve hicle] drov e her vehic le forwar d, striki ng Lyons a nd pin ning him betwe en th e two vehicl es.” 42F 43 E ven if, hypot hetica lly, the i njury had occurre d a fter the nozz le was inse rted but before gas had b eg u n flowi ng into t he vehic le, the plai ntiff woul d stil l have be en deemed an occupant beca use the ta sk was i ntegra lly conne cted to vehi cle operat ion, even th ough pe rfor manc e of the t ask wo uld hav e ha d no act ual effect upo n the operati on of the vehicle. Th e pr inciple of focusi ng on the claim ant’s object ive co nduct wit hout requir ing phy sical co ntact or s uccessf ul compl eti on of a ta sk applie s with equa l force here. Mickens’ s task of directin g Latchum to stop was alre ady under way and wa s aime d at imme diately aff ecting the ope ration of Latch um’s vehic le. 43F 44 Whether Latch um compl ied with t he directi ve, noti ced Micke ns, or u ltimate ly failed t o stop d id not ne gate t he tas k - rela ted natu re of Mick ens’ s conduc t. Hor ac e Man n argu es that a task re lated t o the oper ation of a ve hicle for “occ upa ncy” purp ose s must e ither be “i ntegral t o the opera tion of the vehicle ” or “uti lize[] spec ialize d capa bilitie s inhere nt to that specif ic ve hicle.” 44F 45 Horace Man n fails to expla in wh y direct ing a spec ific veh icle’ s movem en ts for purpose s of offic ial ly aut horize d traffic con trol is any le ss inte gral to the ope ration of the ve hicle than “ pumping g as, chec king the f aste ners on a lo aded trai ler, chan ging a tire or jump - s tartin g a vehicle.” 45F 46 Furtherm ore, the fa ct that in Wagner v. S tate F arm Mutual Autom obile Insuran ce Co., the clai mant was dir ecting t he move ments of the subje ct vehic le, a tow truck, so that it could be used to t ow anoth er vehicle does n ot 43 Id. at 1023. 44 Mickens Dep. 43:17–44:6 (D.I. 32). 45 Mot. for Summ. J. at ¶ 14 (D.I. 26). 46 Fisher, 692 A.2d at 898.

10 mean th at other ins tance s of dire cting a vehic le unrelate d to the mecha nical capa bilit ies of that ve hicle are th erefore unrela ted to the oper ation of t h e vehic le. 46F 47 Such a construc tion wo uld be co ntrary to the liber al cons truc tion of “o ccupan t” repea tedly uphe ld by the Delawa re Su prem e Court. 47F 48 In the in stant case, Mickens’ s act of signa ling Lat chum to sto p was under taken for the expres s purpo se of con trollin g the movem ent of Latc hum’s ve hicle thro ugh an act ive w ork zon e. The fact t hat Micke n s ’s role d id not i nvolve spe cialize d mach iner y or that La tchum ult imately fa iled to com ply with the direc tive does not remo ve Mic kens’s c onduc t from the s cope of ta sks rela ted to veh icle oper ati on un der Fishe r. C. Horace Mann’ s Overbrea dth Argum ent Misc onstrue s The In quiry Horac e Ma nn ar gues tha t acc ept ing M ickens’ s pos ition wo uld impro perly rende r all f lag gers “ insta nt and co nstant occ upants ” of all veh icles the y flag for U IM purp oses. 48F 49 This co ncern is mi splac ed. The Cou rt does not hold th at any inju ry suffe red w hile fla gging au tomatica lly give s rise to u nder insured m otorist co verage. Rather, cove rage remains tether ed to the sp eci fic fa ct s of the inci dent. The fa cts in the re cord for pur poses of su mmary j udgment establi sh tha t imme diately pr ior to t he incide nt, Mic kens was e ngaged in a task re late d to a specif ic vehic le, i.e., Latch um’s vehi cle, not gen erally dir ect ing multip le vehicle s. A s Micke ns has tes tified, a t the ti me of t he incide nt he was wa ving a stop s ign at 47 2001 WL 34083818, at *2. In Wagner, the plaintiff, a truck mechanic, drove his employer’s van onto the shoulder of I-95 to examine a disabled box truck. Id. at *1. After de termining that the box truck required a tow truck and summoning a tow truck to the scene, the plaintiff positioned himself between the tow truck and the disabled box truck to guide the tow truck into position. Id. During that process, a third vehicle driven by a drunk driver left the roadway, glanced off the van, and struck the disabled box truck, which was pushed forward and pinned the plaintiff against a guardrail. Id. 48 See Lyons, 681 A.2d at 1025; Fi sher, 692 A.2d at 896. 49 Mot. for Summ. J. at ¶ 15 (D.I. 26).

11 Latch um’s veh icle in an atte mpt t o get him to s top. 49F 50 The C ourt’s ho lding he re would not su pport an a rg ument that a flagger holding a traf fic - c ontr ol device gener all y direct ing multi ple veh icles to stop or proceed s lowly — b ut not dire cted a t the move ment of an y particu lar vehicle — could a sser t a clai m for un derinsur ed cover age t hrough a ll or any of those ve hicles. Here, M ickens’ s claim arises o nly beca use he was s truck by Latchum’ s vehic le after directi ng Latch um ’s p articula r vehi cle purs uant to hi s dutie s as a flagge r. Injur ies s ustai ned while f lagging traffic ge nerall y, witho ut a nex us to a specif ic vehic le’s op eration, w ould no t sati sfy this s tandar d. As appli ed to the narr ow fac ts prese nted, t he Cour t’s hold ing reco gnizes t hat a flag ger act ivel y direc ting a specif ic vehi cle at the mome nt of impa ct may q ualify as a n occupan t of that ve hicle, wi thout cr eati ng a categor ical rul e that a ll fla ggers are per se entit led to UIM c overa ge for al l injurie s sustai ned while wor king. CONC LUSION For the fore going r easons, the Co urt find s that genui ne issue s of ma teria l fac t exis t as to w hether Micke ns was e ngaged i n a tas k rela ted to t he o pera tion of Latch um’s veh icle at t he time of t he inci dent such tha t he may be deem ed an “occ upa nt ” under Del aware law. Accordingl y, Horac e Mann’s Motion f or Summar y Judgm ent is DENIED. IT IS SO ORDERE D. 50 See supra note 38.

12 NEP:t ls Via Fil e & Serv eXpress oc: Protho notary cc: Coun sel of Rec ord