Walls v. USAA General Indemnity Company

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

JOSEPH M. WALLS, )
)
Plaintiff, )
)
v. ) C.A. No.: K24A-12-002 NEP
)
USAA GENERAL INDEMNITY )
COMPANY, WALLACE E. )
PRESSLEY III, and DELAWARE )
DEPARTMENT OF INSURANCE, )
)
Defendants. )

Submitted: August 1, 2025
Decided: September 9, 2025

MEMORANDUM OPINION AND ORDER

Upon Defendant Wallace E. Pressley III’s Motion To Dismiss
DENIED

Upon Defendant Wallace E. Pressley III’s Motion To Strike
DENIED

Upon Defendant USAA General Indemnity Company’s Motion To Dismiss
GRANTED

Joseph M. Walls, Smyrna, Delaware, Pro Se Plaintiff.

Shae Chasanov, Esq., Tybout, Redfearn & Pell, Wilmington, Delaware, Attorney for
Defendant Wallace E. Pressley III.

Stephen F. Dryden, Esq., and Brandon R. Herling, Esq. (argued), Weber Gallagher
Simpson Stapleton Fires & Newby, LLP, New Castle, Delaware, Attorneys for
Defendant USAA General Indemnity Company.

Primos, J.
Defendants USAA General Indemnity Company (“USAA”) and Wallace E.
Pressley III (“Pressley”) move to dismiss this de novo appeal from a panel of
arbitrators appointed by the Delaware Department of Insurance (the “Department”).
Plaintiff has added Pressley as a party to the appeal, as well as various claims that
were not addressed in the arbitration. The Court finds that, although Plaintiff failed
to appropriately serve either USAA or Pressley, this defect was the result of
excusable neglect. Because this is the sole ground on which Pressley urges
dismissal, Pressley’s motion to dismiss is DENIED. In the alternative, Pressley asks
this Court to strike certain allegations from Plaintiff’s amended complaint, but as
these allegations are relevant to Plaintiff’s claims and not unduly prejudicial,
Pressley’s motion to strike is DENIED. Finally, because Plaintiff’s claims against
USAA are meritless, USAA’s motion to dismiss is GRANTED.
I. FACTUAL AND PROCEDURAL BACKGROUND 1
On October 11, 2024, an arbitration panel appointed by the Insurance
Commissioner pursuant to 18 Del. C. § 331 affirmed USAA’s denial of Plaintiff’s
water damage claim under his homeowner’s insurance policy. On December 4,
2024, Plaintiff filed a Notice of Appeal (the “Complaint”)2 with this Court.3 The
Complaint both appealed the panel’s decision and sought to recover from Plaintiff’s
neighbor, Pressley, for allegedly causing the water damage. 4 Through the Sheriff,
Plaintiff served a citation on appeal on the Department.5 The praecipe Plaintiff

1
Citations in the form of “D.I. ___” refer to docket items.
2
The Court refers to the Notice of Appeal as a complaint because it includes claims and parties
not considered below, and therefore bears more resemblance to a civil complaint than to a typical
notice of appeal.
3
D.I. 1.
4
Id.
5
D.I. 3, D.I. 13. Service was initially returned non est, D.I. 14, but this issue was later resolved.
D.I. 17.
2
attached to the Complaint, however, called for something else: “Please issue
Citation on Appeal, complaint and summons upon the defendants above, at:
Delaware Department of Insurance, Arbitration, 1351 West North Street, Suite 101,
Dover, DE 19904.” 6
The Department filed a letter of nonparticipation, indicating that it did not
intend to take a position in this appeal and that it would not provide a record pursuant
to the citation on appeal because it was irrelevant to the Superior Court trial de novo
provided for by statute. 7 On January 8, 2025, Pressley filed a motion to dismiss
Plaintiff’s Complaint.8 In response, Plaintiff moved to amend the Complaint,9 and
Pressley did not oppose that motion. 10
On February 21, 2025, Plaintiff moved for default judgment against USAA.11
USAA entered an appearance through counsel 12 and responded to the motion.13 On
March 21, 2025, the Court heard argument on, and denied, Plaintiff’s motion.14
On May 12, 2025, Plaintiff filed what he entitled an “Amended De Novo
Appeal” (hereinafter the “Amended Complaint”).15 In addition to expanding upon
his argument that USAA had wrongly denied coverage, Plaintiff asserted a new
claim that USAA had violated Title 18, Chapter 23, of the Delaware Code, the Unfair
Trade Practices Act. 16 Plaintiff also added further claims against Pressley: “assault,
intentional infliction of emotional distress, trespass, continuing trespass, defamation,

6
D.I. 3.
7
D.I. 13.
8
D.I. 18.
9
D.I. 20.
10
D.I. 26.
11
D.I. 27.
12
D.I. 30.
13
D.I. 31.
14
D.I. 32–33.
15
D.I. 48.
16
Id. at 8–10.
3
libel and slander, and nuisance and private nuisance.” 17 The attached certificate of
service indicated that the Amended Complaint was “served . . . by email.” 18
Pressley and USAA both moved to dismiss the Amended Complaint,19 and
Plaintiff responded to both motions.20 The Court heard oral argument on August 1,
2025. At oral argument, Plaintiff withdrew his claim that Pressley had defamed him.
The Court reserved judgment on Defendants’ motions pending this written
decision.21
II. ANALYSIS
A. Plaintiff’s failure to serve Pressley and USAA was the result of
excusable neglect.
In seeking dismissal, both Defendants cite insufficiency of process and
insufficiency of service of process pursuant to Superior Court Civil Rules 12(b)(4)
and 12(b)(5). There is no question that Plaintiff failed to properly serve process on
Pressley and USAA. Under Superior Court Civil Rule 3(c),
[w]hen an appeal de novo is permitted by law, an action is commenced
in the Superior Court by the appellant filing with the Prothonotary a
praecipe within the time prescribed by statute for the filing of an appeal
. . . . When the appellant is the party having the duty of filing the
complaint or other first pleading on appeal, the appellant shall file such
pleading with praecipe.
The Supreme Court has held, in Purcell v. State Farm Fire and Casualty Co.,
that Rule 3(c) governs appeals from insurance arbitration panel decisions.22
Consistent with that rule, Plaintiff, as the appellant, was obligated to file both the
praecipe and the Complaint within the 90 days prescribed for such appeals by

17
Id. at 4; see also id. at 13–28.
18
Id. at 31.
19
D.I. 54–55.
20
D.I. 58–59.
21
D.I. 70.
22
See generally 192 A.3d 556, 2018 WL 3814592 (Del. Aug. 9, 2018) (ORDER).
4
statute.23 Superior Court Civil Rule 4(j) requires that a complaint and a summons
be served upon each defendant within 120 days after the filing of the complaint.
Here, Plaintiff did not do so. Nor did Plaintiff properly serve the Amended
Complaint.24 Such failure would ordinarily be fatal to Plaintiff’s action, because
“[p]roper service of process is a jurisdictional requirement[.]”25
Delaware law, though, recognizes a narrow basis on which a plaintiff may
avoid dismissal on these grounds. The Court has discretion 26 to grant Plaintiff
additional time to serve Defendants if he shows good cause—i.e., that his failure to
timely serve the defendants was the result of excusable neglect. 27 In other words,
“good cause” requires a “demonstration of good faith on the part of the party seeking
an enlargement [of the time to serve] and some reasonable basis for noncompliance,”
such as “neglect which might have been the act of a reasonably prudent person under
the circumstances.”28
In evaluating whether Plaintiff’s neglect is excusable, the Court considers his
status as a pro se litigant to be one of the attendant “circumstances” worthy of weight
in its analysis. It is certainly true that “[t]here is no different set of rules for pro se
litigants, and the Court ‘should not sacrifice the orderly and efficient administration
of justice to accommodate’ them.”29 However, “Delaware courts afford pro se

23
11 Del. C. § 331(d).
24
Because the Amended Complaint differed substantively from the original Complaint, Plaintiff
was obligated to serve it upon Defendants. Anderson v. General Motors, LLC, 2024 WL 3880017,
at *3 (Del. Super. Aug. 20, 2024). Service of the Amended Complaint via email did not conform
to the requirements of Superior Court Civil Rule 4.
25
Agyeman v. Epic-Africa Found., 2024 WL 2375109, at *2 (Del. Super. May 22, 2024), aff’d, --
a.3d --, 2025 WL 211522 (Del. Jan. 16, 2025) (TABLE) (quoting JulSaint v. Ramos, 2017 WL
4457211, at *2 (Del. Super. Oct. 4, 2017)).
26
Sidberry v. GEICO Advantage Ins. Co., 2019 WL 6318176, at *3 (Del. Super. Nov. 20, 2019)
(citing Doe v. Cath. Diocese of Wilmington, Inc., 2010 WL 2106181, at *2 (Del. Super. May 26,
2010)).
27
Dolan v. Williams, 707 A.2d 34, 36 (Del. 1988).
28
Id. (citation and quotation omitted).
29
U.S. Bank Nat’l Ass’n v. Stevens, 2025 WL 1139329, at *10 (Del. Super. Apr. 17, 2025) (quoting
5
litigants a degree of leniency” for formal deficiencies. 30 The question is, thus,
whether Plaintiff, as a lay person exercising reasonable prudence, should have
discovered and conformed to the requirements of Rule 3(c) and Rule 4 under the
unique facts of this case. In this light, the Court concludes that any neglect Plaintiff
exhibited in this case was excusable. Several considerations counsel this result.
First, neither Defendant’s motion cites to Rule 3(c), nor did counsel for either
Defendant reference either that rule or Purcell as controlling at oral argument.31 This
case has been marked by substantial confusion by all parties about the nature of
Plaintiff’s action. A review of Delaware case law shows that de novo appeals to this
Court are relatively rare and the rules around them seldom litigated. Indeed, the
rules are in some ways less clear—or at least less developed—than those applying
to de novo appeals to the Court of Common Pleas. 32 Given these facts, the Court is
hesitant to find that Plaintiff, acting pro se, should have navigated the Court’s rules
more adroitly than either counsel opposing him apparently did.33 Further, the overall

Draper Med. Ctr. of Delaware, 767 A.2d 796, 799 (Del. 2001) (per curiam)). Nor does the Court
weigh the apparent lack of prejudice to Defendants, who are presently aware of the litigation, in
its analysis. Lack of prejudice to a defendant does not obviate the requirement of service or
substitute for good cause. Ballard v. Takeda Pharm. Am., Inc., 2017 WL 3396488, at *4 (Del.
Super. Aug. 7, 2017), aff’d, 184 A.3d 1291, 2018 WL 1905138 (Del. Apr. 23, 2018) (TABLE)
(citing DeSantis v. Chilkotowsky, 877 A.2d 52, 2005 WL 1653640, at *2 (Del. June 27, 2005)
(ORDER) (“[T]here is nothing in [Rule 4(j)] that excuses noncompliance when it is alleged that a
defendant is not prejudiced by the failure of service.”)).
30
City of Wilmington v. Flamer, 2013 WL 4829585, at *4 (Del. Super. May 22, 2013) (quoting
Sloan v. Segal, 2008 WL 81513, at *7 (Del. Ch. Jan. 3, 2008)).
31
See Def. USAA Gen. Indemnity Co.’s Mot. to Dismiss (hereinafter “USAA Mot. to Dismiss”)
8–10 (D.I. 54); Def. Wallace E. Pressley III’s Mot. to Dismiss and Strike Pl.’s Compl. (hereinafter
“Pressley Mot. to Dismiss) 3–4 (D.I. 55).
32
Most relevant to this case, the Court of Common Pleas has adopted a rule that permits the joinder
of claims and parties in de novo appeals even though those parties and claims were not heard
below. See August v. Lin, 2019 WL 3976040, at *1 (Del. Super. Aug. 20, 2019), aff’d sub nom.,
August v. Jie Lin, 228 A.3d 408, 2020 WL 1909198 (Del. Apr. 17, 2020) (TABLE) (noting that
the “mirror image rule” has been abolished by Court of Common Pleas Civil Rule 72.3(f)). Neither
Defendant has asserted that the historic mirror image rule applies to de novo appeals to this Court
or that this appeal is defective because it violates that rule.
33
Cf. Chandler v. Bayhealth, 2024 WL 4977010, at *12 (Del. Super. Dec. 4, 2024) (holding that
6
complexity of the procedure goes some way toward excusing Plaintiff’s
misapprehension of any particular part of that procedure. 34
Second, Plaintiff’s praecipe (filed with the Complaint) asked for the Court to
issue a summons, but no form summons was filed with the Complaint. Although
Prothonotary staff do not give legal advice, this discrepancy arguably should have
prompted Court staff to provide Plaintiff with a blank summons to complete or—
better yet—clarify whether Plaintiff intended to file under Rule 3(a) (for civil claims
generally), Rule 3(c) (for trials de novo), or Rule 72 (which governs appeals on the
record). Instead, by serving the Department of Insurance with a citation on appeal,
the Court simply treated this as a typical Rule 72 case—even after the Department
informed the Court that it was not and that the record requested by such citation was
irrelevant to the statutorily-prescribed trial de novo. 35 Although plaintiffs cannot
rely on Court staff to correct their mistakes, and Court errors do not excuse a failure
to act reasonably in pursuing service, 36 the fact that Plaintiff’s failure to serve a
summons alongside the first Complaint may be partially attributable to staff

bankruptcy trustee’s view that plaintiff was not obligated to disclose pending civil claim, even if
wrong, “ma[de] [her] omission more excusable, as she [could] scarcely be held to a higher standard
than a professional in the field.”).
34
Cf. Fossett v. Dalco Const. Co., 858 A.2d 960, 2004 WL 1965141, at *2 (Del. Aug. 20, 2004)
(ORDER) (directing the Justice of the Peace Court and Court of Common Pleas to take various
actions to avoid confusion concerning appeals de novo); Purcell, 2018 WL 3814592, at *3
(describing confusion about service in a de novo insurance appeal as a “Gordian knot.”).
35
Letter from Jessica M. Willey dated December 23, 2024 (D.I. 15) (“[A]n appeal of a
homeowners’ arbitration award arbitration award entitles a party to a trial de novo in the Superior
Court, as opposed to an appeal on the record. See 18 Del. C. § 331(d). On the face of his Complaint
on appeal to this Court, the Plaintiff seeks to pursue his claims against Defendants USAA General
Indemnity Company and Mr. Pressley in connection with a loss suffered at his property. Therefore,
unless directed to do so by the Court, the Department does not intend to file a record of the below
proceedings or to participate further in this matter.”) (emphasis supplied).
36
See Agyeman, 2024 WL 2375109, at *3–5 (Plaintiff claimed that the delay in service was the
fault of the Prothonotary’s office but made no attempt to follow up on service prior to the 120-day
deadline).
7
oversight supports a finding of excusable neglect.37
Finally, it should be noted that any dismissal for insufficient service of process
is without prejudice. 38 With regard to USAA, such dismissal might bar Plaintiff
from refiling, because 18 Del. C. § 331(d) only permits a trial de novo in this Court
if the appellant files a notice of appeal within 90 days of the arbitration decision.39
However, because Plaintiff’s claims against Pressley could not have been raised
below, the 90-day statutory deadline for arbitration appeals would not apply.
Plaintiff would thus be free to refile his claims against Pressley in a separate civil
complaint.40 Dismissing the claims against Pressley on purely formalist grounds
would thus serve little purpose. Doing so would also undermine the efficiency of
the judicial process.
B. Pressley’s motion to strike is meritless, because the allegations
Pressley seeks to strike are relevant to Plaintiff’s claims and not
unduly prejudicial.
Pressley objects to various allegations in Plaintiff’s Amended Complaint on
the grounds that they are “immaterial, impertinent, scandalous, and otherwise unduly

37
Cf. Lynam v. Blue Diamond LLC Motorcross, 2015 WL 5968654, at *4 (Del. Super. Oct. 12,
2015) (excusing late service where the Prothonotary overlooked the plaintiff’s alias praecipes
filings and the plaintiffs “reacted in a timely and diligent manner” upon learning of the error);
Painter v. Progressive Northern Ins. Co., 2007 WL 3360037, at *2–3 (Del. Super. Aug. 20, 2007)
(“Plaintiffs contest Defendant[’s] . . . Motion by stating that administrative problems in the
Prothonotary’s Office caused the failure to serve the Summons and Complaint here. Plaintiffs
contend that their counsel contacted the Prothonotary’s Office several times in order to ensure
service. By the time of the . . . hearing, however, the Prothonotary and Sheriff’s Office had still
not cashed checks . . . . Because the Court finds that the delay here was caused by excusable
neglect, as it was the Court’s error, it cannot hold Plaintiffs responsible.”).
38
Super. Ct. Civ. R. 4(j); Agyeman, 2024 WL 2375109, at *2 (citing JulSaint, 2017 WL 4457211,
at *2).
39
As the Court dismisses Plaintiff’s Amended Complaint against USAA on other grounds, it need
not express any opinion as to whether, under the facts of this case, Plaintiff can avoid the waiver
of his appeal rights specified by 18 Del. C. § 331 or whether his claims against USAA could have
been filed outside the context of an appeal de novo.
40
The alleged facts giving rise to Plaintiff’s claims against Pressley span from December of
2023 through March of 2024. Am. Compl. 13–28 (D.I. 48). Thus, it appears that none of those
claims would be barred by the applicable statute of limitations.
8
prejudicial.”41 Pressley seeks to strike this material, citing Superior Court Civil Rule
12(f), which permits this Court to “order stricken from any pleading any . . .
redundant, immaterial, impertinent, or scandalous matter.” This Court, however,
disfavors motions to strike42—such motions “are granted sparingly, and then only if
clearly warranted, with doubt being resolved in favor of the pleading.” 43 “The test
employed in determining whether to strike is: 1) whether the challenged averments
are relevant to an issue in the case and 2) whether they are unduly prejudicial.”44
Pressley’s motion fails on both fronts.
Without going into exhaustive detail about Plaintiff’s factual assertions in the
Amended Complaint, they are material to his tort claims. The Court will find
allegations immaterial only where the movant demonstrates “clearly and without
doubt that the matter . . . has no bearing on the litigation.” 45 The Amended
Complaint tracks the deteriorating relationship between the two men, which shows
Pressley’s alleged motive both for failing to fix the runoff issue and for the alleged
assault and other tort claims. Delaware courts have found challenged averments
material where they “provide context for the dispute”46 and where they give insight
into the motivations behind behavior at issue in the action.47 It is this sort of
allegation that Pressley asks this Court to strike, and his motion is therefore
misplaced. Further, some of the allegations that Plaintiff seeks to strike are intrinsic

41
Pressley Mot. to Dismiss 6 & n.24 (D.I. 55).
42
Heisenberg Principals Fund IV, LLC v. Bellrock Intel., Inc., 2018 WL 3460433, at *1 (Del.
Super. July 17, 2018) (citing Vannicola v. City of Newark, 2010 WL 5825345, at *8 (Del. Super.
Dec. 21, 2010)).
43
Id. (quoting Pack & Process, Inc. v. Celotex Corp., 503 A.2d 646, 660 (Del. Super. 1985)).
44
O’Neill v. AFS Holdings, LLC, 2014 WL 626031, at *6 (Del. Super. Jan. 15, 2014) (quoting
Shaffer v. Davis, 1990 WL 81892, at *4 (Del. Super. June 12, 1990)).
45
Fontana v. CSX Transp., Inc., 330 A.3d 967, 975 (Del. Super. 2025) (quoting Sun Life Assurance
Co. of Canada v. Wilmington Tr. Nat’l Ass’n, 2018 WL 3805740, at *1 (Del. Super. Aug. 9, 2018)).
46
Byborg Enters. S.A. v. Vertex, Inc., 2025 WL 1911338, at *2 (Del. Super. July 11, 2025).
47
Carlyle Inv. Mgmt. L.L.C. v. Moonmouth Co. S.A., 2015 WL 5278913, at *19 (Del. Ch. Sept.
10, 2015).
9
to Plaintiff’s claims, as they describe the actions he believes give rise to tort liability
(such as the details of the alleged assault). These details are clearly relevant to those
claims, as without them the claims would not be well pled. Indeed, Plaintiff’s claims
would be susceptible to dismissal under Rule 12(b)(6) if his Amended Complaint
included only bare conclusions of liability without specific supporting facts. 48 In
other words, accepting Pressley’s argument would render Rules 12(b)(6) and 12(f)
a catch-22.
In fairness, Pressley strenuously denies the factual allegations in Plaintiff’s
Amended Complaint and asserts that they are “entirely concocted.” 49 From that
perspective, Pressley understandably finds Plaintiff’s claims “scandalous” in a
colloquial sense. On a motion to strike, though, “the Court construes all facts in
favor of the nonmoving party.”50 The Court will not, at this stage, determine whether
or not Plaintiff’s allegations are true. Nor will the Court strike the allegations merely
because they are offensive to the defendant. If that were the rule, all civil defendants
would potentially have immunity from suit, because they could simply move to
strike the claims against them as scandalous rather than defending against them
before a judge or jury. Clearly, this is not the purpose of Rule 12(f). The Court does
not strike material whenever it casts a derogatory light on a party, but only where it
does so improperly. 51

48
Wellgistics, LLC v. Welgo, 2024 WL 113967, at *4 (Del. Super. Jan. 9, 2024) (citing Surf’s Up
Legacy Partners, LLC v. Virgin Fest, LLC, 2021 WL 117036, at *6 (Del. Super. Jan. 13, 2021)).
49
Pressley Mot. to Dismiss 6 (D.I. 55).
50
Columbus Life Ins. Co. v. Wilmington Tr. Co., 2021 WL 537117, at *11 (Del. Super. Feb. 15,
2021) (citation omitted).
51
O’Neill, 2014 WL 626031, at *6 (quoting Quereguan v. New Castle Cnty., 2010 WL 2573856,
at *5 (Del. Ch. June 18, 2010)).
10
C. Plaintiff’s Amended Complaint fails to state any claim on which
relief can be granted against USAA.
1. Standard of review
USAA contends that Plaintiff’s Amended Complaint should be dismissed not
just because Plaintiff failed to properly serve the Defendants but also because, as to
USAA, it fails to state a claim on which relief can be granted.52 Upon such motion,
(i) all well-pleaded factual allegations are accepted as true; (ii) even
vague allegations are “well-pleaded” if they give the opposing party
notice of the claim; (iii) the Court must draw all reasonable inferences
in favor of the non-moving party; and [(iv)] dismissal is inappropriate
unless the plaintiff would not be entitled to recover under any
reasonably conceivable set of circumstances susceptible of proof. 53
Even applying this generous standard, Plaintiff’s claims against USAA cannot
survive. Accepting Plaintiff’s characterization of events as true, and drawing all
reasonable inferences in his favor, his insurance policy did not cover the damage at
issue in this case. Further, as he now concedes, Plaintiff’s claim under the Unfair
Trade Practices Act, 11 Del. C. § 2304(16), fails as a matter of law because that
statute does not provide a private right of action. This failing is not cured by
Plaintiff’s belated attempt to reframe his claim as one that USAA breached a contract
with him or violated its common law duty of good faith and fair dealing. In light of
these conclusions, Plaintiff cannot prove any set of facts that would entitle him to
recover from USAA on the theories propounded in his Amended Complaint.
2. Plaintiff’s claim of coverage is unsupported by the unambiguous
language of the insurance policy.
Plaintiff alleges that his property was damaged when, due to a damaged gutter
and downspout, rainwater running off Pressley’s roof pooled in Pressley’s yard and
then poured into Plaintiff’s basement.54 USAA’s motion does not dispute this

52
USAA Mot. to Dismiss 3–7 (D.I. 54).
53
Savor, Inc. v. FMR Corp., 812 A.2d 894, 896–97 (Del. 2002) (citations and quotations omitted).
54
Am. Compl. 4–6, 14–15 (D.I. 48).
11
account of events but contends that Plaintiff’s insurance policy does not cover this
sort of damage.
In disposing of USAA’s motion to dismiss, the Court will consider the
insurance policy because it is integral to Plaintiff’s Amended Complaint and
incorporated therein by reference.55 The policy provides that USAA “do[es] not
insure . . . water damage arising from, caused by or resulting from human or animal
forces, any act of nature, or any other source.” 56 It goes on to define “water damage”
as “damage caused by or consisting of,” inter alia, “[f]lood, surface water, waves,
tidal water, storm surge, tsunami, any overflow of a body of water, or spray from
any of these, whether or not driven by wind.” 57 By operation of an endorsement
specific to Delaware, the policy does not cover losses from “weather conditions,
which includes but is not limited to . . . rain” if such conditions “contribute in any
way with a cause or event excluded” by the section containing the “water damage”
exclusion. 58 Separately, Plaintiff purchased an endorsement titled “water backup or
sump pump overflow,” which provides coverage for loss caused by “[w]ater or
water-borne material which flows into the plumbing system . . . through sewers or
drains located off the ‘described location’” and “water which overflows from a sump
pump or sump well with a sump pump designed to drain subsurface water from the
foundation[.]”59 Absent the endorsement, such loss would be excluded as “water
damage.”60
When an insurance policy is ambiguous, Delaware courts construe the

55
See In re General Motors (Hughes) S’holder Litig., 897 A.2d 162, 169 (Del. 2006); Wal-Mart
Stores, Inc. v. AIG Life Ins. Co., 860 A.2d 312, 320 (Del. 2004); Vanderbilt Income and Growth
Assocs., L.L.C. v. Arvida/JMB Managers, Inc., 691 A.2d 609, 613 (Del. 1996).
56
USAA Mot. to Dismiss Ex. A, at 23–24 (D.I. 54).
57
Id. at 24.
58
Id. at 25, 43.
59
Id. at 55.
60
Id. at 24.
12
language in favor of the insured, rather than in favor of the insurer that drafted it.61
“However, where the language of a policy is clear and unequivocal, the parties are
to be bound by its plain meaning.” 62 “Whether a contract is unambiguous is a
question of law,”63 and “[l]anguage from a contract need not be perfectly clear for
an interpretation of it to be the only reasonable one.”64
Plaintiff raises two contentions about the proper interpretation of the policy.
First, Plaintiff contends that the policy’s separate definition of “water damage” as
damage caused by “flood, surface water, waves, tidal water, storm surge, tsunami,
any overflow of a body water, or spray from any of these” means that only damage
caused by “disturbance of existing water” like “a pond or lake” constitutes “water
damage.”65 Second, even if the policy would otherwise bar his claims, Plaintiff
contends that the sump pump endorsement “specifically added back into the general
policy[] coverage for water damage[.]”66
The relevant provisions of the insurance policy are unambiguous and require
the Court to reject Plaintiff’s contentions. For the reasons that follow, the only
reasonable interpretation of the policy’s language is that it does not cover damage
like that alleged in the Amended Complaint. As such, there is no reasonably
conceivable set of facts pursuant to which Plaintiff may recover under the policy,
and this claim must be dismissed under Superior Court Civil Rule 12(b)(6).
First, the water damage to Plaintiff’s basement was caused by surface water
created by weather conditions and was thus clearly excluded from coverage. Since

61
O’Brien v. Progressive Northern Ins. Co., 785 A.2d 281, 288 (Del. 2001) (citations omitted).
62
Id. (citation omitted).
63
Origis USA LLC v. Great Am. Ins. Co., -- A.3d --, 2025 WL 2055767, at *11 (Del. July 23,
2025) (en banc) (quoting BitGo Holdings, Inc. v. Galaxy Digital Holdings, Ltd., 319 A.3d 310,
322 (Del. 2024)).
64
Id. (quoting Thompson Street Cap. Partners IV, L.P. v. Sonova U.S. Hearing Instruments, LLC,
-- A.3d --, 2025 WL 1213667, at *8 (Del. Apr. 28, 2025)).
65
Pl.’s Answer to USAA Mot. to Dismiss 2 (D.I. 58).
66
Am. Compl. 10–11 (D.I. 48).
13
the damage to Plaintiff’s basement was caused by “surface water,” it was “water
damage” under the policy’s definition of that phrase. Plaintiff’s contrary
interpretation is unreasonable because it inappropriately constricts the ordinary
meaning of “surface water.” As this Court noted in Brandywine Smyrna, Inc. v.
Millenium Builders, LLC, “[a]s a general matter, it would defy common sense to
exclude precipitation falling on a roof from a definition of ‘surface water.’
Obviously, rain falling on a roof is merely temporarily detoured from its
manifestation as surface water.” 67 At the very least, by the time it entered Plaintiff’s
basement, the rainwater falling on Pressley’s roof was “surface water” as that phrase
is commonly understood.68 Contrary to Plaintiff’s view, surface water need not be
overflow from a permanent water feature like a pond or river, but can, as here, be
the temporary result of weather conditions. This understanding of the phrase’s
common usage is confirmed by its use in Delaware caselaw over decades. 69
Second, the sump pump endorsement has no bearing on the analysis. Plaintiff

67
2010 WL 1380252, at *2 (Del. Super. Apr. 8, 2010).
68
In support of his interpretation, Plaintiff cites Union Street Furniture and Carpet, Inc. v. Peerless
Indem. Ins. Co., 2012 WL 5519614 (Conn. Super. Oct. 23, 2012). That case is inapposite. Union
Street concerned water that accumulated on the roof of the insured property and then dripped down
the walls, chimney, and skylight. Id. at *2. The Connecticut Superior Court rejected the insurer’s
position that water pooling on a building’s roof was “surface water.” Id. at *4. Here, of course,
the water did not pool on Plaintiff’s roof, but rather on the surface of his neighbor’s land. Even if
Union Street were factually on point, it would conflict with Delaware case law, which recognizes
a more expensive definition of surface water. “In the case of a building erected on land, the roof
is to be regarded as an artificial elevation of the earth’s surface. When it intercepts the falling rain
or snow, it therefore gathers surface waters.” Brandywine, 2010 WL 1380252, at *2 (quoting
Bringhurst v. O’Donnell, 124 A. 795, 797 (Del. Ch. 1924)).
69
See, e.g., Albright v. Carey, 1978 WL 8396, at *2 (Del. Ch. July 19, 1978) (“As a result of the
runoff from the Carey building, according to testimony . . . the increase in the flow of surface water
from the defendant Carey’s lot to plaintiffs’ lot has been increased [sic] [.]”); Quereguan v. New
Castle Cnty., 2009 WL 3389922, at *1 (Del. Ch. Oct. 8, 2009) (“In some areas of the lot, the slope
away from the foundation of the house is actually negative, causing surface water to run towards
the foundation. Because the ground along Maple Avenue slopes from north to south, surface water
from the lots of the Quereguans’ neighbors to the north drain [sic] onto the Quereguan property .
. . . For all these reasons, the Quereguan lot tends to retain standing surface water during rainy
weather, surface water that drains or percolates away very slowly.”).
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does not allege that his basement was flooded by water that “flow[ed] into the
plumbing system” from offsite or “overflow[ed] from a sump pump or sump well[.]”
Even construing the endorsement liberally in Plaintiff’s favor, it does not cover the
losses alleged in the Amended Complaint. Plaintiff’s contention that the
endorsement “specifically added back . . . coverage for water damage” cuts too
broadly. The endorsement eliminated the policy exclusion for water damage from
certain sources not implicated in this case.
3. Plaintiff’s Unfair Trade Practices Act claim, which he now
attempts to reframe as a breach of contract, is meritless.
Plaintiff’s claim to recovery under 18 Del. C. § 2304(16) is legally frivolous.
As Plaintiff now acknowledges, no private right of action is created by the Delaware
Unfair Trade Practices Act.70 In his response to USAA’s motion to dismiss, Plaintiff
conceded that the statute does not grant a private right of action, but contended that
USAA’s alleged violations thereof were relevant to independent common law and
breach of contract claims. 71 At oral argument, Plaintiff clarified that his putative
common law claim is a violation of the implied duty of good faith and fair dealing.
The core problem with Plaintiff’s position is that he did not plead such claims
in his Amended Complaint. The Amended Complaint makes only two mentions of
“good faith.” One is a direct quote from the statute presented as such.72 In the
second, Plaintiff “claims that USAA has committed breach of contract or violated
the conditions set forth within 18 Del. C. 2304(16) [sic], in that USAA . . . failed to

70
Geico Gen. Ins. Co. v. Green, 308 A.3d 132, 142 n.79 (Del. 2022); Yardley v. U.S. Healthcare,
Inc., 698 A.2d 979, 988 (Del. Super. 1996), aff’d, 698 A.2d 1083, 1997 WL 188355 (Del. Apr. 11,
1997) (TABLE).
71
Pl.’s Answer to USAA Mot. to Dismiss 3 (D.I. 58) (“While it is true that a ‘private right of
action’ is not provided under this statute, it is still relevant upon the issue of common law and
damages. Plaintiff included the language of this statute to put USAA on notice that, when Plaintiff
obtains a favorable ruling upon the Breach of Contract claim, Plaintiff will be seeking both
compensatory and punitive damages against USAA.”).
72
Am. Compl. 9 (D.I. 48).
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attempt in good faith to effectuate a prompt, fair and equitable settlement of claim
in which liability has become reasonably clear.”73 This is also statutory language,
and presented in a list of conclusory allegations that USAA violated each subsection
of the statute.
The mere inclusion of the phrases “good faith” and “breach of contract” did
not place USAA on adequate notice that Plaintiff was asserting, or would later assert,
a common law claim. Plaintiff cannot now bootstrap his statutory claim by
attempting to reframe it as a breach of the implied duty of good faith and fair
dealing.74 “A post hoc attempt to clarify allegations in a complaint in response to a
motion to dismiss ‘cannot be received as a supplement or amendment to the pleading
itself.’”75
III. CONCLUSION
For the foregoing reasons, Pressley’s motion to dismiss is DENIED;
Pressley’s motion to strike is DENIED; and USAA’s motion to dismiss is
GRANTED.
Plaintiff will be allowed 60 DAYS FROM THE DATE OF THIS ORDER
to serve the Amended Complaint and process upon Pressley in a manner prescribed
by Superior Court Civil Rules 3(c) and 4.

73
Id. at 11.
74
See Peterson v. 21st Century Centennial Ins. Co., 2015 WL 4154070, at *3 (Del. Super. July 9,
2015) (“[Plaintiff] is essentially attempting to argue that an implied duty claim can stand, in part,
dependent upon § 2304(16), despite the statute not supporting a private cause of action. In other
words, by relying on § 2304(16), [Plaintiff] is attempting to circumvent the jurisprudence and
establish a claim where one would otherwise be prohibited. Thus, [Plaintiff’s] claim . . . is without
merit as a matter of law, and cannot survive the requirements of Rule 12(b)(6)”).
75
Murray v. Mason, 244 A.3d 187, 193 (Del. Super. 2020), modified (Jan. 5, 2021) (quoting Akrout
v. Jarkoy, 2018 WL 3361401, at *3 n.23 (Del. Ch. July 10, 2018)).
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IT IS SO ORDERED.

NEP/tls
oc: Prothonotary
cc: Joseph M. Walls, pro se (via U.S. Mail)
Counsel of Record (via File & ServeXpress)

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