Ace American Insurance v. Williams

MURPHY, J. The case at bar presents us with a procedural nightmare that preceded and succeeded the May 19, 2005 entry of a Circuit Court “ORDER” that purported to — but could not possibly — satisfy “any and all claims and potential claims stemming from the death of Michael Williams, as a result of a motor tort occurring on September 12, 2002.” In Williams, et al. v. Work, et al., 192 Md.App. 438 , 995 A.2d 744 (2010), the Court of Special Appeals (COSA) held that the Circuit Court for Baltimore County did not have the authority to enter that Order because it had been entered at a point in time when no Complaint had been filed with the court by or on behalf of two of Mr. Williams’ children. In that reported opinion, the COSA cited with approval an article in which Robert R. Michael, Esq., stated: Maryland has a public policy that a defendant should not be “vexed” by several suits instituted by or on behalf of ⁴⁰² different, plaintiffs for the same injury when all the parties could be joined in one proceeding. Walker v. Essex, 318 Md. 516 , 569 A.2d 645 (1990). Under modern practice, a plaintiff is required to account for and name in the complaint all potential takers, even those who do not join in the suit.

See discussion of Rule 15-1001 of the Maryland Rules of Procedure below. This requirement by statute and case law creates both legal and ethical challenges for the plaintiffs attorney who is compelled by rule to file a lawsuit on behalf of plaintiffs the attorney does not represent and with whom the attorney may have a real or potential conflict of interest. * * * The conflict issues are magnified in any settlement of the claim. Where the case is ultimately tried, the jury verdict allocates the wrongful death award among each individual beneficiary which alleviates any conflict as to their respective entitlements. Settlement of the same case may be a completely different proposition.

A claim for wrongful death cannot be settled without either the consent of all beneficiaries or the approval of the court. See Walker v. Essex, 318 Md. 516 , 569 A.2d 645 (1990) As a practical matter, defense counsel and the insurers will almost always insist that all primary and secondary beneficiaries be identified and made a part of every wrongful death suit. In addition, defense counsel and insurers will also require that all potential plaintiffs execute a release as part of any settlement of the case. Remember that the case law, Walker v. Essex; the wrongful death statute (section 3-904(f)); and Rule 15-1001 bolster the position that defense counsel and the insurers have a legal right to insist that everyone be accounted for and that each party sign off before settlement of any case.

Robert R. Michael, The “USE” Plaintiff in Maryland Wrongful Death Cases: Some Ethical Observations, Trial Reporter, Fall 2008, at 9 and 15 (footnotes omitted). ⁴⁰³ At this point in these tortured proceedings, the Respondents are the two children who were never parties to the case designated as “Williams I” in which the May 19, 2005 Order had been entered, while the Petitioners are Ace American Insurance Company (Ace), Charles Beatty, III, American Sprinkler Systems, Inc., and Zurich American Insurance Company, 1 who were among the defendants subsequently sued by the Respondents in the case designated as “Williams II.” The Petitioners’ “JOINT PETITION FOR WRIT OF CERTIO-RARI” presents three questions for our review: 1. Whether the Court of Special Appeals erred in finding that there was no final judgment in Williams I because [the Respondents] were not joined in that case under Rule 15-1001? 2. Whether the Court of Special Appeals erred in interpreting and applying Walker [v. Essex, 318 Md. 516 , 569 A.2d 645 (1990) ] in concluding there was no final judgment in Williams I ? 3. Whether the Court of Special Appeals erred in denying Ace recovery of legal expenses incurred in Williams II where the filing of Williams I was in bad faith and without substantial justification, thereby condoning the conduct of the attorney who filed both cases?

We granted the Petition. 415 Md. 607 , 4 A.3d 512 (2010). For the reasons that follow, we answer “no” to each question, and we shall therefore affirm the judgment of the Court of Special Appeals. Background I. Decedent’s Widow v. Ace In the Circuit Court for Baltimore County, on May 14, 2003, the decedent’s widow, Lori Williams (Mrs. Williams), filed a ⁴⁰⁴ “COMPLAINT AND PRAYER FOR JURY TRIAL” that included the following assertions: STATEMENT OF FACTS 5. On or about September 12, 2002, the Decedent, Michael Williams, had stopped his motor vehicle along the right hand shoulder of northbound 1-95 near the Waterloo Road overpass and had carefully and prudently exited his motor vehicle and was in the process of walking along the shoulder of the roadway to speak with another stopped motorist, when the motor vehicle operated by William C. Work, also heading northbound on 1-95, suddenly and without warning, made an unsafe lane change and entered the shoulder of the roadway and struck and killed the decedent, Michael Williams, thereby causing a collision.

William C. Work is insured by State Farm Mutual Automobile Insurance Company and they have tended their policy limits of $100,000.00. The plaintiff will not accept that tender until this issue is resolved. 8. That at all times relevant hereto, the Plaintiff, Lori Williams, and the Decedent, Michael Williams, were covered by a policy issued by the Defendant, Ace American Insurance Company, which provides for uninsured motorists coverage, whereby Defendant, Ace American Insurance Company, is obligated to make payments for the personal injuries sustained by the Plaintiff and the Decedent, Michael Williams, that were proximately caused by the negligence of the operator of an uninsured or underinsured motor vehicle. 18. The Plaintiff has complied with the terms of said policy of insurance and demand has been made for payment for the personal injuries sustained that were proximately caused by the negligence of the operator of the uninsured and underinsured motor vehicle namely, William C. Work, but that the Defendant, Ace American Insurance Company, ⁴⁰⁵ has wrongfully refused to honor said claim, and has not paid the outstanding bills, and has thereby breached its obligations to the Plaintiff.

Mrs. Williams’ Complaint was assigned Case No. 03-C-005338. On July 22, 2003, Mrs. Williams filed an “AMENDED COMPLAINT” that included the following additional assertions: 18. The Plaintiff, Lori Williams, was the wife of Michael Williams, Deceased, who was born on December 29, 1967, and who died on September 12, 2002. The Plaintiff, Lori Williams, is a primary beneficiary in this action pursuant to Section 3-904(a) of the Courts and Judicial Proceedings Article. 19.

In addition to the Plaintiff, Lori Williams, the following [persons] may be entitled by law to recover damages: Jeremy Williams, son of the Deceased, born November 23, 2001[ ]; Shane Williams, son of the Deceased, born November 9,1998[ ]. WHEREFORE, the Plaintiff, Lori Williams, Surviving Wife of Michael Williams, Deceased, and on behalf of the minor children of the Deceased, Jeremy Williams and Shane Williams, Surviving Sons of Michael Williams, Deceased, demands judgment against the Defendant, Ace American Insurance Company, in the amount of Five Millionf ] Dollars ($5,000,000.00), in compensatory damages to be proportioned pursuant to Section 3-904(c) of the Courts and Judicial Proceedings Article, plus interest and the costs of this action. ACE filed an Answer to Mrs. Williams’ Amended Complaint, and a “THIRD PARTY COMPLAINT” against Mr. Work. During the legal skirmishing that followed, Mrs. Williams and Ace reached a settlement agreement that would resolve the claims of Mrs. Williams and her two children.

This settlement was to be placed “on the record” at a settlement conference scheduled to be held on March 29, 2005. ⁴⁰⁶ Prior to this date, Ace had agreed to pay $750,000 in settlement of Mrs. Williams’ claims, and Mrs. Williams had agreed to accept that amount, but her counsel refused to sign a release that would require her “to save said Releasees harmless from any further claim or liability including tort and contractual claims, and [ ] indemnify and satisfy on behalf of Releasees any claim for and/or decree, judgment, or award for any and all damages, including but not limited to, any workers compensation hens, compensatory damages and punitive damages.” In a March 28, 2005 letter to Ace’s counsel, Mrs. Williams’ counsel stated: [A]ll is fine, except I cannot have Mrs. Williams agree to hold your client, Ace American Insurance Company, harmless from any other future claims for several reasons: a) this was not agreed to by [the adjustor] and myself, who negotiated the settlement [ ]; and b) Mrs. Williams simply has no control over what anyone else may do and cannot, therefore, be responsible for their actions. She will not agree to pay back or apportion any funds to Ace if other claims are made. We all realize that the Decedent had two other older children with his first wife, Donna [S] (Williams). I believe the oldest child (Michael Williams) is an adult now and the other child (Steven Williams) is fifteen.

We do not represent them and will not agree to hold Ace American harmless from them. It is my understanding that we are to appear before [the Circuit Court] tomorrow, March 29, 2005 at 1:30 p.m., to place the settlement on the record. I’ve prepared a Motion to Accept Settlement and have attached it for your review. If you agree to remove the objectionable language on page 2 of the Confidential Settlement and Release Agreement (“As further consideration ...” to the end of that paragraph), then I will modify the attached Motion to become a joint motion.

The Motion prepared by Mrs. Williams’ counsel included the following assertions and requests: 2. The Decedent died leaving a spouse, the Plaintiff, Lori Williams, and four (4) children. Only two (2) of the ⁴⁰⁷ Decedent’s children, however, are Plaintiffs in this action, i.e. Jeremy Williams (age 7) and Shane Williams (age 3), because they are the minor children of the marriage between the Decedent and the Plaintiff, Lori Williams.

The Decedent had two other children, i.e. Michael Williams (age 18) and Steven Williams (age 15) as a result of an earlier relationship with Donna [S]. Michael Williams and Steven Williams are not Plaintiffs in the present action and neither present counsel nor the present Plaintiffs are able to represent their interests. WHEREFORE, the Plaintiff requests: A. That the Motion to Approve Settlement be granted, without any requirement by the Plaintiffs to save and hold harmless the Defendant from any further claims, including but not limited to the potential claims of Michael Williams and Steven Williams, additional children of the Decedent[.] (Emphasis added).

On March 29, 2005, the Circuit Court held a settlement conference, at which Mrs. Williams and Ace’s counsel appeared in person, and during which Mrs. Williams’ counsel participated via telephone. This conference concluded with the understanding that Mrs. Williams would not sign a release until her counsel had the opportunity to review it, and with the Court stating, “Case will be dismissed with prejudice upon approval of language of release by [Mrs. Williams’ counsel]. As soon as I hear from him I will dismiss it with prejudice.” In response to this statement, Ace’s counsel said “Okay. Thank you, Your Honor.” Mrs. Williams never did sign the release that Ace’s counsel brought to the Settlement Conference.

While Mrs. Williams’ counsel continued to object to the “hold harmless” language in the release, Ace’s counsel discovered that their proposed settlement would likely be declared invalid if challenged by the Respondents. In a letter to Mrs. Williams’ counsel dated April 6, 2005, Ace’s counsel stated: ⁴⁰⁸ Based on the discussions at the settlement conference and your adamant refusal to have your client execute a release with a hold harmless and indemnification provision, and your insistence on removing the language in the release indicating that Lori Williams is acting as mother and/or next of friend of the children of Michael Williams, my office and I reviewed in detail Maryland’s Wrongful Death Statute and rules relating thereto. Although you represent that you are not counsel for two of Mr. Williams’ children, Michael Williams and Steven Williams, from a prior marriage, § 3-904 of the Courts and Judicial Proceedings Article, subsection (f), limits to one (1) action only in respect to the death of a person. Additionally, Maryland Rule 15-1001 mandates that: All persons who are or may be entitled by law to damages by reason of wrongful death shall be named as plaintiffs whether or not they join in the action.

The words “to the use of’ shall precede the name of any persons named as a plaintiff who does not join in the action. Further, Rule 15-1001 also sets forth that: Any party bringing the action shall mail a copy of the complaint by certified mail to any use plaintiff at the use plaintiffs last known address. Proof of mailing shall be filed as provided in Rule 2-126. Rule 2-126 requires that proof of service, if any, be filed with the Court.

The captions of the Complaint and Amended Complaint do not indicate any “use” plaintiffs, nor do the Complaints mention that notice was given to all individuals entitled to recover under Maryland’s Wrongful Death Statute. Please advise what notice, if any, has been given to Michael Williams’ former wife, Donna [S], as mother of the two children in question, to comply with Rule 15-1001. Upon review of my file, it does not reflect any such notice but you may have filed it with the Court. Case law, Walker v. Essex, 318 Md. 51 [6, 569 A.2d 645 ] (1990), specifically mandates that: ⁴⁰⁹ When a Maryland death action is settled by the personal representative, the proceeds are distributed according to statute.

The statute and rules relating thereto “implicitly require mutual consent or Court approval.” Have you or the P.R. obtained the mutual consent of all beneficiaries under the statute to settle this action and to distribute the proceeds as you and the P.R. propose to do? There is no doubt that [Ace’s claims adjuster] intended to resolve all claims for $750,000. [Mrs. Williams’ counsel], the $750,000.00 is still on the table, but my client and I need assurance and evidence that there has been compliance with all applicable statutes, rules, and case law or we need to have the proposed settlement be approved by [the Circuit Court] with the full and complete knowledge of all relevant facts. Mrs. Williams’ counsel responded to the letter from Ace’s counsel by preparing a “SECOND AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL” that did not include the Respondents in the caption, 2 but did “name” the Respondents as “use” plaintiffs. The Second Amended Complaint included the following assertions and requests: ⁴¹⁰ 18.

The Plaintiff, Lori Williams, was the wife of Michael Williams, Deceased, who was born on December 29, 1967, and who died on September 12, 2002. The Plaintiff, Lori Williams, is a primary beneficiary in this action pursuant to Section 3-904(a) of the Courts and Judicial Proceedings Article. 19. In addition to the Plaintiff, Lori Williams, the following persons may be entitled by law to recover damages: Jeremy Williams, son of the Deceased, born November 23, 2001, 3107 Trellis Lane, Abandon, Maryland 21009; Shane Williams, son of the Deceased, born November 9, 1998, 3107 Trellis Lane, Abandon, Maryland 21009; Michael C. Williams, son of the Deceased, born August 13, 1986, 435 South Taylor Avenue, Baltimore, Maryland 21221, and Steven L. Williams, son of the Deceased, born October 24, 1992, 435 South Taylor Avenue, Baltimore, Maryland 21221. The minor Plaintiff, Jeremy Williams and Shane Williams are children of the marriage between the Plaintiff, Lori Williams, and the deceased.

Michael C. Williams and Steven L. Williams are believed to be sons of the Deceased and are believed to be sons of the Deceased and are believed to be children of the Deceased and Donna [S]. The Plaintiff, Lori Williams, is identifying Michael C. Williams and Steven L. Williams as children of the Deceased because of the requirement of the Courts and Judicial Proceedings Article, Section 9-104, but is not seeking compensation for those children. WHEREFORE, the Plaintiff, Lori Williams, Surviving Wife of Michael Williams, Deceased, and on behalf of the minor children of the Deceased, Jeremy Williams and Shane Williams, Surviving Sons of Michael Williams, Deceased, demands judgment against the Defendant, Ace American Insurance Company, in the amount of Five Million[ ] Dollars ($5,000,000.00), in compensatory damages, to be proportioned pursuant to Section 3-904(c) of the Courts and ⁴¹¹ Judicial Proceedings Article, plus interest and the costs of this action[.] (Emphasis added). Although the record shows that Michael Williams and Steven Williams were served with a copy of the Second Amended Complaint, 3 the original of that pleading was not filed with the Circuit Court.

It is clear, however, that a copy of this pleading was mailed to Ace’s counsel, because Ace’s Answer to the Second Amended Complaint was received by the Circuit Court on April 15, 2005. The Certificate of Service that accompanied this Answer shows that a copy was mailed only to Mrs. Williams’ counsel, rather than to “each of the parties” as is required by Md. Rule l-321(a). On May 17, 2005, Mrs. Williams’ counsel and Ace’s counsel presented to the Circuit Court a “JOINT MOTION FOR APPROVAL OF SETTLEMENT AND ENTRY OF JUDGMENT” that included the following assertions: The Plaintiff, Lori Williams, Individually, and as personal representative for the Estate of Michael Williams, and as mother and next friend for Jeremy Williams and Shane Williams, minor children, by and through her attorneys, ... and the Defendant, Ace American Insurance Company, respectfully files this Joint Motion for Approval of Settlement and Entry of Judgment, and states as follows: 2. At the time of his death, the Decedent died leaving a spouse, Lori Williams, and four (4) minor children.

Only ⁴¹² two (2) of the Decedent’s children, i.e., Jeremy Williams (age 7) and Shane Williams (age 3), are the minor children of the marriage between the Defendant and Lori Williams. The Decedent has two other children, i.e., Michael Williams (now age 18) and Steven Williams (now age 15) as a result of an earlier relationship with Donna [S]. Michael Williams and Steven Williams are named as “Use” Plaintiffs in the present action, pursuant to the requirements of Courts and Judicial Proceedings Article, Section 3-904, and Rule 15-1001. * * * 4. On the same day the service of process as obtained upon Donna [S] and the “Use” Plaintiffs, Ms. [S] telephoned Plaintiffs counsel’s office staff, took a message from Ms. [S] that Ms. [S] wanted to know what she should do about the pleadings that she received and that she would appreciate a return call from Plaintiffs counsel.

Ms. [S] also indicated, after being asked by Ms. Hunt, that her sons, Michael Williams and Steven Williams, were presently living with her at her home. Ms. [S] also left her telephone number for [Mrs. Williams’] counsel to return her call. Ms. [S]’s telephone number was given[.] There has not been, however, any additional contact from or to Donna [S] and/or Michael Williams and/or Steven Williams, since Ms. [S]’s initial telephone call to [Mrs. Williams’ counsel’s] office on April 11,2005. 5. On or about February 3, 2004, counsel for the Plaintiff and the adjuster,[], for the Defendant, Ace American Insurance company, tentatively settled the above-captioned underinsured motorist action for $750,000 (Defendant William Work previously settled his portion of the claim to the extent of his policy limits of $100,000). 6.

The parties in this case are seeking this court’s approval of the proposed settlement and entry of judgment pursuant to the requirements of Courts and Judicial Proceedings Article, Section 3-904(c). The proposed settlement does not provide compensation to the “Use” ⁴¹³ Plaintiffs, i.e., Michael Williams and Steven Williams, or to the Estate of Michael Williams. 13. A Confidential Release and Settlement Agreement has been prepared by Defendant’s, Ace American Insurance Company, counsel. The parties wish to enter into such an agreement, and request prior court approval because of the requirements of Courts and Judicial Proceedings Article, Section 3-904(c), regarding the proportionment of funds to potential “beneficiaries”, i.e.

Claimants and/or “Use” Plaintiffs, and of the instructions of Walker v. Essex, 318 Md. 516 [, 569 A.2d 645 ] (1990), requiring the joinder of all potential beneficiaries to this single wrongful death action and their mutual consent to settlement or this court’s approval of the settlement. In this case, all Plaintiffs, including “Use” Plaintiffs, Michael Williams and Steven Williams, have been formally notified of the pendency of this action, both by certified mail and by personal service of process; more than 30 days elapsed since the service of that process; and the “Use” Plaintiffs have not sought or done any act to join this action. The Plaintiffs, Lori Williams, individually and on behalf of her minor children, Jeremy Williams and Shane Williams, along with the Defendant, Ace American Insurance Company, seek to foreclose the possibility that the “use” Plaintiffs, Michael Williams and Steven Williams, shall make future claims against either Defendant, Ace American Insurance Company or William Work or Plaintiffs, Lori Williams, Jeremy Williams, Shane Williams and/or the Estate of Michael Williams. WHEREFORE, the Plaintiff, Lori Williams, Individually, and as Personal Representative of Michael Williams, and as mother and near friend for Jeremy Williams and Shane Williams, and the Defendant, Ace American Insurance Company, jointly request: A. That the Joint Motion for Approval of Settlement and Entry of Judgment be granted; ⁴¹⁴ B. That the proposed proportionment of funds to the Plaintiffs, Lori Williams, Jeremy Williams, a minor, and Shane Williams, a minor, be approvedf.] (Emphasis added).

That Motion should not have been accepted for filing because it was not accompanied by a Certificate of Service required by Md. Rule l-321(a). 4 On May 19, 2005, both that motion and the “ORDER” granting it were docketed. The Order, which was signed on May 17, 2005, included the following provisions: The Joint Motion to Approve Settlement and Entry of Judgment, having been read and considered, it is this 17th day of May, 2005, by the Circuit Court for Baltimore County, ORDERED, that the Joint Motion to Approve Settlement and Entry of Judgment be, and the same hereby is, GRANTED; and it is FURTHER ORDERED, that the proposed proportionment of the settlement funds to Plaintiffs, Lori Williams, Jeremy Williams, a minor, and Shane Williams, a minor, are hereby APPROVED; and it is FURTHER ORDERED, that the proposed proportionment shall be entered as a Judgment in favor of the Plaintiffs, Lori Williams, Jeremy Williams, a minor, and Shane Williams, a minor, against the Defendant, Ace American Insurance Company; and it is FURTHER ORDERED, that once the Defendant, Ace American Insurance Company, tenders the payment of the $750,000.00 to the Plaintiffs, Lori Williams, Jeremy Williams, a minor, and Shane Williams, a minor, in the figure delineated in the proposed proportionment, that ⁴¹⁵ Plaintiffs’ counsel, [ ], shall execute an Order of Satisfaction of said Judgment; and it is FURTHER ORDERED, that once the Defendant, Ace American Insurance Company, tenders the payment of the $750,000.00 to the Plaintiffs, Lori Williams, a minor, and Shane Williams, a minor, in the figures delineated in the proposed proportionment, that Plaintiffs counsel, [], shall execute an Order of Satisfaction of said Judgment; and it is FURTHER ORDERED, that upon payment of open costs by the Defendant, Ace American Insurance Company, that any and all claims and potential claims stemming from the death of Michael Williams, as a result of a motor tort occurring on September 12, 2002, shall be and hereby will be deemed “SATISFIED IN FULL.” On June 6, 2005, Mrs. Williams’ counsel filed a “LINE OF SATISFACTION OF JUDGMENT” that purported to “enter the judgment against Defendant Ace American Insurance Company as ‘paid and satisfied.’ ” II. Michael and Steven Williams v. Work, et al. On July 21, 2005, the Circuit Court opened Case No. 03-C-05-007925 when Mrs. Williams’ counsel, now representing the Respondents, 5 filed a Complaint on their behalf. On August 17, 2005, Mrs. Williams’ counsel filed an “AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL” against the Petitioners and two other defendants. 6 That Amended Complaint includes the following assertions and requests: ⁴¹⁶ Plaintiffs, Steven Louis Williams, A Minor, by his mother and next friend, Donna [S], and Michael Christopher Williams, by their attorneys, [ ], sues Defendants, William Charles Work, Charles Oliver Beatty, III, American Automatic Sprinkler Systems, Inc., State Auto Property & Casualty Insurance