Ballantine v. Unsatisfied Claim & Judgment Fund

Finan, J., delivered the opinion of the Court. We must decide in this case whether a victim of am automobile accident who neglected to sue one of two joint, tortfeasors will nevertheless be allowed to recover from the Unsatisfied Claim and Judgment Fund (Fund) pursuant to Art. 66%, § 160 of the Maryland Code. The short answer is that he will not. Appellant (Ballantine) was a passenger in a car driven, by his friend Shaw on the evening of November 16, 1968.

Shaw’s auto collided with a truck operated by one Rex. Bobbitt and which Bobbitt had parked on the shoulder of U. S. Route 1A in Harford County in such a manner that part of the truck protruded onto the highway itself.. ⁵¹¹ Ballantine and Shaw sued Bobbitt for personal injuries. Bobbitt was uninsured, and through the Fund, filed a. counterclaim against Shaw, alleging that any damages, which Ballantine might have suffered were due to Shaw’s negligence, and asking that judgment be entered against. Shaw for Bobbitt for any amounts which might be found-to be due from Bobbitt to Ballantine. 1 The case was removed to Baltimore County and tried before a jury on January 6, 1970.

The jury found that, both Bobbitt and Shaw were guilty of negligence and that Ballantine suffered $7500 in damages. The lower court entered judgment for Ballantine against Bobbitt, for $7500, and in favor of Bobbitt against Shaw for a pro rata share of that judgment. Maryland Rules 315 and 560. Inasmuch as Bobbitt was substantially without assets, Ballantine applied for payment of the judgment from the-Fund.

To his continuing dismay, the Fund has thus far resisted making any payment. On April 1, 1970, Judge Raine dismissed Ballantine’s application for payment, and Ballantine then brought this appeal. The Maryland Code (1967 Repl. Yol.), Art. 66l/¿, § 160. provides for payment of claims by the Fund, but requires as a condition precedent to payment that the court be satisfied of the following: “(c) That the applicant has fully pursued and exhausted all remedies available to him for recovering the amounts referred to in paragraph-(3) of subsection (b) of § 162 by commencing action against all such persons against whom the-applicant might reasonably be considered as having a cause of action in respect of such damages and prosecuting every such action in good faith-to judgment and taking all reasonable steps available to him to collect on every judgment so ⁵¹² obtained.” Code (1967 Repl.

Vol.), Art. 66%, §160 (c). Art. 66%, § 162 (b) (3) reads in pertinent part as follows: “(b) Deductions. — There shall be deducted from the applicable maximum amount set forth in subsection (a) of this section or from the amount of the judgment, whichever is smaller, the total of the following: :J: * $ “(3) All amounts that the applicant has received or, in the opinion of the court, is likely to receive, in or toward payment of a judgment or claim against any person against whom the applicant has or had a cause of action for damages for bodily injury or death or damage to property, arising out of the same accident.” It must be borne in mind that Ballantine failed to sue Shaw in the first instance, and either failed or refused to amend his complaint to include Shaw after Bobbitt made Shaw a counter-defendant. 2 Ballantine’s inaction leaves him in the somewhat regrettable position of having a judgment only against Bobbitt, who is apparently “judgment proof.” Ballantine contends, however, that he should be allowed to recover from the Fund, and that the Fund is “fully protected” by virtue of Bobbitt’s having made Shaw a counter-defendant. He further urges that, inasmuch as the Fund is protected, his failure to sue Shaw and thereby satisfy the requirements of § 160 should not preclude his recovery for serious injuries. However, under analysis of the alternatives presented, appellant’s argument fails, and so must his claim.

Had Ballantine sued both Bobbitt and Shaw, either of them would have been liable for the entire amount because the jury found that they were both negligent. Code ⁵¹³ (1968 Repl.