Bliss v. Wiatrowski

SONNER, Judge. In this case, we are called upon to decide two issues: 1) whether a plaintiffs insurer can move to set aside an order of default entered against an uninsured motorist for failure to ²⁶² plead, and, 2) whether the defense of assumption of the risk bars a teenage girl from recovering for injuries received when she was a passenger in a tragic car accident. Because our answer to both questions is “yes,” we affirm the judgment of the lower court. I. On the night of December 14, 1990, appellee, nineteen-year-old Michael Wiatrowski, while under the influence of alcohol, drove appellant, Jennifer Bliss, his girlfriend, and two other friends, William Shields and Debbie Upton, in his mother’s automobile to the end of Conway Road in Anne Arundel County.

Ms. Bliss, who was sixteen years old at the time, was seated in the right front passenger seat, and Shields and Upton were seated in the back. The four had spent most of the afternoon and evening together, drinking beer that they purchased at liquor stores, and spending time at local malls. Later that night, they went to the home of one of Mr. Wiatrowski’s friends and did more drinking. At approximately 11 p.m., the four left to visit an abandoned church, a common practice among some of their friends, who referred to the church as being “haunted” because it was at a remote location and in ruined condition.

Ms. Upton, who drank only one beer earlier in the afternoon, suggested that they go to her house instead, but the others convinced her to come along for the ride. Ironically, she was to meet her death in the crash that occurred later. After leaving the church, they were traveling eastbound on Conway Road back toward Patuxent Road in Gambrills, Maryland. Conway Road is narrow, winding, and dark, with a posted speed limit of 30 m.p.h.

Both Ms. Bliss and Mr. Shields testified that they had been driving along Conway Road at 50 m.p.h. Right before the accident, Ms. Bliss faced the back seat to tell a joke to Ms. Upton and Mr. Shields. She testified that they were all laughing when she turned around and saw headlights from an oncoming car, at which point Mr. Wiatrow-ski veered off the road and struck a tree. ²⁶³ It is not entirely clear what caused Mr. Wiatrowski to lose control of the car. There was testimony that when the other car approached in the oncoming lane, they were headed around a dangerous curve and Mr. Wiatrowski either went off onto the right shoulder to avoid the other car, even though there was no danger of being hit by the other car, or the car went off the road for an unknown reason.

Mr. Wiatrowski’s version of the accident is that Ms. Bliss overreacted to the oncoming car and grabbed the steering wheel, pulling it in her direction to avoid being hit. In a third account, Mr. Wiatrow-ski merely lost control of the car and, instead of traveling around the sharp curve, traveled straight into a tree. Ms. Upton was killed in the collision and Mr. Shields and Ms. Bliss were seriously injured. Ms. Bliss suffered broken facial bones, facial lacerations, a broken right hand, lacerated forearms, contusions to the pelvis and legs, memory loss, a concussion, and shock.

Mr. Shields was in a coma for a significant period of time. Mr. Wiatrowski suffered a concussion, chest trauma, and a bruised wrist and ankle. Officer William L. Johnson of the Anne Arundel County Police Department testified that based on the amount of damage to the car and its occupants, Mr. Wiatrowski’s speed was definitely greater than 30 m.p.h. at the time of the accident. He also stated that when he arrived on the scene he smelled alcohol in the car and on the passengers and saw empty beer cans on the car floor.

Medical records revealed that Mr. Wiatrowski’s blood alcohol level was 0.10 1 after the accident. Mr. Wiatrowski subsequently pleaded guilty to “homicide by automobile while under the influence of alcohol,” for which he served time in jail. On December 14, 1992, Ms. Bliss filed a civil suit against Mr. Wiatrowski in the Circuit Court for Anne Arundel County. At the time of the accident, Mr. Wiatrowski was an uninsured ²⁶⁴ motorist.

Ms. Bliss was living with her mother, Juanita Fairall, who owned an insurance policy with Allstate. In an amended complaint, Allstate was named as a second defendant. Although Allstate filed a timely answer, Mr. Wiatrowski failed to answer the complaint, and on November 1, 1995, Ms. Bliss filed a Motion for Default Judgment against him. On December 1, 1995, Allstate filed a Motion in Opposition to Default Judgment.

After a hearing, the court entered an Order of Default against Mr. Wiatrowski on January 26,1996. On February 23, 1996, Allstate filed a Motion to Vacate Default Judgment. After another hearing on June 19, 1996, the court (Thieme, J.) granted Allstate’s motion and vacated the default judgment on June 28,1996. The parties proceeded to trial (Loney, J. presiding).

Ms. Bliss and Allstate were represented by counsel and Mr. Wia-trowski represented himself. The jury found first that Mr. Wiatrowski was negligent and then found that although Ms. Bliss was not contributorily negligent, she had assumed the risk of the danger of Mr. Wiatrowski’s actions. On December 8, 1997, Ms. Bliss moved for Judgment non obstante verdicto or, in the alternative, a new trial. The court denied her motion on January 15, 1998 and she appealed.

She asks this Court to resolve the following three questions in her favor: 1. Did the trial court err in granting appellee Allstate’s Motion to Vacate Default Judgment? 2. Did the trial court err in instructing the jury that it could find that appellant could not recover for her injuries because she assumed the risk of getting in the car with appellee? 3. Assuming that assumption of the risk was properly before the court and the jury, did the trial court err in instructing the jury as to the definition of assumption of the risk as it relates to a child under the age of majority?

II

Default Judgment Appellant argues that the trial court should not have grant ²⁶⁵ ed appellee Allstate’s Motion to Vacate Default Judgment 2 because 1) Allstate could not move to vacate an order of default entered against Mr. Wiatrowski, and, 2) the actual motion failed to address the reasons for Wiatrowksi’s failure to plead. We address each of these contentions separately. A. A plaintiff may seek a default judgment against a defendant who fails to plead as provided by the rules. Md. Rule 2-613.

The plaintiffs first step is to file a motion asking the court to enter an order of default against the defendant. Id. 2 — 613(b). After the court enters the order of default, the clerk must inform the defendant of the order. Id. 2 — 613(c).

The defendant may then “move to vacate the order of default within [thirty] days after its entry.” Id. 2~613(d). If the motion to vacate is not filed, “the court, upon request, may enter a judgment by default that includes a determination as to liability and all relief sought.” Id. 2 — 613(f). An entry of default judgment is a final judgment and is subject to the general revisory power of the court only with respect to the relief granted; however, an order of default is interlocutory in nature and can be revised by the court at any time up until the point a final judgment is entered. Id. 2-613(g); Michaels v. Nemethvargo, 82 Md.App. 294, 298-300 , 571 A.2d 850 (1990).

Ms. Bliss argues that Mr. Wiatrowski did not file a motion to vacate the order of default entered against him within the thirty-day time frame, and thus, the court should not have set aside the order of default. She also contends that, although Allstate did file a timely motion to vacate the order of default, Allstate did not have standing to file the motion and raise certain defenses on behalf of Mr. Wiatrowski. According to Ms. Bliss, a plain reading of the rule indicates that only “the defendant,” meaning the defendant against whom the order of default was entered, is entitled to move to vacate the order. See Md. Rule 2-613(d). ²⁶⁶ After a hearing, the court held the matter sub curia.

Nine days later, the court issued a ruling stating that the order of default was not a final judgment, but interlocutory in nature, because it did not dispose of all the claims against all of the parties. Thus, the court reasoned it had the authority to revise it pursuant to Rule 2-602(a). 3 The court cited Hanna v. Quartertime Video & Vending Corp., 78 Md.App. 438, 553 A.2d 752 (1988), which the Court of Appeals later affirmed at 321 Md. 59 , 580 A.2d 1073 (1990), to support its decision. In exercising the right to revise the order, the court considered both Allstate’s motion and a letter, written by Mr. Wiatrowski and sent to the court one week before the default judgment hearing, stating that he wished to participate in the suit and believed that Ms. Bliss caused the accident. In Quartertime Video, the Court of Appeals confirmed that when default judgment is entered against one defendant, but the case is still pending against other parties to the action, Rule 2-602(a)(3) applies, making the default judgment subject to the full discretionary revisory power of the trial court. 321 Md. at 66 , 580 A.2d 1073 .

Thus, according to the court, even though an order of default was entered against Mr. Wiatrow-ski, the case was still pending against Allstate, so the court’s power to revise the order was not limited by Rule 2-613(f), which restricts a court’s authority to review only the relief granted, or Rule 2-535, 4 which applies only to final judg ²⁶⁷ ments. 5 See id. at 65-66 , 580 A.2d 1073 . Consequently, the defendant against whom default judgment was entered could move to set aside the order of default and the default judgment beyond the thirty-day window. We hold that the order of default filed against Mr. Wiatrowski was interlocutory because, as explained supra, no final judgment had been entered in the case, and also because the order of default did not dispose of the claims against the remaining defendant. Just as in Quartertime Video, where “the default judgment adjudicated only Hanna’s rights and responsibilities!,] [t]he rights and liabilities of the [other defendants] remained to be determined,” Allstate’s rights had not been adjudicated. 321 Md. at 65 , 580 A.2d 1073 .

If we consider Mr. Wiatrowski’s letter to be a motion to vacate the order of default, we can rely on Quartertime Video and find that despite the fact that Mr. Wiatrowski’s letter was not sent to the court within the thirty-day time frame as prescribed by the rules, the order of default was subject to the court’s plenary revisory power, so it was well within the court’s discretion to set it aside. Furthermore, we note that “a trial judge has broad discretion to modify an interlocutory order where that action is in the best interests of justice.” Michaels, 82 Md.App. at 299 , 571 A.2d 850 . In setting aside the order, however, the court took into account Allstate’s motion to vacate the order of default in addition to Mr. Wiatrowski’s letter, perhaps because it ques ²⁶⁸ tioned whether Mr. Wiatrowski’s letter qualified as a motion to vacate under the rule. The issue left unresolved is whether the court could consider Allstate’s motion in making its determination.

Quartertime Video does not address this issue because, there, the defendant against whom default judgment was entered was the same defendant who filed the motion to set aside the order of default and the default judgment. The question we then pose is: Can Allstate, as the plaintiffs uninsured motorist carrier, properly file a motion to vacate an order of default or default judgment on behalf of a defendant who is an uninsured motorist? Under the Maryland uninsured/underinsured motorist statutory provisions, 6 an insured, who has been injured or incurred damages as a result of a collision with an uninsured or underinsured motorist, may bring either a contract action against his or her insurer or a tort action against the uninsured or underinsured driver. Lane v. Nationwide Mut.

Ins. Co., 321 Md. 165, 170 , 582 A.2d 501 (1990). Under the second option, when the insured notifies the insurer of the lawsuit, the issues of liability and damages are resolved in the same action. Id. at 173 , 582 A.2d 501 .

The plaintiffs insurer is entitled to be a party to the lawsuit and has a right to intervene immediately. Waters v. USF & G, 328 Md. 700 , 718 n. 9, 616 A.2d 884 (1992). In fact, the insurer has a right “to defend against the insured’s tort claim ... regardless of whether the uninsured motorist is defending or not.” Nationwide Mut. Ins. v. Webb, 291 Md. 721, 738 , 436 A.2d 465 (1981). ²⁶⁹ The Court of Appeals has held that when an insurer docs not intervene in a lawsuit maintained by its insured against an uninsured/underinsured driver, despite having received notice of the suit, the insurer will be bound by determinations as to liability and damages as a result of the suit.

See id. The notion of a binding judgment promotes judicial economy by reducing litigation expenses and obviating the need for a second lawsuit. Id. The Court, in Nationwide Mutual Insurance v. Webb, went on to state: Since, under