Daley v. United Services Automobile Ass'n

COUCH, Judge. Appellants Paul and Mary Daley 1 are the parents of a deceased child who was struck and killed by an automobile driven by James Dyer, an insured of the appellee, United Services Automobile Association (USAA). As a result of the child’s death, the Daleys filed suit in the Circuit Court for Montgomery County against Dyer and Jimmy’s Charcoal Den, Inc., a tavern where Dyer had consumed alcohol prior to the incident. Mr. Daley also sued as the personal representative of his son’s estate.

Settlement negotiations ensued with Mr. Dyer and a consent judgment was entered against Dyer in favor of the Daleys and their son’s estate. The insurer, USAA, signed the consent judgment approving it “as to form only, but not as to contents.” ²⁹² USAA then filed a declaratory judgment action in the Circuit Court for Montgomery County seeking an interpretation of Mr. Dyer’s policy with USAA in order to determine whether its liability under the policy was $100,000, the per person bodily injury liability limit of the policy, or $200,000, the per occurrence bodily injury limit of the policy. It requested the trial court to ‘•‘Determine that plaintiff, United Services Automobile Association, is legally obligated to pay plaintiffs in Law No. 56381, [the wrongful death and survival actions] no more than $100,000, the per person bodily injury liability limit of plaintiff’s policy with defendant, Dyer.” Both parties filed Motions for Summary Judgment and, at a hearing before Judge Ruben, judgment was granted for USAA. The docket entry reflects the following: 7-31-84 # 15 Hearing on Plaintiffs [USAA’s] Motion for Summary Judgment (# 10) (Ruben, J.)— granted.

Judgment entered in favor of United Services Automobile Association, against Defendants: James E. Dyer; Paul Joseph Daley; Personal Representative of the estate of Paul Joseph Daley, Jr., Paul Joseph Daley, Individually; and Mary B. Daley. Tape: 7/31/84-5-154.4-169.8. The Daleys appealed to the Court of Special Appeals. That court dismissed the appeal for failure to file an information report pursuant to Md.Rule 1023, but the court subsequently reinstated the appeal after the report was filed with the court.

While the appeal was pending before that court, we granted certiorari on our own motion to consider whether the Daleys’ claims were subject to the per person bodily injury limit of USAA’s policy. Daley v. United Services Auto. Ass'n, 302 Md. 421 , 488 A.2d 948 (1985). We shall vacate the judgment of the circuit court and remand the appeal to that court for entry of a new judgment which includes a declaration