Frazier v. Unsatisfied Claim & Judgment Fund Board

Singley, J., delivered the opinion of the Court. At about 9:45 on the evening of 4 July 1969, Kevin Frazier, then five years of age, was a passenger in the rear seat of an open Chevrolet convertible which was being driven by his mother, Cassandra Frazier, in a northerly direction on Jumper’s Hole Road, in Anne Arundel County. According to Mrs. Frazier, an unidentified light blue car, going in the opposite direction, passed her and as it did, the driver of the car threw a lighted firecracker or cherry bomb into the rear seat of her car. Distracted by the explosion and by Kevin’s cries, Mrs. Frazier lost control of her car and hit a tree.

Both she and Kevin were injured. Pieces of a firecracker were later found near a scorched spot on the upholstery of the rear seat. Kevin, Mrs. Frazier and Mr. Frazier filed petitions in the Circuit Court for Anne Arundel County, in which they sought leave to sue the Unsatisfied Claim and Judgment Fund Board (the Board). From an order denying their petition, they have appealed.

The court below found as a fact that the petitioners had made the reasonable ¹¹⁷ efforts required by the Unsatisfied Claim and Judgment Fund Law, Code (1957, 1970 Repl. Vol.) Art. 66^, subtitle 7, part VI (the Act), § 7-620 (5) to ascertain the identity and driver of the unidentified vehicle, see Johnson v. Unsatisfied Claim & Judgment Fund Board, 262 Md. 90 , 277 A. 2d 5 (1971), but concluded, as a matter of law, that the injuries sustained did not arise out of the ownership, maintenance and use of the unidentified car. The Act, § 7-620provides: “When the death of, or personal injury to, any person arises out of the ownership, maintenance or use of a motor vehicle in this State * * * but the identity of the motor vehicle and of the operator and owner thereof cannot be ascertained * * * any qualified person who would have a cause of action against the operator or owner, or both, in respect to the death or personal injury * * * may * * * apply to a court of competent jurisdiction for an order permitting him to bring an action therefor against the Board * * The question, of course, is whether the Fraziers’ injuries arose “out of the ownership, maintenance or use of a motor vehicle.” The same phrase is frequently encountered in automobile insurance policies, and the Board rests its hopes on McDonald v. Great American Ins. Co., 224 F. Supp. 369 (R. I. 1963) and Speziale v. Kohnke, 194 So. 2d 485 , writ refused, 250 La. 469 , 196 So. 2d 534 (1967), both of which involved injuries sustained when firecrackers were thrown from automobiles, and both of which concluded that no coverage was afforded by the automobile insurance policy.

Compare, Richland Knox Mut. Ins. Co. v. Kallen, 376 Fed. 2d 360 (6th Cir. 1967) where recovery was permitted under a homeowner’s policy for injuries resulting from an unsuccessful attempt by a passenger to throw a firecracker out of ¹¹⁸ the car window. 8 Blashfield, Automobile Law & Practice § 317.1 at 5-6 (Lewis ed. 1966) ; 7 Appleman, Insurance Law & Practice § 4317 at 144-6 (1942) and an Annotation, 89 A.L.R.2d 150 would seem to support the proposition that whether an injury is or is not within the coverage provided by an automobile insurance policy may well turn on the question whether the use of an automobile is directly or merely incidentally causally connected with the injury, even though the automobile itself may not have proximately caused the injury. Compare, for example, National Indemnity Co. v. Ewing, 235 Md. 145 , 200 A. 2d 680 (1964) (recovery allowed plaintiff, who fell from insured’s car, and was injured while being