Freeburger v. Bichell

BYRNES, Judge. This case presents the question whether the Maryland statute that requires a parent to support his or her destitute adult child, if the parent is financially able to do so, creates an ⁶⁸³ independent cause of action in favor of the parent against the tortfeasor who caused the adult child’s injuries. We hold that it does not. FACTS AND PROCEEDINGS Appellant is Michael David Freeburger, the father of Michael Justin Freeburger (“Michael”).

On August 16, 1996, Michael, then eighteen years old, was seriously and permanently injured in an automobile accident. Michael had been riding as a passenger in a car driven by appellee Melvin Anthony Bichell. Mr. Bichell failed to negotiate a turn, and the car left the road and struck a utility pole. The car was owned by appellee James Kerns.

On June 21, 1999, Mr. Freeburger brought suit in the Circuit Court for Baltimore City against Mr. Bichell and Mr. Kerns. He alleged that Michael had sustained personal injuries as a result of the August 16, 1996 accident; that the accident had been caused by the negligence of the appellees; that Michael’s injuries had rendered him physically incapacitated and incapable of self-support; that Michael had incurred, and would in the future incur, hospital and medical expenses; that Michael is destitute and cannot pay for his medical expenses; and that Mr. Freeburger is under a statutory duty, pursuant to Md.Code (1999 Repl.Vol.), section 13-102(b) of the Family Law Article (“FL”), to provide Michael with medical treatment and to pay for his medical expenses. Finally, Mr. Freeburger sought recovery of the sums that he is (and will be) under a statutory duty to pay on behalf of Michael because they “were caused directly as a result of [Michael’s] aforesaid injuries that were caused directly by the negligence of the [appellees].” Mr. Bichell never was served. Mr. Kerns was served and filed a “motion to dismiss and/or for summary judgment,” in which he recited several facts outside of the complaint, none of which are in dispute.

Specifically, Mr. Kerns stated that at the time of the accident, he carried automobile liability insurance with Aetna Life & Casualty Company, with limits of ⁶⁸⁴ $50,000 per person and $100,000 per accident, and that claims had been asserted against that policy by Michael and by other passengers who had been riding with Mr. Bichell at the time of the accident. On April 17, 1997, Michael settled his claim for $50,000. A settlement draft was issued by Aetna to Michael and his attorneys. The draft was deposited in the attorneys’ escrow account.

In addition, as part of the settlement, Michael signed a general release, a copy of which was attached to the motion to dismiss. The general release provides: That I, Michael Justin Freeburger, being of lawful age, for the sole consideration of $50,000 to me in hand paid, receipt whereof is hereby acknowledged, have remised, released, and forever discharged, and for my heirs, executors, administrators, and assigns do hereby remise, release, and forever discharge Melvin Bichell, James Kerns and Aetna Life and Casualty Company ... and all other persons, firms, and corporations, of and from any and all claims, demands, rights, and causes of action of whatsoever kind and nature, arising from, and by reason of any and all known and unknown, foreseen and unforeseen bodily and personal injuries, damage to property, and the consequences thereof, resulting, and to result, from a certain accident which happened on or about the 16 day of August 1996, for which I have claimed the .said _ to be legally liable, which liability is hereby expressly denied. (Blank space in original.) In his motion to dismiss and/or for summary judgment, Mr. Kerns argued that the statutory duty of a parent to support his or her destitute adult child, pursuant to FL § 13-102(b), does not create a cause of action in favor of the parent against a third party tortfeasor and, therefore, the complaint did not state a claim for which relief could be granted. He argued, moreover, that even if such a cause of action existed, it was released by Michael.

Mr. Freeburger responded that the duty of support under FL § 13-102(b) that requires him to provide and pay for the ⁶⁸⁵ medical care Michael needs to treat his injuries also gives him an independent right of action for medical expenses against the tortfeasors responsible for Michael’s injuries. Mr. Free-burger further argued that his cause of action is separate from Michael’s cause of action, and, therefore, it was not encompassed in the claims that Michael released. The circuit court held a hearing on the motion to dismiss and/or for summary judgment. At the conclusion of the hearing, the court stated that it was going to grant the motion.

It did not specify whether it was granting a motion to dismiss or for summary judgment. The court then signed an order that provides: ORDERED, that Defendant’s Motion to Dismiss be and hereby is GRANTED or in the alternative FURTHER ORDERED, that the Defendant’s Motion for Summary Judgment be and hereby is GRANTED. Mr. Freeburger noted a timely appeal. STANDARD OF REVIEW Under Md. Rule 2-322(c), when a motion to dismiss for failure to state a claim upon which relief can be granted presents matters outside of the pleadings that are not excluded by the court, it shall be treated as a motion for summary judgment, under Md. Rule 2-501.

In the case at bar, Mr. Kerns recited in his motion to dismiss on that ground facts outside the record, and presented as an attachment the release signed by Michael. The circuit court did not exclude these matters. Accordingly, we will treat the court’s order as one granting summary judgment. In deciding whether to grant a motion for summary judgment, the circuit court must determine whether there is a genuine dispute of material fact and, if so, whether the moving party is entitled to judgment as a matter of law.

Beatty v. Trailmaster Prods., Inc., 330 Md. 726, 737-38 , 625 A.2d 1005 (1993); Nationwide Mut. Ins. Co. v. Scherr, 101 Md.App. 690, 694 , 647 A.2d 1297 (1994). In reviewing a decision to grant summary judgment, we engage in the same analysis, and in so ⁶⁸⁶ doing determine whether the circuit court was legally correct in its ruling.

Beatty, 330 Md. at 737 , 625 A.2d 1005 . DISCUSSION In this Court, the parties advance the same contentions they made below. They agree that there was no genuine dispute of material fact. Mr. Freeburger argues that the circuit court erred in granting summary judgment in favor of Messrs.

Bichell and Kerns because 1) under FL § 13—102(b), he is legally obligated to provide and pay for medical care for Michael, who is a “destitute adult child,” within the meaning of FL § 13—101(b), and this statutory duty in turn gave rise to a cause of action in his favor, against the appellees; and 2) his right of action against the appellees is separate from Michael’s cause of action against them, and, therefore, was not within the scope of the general release of claims given by Michael. The appellees argue to the contrary. FL § 13-102 is entitled “Prohibited acts; penalties.” It provides, at subsection (b): Duty to support destitute adult child.—If a destitute adult child is in this State and has a parent who has or is able to earn sufficient means, the parent may not neglect or refuse to provide the destitute adult child with food, shelter, care, and clothing. Under FL § 13—101(b), a “destitute adult child” is “an adult child who: (1) has no means of subsistence; and (2) cannot be self-supporting due to mental or physical infirmity.” Subsection (c) of § 13-102 makes a violation of the statute a misdemeanor punishable by a fíne not to exceed $1,000 and/or imprisonment not exceeding one year.

The law that now appears at FL § 13—101(b) first was enacted in 1947, as part of the criminal code. Md.Code art. 27, § 105 (1951). It was passed in swift response to the decision in Borchert v. Borchert, 185 Md. 586 , 45 A.2d 463 (1946), which held, in the context of a child support dispute, that parents are not legally obligated to support their adult disabled children. In Smith v. Smith, 227 Md. 355 , 176 A.2d ⁶⁸⁷ 862 (1962), the Court of Appeals relied upon the statute, by then codified at art. 27 § 97, to affirm an award of alimony that included a weekly payment to the ex-wife for support of the parties’ physically incapacitated adult child. 1 More than twenty years later, in Sininger v. Sininger, 300 Md. 604 , 479 A.2d 1354 (1984), the Court held that the statutory duty of support applies regardless of whether the adult child’s incapacity predated his attaining the age of minority and that the duty is properly enforceable by circuit courts within their equity jurisdiction over child custody, guardianship, legitimation, maintenance, visitation, and support. 2 Even before enactment of the statutory provision at issue in this case, the law recognized a duty, also created by statute, on the part of adult children to support their destitute parents.

That duty is now codified at FL § 13-102(a), which, in language mirroring FL § 13-102(b), provides that, “[i]f a destitute parent is in this State and has an adult child who has or is able to earn sufficient means, the adult child may not neglect or refuse to provide the destitute parent with food, shelter, care, and clothing.” 3 In Blucher v. Ekstrom, 68 Md.App. 459 , 513 A.2d 923 (1986), vacated and remanded on other grounds, 309 Md. 458 , 524 ⁶⁸⁸ A.2d 1235 (1987), this Court addressed the question whether an adult child’s’statutory duty to support his destitute parent “creates a concomitant cause of action entitling the adult child to recover compensation from the party who injured the adult child’s parent.” Id. at 460, 513 A.2d 923 . In that case, an adult daughter and her mother were injured in an automobile accident caused by two tortfeasors. The mother sustained serious personal injuries that left her medically disabled and required around-the-clock medical care. It so happened that the adult daughter was employed as a nurse.

When the mother was discharged from the hospital, the adult daughter began to provide her with constant nursing care, which neither of them otherwise could afford. Eventually, the adult daughter left employment to care for her mother full time, and suffered a total loss of income. The adult daughter sued the tortfeasors to recover damages for her own personal injuries, on theories of negligence and negligent entrustment, and, in a separate count, to recover the wages she had lost when she left employment to care for her mother. She alleged that she had been forced by the tortfeasors’ wrongdoing to leave employment because, under § 13-102(a), she was required to provide for her mother’s care, and she could only do so by caring for her mother herself.

The trial court dismissed the latter claim without leave to amend, for failure to state a cause of action. On appeal, this Court rejected the adult daughter’s argument that the duty imposed by FL § 13-102(a) gave rise to a cause of action in favor of an adult child against the tortfeasor whose conduct caused the destitute parent’s disability. We stated: The purpose of [FL § 13-102(a) ] is not to create a cause of action on behalf of adult children of a disabled parent but, insofar as possible, to