Griffith Energy Services, Inc. v. National Union Fire Insurance

²⁵⁶ DEBORAH S. EYLER, J. In this insurance coverage case, Griffith Energy Services, Inc. (“Griffith”), the appellant, challenges a declaratory judgment entered by the Circuit Court for Howard County in favor of New Hampshire Insurance Company (“New Hampshire”) and National Union Fire Insurance Company of Pittsburgh, Pa. (“National Union”) (collectively “the Insurers”), the appellees. Griffith had sought a ruling that a business automobile liability policy issued by New Hampshire (“the Auto Policy”) and a business comprehensive general liability insurance policy issued by National Union (“the CGL Policy”) both covered property damage that resulted from a mis-delivery of home heating oil by a Griffith fuel truck driver. The circuit court disagreed.

On summary judgment, it ruled that the Auto Policy provided coverage, but that its liability policy limit was exhausted; that the CGL Policy did not provide liability coverage; and that Griffith was not entitled to additional costs of defense. FACTS AND PROCEEDINGS A. The Incident. Griffith is in the home heating oil business. On August 24, 2010, one of its fuel truck drivers was scheduled to make a delivery to 1129 Colonial Avenue, in Alexandria, Virginia.

By mistake, he drove to 1185 Colonial Avenue (“1135”). 1135 is the center house of three connected houses, ie., a “triplex.” The houses are 17 feet wide and share one roof. The addresses for the other houses in the triplex are 1137 Colonial Avenue (“1137”), and 1133 Colonial Avenue (“1133”). At 1:08 p.m., the driver attached the truck’s fuel dispensing hose to an exterior uncapped fill port extruding from the rear basement wall of 1135. He proceeded to pump about 330 gallons of fuel oil into the fill port.

He had been pumping for slightly over 8 minutes when Katherine Turner, who rented 1135, rushed outside and told him that oil was pouring into the finished basement. (1135 had been converted from oil heat, and the fuel oil tank had been removed.) ²⁵⁷ The driver immediately realized that he was at the wrong address and stopped pumping. He contacted his dispatcher, who in turn notified John Hall, a Griffith claims specialist, who arrived within an hour. The driver remained on the scene and was there when Hall arrived.

The driver left the premises between 2:30 and 3:00 p.m. Hall entered 1135 through the front door and smelled heating oil. The carpet in the finished area of the basement was saturated with oil, and there was oil on the floor in the finished bathroom. Hall noticed an exposed floor drain at the rear of the basement, in the utility area, and observed that oil had flowed down it.

The Alexandria Fire Department (“AFD”) responded, also within an hour of the incident, and AFD personnel conducted atmospheric monitoring tests in all three houses. The tests revealed “trace readings displaying on the lower explosive limit” in the basement of 1135. The other houses were “clear for flammability readings.” AFD personnel determined it was likely that much of the heating oil had gone down the basement drain in 1135. They could not tell at that point whether the drain was connected to municipal lines or simply emptied below the basement’s concrete slab.

(The latter subsequently was determined to be the case.) The AFD Fire Marshall condemned 1135 and shut off the utilities to all three houses. Hall contacted Miller Environmental, Inc. (“MEI”), an environmental management firm, and representatives of that company arrived at the scene within a few hours of the incident. They laid down sorbent material in the basement of 1135 to soak up free-standing oil. Around 5:30 p.m., Timothy Trayers, the owner of 1137, arrived home and reported finding oil in his sump.

The sump was in the rear corner of his basement, near the common wall with 1135 and adjacent to the area in which the fill port emptied. Hall and others entered the basement of 1137 and found the oil in the sump. No other oil was visible in 1137 at that time. Approximately 25 gallons of heating oil was pumped out of the sump that evening.

The basement of 1133 was inspected as well. It did not have a sump, and there ²⁵⁸ was no oil then visible. MEI set up air scrubbers in 1137 and 1133. Charles and Christine Perham owned 1135 and rented it to Turner, who lived there with her son.

As noted, 1137 was owned by Trayers; he lived there with his fiancee. Jim and Pam McVeigh owned and lived in 1133. The residents of all three houses stayed in hotels on August 24, 2010, and then were relocated to long-term housing, at Griffith’s expense. In accordance with Virginia law, Griffith notified the Virginia Department of Environmental Quality (“VDEQ”) about the incident.

State and city laws required Griffith to clean the soil at the properties to reach a concentration of oil at or below 100 parts per million (“ppm”). The day after the incident, MEI tested the houses for volatile organic compounds (“VOCs”). The tests revealed VOC levels sufficiently elevated to render all three houses uninhabitable. Based on oil having been found in the sump of 1137, and the water table in the area being high, MEI concluded that the oil that the driver pumped into 1135 “most probably ha[d] gone under the [basement] slabs of all three residences.” The slabs, which are the concrete basement floors of the houses, sit on a 14-inch layer of river stone, under which is native soil.

The interior common walls of the houses are made of solid concrete block, and their footers extend to the native soil. The exterior walls of the triplex are brick and rest on hollow concrete block foundation walls, which extend below ground and are set on concrete footers, which also rest on native soil. On August 26, 2010, the basements of the houses were prepared for “subslab assessment.” All salvageable personal belongings were removed from the houses and the interior common walls between the basements were demolished. In the following days, the basement slabs were broken apart and removed down to the concrete footers.

The river stone underlying the slabs was removed to the level of the soil. Multiple soil samples were taken at this depth and the bottom of the footers to determine the extent of the oil saturation and its migration in the soil. Samples also were taken from the hollow block walls above the footers. The soil around the ²⁵⁹ perimeter of the triplex was probed for sampling, and monitoring wells were installed.

Analysis of the data obtained from these samples and wells revealed that the oil had “remain[ed] in the footprint of the three houses and ha[d] not gone past the house exterior walls.” On September 7, 2010, 1137 was condemned, and on September 22, 2010,1133 was condemned. As part of its remediation plan, Griffith first proposed demolishing, excavating, and replacing the houses. Subsequent clean-up and analysis of the site enabled Griffith to rehabilitate and restore the houses instead. B. The Insurance Policies.

At the time of the incident, Griffith was a Named Insured on the Auto Policy and on the CGL Policy. 1 The policies were owned by Central Hudson Enterprises Corporation (“CHEC”). The Insurers are Pennsylvania companies with their principal places of business in New York City, and are licensed to transact business in Maryland. They are owned by Chartis USA, Inc. (“Chartis”), a member of the American International Group, Inc. (“AIG”). The policies were underwritten at the same time by the same underwriter, John Springer.

Chartis Claims, Inc., is the claims administrator for the policies. Also at the relevant time, Griffith was a Named Insured on an Excess Policy sold by Associated Electric & Gas Insurance Service Limited (“AEGIS”) to CHEC. 1. Auto Policy Indemnity The policy afforded Griffith $1,000,000 in liability coverage, as follows: We will pay all sums an “insured” legally must pay as damages because of ... “property damage” to which this ²⁶⁰ insurance applies, caused by an “accident” and resulting from the.... use of a covered “auto.” We will also pay all sums an “insured” legally must pay as a “covered pollution cost or expense” to which this insurance applies, caused by an “accident” and resulting from the.... use of covered “autos.” However, we will only pay for the “covered pollution cost or expense” if there is ... “property damage” to which this insurance applies that is caused by the same “accident.” Auto Policy, Section II. A. 2 The fuel truck was a “covered ‘auto.’ ” An “ ‘[ajccident’ includes continuous or repeated exposure to the same conditions resulting in ... ‘property damage.’ ” Auto Policy, Section V.A. “Property damage” is “damage to or loss of use of tangible property.” Auto Policy, Section V.M. “ ‘Covered pollution cost or expense’ ” is any cost or expense arising out of: 1.

Any request, demand, order or statutory or regulatory requirement that any “insured” or others test for, monitor, clean up, remove, contain, treat, detoxify or neutralize or in any way respond to, or assess the effects of “pollutants”; or 2. Any claim or “suit” by or on behalf of a governmental authority for damages because of testing for, monitoring, cleaning up, removing, containing, treating, detoxifying or neutralizing, or in any way responding to or assessing the effects of “pollutants.” Auto Policy, Section V.D. Fuel oil is a “pollutant.” 3 “All ... ‘property damage’ and ‘covered pollution cost or expense’ ²⁶¹ resulting from continuous or repeated exposure to substantially the same conditions will be considered as resulting from one ‘accident.’ ” Auto Policy, Section II. C. The Auto Policy contains an exclusion for “Completed Operations.” Under that exclusion, there is no liability coverage for “ ‘property damage’ arising out of [the insured’s] work after that work has been completed or abandoned.” Auto Policy, Section II. B. 10.

(Emphasis added.) “Work” means work or operations performed by the insured or on its behalf and includes “materials, parts or equipment furnished in connection with” the work. “Work that may need service, maintenance, correction, repair or replacement, but which is otherwise complete, "will be treated as completed.” Id. The Auto Policy also contains a “Wrong Delivery of Liquid Products” endorsement, which operates as an exclusion. It provides: This insurance does not apply to ... “property damage” resulting from the delivery of any liquid into the wrong receptacle or to the wrong address ... if the ... “property damage” occurs after delivery has been completed. Delivery'is considered completed even if further service or maintenance work, or correction, repair or replacement is required because of wrong delivery.

(Emphasis added.) Other Policies Provision The $1,000,000 liability coverage limit applies “[r]egardless of the number of ... claims made” respecting an “accident.” Auto Policy, Section II. C. “[T]he most [New Hampshire] will pay for the total of all damages and ‘covered pollution cost or expense’ combined, resulting from any one ‘accident’ ” is the $1,000,000 limit. Id. The Auto Policy includes the following anti-stacking condition: Two Or More Coverage Forms Or Policies Issued By Us If this Coverage Form and any other Coverage Form or policy issued to you by us or any company affiliated with us ²⁶² apply to the same “accident,” the aggregate maximum Limit of Insurance under all the Coverage Forms or policies shall not exceed the highest applicable Limit of Insurance under any one Coverage Form or policy.

This condition does not apply to any Coverage Form or policy issued by us or an affiliated company specifically to apply as excess insurance over this Coverage Form. Auto Policy, Section IV. A. 8. Duty to Defend The Auto Policy’s cost of defense provision is as follows: We have the right and duty to defend any “insured” against a “suit” asking for [damages to which the policy applies] or a “covered pollution cost or expense.” However, we have no duty to defend any “insured” against a “suit” seeking damages for ... “property damage” or a “covered pollution cost or expense” to which this insurance does not apply.

We may investigate and settle any claim or “suit” as we consider appropriate. Our duty to defend or settle ends when the Liability Coverage Limit of Insurance has been exhausted by payment of judgments or settlements. Auto Policy, Section II. A. A “suit” is “a civil proceeding in which ... [d]amages because of ... ‘property damage’; or a ‘covered pollution cost or expense’ to which [the Auto Policy] applies, are alleged.” Auto Policy, Section V.N. A “suit” includes an arbitration proceeding to which the insured must submit or submits "with New Hampshire’s consent, or “[a]ny other alternative dispute resolution proceeding in which such damages or ‘covered pollution costs or expenses’ are claimed and to which the insured submits with [New Hampshire’s] consent.” Id. 2.

CGL Policy Indemnity The CGL Policy afforded Griffith $1,000,000 in liability coverage per “occurrence” with a $2,000,000 aggregate limit. It states: ²⁶³ We will pay those sums that the insured becomes legally obligated to pay as damages because of ... “property damage” to which this insurance applies. s¡< ^ # sk This insurance applies to ... “property damage” only if: (1) the ... “property damage” is caused by an “occurrence” that takes place in the “coverage territory”.... CGL Policy, Section I. 1. a and b. An “[ojccurrence” is “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” CGL Policy, Section Y.13. “Property damage” is: a.

Physical injury to tangible property, including resulting loss of use of that property. All such loss of use shall be deemed to occur at the time of the physical injury that caused it; or b. Loss of use of tangible property that is not physically injured. All such loss of use shall be deemed to occur at the time of the “occurrence” that caused it.

CGL Policy, Section Y. 17. As pertinent, exclusion g to the CGL Policy provides that there is no liability coverage for property damage “arising out of’ the “use” of an “auto ... owned or operated by” an insured. CGL Policy, Section I. 2. g. 4 “Use includes operation and ‘loading and unloading.’ ” Id. Unloading “means the handling of property ... [wjhile it is being moved from an ... ‘auto’ to the place where it is finally delivered.” CGL Policy, Section V. 11. c.

The CGL Policy includes an endorsement for “Misdelivery of Liquid Products Coverage,” which modifies exclusion g: Exclusion g ... does not apply to ... “property damage” arising out of: ... [t]he delivery of any liquid product into a wrong receptacle or to a wrong address ... if the ... ²⁶⁴ “property damage” occurs after such operations have been completed or abandoned at the site of such delivery. Operations which may require further service, maintenance, correction, repair or replacement of performance at the wrong address or because of any error, defect or deficiency, but which are otherwise completed, will be deemed completed. (Emphasis added.) Other Insurance Condition An “Other Insurance” condition to the CGL Policy states, as relevant: If other valid and collectible insurance is available to the insured for a loss we cover under [the liability coverages], our obligations are limited as follows: a. Primary Insurance This insurance is primary except when Paragraph b. below applies.

If this insurance is primary, our obligations are not affected unless any of the other insurance is also primary. Then, we will share with all that other insurance by the method described in Paragraph c. below. b. Excess Insurance (1) This insurance is excess over: (a) Any of the other insurance, whether primary, excess, contingent or on any other basis: .... (iv) If the loss arises out of the ... use of ... “autos”.... to the extent not subject to Exclusion g....

CGL Policy, Section IV. 4. a. and b. Duty to Defend The CGL Policy states, as pertinent: We will have the right and duty to defend the insured against any “suit” seeking.... damages [covered by the policy]. However, we will have no duty to defend the insured against any “suit” seeking damages for ... “property damage” to which this insurance does not apply. We may, at our discretion, investigate any “occurrence” and ²⁶⁵ settle any claim or “suit” that may result.

But: ... [o]ur right and duty to defend ends when we have used up the applicable limit of insurance in the payment of judgments or settlements under Coverages A or B.... CGL Policy, Section I. 1. a. The definition of “suit” is the same as the definition in the Auto Policy. A “suit” is “a civil proceeding in which damages because of ... ‘property damage’ ... to which this insurance applies are alleged.” CGL Policy, Section V. 18. “Suit” includes an arbitration proceeding to which the insured must submit or submits with National Union’s consent, or “[a]ny other alternative dispute resolution proceeding in which such damages are claimed and to which the insured submits with [National Union’s] consent.” Id. 3.

Excess Policy Griffith was a Named Insured on the AEGIS Excess Liability Insurance Policy, which was in effect from June 1, 2010, to June 1, 2011. It afforded Griffith excess liability coverage for each occurrence. Condition (E) of the Excess Policy states: [AEGIS] shall not be called upon to assume charge of the settlement or defense of any CLAIM made against the INSURED, but [AEGIS] shall have the right and shall be given the opportunity to associate with the INSURED, or the INSURED’s underlying insurer(s), or both, in the defense and control of any CLAIM where the CLAIM involves or may involve [AEGIS] in which event the INSURED and [AEGIS] shall cooperate in all things in the defense of such CLAIM. C. Coverage Determinations by the Insurers.

On August 25, 2010, the day after the incident, Griffith submitted an “Automobile Loss Notice” to Chartis Claims, Inc., the claims administrator for both policies, making a claim under the Auto Policy. On September 1, 2010, a claims adjuster informed Griffith that due to the “Wrong Delivery of Liquid Products” endorsement (which, as noted, operates as an exclusion), the Auto Policy did not cover the loss. The ²⁶⁶ adjuster told Griffith that the loss was covered by the CGL Policy, however. On September 20, 2010, with Griffith’s approval, its insurance broker e-mailed the claims adjuster, challenging the denial of coverage under the Auto Policy.

He argued that, because the driver had discovered his mistake while the fuel oil delivery was in progress, and had not left the site when he notified the Griffith dispatcher of the mistake, the delivery was not completed and therefore the “Wrong Delivery of Liquid Products” endorsement did not apply. On October 6, 2010, David Baskind, another Chartis Claims adjuster, responded with a “Withdrawal of Disclaimer of Coverage” letter agreeing that the “Wrong Delivery of Liquid Products” endorsement did not apply, and therefore the mis-delivery was covered under the Auto Policy. The letter reserved all rights of National Union (although it appears that it intended to reserve all rights of New Hampshire, as the Auto Policy carrier). The next day, Baskind wrote a “Disclaimer of Coverage” letter to Griffith stating that, based on exclusion g, there was no coverage under the CGL Policy; and the endorsement for “Misdelivery of Liquid Products,” which, as explained, is an exception to exclusion g, did not apply because “delivery was not completed” when the “property damage commenced.” About $80,000 had been paid under the CGL Policy before the October 7, 2010 disclaimer of coverage.

Those payments were transferred to the Auto Policy. During the following year, the payments mounted for remediation and restoration of the properties and for lodging and living expenses for the affected residents. On September 22, 2011, AEGIS, aware that the $1,000,000 liability coverage limit for the Auto Policy was nearing exhaustion, wrote to Griffith, reminding it that its policy was excess. In so doing, it stated that any indemnity obligation under the Excess Policy only would arise after the Auto Policy liability limit was exhausted and after the CGL Policy liability limit was exhausted.

In its letter, AEGIS took the position that ²⁶⁷ Chartis incorrectly had disclaimed coverage under the CGL Policy: [T]he Misdelivery of Liquid Products Coverage endorsement ■ [in the CGL Policy] restores coverage where “the ‘bodily injury’ or ‘property damage’ occurs after such operations have been completed....” Based on the facts as AEGIS understands them, it appears that all of the bodily injury and ■ most of the property damage that allegedly resulted from the heating oil release took place after the heating oil delivery had been completed.[ 5 ] ... Further, AEGIS understands that the heating oil that was pumped into the center unit [1135] did not immediately spread to the neighboring homes. Thus, it appears that Chartis’s disclaimer of coverage under the [C]GL Policy is improper. Consequently, it appears that Chartis wrongfully disclaimed [coverage under the CGL Policy] and that the $1 million limit of liability in that policy should also be available to Griffith for these claims.

Further, that policy would also provide for Griffith’s defense. If so, Chartis would not be close to exhausting its obligations under its policies to Griffith. (Emphasis in original.) By October 11, 2011, New Hampshire had made payments under the Auto Policy totaling $999,999.47. It also had paid $81,856.35 in attorneys fees and costs for counsel representing Griffith.

The attorney was a member of Chartis’s approved panel of counsel that it used regularly. That day, Baskind sent Griffith a letter stating that “as a result of the payments processed today, the indemnity limit under [the Auto Policy] ... has been exhausted.” ²⁶⁸ D. Claims by Residents and Declaratory Judyment Action. Before the October 2011 letters to Griffith from Chartis and AEGIS, the three homeowners and the tenant of 1135 made claims against Griffith arising out of the incident, including for loss of use of the houses (“the underlying claims”). Griffith had kept Chartis apprised of developments regarding the underlying claims before and after Chartis advised it that the liability policy limit of the Auto Policy had been exhausted.

Griffith filed a declaratory judgment action (this case) against the Insurers on April 18, 2012. It alleged that National Union wrongfully had disclaimed coverage under the CGL Policy. It maintained that the CGL Policy was triggered once the policy limits under the Auto Policy were reached. Moreover, it alleged, New Hampshire incorrectly had determined that its liability limit under the Auto Policy had been exhausted, by counting investigation costs against the policy limit for indemnity, instead of separately paying those as a cost of defense; and that it had wrongfully refused to pay the cost of defense of the underlying claims.

Soon after filing suit, Griffith negotiated settlements of the underlying claims. On April 30, 2012, it entered into a written settlement agreement with Turner for $50,000 for property damage and personal injury. On June 25, 2012, it entered into written settlement agreements with the owners of 1133, 1135, and 1137, in which it agreed to purchase their properties and resolve all claims related to the incident for $850,000 each, plus an additional $50,600 for rental expenses incurred by the McVeighs. The settlement amounts paid by Griffith thus totaled more than $2.6 million.

No lawsuits were filed by any of the claimants before the settlements were reached. Griffith and the Insurers engaged in discovery and then filed cross-motions for summary judgment. On June 17, 2013, the court held a hearing on the motions, and granted summary judgment in favor of the Insurers. In ruling from the bench, the court explained that “the insurance policies were issued for different situations.” The ²⁶⁹ Auto Policy “was designed to cover those losses that would occur during the use of an automobile in the ... conducting of the Insured’s business[,]” which would include Griffith’s driver using the fuel truck to deliver home heating oil.

Also, the Auto Policy covers specific types of losses resulting from accidents, and an accident, as defined in the policy, includes continuous or repeated exposure to the same conditions. The court concluded that the event that caused the damages to all three houses was one accident that was covered by the Auto Policy. The court found that the CGL Policy “covers all other types of losses” that are not covered by the Auto Policy, and the losses in this case were not covered by the CGL Policy. It noted that all the property damage was caused by the mis-delivery of heating oil, and that “the delivery [njever really ended in this case, because the disaster was discovered during the course of it; and it was never abandoned ... it was dealt with.” The court concluded that, because there was no coverage under the CGL Policy, there was no excess coverage under the “Other Insurance” provision of that policy, and therefore the CGL Policy did not come into play when the liability coverage limit of the Auto Policy was exhausted.

The court determined that coverage under the Auto Policy was limited to $1,000,000 per accident, and that that limit could be reached by payment of “covered pollution costs” and settlements or judgments, or any combination of those. It found that there need not have been a formal demand on the part of a government authority or agency for pollution clean up for New Hampshire to be required to pay “covered pollution costs and expenses” incurred, so long as those pollution costs and expenses were mandated by law. The court concluded that, given the amount of payments that had been made under the Auto Policy for covered pollution costs and expenses, as of October 11, 2011, the liability limit on that policy in fact had been exhausted. Finally, the court interpreted the Auto Policy to mean that the duty to defend only would be triggered by the filing of a ²⁷⁰ lawsuit against the insured or the involvement of the insured in a proceeding before a neutral arbiter.

Neither happened; instead, Griffith made the unilateral decision to “engage counsel, investigate the matter, and [ ]enter into direct settlement negotiations with the affected homeowners” and did so notwithstanding that there had been no refusal by New Hampshire to investigate or settle. Thus, New Hampshire’s duty to defend under the Auto Policy never was triggered, and it did not owe Griffith any defense costs. The same day as the hearing, the court issued a written order granting summary judgment in favor of the Insurers and against Griffith “for the reasons stated by the Court during the hearing.” The court did not issue a written opinion. Griffith noted a timely appeal, presenting three questions for review, which we have rephrased: I. Did the circuit court err by not issuing a written opinion?

II

Did the circuit court err by ruling that there was no liability coverage under the CGL policy and the liability coverage limit of the Auto Policy had been exhausted?

III

Did the circuit court err by ruling that Griffith was not owed a duty to defend under the Auto Policy? For the following reasons, we answer the first question in the affirmative and shall order that the defect in the judgment be corrected on remand. We answer the second question in the negative and conclude that the third question is rendered moot by our resolution of the second question. DISCUSSION I. Declaratory Judgment Griffith contends the trial court erroneously “failed to issue a written opinion declaring the rights and obligations of the parties” as required by the Maryland Uniform Declaratory ²⁷¹ Judgment Act (“MUDJA”), Md.Code (1973, 2013 Repl.Vol.), section 3-401 et seq. of the Courts and Judicial Proceedings Article (“CJP”).

The Insurers respond that the trial court’s order was not deficient because it referenced and incorporated the court’s oral ruling. As discussed, the court ruled from the bench at the June 17, 2013 hearing on the motions for summary judgment and, that same day, issued its written judgment granting summary judgment in favor of the Insurers “for the reasons stated by the Court during the hearing.” 6 The Court of Appeals has made clear on numerous occasions that “when a declaratory judgment action is brought and the controversy is appropriate for resolution by declaratory judgment, the court must enter a declaratory judgment and that judgment, defining the rights and obligations of the parties or the status of the thing in controversy, must be in writing. It is not permissible for the court to issue an oral declaration.... When entering a declaratory judgment, the court must, in a separate document, state in writing its declaration of the rights of the parties....” Bowen v. City of Annapolis, 402 Md. 587, 608-09 , 937 A.2d 242 (2007) (quoting Allstate Ins.

Co. v. State Farm Mut. Auto. Ins. Co., 363 Md., 106 , 117 n. 1, 767 A.2d 831 (2001) (first emphasis in Allstate, second emphasis in Bowen)); see also Union United Methodist Church, Inc. v. Burton, 404 Md. 542 , 948 A.2d 1 (2008). ²⁷² “ ‘The failure to enter a proper declaratory judgment is not a jurisdictional defect, however’ ” and an appellate court, “ ‘in its discretion, may review the merits of the controversy and remand for entry of an appropriate declaratory judgment by the circuit court.’ ” Bontempo v. Lare, 444 Md. 344, 379 , 119 A.3d 791, 812 , 2015 WL 4658901 , at ¹⁷ (2015) (quoting Lovell Land, Inc. v. State Highway Admin., 408 Md. 242, 256 , 969 A.2d 284 (2009)); see also Point’s Reach Condo.

Council of Unit Owners v. The Point Homeowners Ass’n, Inc., 213 Md.App. 222, 283 , 73 A.3d 1145 (2013) (where “there is no assertion by either party on appeal that the transcript of the court’s oral ruling does not accurately reflect the ruling that was made or that there is any misunderstanding about the nature of the court’s decision, as embodied in its oral ruling,” we may reach the issues raised on appeal and direct that the defect in the judgment be corrected by amendment upon remand to the circuit court). We exercise our discretion to review the merits of the instant appeal and shall direct the court to correct the defect in the judgment on remand.

II

Indemnity The parties agree that the Auto Policy provided liability coverage for the property damage to 1135. They disagree over which policy provided liability coverage for the property damage to 1133 and 1137. Griffith contends the property damage to 1133 and 1137 was covered by the CGL Policy, and the circuit court erred in ruling to the contrary.