Harden v. Mass Transit Administration

⁵⁹² Menchine, J., delivered the opinion of the Court. Joseph Harden, Lula Mae Rudd, John Fleming and Carolyn Gaylord, for themselves and for all others similarly situated (appellants), sought, in the Superior Court of Baltimore City, declaratory relief that Mass Transit Administration, a body politic and corporate, and Transit .Casualty Company, a body corporate, its insurer (appellees), are responsible to them for medical, hospital and disability benefits pursuant to the provisions of Article 48A, §§ 538-546 of the Annotated Code of Maryland (1974 Cum. Supp.). Their petition alleged that Mass Transit Administration was the owner and operator of certain busses in which the named plaintiffs were riding as passengers when they sustained injuries subsequent to January 1, 1973 that involved medical expenses and loss of income, and that Transit Casualty Company was its insurer under a policy of insurance issued after January 1, 1973.

Liability of Mass Transit Administration (Administration) was asserted on the basis of its alleged failure to maintain motor vehicle liability insurance as required by Article 66V2, § 7-101 of the Annotated Code of Maryland (1974 Cum. Supp.). 1 Liability of Transit Casualty Company was asserted ⁵⁹³ on the basis of its alleged failure to incorporate within the terms of its issued liability insurance policy an undertaking to afford the minimum medical, hospital and disability benefits required by Article 48A, § 539. 2 Mass Transit ⁵⁹⁴ Administration and Transit Casualty Company severally filed a demurrer and answer. The trial judge, at the request of appellees, treated the demurrer as a motion for summary judgment, relying upon Hunt v. Montgomery County, 248 Md. 403 , 237 A. 2d 35 . On October 31, 1974 the following declaratory judgment was passed in the Superior Court of Baltimore City: “* * * It is hereby ORDERED, DECLARED, ADJUDGED AND DECREED that the Defendants are not in violation of the provisions of Article 48A, Sections 538-546 of the Annotated Code of Maryland (1974 Cum.

Supp.) by their failure to provide ‘medical benefits’ and ‘economic loss’ benefits pursuant to said statute, AND, IT IS FURTHER ORDERED, DECLARED, ADJUDGED AND DECREED that the Defendant, Mass Transit Administration, an instrumentality and agency of the State of Maryland, is not covered by the provisions of Article 48A, Sections 538-3 [sic] and 66V2, Section 7-101.2 [sic] of the Annotated Code of Maryland (1973 Cum. Supp.), and consequently the Defendant, Transit Casualty Company, as the carrier of insurance on Mass Transit Administration vehicles is also not covered thereunder, * * *” 3 Appellants contend: I. that the statutory language of Article 48A, §§ 538-546 and Article 66V2, § 7-101 is plain and unambiguous; II. that it was the legislative intent to bind Mass Transit Administration and its insurer to the compulsions thereby imposed, and ⁵⁹⁵ III. that under any other interpretation, the cited sections of the code would be unconstitutional. I. and II. Contentions I and II are interrelated and will be discussed together.

The Mass Transit Authority was established by Chapter 253 of the Acts of 1971, amending Article 41, § 207D 4 It ⁵⁹⁶ succeeded “Public Transit Administration” and the “Metropolitan Transit Authority” as the same had previously existed. The creating statute provided that all references in the code, laws, ordinances, resolutions, rules and regulations to the Metropolitan Transit Authority or to Public Transit Administration shall be deemed to mean the Mass Transit Administration, except to the extent that such references more reasonably should be construed to mean the Maryland Transportation Authority.* 5 The legislative grant of power and authority and the concomitant duty and obligation of the Mass Transit Authority was supplied by Article 64B of the Annotated Code of Maryland. 6 Section 4 of the Article provides, inter alia, that: ⁵⁹⁷ “* * * the Administration shall have the powers and duties granted in this article, as amended from time to time, and such additional powers as may hereafter lawfully be conferred upon it pursuant to law, to manage, conduct and control the functions, affairs and property of the Administration. “The powers, authority and functions vested in the Mass Transit Administration by the provisions of §§ 6, 8 (c) through 8 (n), 18, 23, 29, 31, 34, 35, 36, 37, 44, 45 and 46 of this article, shall be exercised or performed by the Administration subject to the approval of the Secretary of Transportation or, with respect to matters within the jurisdiction of the Maryland Transportation Authority, the approval of the Maryland Transportation Authority The sections and subsections referred to in § 4, supra, hereafter recited in condensed summary form, provided in substance as follows: § 6 authorized appointment and employment of counsel; and provided for a chief administrative officer and fixed his responsibility. § 8 authorized the Administration: (c) to establish offices; (d) to adopt, amend and repeal rules and regulations; (e) to acquire property; (f) to obtain grants, loans and advances; (g) to contract for transit facilities and services; (h) to contract with others for joint use of property or rights; (i) to make agreements for free or reduced fares; ⁵⁹⁸ (j) to provide transit service; (k) to engage or remove personnel without regard to Maryland Laws relating to other State employees; (l) to establish a personnel merit system and a pension and retirement system with or independent of the existing State system; (m) to contract for planning engineering and technical services; (n) to provide a security force. § 18 authorized the fixing of rates and charges; prescribed the uses to which funds derived therefrom shall be put; and provided that such rates and charges “shall not be subject to supervision or regulation by any department, division, commission, board, bureau, or agency of the State or any political subdivision thereof. 7 § 23 authorized the Administration to execute agreements, leases and equipment trust certificates for the purchase of transit facilities or equipment. § 29 declared the function of the Department of Transportation but imposed no restrictions upon the functions of the Administration with which the subject case is concerned. § 31 related further to fixing rates and charges to provide funds the Administration “deems necessary and desirable to carry out the purposes of this article.” § 34 related further to contracts, and leases. § 35 authorized the Administration to provide ⁵⁹⁹ transit service if the Public Service Commission “fails or refuses to direct a private carrier to provide [it].” § 36 authorized the Administration to acquire the assets and properties of private carriers by purchase, lease or condemnation. § 37 related to rights and benefits of employees and to labor contract and disputes. § 45 related to purchasing and competitive bidding. § 46 authorized acquisitions by condemnation. In sum, by Article 64B the Legislature made the Administration a State agency and vested it with extremely broad powers, giving it an autonomy qualified solely by supervisory powers granted or reserved to the Department of Transportation or the Maryland Transportation Authority. Such was the status of the Administration at the time that § § 538 through 546 8 of Article 48A were added to the Annotated Code of Maryland by the passage of Chapter 73 of the Acts of 1972.

The contention of appellants basically is that the interaction of Article 48A, § 539 with Article 66V2, § 7-101 9 combined to subject the Administration and its insurer to an obligation to assure the payment of “no fault” claims thereby authorized. They argue that the provisions of Article 66V2, § 7-101 that every owner of a motor vehicle required to be registered in this State shall maintain required security and that every person must comply with § 539 of Article 48A, must be interpreted as requiring the Administration and its insurer to be bound by their respective obligations. Appellees counter with the alternative contentions: (a) that the Administration is a State agency whose sovereign ⁶⁰⁰ immunity protects it from suit and (b) that the Legislature did not intend the Administration to be within the purview of Chapter 73 of the Acts of 1972. There is a surface plausibility in appellants’ contention but it does not survive careful analysis.

Appellants brush aside the suggested defense of the State’s immunity to suit upon the ground that such immunity was waived by statute in that: (1) Article 64B, § 8 a declares that the Administration shall: “Have perpetual succession, and sue and be sued in its own name and plead and be impleaded” and (2) Article 64B, § 49 declares that the Administration “shall be liable for its contracts and for its torts * * * in connection with the performance of the duties and functions imposed in this article.” We do not, however, see this case as one turning upon a question of immunity to suit and do not reach the issue. Instead, we conclude that the provisions of Article 48A, § § 538 through 546, and Article 66V2, §§ 7-101, 7-102 do not apply at all to the Administration. Subtitle 1 of Article 66V2 furnishes the definitional portion of that article. In § 1-157 “owner” is defined as “a person having the property in or title to a vehicle.” Section 1-160 defines a “person” as “every natural person, firm, copartnership, association, or corporation.” The State and Státe agencies generally are regarded as not included in statutes using such words as “natural person, firm, copartnership, association, or corporation.” State v. Rich, 126 Md. 643, 649 , 95 A. 956, 958 ; Mayor and City Council v. Baltimore Gas Co., 232 Md. 123, 135 , 192 A. 2d 87, 93 .

We recognize, of course, that the State or its agencies may fall within the purview of such statutes “where such an intention is manifest.” Huffman v. State Roads Commission, 152 Md. 566, 584 , 137 A. 358, 365 . We do not, however, regard the subject case as falling within such an exception. ⁶⁰¹ The statute by which §§ 538 through 546 were added to Article 48A was of considerable complexity. Incident to purposes to be accomplished by those sections, the statute provided for the specific repeal and reenactment of sections or subsections of Article 26; of Article 48A; of Article 66V2 and of Article 81. Yet the statute made no reference to Article 64B.

We are persuaded that this circumstance strongly indicates that the statute was not intended to affect that article or to subject the Administration or its insurer to the obligations imposed by Article 48A, §§ 538-546 or by Article 66V2, §§ 7-101 and 7-102. Particularly significant, we think, is the circumstance that the statute did not address itself to Article 64B, § 44 that reads in pertinent part as follows: “§ 44. Insurance. (a) Coverage; form; amount. — The Authority shall self insure or procure and maintain insurance against loss or damage to any of its properties and against liability for injury to persons or property.

The Board may also purchase insurance against loss of revenue from any cause whatsoever. Such insurance coverage shall be in such form and amount as the board may determine, subject to the requirements of any agreement arising out of issuance of bonds or other obligations by the Authority. 10 (Emphasis added.) It is instantly apparent that the Legislature left to the discretion of the Administration the decision (a) whether to carry insurance or to provide self insurance as to its own liability for negligence, and (b) to fix the form and amount of any insurance coverage it might elect to carry, subject ⁶⁰² only to the requirements of any agreement arising out of the issuance of its bonds. 11 The Legislature made two policy declarations in conjunction with its broad grant of power to the Administration. By § 1 of Article 64B it was declared that, “The development of improved and expanded transit facilities * * * is essential for the satisfactory movement of people and goods, the alleviation of present and future traffic congestion, the economic welfare and vitality and the development of the metropolitan area of Baltimore * * By § 12 of that article it was declared that, “all costs incurred in constructing, acquiring, operating and maintaining the regional transit facilities shall be borne, as far as practicable, by fares charged for . the service performed by the transit facilities owned or controlled by the [Administration] * * Imposition upon the Administration of the additional costs inherent in the provisions of Article 48A, §§ 538 through 546 well might affect adversely its capacity to carry out the legislative policies for which it was created. In Bowie v. Wash.

Sub. San. Comm., 249 Md. 611, 618 , 241 A.2d 396, 400 , it was said: “It is a cardinal rule of statutory construction that repeals not express will not be found unless demanded by irreconcilability or repugnancy.” See also Loker v. State, 2 Md. App. 1, 9 , 233 A. 2d 342, 348 , affirmed 250 Md. 677 , 245 A. 2d 814 , cert. denied 393 U. S. 1082 . There is no such inconsistency between §§ 538 through 546 of Article 48A on the one hand and the provisions of Article 64B on the other as to make their separate existence so repugnant that they cannot stand together.

We decide, accordingly, that passage of Chapter 73 of the Acts of 1972 ⁶⁰³ did not directly nor by implication repeal any section of Article 64B. The granted discretion to the Administration as to the form and amount of insurance to be carried by it remains undisturbed by its passage. In the exercise of that discretion the Administration initially chose insurance coverage in a form that quite naturally did not provide the benefits such as were required to be incorporated in policies issued to other owners by the subsequent legislation. Passage of that later legislation did not remove or alter that discretion.

The insurer, accordingly, is bound only to the contractual undertaking in the form prescribed by the Administration in the exercise of its discretion, and is unaffected by the passage of Chapter 73 of the Acts of 1972. Appellants’ suggestion that recognition of the co-existence of the statutory provisions “would exempt [the Administration] from registering vehicles