Jordan v. Morgan, Adm'x

Smith, J., delivered the opinion of the Court. The sole question presented in this case is whether the administratrix of the estate of George Thomas Morgan (Morgan) is estopped from pleading limitations. This case was before us previously in Jordan v. Morgan, 247 Md. 305 , 231 A. 2d 13 (1967) at which time it was remanded for further proceedings. An accident took place on March 14, 1964, in St. Mary’s County in which George Thomas Morgan was killed.

Letters of administration on his estate were granted Frances Jane Morgan on August 4, 1964. This action was filed on March 2, 1966. Code (1964 Repl. Yol.) Art. 93, § 112 as it existed at the time of the filing of this action required such suit to be brought ¹²⁴ “* * * within six calendar months after the date of the qualification of the * * * administrator * * Morgan moved for summary judgment setting forth in the motion the date of qualification- of Morgan and Jordan’s failure to file the action within six months after such qualification.

Appellant (Jordan) in the answer to the motion said: “* * * [Bjecause of certain statements, representations and inducements made by duly authorized agents and representatives of the Defendant, the Plaintiffs .were lulled into a false sense of security and induced, thereby, to .refrain from filing suit within the six-month limitation period provided by Article 93, Section 112, and that by reason thereof, the Defendants waived the provisions of and are estopped to rely on the six-month limitation period as a defense to this suit.” In support of Jordan’s motion there was filed the affidavit of Bernard Brager, Esq., counsel for Jordan which repeated the above and went on to narrate contacts between Brager and various representatives of Nationwide Insurance Company. The portion directly pertinent here is as follows: “* * * Once again, on September 25, 1964, he phoned Mr. [Edward A.] Kracke [Field Claimsman of Nationwide] and, once again, was informed that no word had been received from the Annapolis office, but that he would offer $750.00 for each claim. These offers were not acceptable. On October 12, 1964, by phone conversation, Mr. Kracke advised Affiant to deal directly with the Annapolis office, which he did that same day, by phone, and spoke with a Mr. Nye, who referred him to the Company’s attorney, Hal C. B. Clagett, Esquire.

He called Mr. Clagett’s office in Upper Marlboro on November 3, 1964; however, did not reach him. On November 30, 1964, he spoke with Mr. Clagett by phone and was informed that a suit for declaratory judgment would be filed in the Circuit Court for St. Mary’s County. He further stated that the pur ¹²⁵ pose of filing such a suit was to determine whether or not the deceased tortfeasor’s JR-11 insurance carrier was responsible for coverage and that it was not necessary to make any move or file suit until the matter was disposed of. Mr. Clagett also stated that part of the suit for Declaratory Judgment had already been drawn.

No further conversations were had until February 9, 1965, when Affiant once again spoke with Mr. Clagett by phone and was informed that the suit for Declaratory Judgment still had not been filed. By a letter from Mr. Clagett dated March 9, 1965, Mr. Brager was informed that a suit for declaratory judgment in connection with the above-captioned matter and all other claims arising out of the accident of March 14, 1964 would be filed within the next few days * * *. After service of summons of this Declaratory Relief had been made upon his clients, they forwarded the suit papers to his office * * *. A Demurrer and Answer to Declaration was mailed to Affiant’s office on May 11, 1965 from the law office of Couch, Blackwell and Miller, Attorneys for Defendant State Farm Insurance Company in the Declaratory Relief Action * * *.

On July 19, 1965, Mr. Brager phoned Mr. Clagett’s office and was informed that it was not necessary to await the outcome of the Declaratory Relief action. He further stated that Affiant was ‘out completely’. The Declaratory Relief was then settled between the parties thereto sometime in September of 1965.” (emphasis supplied) Mr. Clagett in his affidavit in support of the motion for summary judgment filed after the Brager affidavit stated: “That in November, 1964, he talked on the telephone to Bernard Brager who identified himself as being the attorney for plaintiffs in the above captioned case and on behalf of his clients wished to discuss settlement of their claims; that he advised Mr. Brager that he had no authority to discuss settlement because there was a question of coverage; that the deceased ¹²⁶ Morgan boy had been driving Father Malloy’s car without permission and there would be no obligation on behalf of Nationwide if there was no coverage; that a declaratory judgment action was going to be filed to determine whether State Farm or Nationwide Insurance Company had primary coverage and the obligation to defend; that there were then pending two suits in the Circuit Court for St. Mary’s County to which no plea on behalf of the Administratrix of the deceased Morgan would be filed until the dispute with respect to coverage had been resolved; that we intended to enjoin further proceedings in this suit; that there was no need for him to do anything or file suit in connection with this matter of coverage since his clients would he made parties in the declaratory judgment action; however, when he next contacted them he should tell them to let him know when the suit papers were served, although an information copy would be sent to him; that on February 9, 1965, he again talked to Mr. Brager and substantially repeated the earlier advice, namely, of the intention to file a declaratory judgment action but had not as yet done so nor had a plea been filed to the St. Mary’s County cases that the attorney representing the plaintiff in those cases had agreed to an extension of time until the declaratory judgment action and the question of coverage were determined; that the Morgan boy had been driving Father Malloy’s car without permission when the accident occurred and there would be no obligation on behalf of Nationwide to defend if there were no coverage; that he was not interested in discussing any settlement or evaluation of the claims; that on March 9, 1965, the Declaration for declaratory relief was completed and Mr. Brager was advised by letter that it would be filed within the next few days and a copy would be served on his clients and a copy would be sent to him for his information and file; that on March 16, 1965, the declaratory action was filed in the Circuit Court for St. Mary’s County, Law No. 3356, along with a ¹²⁷ motion upon which an order for temporary injunction was signed by Judge Dorsey on M arch 17, 1965, staying further action in Law Nos. 3192 and 3193; that on the following day, March 18, 1965, a copy of the declaration for declaratory relief was mailed to Mr. Brager and he was again advised by letter that service of the same suit papers would be made by the sheriff upon the defendants named and responsive pleading could be filed as deemed appropriate; that on May 11, 1965, a Demurrer and Answer to Declaration (for declaratory relief) was filed by Couch, Blackwell and Miller as attorneys for State Farm Insurance Company and the limitations effect of Article 93, § 112 was raised; that this was the first time that the applicability of this statute became a matter of concern to the parties or their counsel in these proceedings; that on July 19, 1965, Mr. Brager telephoned and asked about the status of the declaratory judgment case in St. Mary’s County which had been scheduled for hearing on that day; that he was advised it had been postponed, whereupon further discussion followed with respect to the interests of his clients; that he advised Mr. Brager of the point raised by Mr. Blackwell’s Demurrer and if he had not sued they would be barred since filing within six months of the appointment of the Administratrix of Morgan deceased was a condition precedent; that it was affiant’s definite impression and it is his firm belief that this was the first date that Mr. Brager became aware of the applicability of Article 93, § 112 to the claims of his clients in this cause; that at no time prior to this date had this statute or its applicability to the case been discussed with Mr. Brager; that at no time prior to May 11, 1965, had affiant thought in terms of the applicability of the statute to these claims; that at no time in his conversations with Mr. Brager prior to May 11, 1965, had he thought in terms of the applicability of the statute to these claims or been consciously aware of it; that all of his thoughts, inten ¹²⁸ tions, purposes and designs were entirely free of any taint of duplicity, ulterior motive, fraud or bad faith; that he simply was not thinking in terms of any positive defense other than no policy coverage or obligation of his client, Nationwide Insurance Company to defend under the terms of its policy; that he simply had not directed his thoughts along the line of preparing responsive pleading