Josey v. Allstate Insurance

SinglBy, J., delivered the opinion of the Court. This controversy commenced in the Circuit Court for Prince George’s County, when Allstate Insurance Company (Allstate) filed a petition for declaratory j udgment against J osey and those claiming damages resulting from an automobile accident in which Josey was involved. The defendants below, who are the appellants here, answered and prayed a jury trial as provided by Maryland Code (1957, 1967 Repl. Vol.) Art. 31 A, § 9.

Thereafter, the depositions of Mr. and Mrs. Josey were taken by Allstate. Motions for summary judgments, supported by affidavits, were filed by both Josey and Allstate. The lower court granted Allstate’s motion, denied Josey’s, and entered judgment for Allstate. It is from this judgment that Josey has appealed.

The Unsatisfied Claim and Judgment Fund Board of the State of Maryland (see Maryland Code (1957, 1967 Repl. Vol.) Art. 66y2, §§ 150 ff) has filed a brief as amicus curiae. ²⁷⁶ In order to pass on the propriety of the granting of the summary judgment, it is necessary to review the facts developed in the depositions and set out in the affidavits. At the time the suit was brought, Josey was a resident of Montgomery County, 36 years of age and a general shop mechanic employed by Potomac Electric Power Company. On 3 February 1964 State Farm Insurance Company (State Farm), which had written Josey’s automobile insurance for about five years, sent him a letter: “We regret to tell you that we do not wish to continue your policy beyond 12:01 A.M. Standard Time March 28, 1964; the expiration of the present policy period.

On that date our obligation to protect you under this policy will terminate. “You are given this advance notice so that you may have reasonable time to make other arrangements for your insurance protection.” Rudolph Toms, divisional underwriting superintendent for State Farm, stated in his affidavit that “* * * [T]he record of Mr. Odis Josey was evaluated; that because of the development of accident and/or traffic violations by said insured driver, it was the decision of the Underwriting Department that said insured’s insurance should not be renewed * * Josey, in his deposition, stoutly maintained that in the five years preceding March, 1964, he had been involved in accidents in 1960 and 1963 and had been fined once for a traffic violation. He testified that, “* * * I didn’t want to renew with them [State Farm] anyway. We talked about it before I even got a notice from State Farm. Everytime I sent in my premium they always accepted the premium and added a couple bucks on afterward, couple weeks later.

Always find some reason: they moved into a different territory, and all that stuff.” Shortly after the receipt of the State Farm letter, probably on ²⁷⁷ 11 March 1964, Josey went to see Karl Riesterer, an agent for Allstate, at Prince George’s Plaza. Josey said that he went at the suggestion of a fellow employee, who had known Riesterer when Riesterer worked for Potomac Electric Power Company. In his deposition, Josey described his conversation with Riesterer: “Q. Now, before you signed these declarations did you answer this question for Mr. Riesterer: ‘With respect to the applicant’ — meaning you as the applicant for insurance — ‘or any member of his household, has any insurer cancelled or refused or given notice that they intend to cancel or refuse any similar insurance?’ “Did he ask you that question? “A. Yes. “Q. Did you answer, ‘No’ ? “A. I answered that I had a letter from State Farm stating they did not wish to renew my policy upon its expiration. “Q. In other words, you told him that State Farm had told you it didn’t want to renew ? “A. They didn’t wish to renew, that’s right. “Q. When he asked you the question and you told him that, did you all have any discussion about what you would put down for an answer to this application? “A. No. I didn’t check the answers; he did. “Q. In other words, Mr. Riesterer was the one who put these check marks on the application above your signature ? “A. That’s right. That’s right. “Q. Did you read what he put down before you signed it ? “A. No, I didn’t.” Josey also said that he told Riesterer about an accident which had occurred in 1963, but was uncertain whether he said anything about the 1960 accident.

He said that Riesterer had not asked him about his traffic record. ²⁷⁸ The application form which Josey signed contained the following language, which appeared immediately above his signature: “I declare that .the statements made by me in this application, and any supplemental questionnaire hereto, are true. “Eully understanding that the Company may investigate the'truthfulness of said statements through motor vehicle or police department records and the use of inspection services, I hereby request the Company to issue'the insurance applied for, including any renewals thereof, in