Lake v. Jones

BLOOM, Judge. In philanthropy, not letting your left hand know what your right hand is doing may be estimable; 1 in litigation, as appellant has discovered, it may prove discomfiting. ⁵⁸¹ Appellant, Terry Lake, sustained personal injuries and her automobile was damaged when it collided with a taxicab owned by appellee Royal Cab Company, and operated by appellee Mark Jones. Appellant’s insurance carrier, Nationwide Insurance Company (Nationwide), paid all but $100 (the deductible feature of the collision coverage) of the cost of repairing appellant’s car. Appellant brought suit against appellees in the Circuit Court for Baltimore City, claiming damages only for her personal injuries.

While that suit was pending, Nationwide, apparently unaware of the circuit court action, filed suit, to its own use and to the use of appellant, against appellees in the District Court of Maryland, seeking to recover the full amount of the damages to appellant’s automobile, including her $100 loss. Appellant asserts that she was unaware of Nationwide’s action. Appellees, who were, of course, aware of both suits, simply let the District Court case go to judgment against appellee Jones. 2 They then filed a motion for summary judgment in the circuit court case, asserting that, under the holding of Dill v. Avery, 305 Md. 206 , 502 A.2d 1051 (1986), the doctrine of res judicata barred continuation of that suit. The circuit court agreed with appellees’ position and granted their motion.

This appeal followed. Appellees, of course, rely upon Dill ; appellant seeks to distinguish her case from that one, asserting (1) that what occurred in the District Court should be deemed to be a “settlement” of the property damage claim within the meaning of Md.Code Ann., art. 48A, § 384B, and thus not a bar to a separate action for personal injuries and (2) that the doctrine of res judicata does not apply because she had no notice of her insurer’s District Court action. Finding Dill to be distinguishable, but not on either of the bases asserted by appellant, we shall reverse the judgment of the circuit court. ⁵⁸² Dill began as an action by Shirley and Ronald Dill against William Avery in the District Court of Maryland for damages to the Dills’ automobile resulting from a motor vehicle collision. Judgment was rendered in favor of the Dills in 1981.

In 1982 the Dills filed an action in the Circuit Court for Anne Arundel County in which they jointly claimed loss of consortium and Shirley Dill claimed damages for personal injuries. The trial court held that the doctrine of res judicata barred not only Shirley’s claim for personal injuries but also the joint claim of Shirley and Ronald for loss of consortium. In affirming the trial court, the Court of Appeals said: In sum, both Shirley and Ronald were parties to the proceedings in the District Court from inception to conclusion. No jurisdictional barrier existed in that court preventing them from the prosecution of all claims that either or both had arising out of the collision. [3] The doctrine of res judicata bars prosecution of the subject action unless the provisions of Maryland Code Article 48A, Section 394B alters the doctrine under the facts of this case.

We hold that it does not. Id. at 215 , 502 A.2d 1051 . Article 48A, § 384B, of the Maryland Code provides: No claim for damage to property resulting from a motor vehicle accident shall be denied or payment therefor delayed because the person who is entitled to payment or any other person has a claim pending for bodily injury which may have arisen from the same or any other accident. Whenever an insurer, or self-insurer approved under section 17-103(a)(2) of the Transportation Article, has the appropriate motor vehicle coverage for the party liable and there is no significant dispute as to either the liability for the payment of the full property damages or the amount of the monetary equivalent of these damages, ⁵⁸³ including an amount for loss of use of the motor vehicle, if claimed, and cost of obtaining an estimate of repairs then the amount payable shall immediately be due and owing and shall promptly be paid by the insurer or self-insurer.

A settlement made by an insurer or a self-insurer of a claim arising from any accident or other event for damage to or destruction of property owned by another person may not (1) be construed as an admission or recognition of liability by the self-insurer with respect to any other claim arising from the same accident or event, or (2) preclude any claim for bodily injury or other claims not within the scope of the settlement. The Dill Court held that “the term settlement [in section 384B] does not embrace a money judgment entered after a contested trial.” 305 Md. at 216 , 502 A.2d 1051 . Even though the District Court action terminated in a judgment against appellee Jones because he withdrew his defense to Nationwide’s claim, the result was still a judgment in a contested action, and not a settlement within the meaning of § 384B. That section did not apply in Dill and does not apply in this case.

The res judicata defense asserted by appellees arose because maintenance of the separate actions by appellant for her personal injuries and by her insurer, on her behalf as well as on its own behalf, for property damages, amounted to splitting a single cause of action. In Dill , the Court of Appeals, quoting from 46 Am.Jur.2d Judgments § 405 (1969), stated the general rule concerning the effect of splitting a cause of action: The law does not permit the owner of a single or entire cause of action, or an entire or indivisible demand, to divide or split that cause or demand so as to make it the subject of several actions, without the consent of the person against whom the cause or demand exists. A similar result is reached under res judicata principles precluding relitigation of the same cause of action between the same parties or their privies, when that doc ⁵⁸⁴ trine is applied to a plaintiff who is successful in the first action. This doctrine prevails although all of the relief to which the plaintiff is entitled is neither requested nor granted in such action, and the former recovery in fact represents only a part of the damage he suffered; it is the general rule that if an action is brought for part of a claim, a judgment obtained in the action precludes the plaintiff from bringing a second action for the residue of the claim.

(Footnotes omitted.) Dill, 305 Md. at 290 , 502 A.2d 1051 . Relying also on Restatement (Second) of Judgments §§ 24 and 25, which relates to “splitting” and the extinguishment of plaintiffs claim by merger or bar, and the annotation at 62 A.L.R.2d 977 (1950), the Court held that the Dills’ personal injuries and property damages constituted but a single claim and that the judgment in the District Court for one part of the claim barred them from maintaining a subsequent action for the remainder of the same claim. There is no question but that Nationwide and appellant were in privity. Nationwide’s claim is based upon its contractual right of subrogation to appellant’s claim, and whether asserted by appellant or by her subrogated insurer on her behalf as well as its own behalf, the damages to appellant’s automobile and the injuries to her person give rise but to a single cause of action.

Appellant refers us to no authority, and we are aware of none, that supports her assertion that application of the doctrine of res judicata requires notice to or knowledge by her of the action brought on her behalf by her subrogee. She cannot distinguish this case from Dill by asserting that she was unaware of the District Court suit. What does distinguish this case from Dill , however, is that in Dill the two actions were sequential, i.e., there was a judgment in the first (District Court property damage) case before the second suit, for personal injuries, was filed in the circuit court, whereas in the case at bar both cases were pending at the same time. Appellees, perforce, were well aware that there were two separate actions — splitting ⁵⁸⁵ a cause of action — being maintained at the same time, a fact of which the plaintiffs in those two actions were apparently unaware.

Had the matter been brought to the attention of the District Court and Nationwide as a matter of defense— another suit pending on the same cause of action — the District Court case undoubtedly would have been transferred to the circuit court for consolidation with the case already pending there. See Md.Code Ann., Cts. & Jud.Proc. Art., § 6 — 104(b); Md.Rule 3-503(a)(2). What is the effect of appellees’ silence in the face of simultaneous suits against them on the same cause of action and their lack of resistance to a judgment in the lesser claim, for property damage?

We find no appellate decision in this state on that precise question. We do find, however, persuasive authority elsewhere for the proposition that appellees waived their right to rely upon the defense of res judicata arising out of the splitting of appellant’s cause of action. The concept of waiver was raised