Liberty Mutual Insurance v. Craddock

Orth, C. J., delivered the opinion of the Court. We are called upon to ascertain whether the Superior Court of Baltimore City erred in its determination of two issues presented to it by a declaratory judgment action. The action arose from an accident which occurred on 5 December 1969 at the intersection of Fayette and Bond Streets in Baltimore City. The facts as adduced at trial by stipulation, testimony and documentary exhibits were not in substantial dispute.

Two motor vehicles were involved. One of them was owned by either James John Craddock or John Wiley and driven by either Craddock or Wiley. In any event, both Craddock and Wiley were “uninsured motorists” within the meaning of Maryland law. The other vehicle was a 1963 Volkswagen Karmann Ghia owned by Wilbur Lemasters and Kathryn Lemasters, his wife, and driven by their son, John Jay Lemasters.

John’s wife, Linda Dale, was a passenger therein. A suit in tort was instituted in the Superior Court of Baltimore City, Docket 1970, folio 227, no. 121991, in which John and Linda claimed damages suffered by the negligence of Craddock and Wiley. Although the record before us does not expressly so show, in the light of the acts of the parties, certain assumptions may be fairly drawn. John and Linda thought that they were the innocent ²⁹⁹ victims of the negligence of Craddock and Wiley, who were financially irresponsible.

They believed that they were qualified persons, under the Unsatisfied Claim and Judgment Fund Law, 1 and that they had suffered injury to their persons and damage to their property under circumstances which entitled them to indemnification from the Unsatisfied Claim and Judgment Fund. Therefore, they gave notice to the Unsatisfied Claim and Judgment Fund Board of their intention to file a claim and supplied the necessary information. We can only conclude that the Board assigned the claim for investigation and defense to an insurer and that insurer selected an attorney to represent Craddock and an attorney to represent Wiley as financially irresponsible tort feasors and to defend the Fund. Code, Art. 661/2, §§ 150-179 (1967 Repl.

Vol.). See Allied American Co. v. Commissioner, 219 Md. 607 . The automobile driven by John was a vehicle named in a liability insurance contract issued by Liberty Mutual Insurance Company (Liberty) to Kathryn and Wilbur Lemasters for the period 20 August 1969 to 20 August 1970. John was covered by the contract as a permitted user of the vehicle.

The contract included a clause entitled “Protection Against Uninsured Motorists Coverage” which was subject to “Special State Provisions.” There was a special provision for Maryland. ³⁰⁰ On 3 October 1972 Craddock and Wiley filed a petition in the Superior Court of Baltimore City for declaratory judgment, naming as defendants, Wilbur Lemasters, John Jay Lemasters, Linda Dale Lemasters, the Unsatisfied Claim and Judgment Fund Board, and Liberty Mutual Insurance Company. It sought, and was granted by order of 3 October 1972, a stay of the tort suit until the declaratory judgment action was heard and determined. Ultimately two issues were presented by the declaratory action: I “Are John and Linda ‘qualified persons’ entitled to seek compensation under the Unsatisfied Claim and Judgment Fund Law?” II “Does the ‘uninsured motorist’ clause of the policy issued by Liberty Mutual Insurance Company on the automobile operated by John on December 5, 1969 extend coverage to John and Linda?” The declaratory judgment action was heard without a jury on 9 April 1974. The Court issued an order on 23 May which included a memorandum opinion.

It answered both issues in the affirmative, that is that John and Linda were “qualified persons” entitled to compensation under the Unsatisfied Claim and Judgment Fund Law and that the uninsured motorist clause of the Liberty policy was applicable to them. On 29 May 1974 judgment absolute was entered against Liberty for costs. Liberty appealed, claiming that the trial court erred in its ruling on issue II. Craddock and Wiley also appealed, claiming that the court erred in its ruling on issue I. I “ ‘Qualified person’ means a resident of this State or the owner of a motor vehicle registered in this State or a resident of another state, territory or federal district of the United States or province of the Dominion of Canada, or foreign country, in which recourse is afforded to residents of this State, of substantially similar character to that ³⁰¹ provided for by this subtitle. . . .” Code, Art. 66* A, § 150 (g) (1967 Repl.

Vol.); Art. 66V2, § 7-602 (g) (1970 Repl. Vol.); Art. 48A, § 243L (e) (1974 Cum. Supp.). It is agreed that under the factual posture of this case John and Linda are “qualified persons” only if they were residents of Maryland at the time of the accident. “Resident” within the contemplation of the Unsatisfied Claim and Judgment Fund Law is the equivalent of “domiciliary”.

Maddy v. Jones, 230 Md. 172, 179 . Thus, issue I is to be resolved upon a determination whether John and Linda were domiciled in Maryland on 5 December 1969. In the recent opinion of Bainum v. Kalen, 272 Md. 490, 497 , the Court of Appeals discussed the meaning of domicile and how domiciliary status is determined: “A person may have several places of abode or dwelling but ‘[h]e can have only one domicile at a time.’ Shenton v. Abbott, [ 178 Md. 526 ] at 530. A person’s domicile has been defined as the place ‘with which he has a settled connection for legal purposes’ and the ‘place where a man has his true, fixed, permanent home, habitation and principal establishment, without any present intention of removing therefrom, and to which place he has, whenever he is absent, the intention of returning.’ Shenton v. Abbott, supra, 178 Md. at 530 .

The controlling factor in determining a person’s domicile is his intent. One’s domicile, generally, is that place where he intends it to be. Harrison v. Harrison [ 117 Md. 607 ] at 614. Wagner v. Scurlock [ 166 Md. 284 ] at 292; Gallagher v. Bd. of Elections, [ 219 Md. 192 ] at 198.

However, the determination of intent is not dependent upon what one says at a particular time. As this Court has stated, intent regarding domicile ‘may be more satisfactorily shown by what is done than by what is said.’ Wagner v. Scurlock, supra, 166 Md. at 292 ; Harrison v. Harrison, supra, 117 Md. at 614 .” ³⁰² In Shenton the Court further clarified the concept of intention: “Of course, if a person has actually moved to a new abode, with the intention of remaining there for an indefinite time, and establishing it as a place of fixed present domicile, that place is deemed to be his domicile, notwithstanding he may entertain a floating intention to return to his former domicile at some future time.” 178 Md. at 532-533 . In earlier cases, the Court recognized that domicile could be established by showing that a person moved to a new home with a present intention of remaining there indefinitely or for an unlimited time. Shaeffer v. Gilbert, 73 Md. 66, 70 (“the place where one intends to reside permanently or for an indefinite or unlimited period of time. . .. ,”); Brafman v. Brafman, 144 Md. 413, 414 (“a residence at a particular place accompanied by positive or presumptive proof of the intention to remain there for an unlimited time. . . .”).

For recent reiterations of this concept see Smith v. Smith, 254 Md. 31 , 35 and Bainum, supra, at 498 . A person retains a domicile once established until he acquires a new one. Hall, Adm. v. Morris, 213 Md. 396, 404 . The first domicile a legitimate child acquires is a “domicile of origin” which is the domicile of the father at the time of the child’s birth. 1 J. Beale, Conflict of Laws § 14.1 (1935); Restatement (Second) of Conflicts § 14 (1971).

During minority, or until the minor becomes emancipated, the child’s domicile ordinarily remains that of his father. Sudler v. Sudler, 121 Md. 46, 50 ; Beale, supra, § 30.1; Restatement, supra, § 22. Once a person attains majority or is emancipated, he may establish a new domicile separate from his parents. Restatement, supra, § 22, comment f.

This new domicile, or any domicile subsequently acquired, is classified as a “domicile of choice.” Beale, supra, § 15.2. As the legal domicile of a wife is that of her husband, Rumbel v. Schueler, 236 Md. 25, 27 , 2 the question is where was John domiciled on the date of the accident. ³⁰³ As we have indicated, “It is a fundamental rule that, in order to effect a change of domicile, there must be an actual removal to another habitation, coupled with an intention of remaining there permanently or at least for an unlimited time.” Shenton, supra, at 530 . Therefore, assuming that an individual has the capacity to do so, 2a there are two requisites for a valid change of domicile, namely, an act and an intent. Harrison, supra, at 613 .

As shall be seen, the first requisite was satisfied by John and Linda actually moving to Baltimore. “The only question for consideration, therefore, is as to the intent of the parties.” Id. The determination of intention with regard to the acquisition of a domicile of choice is a question of fact, Beale, supra, § 15.1, Gallagher, supra, at 198 , depending upon the circumstances of each case. Shenton, supra, at 533 . Because the intention here is a question of fact, and because the trier of fact in the instant case was the trial judge, the “clearly erroneous” rule applies.

Maryland Rule 1086. Evidence adduced showed that John’s domicile of origin was Ohio. In 1965, however, his family established a permanent home in Pennsylvania. John entered Yale that year.

He was 18 years of age. It appears that he went to New Haven only for educational purposes and considered Pennsylvania his home. He returned home for summer vacation after his first and second years of college, but at the end of his third year remained at Yale because he was employed there. He returned home for Easter and Christmas vacations.

See Restatement, supra, § 18, comment f, example 13. A room was maintained for him in his parents’ home. His domicile remained that of his father. Beale, supra, § 22.8; 25 Am.Jur.2d, Domicil § 43; Bainum, supra, at 500 .

When John was graduated from Yale in 1969 significant changes took place. He was married to Linda and moved to Baltimore to enter the Johns Hopkins University School of Medicine. The question is ³⁰⁴ whether he abandoned his parents’ home and acquired a new domicile of choice in Maryland. John was 26 years of age at the time of the trial on 10 October 1973.

He then lived at 6509 Copper Ridge Road, Apartment 22, Baltimore, Maryland. He was to receive a medical degree in June 1974. He and Linda drove to Baltimore on 9 September 1969. His statement of what he intended at that time was clear.

They were going to set up housekeeping in Baltimore as a married couple and remain indefinitely. “[I]t was my intent and my wife’s intent that we were going to Maryland and we were going to set up a household there, and we were going to live there twelve months a year . . . indefinitely.” His intention was iterated on further examination. 3 “My intention was to come here and live, as I said, an indefinite period of time. My intention was to come here and set up a household to live with my wife as my family, to live here in Maryland. And I was to live here twelve months out of the year, and it would have been essentially indefinitely.” It was reiterated in answer to a question about the medical school: “My intention was to go through the program, a medical degree at Johns Hopkins, and also to live in Baltimore twelve months a year.” At that point he did not know whether he would eventually practice medicine in Maryland or Pennsylvania “or Chicago or anyplace. . . .” John’s intention in moving to Baltimore was corroborated in detail by Linda during the extensive examination of her. She said her personal intention was to make her home with her husband.

The move “was quite ³⁰⁵ permanent as far as we knew it.” She declared categorically in reply to a question whether she and her husband had an intention to return to Pennsylvania: “We had none whatsoever. None of us had any intention of returning to live there.” Asked later by the court why she was so positive about there being no intention to go back to Pennsylvania, she explained: “Certainly not to the vicinity of our parents. There was nothing for us: no major hospital in that area. We had no intention of going back.” The court persisted: “To live in the house with your parents?” She answered: “Or live in Pennsylvania.

There was never any discussion of that with either of us.” John spoke of the understanding of his parents with respect to the permanency of his move. It was understood “[t]hat I was out of the house. That I was living in Maryland, I mean, I was out of the house, if you would like that expression. I was no longer living at home, for all intents and purposes; when I came home I visited my parents at their home, and I would, you know, sleep in the guest bedroom with my wife.” The intention as expressed by John and Linda was substantiated by their actions.

When they moved to Baltimore they stopped by the home of John’s parents to pick up his belongings. 4 “I sort of cleaned out my bedroom at home and took the dresser and the chair and the desk, and some pictures off the wall, and my room became my sister’s room . . . [I]t was repainted and set up for my younger sister who had not had her own prior to this. She was in high school, and this permitted her to have her own room, and she was quite pleased.” Linda said of John’s former room: “That is now his sister’s room. The wallpaper, drapes have been changed, and everything. It is a girl’s room now.

John no longer has the room now.” When John and Linda moved to Baltimore in 1969 they lived in an apartment at 550 N. Broadway, executing a lease running for 10 months from 1 September 1969. At the expiration of that lease they executed another lease for 12 ³⁰⁶ months for a different apartment in the same apartment house. The following year they moved to 4400 Mannasota Manor and ultimately to 6509 Copper Ridge Drive. Shortly after they moved to Baltimore they opened a checking account at thé Maryland National Bank.

A bank statement as of 13 November 1969 showed their address to be 550 N. Broadway. A bill for delivery of the Sunpapers for the period September to October 1969 bore the same address, as did a residence telephone bill dated 5 October 1969. A United States income tax return for the year 1969 was filed by them in April 1970 designating 550 N. Broadway as their address. Maryland income tax returns were filed in 1971, 1972 and 1973.

The returns were filed under the address in Maryland at which they were then living. 5 They registered to vote in Maryland in the election of November 1970. He indicated that he had not registered to vote in any state prior to that. Voting registration records of the Board of Election Supervisors of Baltimore City pertaining to John and Linda were received in evidence. They showed that each registered to vote on 5 October 1970.

Their address was 550 N. Broadway. The judge below made the following factual determinations: “A review of the evidence reveals certain facts: John and Linda set up a home as husband and wife for the first time in Baltimore; they opened a bank account in Baltimore, paid taxes in Maryland, were extended credit in Baltimore, and registered to vote in Maryland (subsequent to December).” He elaborated on his finding of requisite intention in order to satisfy the demands of the Court of Appeals that “in order to establish a change of domicile, it must be shown not only that a new residence was acquired with the intention of remaining . there, but also an abandonment of the old ³⁰⁷ domicile so permanent as to exclude the existence of an intention to return to the former place.” Shenton, supra, at 534 . The trial judge explained: “Facts which indicate an intention not to return are their declarations that they had so abandoned Pennsylvania domiciliary status, the removal of all of John’s possessions from his parents’ home and the transportation of same to Baltimore via rented vehicle, the fact that John’s mother remodeled his room for John’s sister following his departure, and the statement by John and his mother that John and Linda are guests upon their return visits to his parents’ home. The Court finds, therefore, that there is sufficient evidence in the record to conclude that John and Linda did in fact possess both the intent to remain in Baltimore (animus manendi) and the permanent intention to abandon their old domicile (animus non revertendi) if, indeed, they ever had any domicile in Pennsylvania as man and wife.” We must determine whether the judge below was clearly wrong when he found that “[t]hese facts clearly demonstrate an intent to establish Baltimore as their new domicile.” In making this determination we view the evidence in a light most favorable to John and Linda as the prevailing parties below.

If there is substantial evidence to support the factual conclusions reached by the trial court, its judgments on the evidence were not clearly erroneous and we must accept them. Burroughs Int’l. Co. v. Datronics, 254 Md. 327, 337-338 . Craddock and Wiley do not dispute the lower court’s factual findings as to “animus non revertendi. ’’Indeed, in the light of John’s marriage and the removal of his possessions from his parents’ home, there was ample evidence to justify a finding of intent to abandon the Pennsylvania domicile.

They urge, however, that the lower court erred in finding that John and Linda were domiciled in Maryland, contending that “the trial court’s finding of intention is ³⁰⁸ based on unsupported findings of fact and on irrelevant and immaterial facts.” They assert that John and Linda first lived as husband and wife in Connecticut. Although this is true, their residence in that state was obviously a temporary one, as John planned to study medicine in Baltimore. There is legally sufficient evidence to support the trial judge’s finding that John and Linda set up their first home as husband and wife in Baltimore. 6 Craddock and Wiley argue that the only evidence of credit in the record is the apartment lease, the gas and electric, telephone and newspaper bills, and certain educational loans made by John. They contend that even if such items can be considered as credit in the broad sense, they ought not to be considered as relevant to the issue of intention to establish a permanent residence, because they are incidents of both permanent and temporary residence.

We think that all the items mentioned have rational probative value. Haile v. Dinnis, 184 Md. 144, 152 . The weight given to such evidence is for the trier of fact. Craddock and Wiley emphasize that John and Linda opened a checking account and not a bank account.

We believe that the deposit of funds in a Maryland bank whether it be for savings or checking purposes, is relevant and competent evidence on the question of intention to establish a domicile in this state. We believe that the registering of John and Linda to vote in Maryland has probative value. In Bainum, supra, at 498 , the Court of Appeals noted: “[T]he two most important elements in determining domicile are where a person actually lives and where he votes. In Harrison v. Harrison, supra, 117 Md. at 615 , our predecessors stated: ‘The presumption of the law is that where a person actually lives is his domicile, though this is a rebuttable presumption.’ As to the place of voting, this Court has termed it the ‘highest evidence of ³⁰⁹ domicile,’ Wagner v. Scurlock, supra, 166 Md. at 292 .” Craddock and Wiley argue that any evidence that John and Linda registered “subsequent to December” is irrelevant and immaterial as to the issue of intention as of the date of the accident.

They declare that post-accident acts are irrelevant and immaterial on the issue of domicile. The Court of Appeals, both in Maddy, supra, at 180-181 , and Walsh, Adm’r. v. Crouse, 232 Md. 386 , considered post accident acts in upholding the findings of the lower court. Even though such evidence sheds only “slight illumination” on the state of John and Linda’s intention on the date of the accident, Hawks v. Gottschall, 241 Md. 147, 152 , and even though registering to vote after the accident is not conclusive evidence of domicile, see Gallagher, supra, at 199 , we note that John registered for the first election held after his move to Baltimore (November of 1970), and that he “actually” lived in Baltimore on the date of the accident. With reference to the payment of income taxes, Craddock and Wiley point out that the only State income taxes for 1969 paid by John and Linda were the amounts withheld from their earnings and that such amounts would be withheld from any person working in the State regardless of domicile.

Code, Art. 81, § 312 (1969 Repl. Vol.). They emphasize that no return was filed for 1969. See n. 5, supra.

Maryland law required all persons domiciled in this state on the last day of the taxable year to file a state return. Art. 81, § 294 (a) and § 279 (i) (1969 Repl. Vol.). See Evans v. Comptroller, 273 Md. 172 .

We note that if John had considered himself a temporary resident because he lived in the state for only four months during 1969, he could have filed a return and demanded a refund of the amount withheld. Section 288 (a) of Art. 81 would impose a state income tax on John for 1969 if he were a “resident”. Section 279 (i) defines resident as one who was domiciled in this state on the last day of the taxable year or who maintained a place of abode within this state for more than six months. See Wood v. Tawes, 181 Md. 155, 160 .

As we have indicated, Craddock and Wiley do not ³¹⁰ challenge the trial court’s finding that John abandoned his family residence in Pennsylvania. 7 They argue, however, that John moved to Maryland solely for the purpose of his education. A similar contention was before the Court of Appeals in Bainum . Bainum argued that he was still domiciled in Maryland because his two year absence to pursue a course of study elsewhere should be viewed as temporary and not sufficient to establish a change of domicile. The Court, at 500, quoted earlier language from Shaeffer, supra, at 72: “We agree that mere residence at the college for the purpose of pursuing his studies would not, in itself, be sufficient to prove that he meant to abandon his original residence, or to prove that he meant to make his actual home . . . [elsewhere].

In the absence of other proof, the law would presume, he was there for the purpose of prosecuting his studies, and this purpose being accomplished, he intended to return to his former residence.” (emphasis added) The Court, however, found that “Bainum did much more than temporarily live in Michigan while pursuing his studies there.” Id. at 501. Noting that Bainum registered to vote in Michigan, obtained a Michigan driver’s license and registered his auto there, and considered Michigan his tax domicile, the Court found that he had established a domicile while studying there: “While a student does not effect a change in domicile merely by living away from home while pursuing his studies, nevertheless a student may abandon his former domicile and establish a new domicile where he attends school. When a student engages in conduct such as Stewart Bainum did ³¹¹ here, he will be deemed to have abandoned one domicile and established another.” Id. 8 Here, there was more than “mere residence” in Baltimore for the purpose of attending medical school. There are John’s abandonment of his Pennsylvania domicile and his declarations and conduct which tend to show an intention to establish a domicile in Maryland. 9 Although John was in Baltimore for only three months before the accident, his actions indicated a domiciliary intent.

As the Court of Appeals emphasized in Harrison, supra, at 616: “No certain or definite duration of residence is requisite under the law to accomplish the acquisition of a new domicile. What is required, and all that is required, is that there shall be a clear definite intent and an act done in execution of that intent.” The change of residence was the necessary act,