Neubert v. Maryland Automobile Insurance Fund

O’Donnell, J., delivered the opinion of the Court. We are here again confronted with determining whether a motorist, Jeri A. Neubert, the appellant, used “all. reasonable efforts” to ascertain the identity of the owner and operator of a motor vehicle which allegedly caused her ⁴⁴⁷ to run off a public street and collide with a utility pole with resultant substantial bodily injuries and property damage. The appellee, Maryland Automobile Insurance Fund, the legal successor to the Unsatisfied Claim and Judgment Fund Board, “standing in the shoes” of the unidentified motorist alleged to have caused the harm, contended that all such “reasonable efforts” had not been pursued by Miss Neubert and prevailed in a hearing in the Circuit Court for Baltimore County (before Proctor, J.) upon Miss Neubert’s petition to sue the Fund. Aggrieved at that result she urges a reversal.

Miss Neubert testified that at approximately 1 a.m. on April 9, 1973 she left her sister’s apartment in Towson, where she had spent the evening, to return to her home located on Southway in Baltimore City; as she drove her Datsun automobile southward, in the lane adjacent to the center line of the York Road, at about 2:45 a.m. and as she was at “about 42nd Street” 1 she noticed a northbound vehicle described by her only as “a large white car” close to the center line and “coming toward her at an angle.” 2 Travelling then at about 30 m.p.h. she accelerated to avoid the oncoming vehicle, pulled her steering wheel to the right and struck the pole. Although she had moments of unconsciousness as a result of her injuries, Miss Neubert, in her testimony, acknowledged that she had told an unidentified police sergeant who had come upon the scene immediately following the collision that “someone else was driving” when inquiry was made by him as to whether anyone else accompanied her. She classified this statement as “ridiculous” since she alone was driving the car and “had the steering wheel wrapped around her arm.” The appellant acknowledged that when interviewed at the Union Memorial Hospital where she was attended for her injuries she made no statement to the investigating police officer with regard to any other vehicle being involved in the incident. ⁴⁴⁸ When asked during her testimony what she had personally done to locate the unidentified owner or operator of the “large white car” Miss Neubert replied: “I didn’t make any efforts, the only thing I know an ad was put in the paper for a week if anyone had seen the accident.” Placed in evidence in the hearing was a copy of an advertisement prepared by the appellant’s attorney which was published on the back page of the Baltimore “Morning Sun” on both May 15 and 19,1973, and which read: “Anyone witnessing an accident which occurred on Monday, 4/9/’73 at 2 A.M. at York Rd. & 39th St. involving a ’72 Datsun license LY 5510 and a large car please call....” The advertisement listed the name and telephone number of her former attorney. Officer Wielechowski of the Baltimore City Police Department, who was summoned by his sergeant to take over the investigation, testified that he arrived at the scene at 2:50 a.m. and pinpointed the place of the collision as “in front of the premises known as 4324 York Road.” 3 When he arrived Miss Neubert was being removed from her vehicle by an ambulance crew; there were several persons on the scene who had stopped to render her aid, but none of those persons present had actually witnessed the accident.

The officer interviewed Miss Neubert in the examination room at the Union Memorial Hospital where she was being treated for her injuries about an hour or an hour and one-half later. He testified that she was extremely emotional, stated that she was “very tired” and “did not know how the accident occurred”; she made no statement to him then — or later — with regard to any other vehicle being involved in the incident. Since the police were never notified of the existence of any other vehicle having been involved in the accident, or having caused it, no investigation was carried on by them to ⁴⁴⁹ ascertain the identity of the motorist who purportedly precipitated Miss Neubert’s plight. Upon the hearing of the petition to sue the sole evidence thus submitted in the trial court as to whether “reasonable efforts” had been taken by the appellant was the published advertisement.

Since the appellant’s claim arose after January 1, 1973, her petition to sue came within the provisions of Maryland Code (1957, 1972 Repl. Vol., 1974 Cum. Supp.) Art. 48A, § 243H, which provides in pertinent part that a claim such as Miss Neubert’s may be made against the Fund “where the identity of the motor vehicle and the operator and owner thereof cannot be ascertained.” Art. 48A, § 243H (a) (l). 4 The remedy, however, is subject to certain statutory conditions, the one here involved providing that: “All reasonable efforts have been made to ascertain the identity of the motor vehicle and of the owner and operator thereof and either the identity of the motor vehicle and the owner and operator thereof cannot be established, or the identity of the operator who was operating the motor vehicle without the owner’s consent cannot be established.” Art. 48A, § 243H (a)(l)(iv). A number of our prior decisions have considered the requirement of “all reasonable efforts” in cases involving the Unsatisfied Claim and Judgment Fund Board under the provisions of Code (1957, 1970 Repl.

Vol.) Art. 66V2, § 7-620 (5), and its predecessor, Art. 66V2, § 167 (f). 5 Since the intent, as well as the language in the three statutes are, as to the conditions precedent, identical, we find them controlling. In Hickman v. Unsatisfied Claim and Judgment Fund Board, 255 Md. 267 , 257 A. 2d 426 (1969), Hickman testified that in his conversation with the investigating police officer ⁴⁵⁰ he made no reference to another car being involved in the accident and his counsel, having obtained the police report, which was void of information regarding the identity of the other vehicle, believing that any investigative efforts would have been fruitless, did not pursue the matter further, other than to accept Hickman’s version that an unidentified vehicle had forced him to run off the road. After pointing out that “it would have been most natural for him to have immediately vented his resentment at one who had injured him,” in discussing the case with the police officer, Chief Judge Hammond, for the Court, stated: “It [(the statute)] does not permit the injured person to be the judge of the need to investigate or of the probability of success. The statute does not grant the right to sue in a ‘hit and run’ case to one who, when faced with the need to seek the facts, becomes fainthearted or completely indolent.

At the least, it cannot be assumed that if the investigating officer had been told of the other car at the time of the accident or later, relevant information would not have resulted. Admittedly here the appellant made no identifying effort and we cannot equate ‘no’ with ‘all reasonable.’ ” (Emphasis supplied.) 255 Md. at 270 , 257 A. 2d at 428 . In Grady v. Unsat. C. & J. Fund Bd., 259 Md. 501 , 270 A. 2d 482 (1970), Grady was a passenger in an automobile which allegedly was forced off the road by an oncoming “phantom motor vehicle.” A State Policeman summoned to the scene there conducted an investigation to ascertain the identity of any witnesses.

None of those questioned at the scene could supply the trooper with any information and his report so stated. Grady contended that since the State Trooper had made “reasonable efforts” in his investigation, which were unsuccessful, to require him to do anything after a nonproductive police investigation would be a “subservience to technicality.” In finding that Grady had made no “reasonable efforts” to ⁴⁵¹ identify the “phantom motorist,” Judge Finan, for the Court, stated: “In our opinion, to allow Grady to equate ‘reasonable efforts,’ as required by the statute, with a pro forma negative police report about which he had made no inquiry and with which he was unfamiliar until the day of the hearing some three months after the accident, would be playing fast and loose with the intent of the statute.” 259 Md. at 505-06 , 270 A. 2d at 484 . After pointing out from Grady’s testimony that he had “never talked to any police officer about this accident,” and citing the holdings in Hickman, supra, he continued for the Court: “ ‘Reasonable efforts’ will differ according to the facts and circumstances of each case, and it is not a term which is easily defined or delineated. Whether it would have been reasonable under the circumstances of this case to require the appellant to place an advertisement in a newspaper in an effort to locate potential witnesses or to personally interview the residents of the homes in the area need not be decided here. [Footnote omitted.] At the very least, reasonable efforts in the case at bar would require the appellant to communicate with the State Police to determine whether or not they had even conducted any investigation, and that was not done.

In view of the fact that the appellant failed to take even this initial step, we need not decide whether he should have gone further. As in Hickman , we are not prepared to accept a total absence of any action by the claimant as ‘reasonable efforts.’ ” 259 Md. at 506-07 , 270 A. 2d at 485 . We decided, however, in Jones v. Unsat. C. & J. Fund Bd., 261 Md. 62 , 273 A. 2d 418 (1971), that the petitioner had complied with the statutory requirement of making “all reasonable efforts” and was entitled to sue the Board.

In Jones the driver of a blue Oldsmobile Cutlass ran over him on Independence Day while he was taking an afternoon nap ⁴⁵² on the grass, about 15-20 feet off the roadway in Druid Hill Park. Although the driver took him to a hospital for emergency treatment he disappeared without identifying himself or furnishing any information to the hospital authorities. Jones reported the incident to the police “sometime between one and three days after the accident,” and attributed his inaction to his “great pain.” His attorney interviewed hospital personnel, checked the hospital records and then caused to be published in the Afro-American newspaper two advertisements seeking the identity of anyone who “saw [a] car hit man on grass in Druid Hill Park July 4, 1969.” Judge Digges, who wrote the opinion for the Court, after quoting with approval from Annot., Uninsured Motorist Fund — Recovery 7 A.L.R.3d 851 , 854 (1966), as an “accurate estimate of the presently articulated case law” and after observing that in Grady, supra, “it was suggested that newspaper advertisements or a door to door canvass of the few homes in the immediate vicinity of the accident would have constituted at least some phase of a reasonable investigation,” stated: “The [police] report that was taken offered no help at all, except to make it clear that it would be unreasonable to expect the police to assist in a metropolitan-wide hunt for a blue Oldsmobile Cutlass. Jones’ most logical and promising point of inquiry was to find a witness either at the hospital or among the members of the black community who frequented Druid Hill Park.

His attorney, who was contacted promptly, went to work on these clues immediately, inquiring at the hospital and placing two ads in the black community newspaper. Compare, Serkes v. Parsekian, supra, 179 A. 2d at 786-87.” 261 Md. at 77 , 273 A. 2d at 426 . Concluding that “both the appellant and his attorney may well have been convinced of the improbability of success, but in spite of this they have made, in our opinion, ‘all reasonable efforts’ to- find a needle in a haystack,” Judge ⁴⁵³ Digges for the Court, set forth a test of “reasonableness” in such cases when he said: “We think it fair to say that, at a minimum, vigorous good faith efforts are required to identify the tortfeasor, the same efforts one would expect an injured party to exert if he knew there would be no recovery unless he actually located the driver. In ruling on investigative efforts the trial judge must exercise discriminating judgment, giving due regard to such variable and interrelated factors as credibility, practicality, the law of diminishing returns, a sensible balancing of the anticipated amount of recovery against the