Oroian v. Allstate Insurance

ADKINS, Judge. When John Haring died on April 25, 1982, he was the named insured under an “Allstate Automobile Policy” issued by appellee, Allstate Insurance Company. He was also the owner of a pickup truck listed as an “insured automobile” in that policy. On June 28, 1982, his sister, Nancy Haring, was named personal representative of his estate.

A month later appellant Leonard Oroian, while driving the truck for his own purposes, was involved in an accident in which appellant Louise Breininger and Cathie Perrigon (not an appellant) were injured. Perrigon, it seems, filed a tort action against Oroian, Haring’s estate, Nancy Haring, and Breininger. Apparently, the bases of this suit were that Oroian was negligent, John Haring’s estate was liable because Oroian was operating the truck as an agent of the estate, and Nancy Haring negligently entrusted the vehicle to Oroian and permitted him to operate it in violation of the motor vehicle laws. 1 Allstate refused to defend or provide any coverage for Oroian. ⁶⁵⁷ Allstate then brought a declaratory judgment action in the Circuit Court for Prince George’s County. It named as defendants appellants Oroian, Maryland Automobile Insurance Fund (Perrigon’s uninsured motorist carrier), and Breininger, as well as Nancy Haring (not an appellant), individually and as personal representative of Haring’s estate, and Perrigon.

The insurer sought a declaration that “Allstate Insurance Company ... has no duty to defend or provide any coverage for Leonard Ordian [sic ] and Nancy Haring....” Oroian answered and requested a “decree declaring that [Allstate] afford coverage and a defense to him in regard to subject accident.” He also asked for attorney’s fees and expenses in both the tort action and the declaratory judgment case. MAIF answered and requested “a decree declaring that [Allstate] afford coverage and a defense to defendant Oroian in regard to subject accident.” MAIF also filed a counterclaim for attorney’s fees and other expenses “for the reason that [Allstate] ... has failed and refused to afford ... Oroian ... coverage and a defense for claims arising from said accident____” The other defendants, in their answers, simply prayed for “a declaration of the rights and duties of all parties herein.” In due course the declaratory judgment came in for hearing before Judge Albert T. Blackwell, Jr. On June 25, 1984, after an evidentiary hearing, he declared “that ... Allstate Insurance Company has no duty to defend or provide coverage to Leonard Oroian for the July 28, 1982 accident involving Cathie Perrigon and Louise Breininger____” On September 10, 1984, he entered a “Final Order” which supplemented the June declaration by stating “that the duty of plaintiff ALLSTATE INSURANCE COMPANY in regard to the duty to defend or provide coverage to NANCY HARING, individually and as the Personal ⁶⁵⁸ Representative of the Estate of JOHN HARING has not been addressed.” 2 From that order, appellants have appealed.

They ask whether the court erred 1. in admitting a computer printout as evidence of John Haring’s status as named insured? 2. in declaring that Oroian’s operation of the pickup truck was not covered by the Allstate Policy? and 3. in declining to address the issue of Nancy Haring’s coverage. We shall affirm. Computer Printout At trial Allstate introduced into evidence a computer printout. This was the only evidence that John Haring was the “named insured” under the subject insurance policy.

His status as “named insured,” as we shall see, was important to the issue of Oroian’s coverage. Appellants now question whether that document “unsigned, unverified, unauthenticated, satisfactorily establishes John Haring as the sole named insured?” Allstate responds that the printout was properly admitted as a business record (Md.Cts. & Jud.Proc. Art. § 10-101 (1984)) through the testimony of its witness, claims adjuster Linda Burnett. We need not decide these contentions.

Appellants, in their brief, have cited no authority for their position. We deem it waived. See Larmore v. Larmore, 241 Md. 586, 589-90 , 217 A.2d 338 (1966); Jacober v. High Hill Realty, Inc., 22 Md.App. 115, 125 , 321 A.2d 838 , cert. denied, 272 Md. 743 (1974). Haring’s status as named insured was virtually conceded by appellants’ answers to Allstate’s demand for admissions of fact. ⁶⁵⁹ Oroian’s Coverage Absent a policy provision extending coverage, an automobile liability policy lapses on the death of the named insured. 9 R. Anderson, Couch Cyclopedia of Insurance Law § 39.243 (2d ed. 1962); 7 Am.Jur.2d Automobile Insurance § 12 (1980).

The Allstate policy now before us contains such a provision. General Condition 7 informs us ... if the named insured, or his spouse as a resident of the same household, shall die, this policy shall cover: (a) the survivor as named insured; (b) his legal representative as named insured but only while acting within the scope of his duties as such; and (c) with respect to an owned automobile, any person having proper temporary custody as insured, until the appointment and qualification of such legal representative. We need only consider the effect of paragraph (b). Paragraph (a) clearly applies to the “survivor” of the named insured (John Haring) and his spouse; the record discloses no surviving spouse.

Paragraph (c) is inapplicable because the accident in question occurred after Nancy Haring’s appointment and qualification as personal representative of John’s estate. Federated Mutual Implement and Hardware Ins. Co. v. Eng, 178 N.W.2d 321, 323 (Iowa 1970). Nancy Haring, then, was the named insured if the use of the truck on the night of the accident was the result of her “acting within the scope of her duties” as personal representative.

Only if she were the named insured, could Oroian have been covered by the policy. The facts bearing on this question are reasonably straightforward, although not altogether undisputed. Oroian was a close friend of the Haring family. He was among the first to find John Haring dead.

Just before John’s sudden demise he had been “rototillering a garden” for his sister, Nancy. The rototiller, the property of Ray Harbaugh, had been transported in John’s pickup truck. After John’s death, Oroian placed the rototiller in the truck and ⁶⁶⁰ drove to Harbaugh’s home. There the truck remained for several weeks, when Oroian retrieved it.

Nancy knew the whereabouts of the truck and knew Oroian had taken possession of it. Oroian testified she imposed no restrictions on his use of the vehicle. Nancy said she had never given him permission to use the truck. There was evidence, however, that Nancy acquiesced in Oroian’s possession of the truck for the purpose of keeping it in proper shape until it was appraised for estate purposes.

There was evidence that Nancy was willing to sell Oroian the truck after that had been accomplished, although Nancy’s brother, Skip, wanted to give the truck to Oroian. In any event, it was clear, as Oroian himself said, that on the night of the accident he was not using the vehicle for any estate-related purpose, but rather for his “own purposes.” Appellants argue that the critical question on the issue of coverage for Oroian is whether Oroian had permission to use the truck at the time of the accident. Judge Blackwell saw it otherwise. He found “a dispute as to the question of whether Oroian had permission to operate the truck.” He found “an agreement between [Oroian and Nancy] that Oroian would have possession of the truck, but that there was no agreement concerning its use.” But he concluded that the issue of permissive use was not critical: This court[,] however[,] does not have to resolve the issue of permissive use of the truck..., for even assuming Oroian had permission to use the truck, he does not fall within the second requirement, that he be acting within the scope of the duties of the personal representative.

We agree with Judge Blackwell’s conclusion. By the terms of Allstate’s policy, it was required to “pay for an insured all damages which the insured shall be ■legally obligated to pay because of ... bodily injury sustained by any person, and ... injury to or destruction of property, arising out of the ownership, maintenance or use ... of the owned automobile.... ” Persons insured include “[t]he named insured with respect to the owned automobile” ⁶⁶¹ and “[a]ny other person, with respect to the owned automobile, provided the use thereof is with the permission of the named insured and within the scope of such permission .... ” Because of John Haring’s death, and by virtue of General Condition 7(b), his personal representative, Nancy Haring, was the named insured at the time of the accident, but only “while acting within the scope of [her] duties as such----” If, therefore, Oroian’s use of the vehicle at the time of the accident was not within the scope of Nancy’s duties as personal representative, she was not then the named insured and, as Judge Blackwell ruled the question of permissive use was unnecessary to decide. Under that hypothesis, there could be no named insured and hence no use of the truck by or with permission of a named insured. Maryland law defines the scope of a personal representative’s duties.

The personal representative is a fiduciary who “is under a general duty to settle and distribute the estate of the decedent ... as expeditiously and with as little sacrifice of value as is reasonable under the circumstances.” Md.Est. & Trust Art. § 7-101(a) (1974). Pursuant to the general duty, the personal representative must “... take possession or control of the estate of the decedent...” (§ 7-102), “... prepare and file an inventory of property owned by the decedent at the time of his death...” (§ 7-201), cause the property to be appraised (§ 7-202), and file accounts (§§ 7-301-307). The personal representative also possesses the powers listed in § 7-401. Neither any § 7-401 power nor any other statutory authority conferred on a personal representative permits her to use an estate-owned vehicle for personal, non estate-related purposes. 3 Nor do these provisions authorize a personal representative to permit another to use estate proper ⁶⁶² ty for such purposes.

It may have been proper, and within the scope of Nancy Haring’s duties as personal representative, to give Oroian custody of the truck in order to keep it in good shape pending appraisal. That, however, is a far cry from giving Oroian permission to use the pickup for his own purposes. It will be recalled that at the time of the accident Oroian, by his own admission, was using the truck on a purely personal venture. His visit to a bar that night had no conceivable connection with administration of John Haring’s estate.

Judge Blackwell so found, and his finding was amply supported by the evidence. On the basis of this he declared that Oroian was not covered by the Allstate Policy at the time of the July 28, 1982, accident. We hold that he did not err. Although we have found no reported Maryland case that addresses this question, two out-of-state decisions are instructive.

The first is Federated Mutual Implement Hardware and Ins. Co. v. Eng, supra. Before the Supreme Court of Iowa in that case was an insurance policy provision identical to Allstate’s General Condition 7(b). The facts were that a collision occurred when the deceased-named insured’s executor was operating a vehicle the deceased had owned.

The trial court found that the executor had been driving the car on estate business (“while acting within the scope of his duties as” executor) and declared that there was coverage. The Supreme Court of Iowa affirmed. Id. at 324-25. That case, of course, is the converse of this one where the vehicle was not being operated on estate business.

Eng, therefore, stands for the proposition that there is coverage under a 7(b)-type provision when an accident occurs while the vehicle is used for estate purposes. The other side of the coin is illustrated by Litz v. State Farm Mutual Automobile Ins. Co., 58 Tenn.App. 585 , 435 S.W.2d 124 .(1968), cert. denied (1968). State Farm’s policy in that case was, again, identical to Allstate’s General ⁶⁶³ Condition 7(b) in this case.

The facts were that the decedent’s administratrix and her husband (the driver of the car) were on a personal junket when the accident occurred. Holding that no coverage existed, the Tennessee intermediate appellate court reasoned: “Liability ... is excluded because the undisputed evidence