Rodda v. Nationwide Mutual Insurance

Hammond, J., delivered the opinion of the Court. The appellants, holders of a judgment against an insured motorist, sought unsuccessfully below to establish that the appellee, Nationwide Mutual Insurance Company (Nationwide), had a liability up to $30,000 under a policy which the company said had a maximum limit of $20,000. The appellant, Rita Lucille Rodda, had suffered personal injuries while riding in a 19S0 Dodge automobile owned by Malcolm V. Burton (Malcolm) and driven by his son Bobb Burton (Bobb) with his father’s ⁴⁰ permission. She and her mother recovered judgment for $37,812.00 against Bobb and the driver of the other car, one Stallings, whose insurance carrier paid $10,000 on account of the judgment.

Nationwide paid the $20,000 it said it owed, without prejudice to appellants’ right to sue for the $7,812.00 remaining unpaid on the judgment, as they did below. In 1953 Nationwide issued its standard automobile liability policy, No. 52R-144-484 (the policy) to Malcolm covering the 1950 Dodge automobile and providing maximum limits of $20,000 for each person injured in one accident. The policy contained the usual omnibus clause extending the coverage of the policy to any person who was using the described automobile with the permission of the named insured. In 1954 Bobb, a minor, wished to obtain a motor vehicle operator’s license.

To do so, it was necessary for him to file proof of continuing financial responsibility with the Department of Motor Vehicles by reason of the requirements of Code (1951), Art. 66½, Sec. 92, as amended by Ch. 75 of the Laws of 1954 (Sec. 93 in the Code of 1957). Nationwide furnished this, for a premium, in the form of an endorsement numbered 359 (the endorsement), which named Bobb and which by its terms was “Attached to and forming part of Policy No. 52R-144-484,” and a JR-11 form to be filed with the Commissioner of Motor Vehicles certifying that the requisite statutory insurance was in force. The endorsement was headed “Statutory Coverage for Named Minors (Maryland)” and recited it had been agreed “that such insurance as is afforded by the policy for Bodily Injury Liability * * * applies to the operation of any automobile by the minor named below * * * ” in accordance with the statutory requirements, subject to specified provisions, including: “2. The insurance afforded by this endorsement shall be excess over any other valid and collectible insurance available to the minor named below either as an insured under a policy applicable with respect to the automobile or otherwise. “5.

The limits of bodily injury liability for the in ⁴¹ surance afforded by this endorsement are: $10,000 each person $20,000 each accident The limit of property damage liability for the insurance afforded by this endorsement is: $5,000 each accident The above limits of liability are included in and are not in addition to any limits of liability stated elsewhere in the policy. If the limits of liability stated in the policy are in excess of the above stated limits, such insurance as is afforded by the policy with respect to such additional limits applies exclusive of the application of this endorsement.” Nationwide paid $20,000 on account of the judgment against Bobb after it and appellant had, in writing, agreed that the rights of appellant to sue for and recover the $7,812.00 remaining unpaid would be left open. Appellants then sued Nationwide. The suit was decided on the declaration, the policy and the endorsement (filed by Nationwide in response to the appellants’ demand), and Nationwide’s demurrer, which Judge Harlan sustained without leave to amend.

Appellants argue that there were two separate policies and the limit under each must be paid, that provision two of the endorsement stating that the insurance thereby afforded shall be excess over “any other valid and collectible insurance available to the minor * * * under a policy * * * or otherwise” (emphasis supplied) makes