Shafer v. Interstate Automobile Insurance

DAVIS, J. The Circuit Court for Washington County (Beachley, J., presiding) granted summary judgment in favor of Interstate Automobile Insurance Company, and Nationwide Insurance Company, “Interstate” and “Nationwide,” respectively, and entered judgment against Dana Shafer, appellant, on March 16, 2005. Appellant filed this appeal, where she presents one question: Did the circuit court err in granting appellees’ motions for summary judgment, concluding that the uninsured motorist portions of their respective insurance policies did not provide coverage to appellant for this accident scenario? We answer in the negative. Accordingly, we shall affirm the judgment of the lower court.

FACTUAL BACKGROUND This appeal arises from appellant filing a complaint, in April of 2004, seeking $100,000, under claims of uninsured motorist coverage of two automobile insurance policies. Appellant was injured while a passenger on a motorcycle owned and operated by Clarence Koontz. Appellant alleged in her complaint that the accident occurred “[o]n or about September 8, 2001, ... when the rear tire of the motorcycle struck a piece of metal on the road, and the tire blew out causing the motorcycle to go out of control and injure [appellant].” Appellant sustained serious injuries that required medical treatment. After the accident, the piece of metal that was discovered to be imbedded in the tire was analyzed and confirmed to be a “piece of automobile sheet metal that had corroded and fallen off a vehicle onto the roadway.” At the time of the accident, Interstate was the uninsured motorist coverage carrier for Koontz and Nationwide was the uninsured motorist coverage carrier for appellant.

Appellant contended she was entitled to recover insurance coverage payments from Interstate and Nationwide because the accident and her subsequent injuries were a “direct and proximate result of the unidentified operator/owner’s negligence,” and ³⁶¹ “without any negligence on her part.” Appellant also filed a Motion for Partial Summary Judgment, seeking judgment as to liability only, against Interstate 1 and Nationwide 2 under their respective uninsured motorist policies. ³⁶² Counsel for Interstate and Nationwide deposed appellant and her expert witness, R. Scott Wills, an accident reconstruction consultant. Appellant testified about her recollection of the incident: [Interstate’s counsel]: Were you passing any vehicle at the time the accident occurred? [Appellant]: No. [Interstate’s counsel]: Okay. Was there any vehicle to your right? [Appellant]: There was a tractor trailer, a tanker. [Interstate’s counsel]: And how long had he or that tractor trailer been to your right? [Appellant]: Well, probably five or ten minutes. [Interstate’s counsel]: At the place in the roadway where the accident occurred, how would you describe the slope of the roadway, is it going uphill, downhill, level? [Appellant]: No, it’s a flat [level slope]. [Interstate’s counsel]: Were there any vehicles before you? [Appellant]: There was nobody in front of us. [Interstate’s counsel]: Were you aware of any other vehicles about you other than this tractor trailer to the right? [Appellant]: There was [sic] vehicles behind us, tractor trailer to the right, there were a couple vehicles in front of the tractor trailer.... [Interstate’s counsel]: ... My understanding that the truck realizing that you were in some distress began to slow ³⁶³ down so your bike could move in front of the truck and I guess eventually off the right side of the roadway? [Appellant]: Yes. [Interstate’s counsel]: And then you said the back tire locked up? [Appellant]: Yes. [Interstate’s counsel]: ...

The tire which was going flat was the rear tire to the bike? [Appellant]: Yes. [Interstate’s counsel]: Okay. And did there come a point in time when the tire began to disintegrate? [Appellant]: I don’t — I don’t know. [Interstate’s counsel]: Okay. Well, let me ask you this. You said the back tire locked up.

What do you mean by that? [Appellant]: As he was slowing down to come across in front of the tractor trailer to get off to the shoulder of the road, it just came to like a stop, I guess like a sudden jerk or something, I don’t want to say, which throwed [sic] him and then the bike just continued to go with me on it for a short distance, I’m assuming, because then I got thrown from it.... [Interstate’s counsel]: Okay. Are you aware of any facts whatsoever to suggest that Clarence Koontz was in any way responsible for causing this accident? [Appellant]: Oh, he wasn’t — you know, there was no alcohol involved or anything of that nature. [Interstate’s counsel]: What about just the way he was operating his vehicle, do you have any reason to believe that the way he operated his vehicle in any was caused or contributed to the accident? [Appellant]: No.... [Interstate’s counsel]: ... As you were traveling down the roadway that day, were you able to see in front of the bike? [Appellant]: Yes, yes. ³⁶⁴ [Interstate’s counsel]: ... And you said that there were other cars that were traveling in front of you, right? [Appellant]: Right. [Interstate’s counsel]: And you said the traffic was very heavy that day? [Appellant]: Yes. [Interstate’s counsel]: You didn’t see any vehicle on the roadway swerving in front of you, did you? [Appellant]: Oh, just — not swerving like they had been drinking or anything, but you know, passing and— [Interstate’s counsel]: Okay.

As you looked up the roadway of that day, did you see anything in the — any type of object which was actually in the roadway before the motorcycle? [Appellant]: No. [Interstate’s counsel]: ... And you didn’t see any vehicles in front of the bike swerving to any — to avoid any object which was in the roadway, correct? [Appellant]: Oh, no. [Interstate’s counsel]: ... Did Mr. Koontz ever tell you that he saw any object in the roadway that day? [Appellant]: No.... [Interstate’s counsel]: In your answers to interrogatories, you state that an automobile operator or owner permitted his or her vehicle to rust and pieces fell onto the roadway? [Appellant]: That’s what we were told. [Interstate’s counsel]: Told by whom? [Appellant]: Told by the man that analyzed the tire. The pictures that you have here in this, that these two wheels checked out with the tire and everything, that is was [sic] his discovery was.

That’s what we were told. [Interstate’s counsel]: Okay. So as to facts to support your contention that some piece of rust fell from a vehicle onto the roadway somehow caused or contributed to the acci ³⁶⁵ dent, those facts would be those which were provided by Mr. Wills, correct? [Appellant]: Yes. [Interstate’s counsel]: Okay. You, yourself, do you have any personal knowledge of any facts that this accident was somehow caused by rust falling from a vehicle? [Appellant]: Only what I seen [sic] the metal that was in the tire and then being told by Mr. Wills who’s an expert---- During Wills’ deposition, he explained his examination procedures and his ultimate findings: [Nationwide’s counsel]: ... Please continue on with generally and in summary fashion ... what your investigation revealed. [Wills]: Well, I examined the tire that I was provided with, identified the tire, the make, model of the tire.

I found-after examination of the tire I found a piece of metal in the tire, stuck, protruding through the outer portion of the tire into the inner area of the tire. It actually cut the inner liner of the tire and protruded through it. I removed that piece of metal from the tire and forwarded that to Mateo for analysis.... [Nationwide’s counsel]: Before you examined the tire, did anybody express to you that there was a piece of metal in the tire? I mean did you know that beforehand— [Wills]: Yes. [Nationwide’s counsel]: — or did you just find it? [Wills]: No. When I picked the tire up from [appellant’s counsel’s] office I was told it is a motorcycle tire and there is a piece of metal stuck in the motorcycle tire. [Nationwide’s counsel]: ...

When you did your examination of the tire, what did your examination consist of? How did you do it? [Wills]: Just really a visual examination looking at the overall tire and really concentrating on the piece of metal and photographing the tire before the piece of metal was removed. The question that was posed to me was wheth ³⁶⁶ er the piece of metal was automotive related or other type of material.... [Nationwide’s counsel]: And as far as your examination of the tire, did you find any other indications of defects in the tire? [Wills]: No. There were some surface abrasions, some abrasions near the bead area that would typically result when a tire separates from the wheel when it’s rotating. But other than that, there were no other defects noted in the tire. [Nationwide’s counsel]: Was it your conclusion that the piece of metal that you found in the tire was the reason— the cause for the tire going flat? [Wills]: Yes.

As I said, it protruded the inner bladder that actually retains the air within the tire. And once the inner bladder has been protruded, such as this was, the air can escape and apparently did escape. [Nationwide’s counsel]: But it wasn’t a blowout though? ... [Wills]: Well, according to the information — again, I wasn’t there, but the information I received from [Koontz] and [Appellant], it was not a blowout. It was a rapid leak, if you would, but it wasn’t a blowout per se, no. [Nationwide’s counsel]: As far as the general condition, what was that? [Wills]: It was in good condition overall.... [Interstate’s counsel]: Do you have an opinion as to how the metal came into the roadway? [Wills]: I have no idea how the metal came into the road, sir. All I know is it was in the road.

Other than what I have already stated, of course, that it apparently fell off of something. I mean other than that, I don’t know how it came in the road. [Interstate’s counsel]: You don’t have an independent basis of determining, other than the Mateo analysis, of determining where the metal came from or how it came off of something or even if it came off of something? ³⁶⁷ [Wills]: Well, it had to come off of something. I mean it is something. It appears to be something of a larger something, if you would.

So it clearly came from something. But as to how it arrived there, no, I don’t really know, but based upon the fact that it is part of a larger being, I would say it came from that larger being onto the roadway. Interstate moved for summary judgment on January 5, 2005. Nationwide joined Interstate’s motion for summary judgment on January 18, 2005, adopting Interstate’s supporting memorandum.

Interstate and Nationwide argued: Although [Appellant] contends that this piece of metal “fell off a vehicle” and further contends that the owner or operator of the vehicle breached a duty of care to prevent such from happening, [Appellant] has failed to present any testimony whatever that an unidentified motor vehicle caused the piece of metal to come into the highway and that the owner or operator of this vehicle breached a duty of care of inspecting or maintaining the vehicle. Lacking any such evidence, [Appellant] is unable to make a prima facie case that this accident was caused by the negligence of an unidentified motor vehicle. Interstate and Nationwide posit that, because appellant presented no genuine dispute as to a material fact, the insurers were entitled to judgment as a matter of law under Rule 2-501. The court, after hearing oral argument, issued its ruling on March 16, 2005: The duty of an owner or operator of a motor vehicle is to use reasonable care to ensure that it is in reasonably good condition and properly equipped so as to prevent injuries to others using the highway.

Sothoron v. West, 180 Md. 539, 542 [ 26 A.2d 16 ] (1942). In Blashfield Automobile Law and Practice, the duty is succinctly articulated: The owner or driver of a motor vehicle owes to oneself and to others a duty of inspection. The duty is to exercise reasonable care in the inspection to discover any ³⁶⁸ defects which may prevent the proper operation of the vehicle, and one is chargeable with knowledge of any defects which such inspection would disclose. An owner or operator, however, may not be liable for injuries resulting from an unknown defect or one which would not have been revealed by a reasonable and prudent inspection.

Where a reasonable examination by the owner of an automobile fails to disclose defects, the owner is relieved from responsibility for damages arising from undisclosed defects. 2 Patrick D. Kelly, Blashfield Automotive Law and Practice § 107.3 (Rev.3d ed.1979). In deciding a motion for summary judgment, the Court is required to consider the evidence in a light most favorable to the party opposing the motion. Serio v. Baltimore County, Maryland, 384 Md. 373, 388 [ 863 A.2d 952 ] (2004). Viewing the evidence in a light most favorable to the [Appellant], the Court finds that the [Appellant] could conceivably prove the following facts: • [Koontz] did nothing to cause the accident. • [Koontz] detected a loss of control of the motorcycle and attempted to safely leave the roadway. • Prior to completely leaving the roadway, the deflating tire separated from the rim, locking the wheel and causing a sudden and irreversible loss of control. • After the accident, a piece of metal was found in the tire. • The piece of metal was the cause of deflation of the tire due to puncture and penetration. • The piece of metal is consistent (“better than 50%” according to [Appellant’s] expert) with automotive sheet metal typically found in the outer skin of a car. • The piece of metal corroded and fell off a motor vehicle onto the roadway.

While the [Appellant] has produced substantial evidence concerning the cause of the deflation of the motorcycle’s tire, there is no evidence from which the trier of fact could ³⁶⁹ conclude that the owner or operator of the vehicle from which the metal piece allegedly fell breached his duty of inspection. As noted in the Blashfield treatise, an owner or operator is not liable for injuries from an unknown defect or one which would not have been revealed by a reasonable and prudent inspection. Blashfield, supra, § 107.3. Applying this principle to the case at bar, there are no facts or reasonable inferences therefrom that the piece of metal with dimensions of one and one-quarter inches in length and one-quarter inch in width would have been detected by a reasonable and prudent inspection of the vehicle.

Indeed, Scott Wills testified at deposition that the piece of metal was painted on one side and had “surface oxidation” (i.e., rust) on the other side. However, Wills verified that the metal was not “rusted through.” Other than being consistent with sheet metal commonly used for the outer skin of an automobile, Wills could not testify about the part of the automobile where the metal piece originated. The cases cited by [Appellant] are not persuasive. Frazier v. Unsatisfied Claim and Judgment Fund, 262 Md. 115 [ 277 A.2d 57 ] (1971), involved injuries sustained when a passenger in an unidentified car threw a firecracker into the plaintiffs vehicle.

Unlike this case, the issue in Fra,zier was whether the injuries arose “out of ownership, operation or use” of a motor vehicle. Woosley v. State Farm, Ins. Co., [ 117 Nev. 182 ] 18 P.3d 317 (Nev.2001), and Hale v. American Family Mutual Ins. Co., 927 S.W.2d [522] (Mo.Ct.App. 1996), are also distinguishable.

Both cases apply the doctrine of res ipsa loquitur, which [Appellant] in the case at bar concedes is inapplicable. Muncy v. American Select Ins. Co., [ 129 Ohio App.3d 1 ] 716 N.E.2d 1171 (Ohio Ct.App. 1998), involved a claim for uninsured motorist benefits where the plaintiff alleged that the cause of the accident was the negligent dropping of a wooden object in the roadway by an unknown vehicle. There was evidence by affidavits that “the wood in the roadway could have come from two sources: (A) a motor vehicle from which the load was not adequately secured or (B) a pedestrian who deposit ³⁷⁰ ed the wood on the roadway.” Id. at 1175.

However, the affidavits discounted the pedestrian theory because there was a “lack of pedestrian access” at the location of the accident. Id. The Court of Appeals of Ohio (Tenth District) held that these affidavits adequately supported a theory of negligence by an unidentified operator of a vehicle, i.e., the improper securing of the wooden pallet to the unidentified vehicle. Muncy is fatally distinguishable from the present case as a wooden pallet is not a component of a motor vehicle.

The reasonable inference in Muncy is that the wooden pallet was being transported by a vehicle and that it fell off because it was negligently secured. The same cannot be said for a small metal piece that presumably fell off a vehicle. Although not factually apposite, the analysis in Carter v. Shoppers Food Warehouse Md. Corp., 126 Md.App. 147 [ 727 A.2d 958 ] (1999), is instructive. There, the plaintiff injured her knee when she fell in the produce section of a grocery store.

After the fall, the plaintiff noticed that one corner of the carpet was turned up, leading her to believe this was the cause of the accident. The trial court granted summary judgment in favor of the grocery store on the basis that there was insufficient evidence to establish a prima facie case of negligence. The Court of Special Appeals affirmed, relying on the well-established principle of premises liability law that the property owner must have actual or constructive notice of the dangerous condition. Id. at 164 [ 727 A.2d 958 ].

The Court discussed the property owner’s duty to inspect and its corollary proposition of constructive knowledge of the dangerous condition, it would not be reasonable to require appellee constantly to inspect the produce section and fix the floor mats each time a corner becomes misplaced or turned up.” Id. Summary judgment was therefore proper because the plaintiff failed to produce evidence that the grocery store had actual and constructive knowledge of the carpet’s condition. Carter is instructive because the grocery store’s duty to inspect is analogous to the duty imposed on a motor vehicle ³⁷¹ owner or operator to inspect his vehicle for dangerous condition. The principle that a motor vehicle owner or operator is, in the parlance of Blashiield, “chargeable with knowledge of any defects which such inspection would disclose,” is the legal equivalent of constructive knowledge.

Summary judgment was held to be proper in Carter , it is, likewise, appropriate in the case subjudice.

IV

Conclusion For the reasons stated herein, [Appellant’s] Motion for Partial Summary Judgment is denied and [Appellees’] Motions for Summary Judgment are granted. The Clerk is instructed to enter a final judgment in favor of Defendants [Interstate and Nationwide]. Appellant then filed a timely appeal to this Court. 3 LEGAL ANALYSIS Appellant argues that the court erred in granting summary judgment to Interstate and Nationwide because she presented sufficient evidence to satisfy the elements of the uninsured motorist statute. She also claims that the facts of the accident “trigger! ] the ‘hit-and-run’ definition of uninsured motor vehicle.” As such, appellant asserts that, because it is undisputed that she was insured at the time of the accident, she was injured and there are no exclusions that apply to her case, the sole issue is whether she is entitled to recover from Interstate and Nationwide because the unidentified owner or operator of an uninsured vehicle was negligent in causing her injuries. 4 ³⁷² Appellant further contends that she demonstrated the requisite proof which should have led to the court denying appellees’ summary judgment motion, and ultimately, led her to recovery under the uninsured coverage agreements of both companies.

We disagree. Pursuant to Maryland Rule 2 — 501(f), a trial court shall enter judgment in favor of or against the moving party if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law. “Appellate courts reviewing an order granting a motion for summary judgment must determine whether the trial court was legally correct.” Maryland Cas. Co., et al., v. Lorkovic, 100 Md.App. 333, 354 , 641 A.2d 924 (1994)(quoting Beatty v. Trailmaster Prods., Inc., 330 Md. 726, 737 , 625 A.2d 1005 (1993)). Because we review a trial court’s grant of summary judgment de novo, we must first decide whether a genuine dispute of material fact exists, de la Puente, et al. v. County Commissioners of Frederick County, 386 Md. 505, 510 , 873 A.2d 366 (2005). “If no such dispute exists, we proceed to review determinations of law,” and examine the “facts properly brought before the court, and any reasonable inferences that may be drawn from them [ ] construed in the light most favorable to the non-moving party.” Id.

(citations omitted.) ³⁷³ Regarding the enactment of uninsured motorist statutes, it is well settled that the “purpose of the required uninsured motorist coverage is to make available the same coverage as would have been available had the tortfeasor complied with the liability insurance requirements of the financial responsibility law.” Johnson v. Nationwide Mut. Ins. Co., 388 Md. 82, 92 , 878 A.2d 615 (2005) (quoting Forbes v. Harleysville Mut. Ins.

Co., 322 Md. 689, 698 , 589 A.2d 944 (1991)). Generally, the elements required for a cause of action in negligence include “a duty or obligation which the defendant is under to protect plaintiff from injury, a failure to discharge that duty, and actual loss or injury to the plaintiff proximately resulting from that failure.” Weber v. Unsatisfied Claim, and Judgment Fund Board, 261 Md. 457, 462 , 276 A.2d 86 (1971)