Shelton v. Maryland Automobile Insurance Fund

Gilbert, C. J., delivered the opinion of the Court. “For purposes of judicial enforcement, the ‘policy’ of a statute should be drawn out of its terms, as nourished by their proper environment, and not, like nitrogen, out of the air.” Mr. Justice Frankfurter in Schulte Co. v. Gangi, 328 U.S. 108, 121-22 , 66 S. Ct. 925, 931-32 , 90 L. Ed. 1114, 1122 (1946). With Mr. Justice Frankfurter’s erudite expression of “judicial enforcement” as our polar star, we set out, in this appeal, to decide whether the General Assembly of Maryland, in 1957, meant then Md. Ann. Code art. 66%, § 145S (the Unsatisfied Claim and Judgment Fund) to be mandatory or directory. That section of the code as originally enacted provided: “Other ‘hit-and-run’ cases. (a) When in an action for a sum in excess of one hundred dollars ($100.00) in respect to the death of, or personal injury to, any person, arising out of the ownership, maintenance or use of a motor vehicle in this State on or after June 1, 1959, judgment is rendered for the defendant on the sole ground that such death or personal injury was occasioned by a motor vehicle — (b) The identity of which, and of the owner and operator of which, has not been established, or (c) Which was in the possession of some person other than the owner or his agent without the consent of the owner, and the identity of the operator has not been established, — such cause shall be stated in the judgment and the plaintiff in such actions may, within three months from the date of the entry of such judgment, make application for authority to bring an action upon said cause of action against the commissioner in the manner provided in section 145R {i.e. apply to a court of competent jurisdiction for an order permitting a suit against the commissioner].” 1 ¹³² Although there have been a number of changes to the “Unsatisfied Claim and Judgment Fund” (UCJF), 2 the provisions of the 1957 Act concerned with the UCJF have remained substantially intact.

When the Legislature created MAIF, 3 it empowered the executive director 4 to “promulgate rules setting forth procedural requirements with respect to claims against the Fund____” The act further provided that “[p]rior to the effective date of such rules ... [compliance with] §§ 7-606 through 7-635 of Article 66% ” shall be a condition precedent to liability on the part of the Fund. The executive director was also empowered to stipulate, on behalf of the Fund, “that the procedural requirements [of sections 7-620, 7-621, 7-622, and 7-623] for bringing an action against the Fund have been met and consent to an order permitting the claimant to bring an action against the Fund. No stipulation or consent shall be deemed a waiver of any defense which the Fund may have with respect to the case.” 5 Apparently the executive director has not as yet exercised the authority to promulgate rules that would effectively repeal or modify sections 7-606 through 7-635 of Article 66%. 6 Patently, those sections of the generally repealed Article 66% live solely by virtue of the executive director’s disinclination to announce rules that would supplant them and thus sound their demise. Consequently, section 7-622, the sibling of section 145S of the 1957 Act, remains the law today. ¹³³ We turn now to the matter sub jadice.

On February 28, 1977, in Baltimore City, the appellant, Stanley K. Shelton, was walking across Monroe Street at one of the alley intersections between Wilkens Avenue and Eagle Street, when he was struck by a motor vehicle which failed to stop. Shelton believed the errant driver to be Willie B. Witherspoon. He sued Witherspoon for the personal injuries allegedly sustained as a result of the hit-and-run accident. A jury returned a verdict favorable to Witherspoon. 7 Shelton’s attorney, on April 4, 1978, four days after the jury’s verdict against his client, wrote to MAIF and advised it of his intention to make a claim. 8 Not until January 3,1979, nine months later, was that intent changed into reality when Shelton, in the Superior Court of Baltimore City, filed a “Petition for Leave to Sue the Maryland Automobile Insurance Fund UCJ Division.” Md. Ann. Code art. 48A, § 243H (b) (1); Md. Ann. Code (1970 Rep.

Vol.) art. 66%, § 7-620. Shelton requested MAIF to “stipulate” its consent to the suit, Md. Ann. Code art. 48A, § 243H (b) (l), 9 but the agency refused. Instead, it opposed the petition on the ground that the appellant had not complied with Md. Ann. Code art. 66%, § 7-622 as left intact by Md. Ann. Code art. 48A, § 243H (b) (1). Counsel for MAIF told the hearing judge that since “the petition to sue was filed nine months later [than the verdict in the Shelton v. Witherspoon trial] ... it cannot be granted.” Shelton’s lawyer informed the judge of the various steps in the case, commencing with the injury and ending with the ¹³⁴ jury’s response to issue “Number 2, [which] said that someone other than ... [Witherspoon], an unknown driver caused the accident.” The issue before the hearing judge became less than clear at that point.

The record shows the following: “THE COURT: Do you agree with him that the issue before me is whether a letter in and of itself is sufficient, or there must be a petition to sue filed within the applicable time period? MR. HARTZ: Your Honor, I would agree that is the issue involved, There’s no question about notice. I don’t think that’s denied, and Mr. Harris agrees with that.

The question of interpretation of the statute, of course, our contention would be somewhat analogous to the original intention to make claim within 180 days. Of course, the statute indicates that notice or suit must be filed within ninety days of the jury verdict. So that would be the issue, your Honor, and I would submit the file.” (Emphasis supplied.) The court, in a “Memorandum Opinion and Order,” concluded that the appellant had not furnished notice of intention to make a claim to MAIF “within 180 days of the accident [of February 28, 1977]” citing Md. Ann. Code art. 48A, § 243H (c). Because the notice was not sent to MAIF until April 4, 1978, a period of lapsed time well in excess of 180 days, the judge denied permission to sue MAIF.

Shelton noted an appeal to this Court. Three days later, in the Superior Court, Shelton filed a motion in which he sought to have the hearing judge reconsider the order denying permission to sue. The motion was rejected, and properly so, because Shelton’s notice of appeal had ousted the Superior Court of jurisdiction. Moore v. State, 15 Md. App. 396, 400 , 291 A.2d 73, 75 , cert. denied, 266 Md. 740 (1972).

See also Stacy v. Burke, 259 Md. 390, 401 , 269 A.2d 837, 844 (1970); Vancherie v. Siperly, 243 Md. 366, 375 , 221 A.2d 356, 361 (1966); State v. Jacobs, 242 Md. 538, 540 , 219 A.2d 836, 837 (1966); Tiller v. Elfenbein, 205 Md. 14, 19-21 , 106 A.2d 42, 44-45 (1954). ¹³⁵ The appellant presents three questions to us, namely: “1. Should Section 243H (c), Article 48A ... be construed as being directory in its notice provisions? 2. Must Section 243H (c), Article 48A be liberally construed in conjunction with subsections (a) and (b) thereof? 3. Should the Maryland Courts follow the New Jersey precedent in accidents involving unidentified vehicles as that would be the proper and equitable method of litigating such actions?” The hearing judge, as we have seen, decided the case on the basis of the 180 day notice provided for in Md. Ann. Code art. 48A, § 243H (c).

While we believe that the judge was correct in denying the petition to sue MAIF, our reasons are not those employed by the hearing court. Md. Ann. Code art. 48A, § 243H (c) provides: “As a condition precedent to the right to apply for payment from the Fund, notice of intention to make a claim for damages must be filed within 180 days of the accident out of which the cause of action accrues. In lieu of this notice a claimant may make proof that: (1) He was physically incapable of giving the notice within the required period and that he gave notice within 30 days after he became physically capable of doing so, or in the event that he did not become so capable that a notice was given on his behalf within a reasonable period; (2) He gave the required notice within