Tidewater Insurance Associates, Inc. v. Dryden Oil Co.

Thompson, J., delivered the opinion of the Court. Tidewater Insurance Associates, Inc. and its subsidiary, International Underwriters, Ltd., both of which are hereinafter referred to as Tidewater, appeal from a judgment entered against them in the Circuit Court for Baltimore County, (Raine, J.) at the suit of Dryden Oil Company, Inc., appellee, hereinafter called Dryden. On November 30', 1976, Dryden commenced proceedings against Tidewater to recover damages which Dryden suffered as a result of a fire on its premises which Tidewater, acting as Dryden’s insurance broker, had failed to insure. On April 3,1978, Tidewater obtained an order permitting it to file a third-party claim against a London insurance brokerage house (Gallagher, Hinton and Vereker, Ltd.) on the basis that Tidewater had placed an order with the London broker to cover the Dryden premises with fire insurance, but the London broker negligently failed to process the order.

The trial court permitted the filing of the third-party claim ⁴¹⁷ “without prejudice as to rights of Dryden to proceed without delay against original Defendant.” Trial in the original case proceeded as scheduled and resulted in a monetary judgment in favor of Dryden. The judgment was entered on May 3, 1978, after a motion for a new trial was denied. Tidewater filed an appeal to this Court on May 21, but thereafter dismissed its appeal, stating that Rule 605 a 1 prevented the verdict of April 12, 1978, from being a final judgment as there had been no disposition of the third-party claim. While the appeal was pending Dryden filed garnishment proceedings against Tidewater’s bank to collect its judgment; Tidewater moved to quash the attachment.

At the hearing on the motion the trial judge, recognizing that there had been no service on the third-party defendant prior to the time that the original case was decided, nevertheless quashed the attachment stating the judgment of May 3 was not final. At the same time the court made an express determination that there was no just reason for delay and directed entry of a final judgment on the merits as of August 21, 1978. Subsequently, Tidewater instituted a new appeal from the judgment of August 21, 1978. Dryden has appealed from the order quashing the attachment contending its judgment was final on May 3, 1978, when the trial court had disposed of the only claim over which it had jurisdiction.

We agree that the judgment on May 3, was final and thus under Clinton Petroleum Services, Inc. v. Norris, 271 Md. 665 , 319 A. 2d 304 (1974) we must dismiss Tidewater’s appeal sua sponte. On the other hand, we do have jurisdiction to hear the appeal of Dryden from the judgment quashing its attachment which was entered on August 21, 1978. ⁴¹⁸ Tidewater argues that under Rule 605 a a claim is presented when it is filed and the lack of service is not controlling. The only Maryland authority shedding any light on this issue is Hardy v. Metis, 282 Md. 1 , 381 A. 2d 683 (1978), which held that a judgment was final and appealable when it was entered against the only defendant who had been served with process. There, a wrongful death claim was asserted against both the driver and the owner of an automobile.

Only the driver was served with process. A' default judgment was eventually entered against that defendant and in determining when the judgment became final and appealable, the Court of Appeals said: “[I]t is clear under our prior decisions that when the judgment by default was entered on January 20, 1977, against the only defendant (Larry Metts) over whom the trial court had obtained jurisdiction, all claims were finally adjudicated so as to start the running of both the appeal and the preenrollment revisory power periods.” 282 Md. at 5 (Emphasis added.) It is clearly the holding of this case that where a final judgment has been entered against all those within the