West American Insurance v. Popa

ELDRIDGE, Judge. This case presents several issues arising under the uninsured motorist provisions contained in a policy of automobile insurance sold in Maryland. I. On July 1, 1991, Jonathan David Popa was operating an automobile which was stopped below the crest of a hill on U.S. Route 1 in Cecil County, Maryland. His vehicle was struck by a Maryland State Police car driven by Trooper Rodney Manuel, resulting in Jonathan’s death.

The car which Jonathan was operating at the time was owned by his parents and insured under a policy issued by West American Insurance Company. The policy contained uninsured and underinsured motorist coverage in the amount of $300,000. On July 1, 1992, Jonathan’s parents, John and Tommie Sue Popa, individually and as personal representatives of Jonathan’s estate, filed suit in the Circuit Court for Cecil County against Trooper Manuel, the Maryland State Police and the State of Maryland, asserting wrongful death and survival claims. Trooper Manuel subsequently filed a separate suit in the Circuit Court for Cecil County against Jonathan’s estate for his personal injuries arising out of the accident.

The Popas promptly notified West American of both lawsuits, and West American retained counsel to defend Jonathan’s estate in the action filed by Trooper Manuel. West American did not at that time seek to intervene in the action filed by the Popas. The two cases were consolidated, and a jury trial was held from January 24 through January 27, 1994. During the first ⁴⁵⁹ day of the trial, the counsel retained by West American settled Trooper Manuel’s suit against Jonathan’s estate.

The trial continued on the Popas’ wrongful death and survival claims, and the jury returned a verdict finding that Trooper Manuel was negligent and that Jonathan was not contributorily negligent. The jury awarded a total of $867,000 in damages. Judgment was entered in that amount against the State of Maryland only on January 31, 1994. By letter dated February 7,1994, the Popas made a claim for underinsured motorist benefits under the policy issued by West American, seeking the full amount of their coverage less any amount paid by the State.

Meanwhile, the State filed a motion pursuant to Maryland Rule 2-535 to reduce the judgment to $50,000 because state law at the time limited the State’s liability under the Maryland Tort Claims Act, Maryland Code (1984, 1993 Repl-Vol.), § 12-101 et seq. of the State Government Article, to $50,000. The circuit court denied the State’s motion on March 3, 1994, but did file an order prohibiting the Popas from executing on the judgment against the State for any amount in excess of $50,000. Four days later, on March 7, 1994, West American filed a motion to intervene and a motion for reconsideration of the court’s March 3, 1994, order. Prior to a hearing on these motions, the State tendered payment of $50,000; the Popas accepted this payment and filed an order of satisfaction.

On May 12, 1994, after a hearing, the court denied both of West American’s motions. West American took no appeal from the May 12th order of the Circuit Court for Cecil County. In the interim, the Popas filed in the Circuit Court for Baltimore County the present breach of contract action, seeking underinsured motorist benefits under the West American policy. Both sides filed motions for summary judgment.

After a hearing, the circuit court on January 18, 1995, denied West American’s motion, granted the Popas’ motion, and entered judgment in their favor for $250,000. ⁴⁶⁰ West American appealed from the judgment of the Circuit Court for Baltimore County, and the Court of Special Appeals affirmed. West American Ins. Co. v. Popa, 108 Md.App. 73 , 670 A.2d 1021 (1996). West American then filed a petition for a writ of certiorari which this Court granted.

West American Insurance v. Popa, 342 Md. 391 , 676 A.2d 79 (1996). The questions presented by West American in its petition for a writ of certiorari are as follows: “1. Under the circumstances that existed at the time of the underlying tort trial, was mere knowledge by West American that the tort suit was pending sufficient to satisfy due process notice requirements? “2. Are the Popas legally entitled to recover benefits from the State of Maryland? “(a) Did the filing of an Order of Satisfaction to the judgment entered in the underlying tort case against the State of Maryland extinguish the Popas’ entitlement to further recovery and thereby bar their claim for underinsured motorist-benefits against West American? “(b) Did the State’s sovereign immunity for all amounts greater than $50,000 preclude the Popas from being legally entitled to recover any additional benefits from the State and if so, is their claim for underinsured motorist benefits against West American likewise barred? “3.

If the West American policy exceptions excluding coverage for self-insured or government owned vehicles are void, are they only void to the extent of the $20,000/$40,000 statutory limits?” We will address each of these issues in turn.

II

Although West American acknowledges that it “knew about the Popas’ suit against Trooper Manuel and the State,” it contends that “[m]ere knowledge of an underlying suit is not enough” to “satisfy due process notice requirements.” (Petitioner’s brief at 6). West American argues that “due process notice requirements” mandate that the insurer know that an ⁴⁶¹ uninsured motorist claim will be made or “have a reasonable belief’ that such a claim will be made in order for the insurer to be bound by the outcome of the underlying tort action. (Ibid.). West American cites no authority for its position.

In Nationwide Mutual Ins. v. Webb, 291 Md. 721 , 749 n. 12, 436 A.2d 465 , 481 n. 12 (1981), this Court, citing cases from other jurisdictions, stated: “[Although no pertinent policy clause in this case required notice to the [uninsured motorist] insurer of the tort action, considerations of due process do require such notice in order for an [uninsured motorist] insurer to be bound by the outcome of the tort action.” We went on in the Webb opinion to reject the uninsured motorist insurer’s argument that the insured was required to send to his uninsured motorist insurer the pleadings in the underlying tort case, saying: “We are aware of no authority, however, supporting the position that the pleadings in the tort case must be forwarded to the insurer.” Ibid. We also pointed out that it has been held that the notice “requirement ‘does not become operative until an insured reasonably believes he has an uninsured motorist claim.’ ” Ibid. The Court concluded in Webb that, because a notice of the tort suit was sent to the uninsured motorist insurer four months before the trial of the tort case, “[i]t would certainly seem that such notice was sufficient to meet due process requirements.” Ibid. Nothing in Webb or any other case, to the best of our knowledge, suggests that due process requires that the uninsured or underinsured motorist carrier be told or have a reasonable belief, before the trial of the tort case, that an uninsured or underinsured motorist claim will be made.

Instead, the Webb opinion stands for the proposition that if the uninsured/underinsured motorist carrier has notice of the underlying tort suit and an opportunity to intervene, due process requirements are satisfied, and the carrier is ordinarily bound by the determinations made in the tort case. Other cases are to the same effect. See, e.g., Champion Ins. Co. v. Denney, 555 So.2d 137, 139-140 (Ala.1989) (“An insurer, however, should not be bound by such a judgment unless it had full notice and adequate opportunity to intervene”); Briggs v. ⁴⁶² American Family Mut.

Ins. Co., 833 P.2d 859, 864 (Colo.App. 1992) (“if an insurer has been given adequate notice of the proceeding and an opportunity to protect its interests it will it be bound by a judgment against the uninsured motorist”); State Farm Mut. Auto. Ins.

Co. v. Glover, 113 Ga.App. 815, 820-821 , 149 S.E.2d 852, 856 (1966); Vernon Fire and Casualty Ins. Co. v. Matney, 170 Ind.App. 45, 49-50 , 351 N.E.2d 60, 63-64 (1976); Guillan v. Watts, 249 Kan. 606, 617 , 822 P.2d 582, 590 (1991) (“Once the insured has notified his insurer and the insurer elects not to intervene and become a party to the action, the insurer is bound by the judgment”); Wells v. Hartford Accident and Indemnity Co., 459 S.W.2d 253, 259 (Mo.1970) (“an uninsured motorist carrier is estopped to relitigate the issues necessarily decided in an action brought by its insured against an uninsured motorist, if the uninsured motorist carrier has been given full and adequate notice and an opportunity to intervene and defend when the insured litigates the issues of liability and damages with the uninsured motorist tort-feasor”); Heisner v. Jones, 184 Neb. 602, 611 , 169 N.W.2d 606, 612 (1969); Burge v. Mid-Continent Casualty Co., 123 N.M. 1, 4-5 , 933 P.2d 210, 213-214 (1996) (collecting cases). 1 Under the Maryland uninsured/underinsured motorist statutory provisions, when an insured under an automobile insurance policy has incurred damages as a result of the allegedly tortious driving by an uninsured or underinsured motorist, the insured has the option of initially bringing a contract action against his or her insurer to recover under the ⁴⁶³ policy’s uninsured/underinsured motorist provisions or of initially bringing a tort action against the tortfeasor. Lane v. Nationwide Mut. Ins.

Co., 321 Md. 165, 170 , 582 A.2d 501, 503 (1990); Nationwide Mutual Ins. v. Webb, supra, 291 Md. at 736 , 436 A.2d at 474 ; Reese v. State Farm Mut. Auto. Ins., 285 Md. 548, 554 , 403 A.2d 1229, 1232 (1979). When the insured chooses the second option, and notifies his or her insurer of the tort action, the issues of the uninsured/underinsured defendant’s liability and the amount of damages are resolved in the tort action.

Lane v. Nationwide Mut. Ins. Co., supra, 321 Md. at 173 , 582 A.2d at 505 ; Nationwide Mutual Ins. v. Webb, supra, 291 Md. at 732-739 , 436 A.2d at 471-476 . Under the second option, in the ordinary situation, if the defendant prevails in the tort action, or if the defendant is able to pay the amount of the plaintiffs damages as determined in the tort action despite the defendant’s lack of sufficient insurance, there never will be an uninsured or underinsured motorist claim arising out of the matter.

See, Lane v. Nationwide Mutual Ins. Co., supra, 321 Md. at 173-174 , 582 A.2d at 505 (“Benefits under the uninsured motorist endorsement may never be demanded, as the insured may lose the tort action or the uninsured tortfeasor defendant may be able to pay the tort judgment rendered against him”). Consequently, if the insured chooses the second option, whether there will be an uninsured or underinsured motorist claim is not certain; it is only a possibility depending upon future events. When the insured informs his or her uninsured/underinsured motorist carrier of the tort suit, the carrier thereby receives notice of the possibility of a future uninsured or underinsured motorist claim.

Under the circumstances, anything more than timely notice of the tort suit is neither feasible nor required by the cases. The uninsured/underinsured motorist insurance carrier is protected in this situation. When an insured plaintiff brings a tort action against an uninsured defendant, or against a defendant who may be underinsured, and when the plaintiff gives his or her insurance carrier timely notice of the tort ⁴⁶⁴ action, the uninsured/underinsured motorist carrier has a right to intervene immediately in the tort suit. Unlike a tort defendant’s liability insurer which is ordinarily not permitted to be a party to the tort action prior to a determination of liability and damages, the tort plaintiffs uninsured/underinsured motorist carrier is entitled to be a party throughout the trial of the tort case.

Waters v. USF & G, 328 Md. 700 , 718 n. 9, 616 A.2d 884 , 892 n. 9 (1992); Washington Transit v. Queen, 324 Md. 326 , 332 n. 5, 597 A.2d 423 , 426 n. 5 (1991); Lane v. Nationwide Mutual Ins. Co., supra, 321 Md. at 174 , 582 A.2d at 505 . The uninsured/underinsured motorist carrier has a right “to defend against the insured’s tort claim ... regardless of whether the uninsured motorist is defending or not,” Nationwide Mutual Ins. v. Webb, 291 Md. at 738 , 436 A.2d at 475 . Here, not only did West American have actual notice of the underlying tort suit and have an opportunity to intervene prior to trial, but it actively participated in the trial, representing Jonathan’s estate in the suit filed by Trooper Manuel and settling the trooper’s claim during the first day of trial.

As West American’s counsel stated to the circuit court in this case, “[West American] knew all about the case. They have defended ... the young fellow that died in the accident in the case brought by the police officer.... So they knew all about the case.” Thus, because West American had notice of the underlying tort suit and an opportunity to intervene prior to trial, the requirements of due process were satisfied.

III

The policy issued to the Popas by West American states that West American “will pay damages which a covered person is legally entitled to recover from the owner or operator of’ an uninsured or underinsured motor vehicle. West American contends that it should not be required to pay any benefits to the Popas in this case because the Popas are not ⁴⁶⁵ “legally entitled to recover” any amounts beyond the $50,000 already paid by the State. The insurance company advances two arguments in support of this contention. First, West American asserts that the Popas are not legally entitled to recover any additional amount against the State because the Popas filed an “Order of Satisfaction” to the judgment against the State.

Second, West American argues that the Popas are not legally entitled to recover any additional amount against the State because the State has immunity for all amounts over the $50,000 already paid. According to West American, the order of satisfaction and the State’s immunity from damages over $50,000 preclude “additional recovery from the State of Maryland” (Petitioner’s brief at 12). The insurance company asserts that the Popas have no legal right to recover more than $50,000 from the State. We disagree with West American’s arguments.

The policy language “legally entitled to recover,” except for the word “legally,” mirrors the language of the Insurance Code, Maryland Code (1957, 1991 Repl.Vol.), Art. 48A, § 541(c)(2), which provides that “every policy of motor vehicle liability insurance issued, sold, or delivered in this State after July 1, 1975 shall contain coverage ... for damages which the insured is entitled to recover from the owner or operator of an uninsured motor vehicle....” 2 ⁴⁶⁶ Both of West American’s arguments rest upon the premise that the policy language “legally entitled to recover” means that if there is any legal bar to actual recovery from the uninsured or underinsured motorist, then the insured is not “legally entitled to recover” his actual damages from the uninsured or underinsured tortfeasor. Some courts have adopted this definition of the phrase “legally entitled to recover.” See, e.g., Nationwide Mut. Ins. Co. v. Nacchia, 628 A.2d 48, 52 (Del.1993); Silvers v. Horace Mann Ins.

Co., 324 N.C. 289, 293-294 , 378 S.E.2d 21, 24 (1989). Nevertheless, as pointed out by the Supreme Court of North Carolina in the Silvers case, 324 N.C. at 294 , 378 S.E.2d at 25 , “[t]he words ‘legally entitled to recover’ are subject to other interpretations. For example, in Karlson v. City of Oklahoma City, 711 P.2d 72 (Okla.1985), the Oklahoma Supreme Court interpreted the phrase as follows: ‘The words, “legally entitled to recover[,]” simply mean that the insured must be able to establish fault on the part of the uninsured motorist which gives rise to the damages and to prove the extent of those damages.’ Id. at 74-75 (quoting Uptegraft v. Home Ins. Co., 662 P.2d 681, 685 (Okla.1983)).” The Supreme Court of Kansas in Winner v. Ratzlaff, 211 Kan. 59, 64 , 505 P.2d 606, 610 (1973), also adopted the broader definition of the phrase “legally entitled to recover,” stating: “We construe the words ‘legally entitled to recover as damages’ to mean simply that the insured must be able to establish fault on the part of the uninsured motorist which gives rise to the damages and to prove the extent of those damages.” The identical definition was adopted by the Supreme Court of Louisiana in Booth v. Fireman’s Fund Insurance Company, 253 La. 521, 529 , 218 So.2d 580, 583 (1968): ⁴⁶⁷ “We interpret the words ‘legally entitled to recover’ to mean simply that the plaintiff must be able to establish fault on the part of the uninsured motorist which gives rise to damages and prove the extent of those damages....

If it be contended that the phrase ‘legally entitled to recover’ is ambiguous, the rule that ambiguities in insurance contracts must be construed in favor of the insured would constrain us to reach the same conclusion.” This Court in Reese v. State Farm Mut. Auto. Ins., supra, 285 Md. at 555-556 , 403 A.2d at 1233-1234 , quoting with approval the definition of “legally entitled to recover” set forth in the Winner and Booth cases, and citing several other cases, adopted the broader definition of the policy language. We held that “legally entitled to recover” in the uninsured motorist provisions of the policy meant only that the insured establish fault on the part of the uninsured or underinsured motorist and establish the amount of his or her damages.

The definition of the phrase set forth in Reese is particularly appropriate in cases under the Maryland statute which, as pointed out earlier, does not use the word “legally.” See n. 2, supra. Under the meaning of “legally entitled to recover” or “entitled to recover” set forth in the Reese case, the Popas have shown that they are entitled to recover from the underinsured owner of the vehicle more than the amount of their uninsured and underinsured motorist coverage, less the $50,000 paid by the “underinsured” State of Maryland. They established fault on the part of the state employee and established their damages at $867,000. This is all that Maryland law requires under the circumstances here.

Furthermore, although West American makes separate arguments based on both the order of satisfaction and the statutory limit on recovery against the State, we note that the order of satisfaction simply reflected the limitation imposed by state law. The situation would be the same if no order of satisfaction had been filed. Moreover, the order of satisfaction recited that the payment was being made by the “State of ⁴⁶⁸ Maryland to the extent of its [waiver of] tort immunity, Fifty Thousand Dollars ($50,000).” The order of satisfaction went on to refer to the prior orders of the court, which included the order of March 3, 1994, denying the State’s motion to revise the judgment but precluding the Popas from collecting more than $50,000 from the State. We have held that the “substantive rights of the parties are not necessarily finally determined ... by the satisfaction of the judgment,” and that the scope and effect of an order of satisfaction is determined by the parties’ intent.

Franzen v. Dubinok, 290 Md. 65, 72, 75 , 427 A.2d 1002, 1006, 1008 (1981). It is obvious that, in filing the order of satisfaction, the Popas and the State simply intended to acknowledge the statutory limitation on recovery from the State. Moreover, we have specifically held that when an insured plaintiff gives his unmsured/underinsured motorist carrier timely notice of the tort action, and when the uninsured/under-insured provisions of the insurance policy do not contain a clause requiring the carrier’s consent before the insured can settle with the tortfeasor, the insured is entitled to enter a settlement or a consent judgment with the tortfeasor without obtaining the consent of or without further notice to the carrier. Under these circumstances, the uninsured/underinsured motorist carrier “is ordinarily bound by the settlement of the suit.” Waters v. USF & G, supra, 328 Md. at 718 , 616 A.2d at 892 .

The uninsured/underinsured motorist provisions of the West American policy involved in the present case do not contain a “consent to settle” or similar clause. Consequently, under the Waters holding, the order of satisfaction does not relieve West American of liability. 3 ⁴⁶⁹ Finally, West American’s argument based on the order of satisfaction also appears to be inconsistent with the insurance ⁴⁷⁰ policy which it issued to the Popas. The policy states as follows: “We will pay under this coverage only after the limits of liability under any applicable liability bonds or policies have been exhausted by payment of judgments or settlements”. Thus, the policy issued to the Popas by West American purports to require the Popas to accept the payment of a judgment before any uninsured or underinsured motorists benefits will be paid by West American.

Ordinarily an under-insured motorist would require the filing of an order of satisfaction as a condition to paying the policy maximum under a judgment.- Although it may be doubtful that the above-quoted policy provision could be enforced by West American against its insured, see Reese v. State Farm Mut. Auto. Ins., supra, 285 Md. at 553-556 , 403 A.2d at 1232-1234 , West American is in no position to complain when its insured complies with the provisions of the insurance policy. Even in jurisdictions which have adopted the narrow definition of the phrase “legally entitled to recover” espoused by West American, and even when the policy contains a “consent to settle” clause, it has been held that, when the policy also contains the above-quoted exhaustion clause, the insured’s “entry of a consent judgment with the tortfeasors and their carrier does not bar her ... from recovering under the UIM [underinsured] coverage of her policy,” Silvers v. Horace Mann Ins.

Co., supra, 324 N.C. at 296 , 378 S.E.2d at 26 . Turning to West American’s argument based upon the $50,000 statutory cap upon the State’s liability, the monetary