Wiant v. Hudson

MURPHY, Judge. On July 14, 1989, Martha Mae Wiant, appellant, filed a complaint in the Circuit Court for Prince George’s County, alleging that on August 29, 1986, she had been injured in an auto accident caused by the negligence of Christopher John Hudson, appellee. Appellant attempted to serve appellee with a copy of the complaint by sending a process server to the address he gave her at the accident scene. That attempt was unsuccessful.

On September 27, 1989, appellant’s counsel, William M. Ferris, Esq., received the following letter from another member of the Maryland bar: ⁷⁷ September 20, 1989 Re: Martha M. Wiant v. Christopher John Hudson Dear Mr. Ferris: Please be advised that I have been retained by USF & G to defend Mr. Hudson in the above-captioned matter. After you have obtained service, could you please notify me when you served him so that I might so [sic] whatever is necessary. Thank you for your help. Very truly yours, /s/ On November 2, 1989, appellant’s process server made a second attempt to serve appellee at the same address.

That attempt was unsuccessful as well. On June 1, 1990, Mr. Ferris requested that a subpoena duces tecum be issued to the “Authorized Representative of the United States Fidelity and Guaranty Insurance Co. c/o Maryland Insurance Commissioner” for a deposition at his office in Annapolis, Maryland. That request sought (1) all records indicating the name and address of the policy holder whose vehicle was driven by appellee when the accident occurred, and (2) all records indicating the types and amounts of insurance coverage supplied under that policy. On June 21, 1990, the attorney who wrote the September 20, 1989 letter filed a motion to quash that subpoena on behalf of USF & G, contending that (1) service of the subpoena on the insurance commissioner was improper, (2) the place for the deposition was improper, (3) the subpoena sought privileged documents, and (4) appellant failed to give USF & G at least 30 days notice as required by Md.Rule 2-412(c).

On June 28, 1990, USF & G’s motion to quash was granted. On July 13, 1990, appellant filed a revised request for subpoena, which provided as follows: Please issue a subpoena duces tecum for the below named individual to appear for the purposes of deposition in the offices of Semmes, Bowen & Semmes, Attorneys at Law, ⁷⁸ 250 West Pratt Street, Baltimore, Maryland 21201, on August 15, 1990, at 11:00 a.m. United States Fidelity & Guaranty Insurance Company c/o Resident Agent: William F. Spliedts 100 Light Street Baltimore, Maryland 21202 The said representative is requested to bring with him or her any and all records indicating the name and address of the policy holder of a certain automobile which was insured by the USF & G Insurance Company being driven by Christopher John Hudson, which automobile was involved in an accident with an automobile operated by the above-captioned Plaintiff on August 28, 1986, in Baltimore, Maryland, said accident being referenced by USF & G Insurance Company member claim number 0400 AL 046478 01 07. Said representative is further requested to bring with him or her any and all records indicating the types and amounts of insurance coverage under the aforementioned automobile insurance policy.

On July 18, 1990, through the same counsel, USF & G filed another motion to quash, contending that (1) the documents appellant sought were privileged, and (2) USF & G’s resident agent was an improper deponent. That motion was granted on August 8, 1990. On June 5, 1991, appellant filed a motion to substitute service on appellee by delivering the summons and complaint to the lawyer who had written to Mr. Ferris and who had filed the motions to quash on behalf of USF & G. Appellant’s counsel did not request a hearing and did not attach a certificate of service to that motion. Appellant asserted that (1) five unsuccessful attempts had been made to serve appellee, (2) appellee could not be served because (a) he no longer resided at the address listed on his driver’s license, (b) he left ⁷⁹ no forwarding address with the persons who currently reside at his old address or with the post office, and (3) justice and reason dictated that the court should permit substituted service on the attorney retained by USF & G to represent appellee.

On June 11, 1991, that motion was denied. On June 15, 1992, the clerk of the circuit court filed a “Notification to Parties of Contemplated Dismissal” for lack of prosecution. Appellant filed a motion to defer dismissal. That motion was granted, extending the deadline until February 4, 1993.

The circuit court later extended the deadline to May 24, 1993. On May 21, 1993, however, appellant’s case was dismissed for lack of prosecution. Appellant presents the following questions for our review: I. Where a Party’s whereabouts are unknown but he or she is represented by an interested insurance company, may the insurance company be deposed for the purpose of locating that party?

II

Where an attorney purporting in writing to represent a party defendant whose whereabouts are unknown to plaintiff writes to plaintiffs counsel stating that he or she represents the defendant and should be contacted when plaintiff obtains service on the defendant, may service of process be made on the attorney who represents the defendant?

III

Where a trial court has entered an order deferring dismissal under Rule 2-507 has been entered, may the trial court Sua Sponte dismiss the suit prior to the date stated in the order for completing the case? I. Appellant contends that the trial court erred by denying her the right to depose a representative of USF & G for the purpose of locating appellee. We agree. Maryland Rule 2-411 provides: DEPOSITION—RIGHT TO TAKE ⁸⁰ Any party to an action may cause the testimony of a person, whether or not a party, to be taken by deposition for the purpose of discovery or for use as evidence in the action or for both purposes.

Leave of court must be obtained to take a deposition (a) before the earliest day on which any defendant’s initial pleading or motion is required ____ Leave of court may be granted on such terms as the court prescribes. Rule 2-411 is similar to Fed.R.CivP. 30. 1 Leave should be granted “only v/hen some unusual circumstances or conditions existed that would be likely to prejudice the party if [s]he were compelled to wait the required time.” Gibson v. Bagas Restaurants, Inc., 87 F.R.D. 60, 61 (1980), citing 8 C. Wright & A. Miller, Federal Practice and Procedure § 2104 at 384 (1970). This is such a case. Fundamental fairness requires that, except in extraordinary circumstances not present in this case, the merits of a claim or defense should be submitted to a factfinder.

Schwartz v. Merchants Mort. Co., 272 Md. 305, 309 , 322 A.2d 544 (1974); Fleisher v. Fleisher Co., 60 Md.App. 565, 571 , 483 A.2d 1312 (1984). Appellant should not have been denied an opportunity to discover the location at which appellee could be served. Many jurisdictions have allowed a plaintiff to discover a defendant’s identity and/or whereabouts so that the defendant can be served.

Feinstein v. City of Cleveland, 67 Ohio Law Abs. 578 , 121 N.E.2d 112, 113-114 (1953); Peterman v. Schpelman, 274 A.D. 901 , 82 N.Y.S.2d 811, 812 (1948); Brown v. McDonald, 133 F. 897, 899 (3d Cir.1905); see also Bivens v. Six Unknown Named Agents of Fed. Bur. of Narc., 403 U.S. 388, 390 , 91 S.Ct. 1999, 2001, n. 2 , 29 L.Ed.2d 619 (1971), ⁸¹ wherein plaintiff was permitted to file a complaint against unidentified federal agents who were thereafter served with the complaint by order of the District Court. We agree with the opinions holding that the adverse party’s address is not privileged and, except where a party’s safety is at risk, must be disclosed by that party’s counsel upon request. Matter of Jacqueline F., 47 N.Y.2d 215 , 417 N.Y.S.2d 884, 888 , 391 N.E.2d 967, 971 (1979); Sunga v. Lee, 13 Ill.App.2d 76 , 141 N.E.2d 63, 66 (1957). Appellant’s first request for subpoena was properly denied for