Williams v. Montgomery County

SALMON, Judge. One of the questions raised in this appeal is whether a plaintiff must give a local government the 180-day notice of claim required under the Local Government Tort Claims Act (LGTCA) if suit is brought pursuant to Md.Code (1977, 1998 Repl.Vol.), § 17-107 of the Transportation Article (Vol.II) (TA). This issue is one of first impression. A more routine matter at issue is whether, assuming notice of claim is required, did the plaintiffs attorney show “good cause” within the meaning of Md.Code (1974, 1995 Repl.Vol., 1997 Supp.), § 5-304(c) of the Courts and Judicial Proceeding Article (CJ), 1 for failing to give the notice that is a prerequisite of suit.

FACTS On August 9, 1994, appellant, John Williams, Jr., was operating a motor vehicle on a public street in Prince George’s County. His vehicle was stopped, and he was waiting for traffic to clear at an intersection, when a vehicle driven by Thomas Maynard made a right turn from an adjoining street, striking the front side of the Williams vehicle. Maynard was ¹²² acting within the scope of his employment for Montgomery County and was operating a county-owned vehicle when the accident occurred. As a result of the accident, appellant sustained personal injuries.

One week after the accident, a secretary with a law firm retained by appellant spoke with Bruce Coffyn, the claims supervisor for Consolidated Risk Management Services (CRMS), regarding the August 9th accident. CRMS, at that time, was acting as the claims administrator for Montgomery County, which was self-insured pursuant to TA § 17-108. Mr. Coffyn told the secretary he already had some information pertaining to the accident and directed her to send a letter of representation to his attention. That same day, appellant’s attorney "wrote a letter to Mr. Coffyn formally advising him of the claim.

Mr. Coffyn acknowledged the claim by letter dated August 24,1994. Thereafter, for the next year and one-half, appellant’s counsel exchanged correspondence with representatives of CRMS regarding appellant’s treatment. In June 1996, appellant’s counsel was contacted by Peter Buthmann, a representative of Trigon Administrators, Inc. (Trigon). Trigon advised appellant’s counsel that he was now the claims representative of Montgomery County and that he was assigned to appellant’s case.

Trigon and appellant’s counsel thereafter attempted to settle the case, but the settlement attempts were unfruitful. On March 10,1997, appellant filed suit against Maynard and Montgomery County. Montgomery County filed an answer to the complaint, in which it pointed out that appellant had failed to allege that he had complied with the notice requirements of the LGTCA. Appellant filed an amended complaint, which contained the following allegation: That [pjlaintiff timely forwarded Notice of his claim to [defendant Montgomery County, and otherwise complied with all Notice provisions of the Local Government Tort Claims Act.

Montgomery County filed a motion to dismiss the amended complaint in which it asserted that the plaintiff had not ¹²³ complied with the 180-day post-accident notice of claim requirement of the LGTCA. In his response, appellant contended: 1. That [defendant Montgomery County is not entitled to assert governmental immunity in this case, pursuant to Section 17-107(c) of the Transportation Article, and Section 5-399.4 of the Courts and Judicial Proceedings Article. 2. That even to the extent that the [defendant may be entitled to assert governmental immunity, [pjlaintiff can show good cause for this [cjourt to deny [djefendant’s Motion, and that [djefendant has not been prejudiced by any lack of required notice, pursuant to Section 5-404(c) of the Courts and Judicial Proceedings Article.

Therefore, this [cjourt should entertain this suit. In an accompanying memorandum, the appellant alleged that the LGTCA “creates a cause of action against local governments for persons injured through the negligence of an employee of the local government, by waiving sovereign immunity. Under CJ § 5-303, the liability of a local government is limited to Two Hundred Thousand Dollars ($200,000) per individual claim.” Appellant went on to argue that under TA § 17-103 the county is not entitled to “raise any defense of sovereign or governmental immunity, regardless of whether or not timely or properly notified, to the extent of its security of self insurance in place.” A hearing was held on the motion to dismiss before Circuit Court Judge Paul A. McGuckian. Judge McGuckian granted the motion to dismiss after ruling that Montgomery County was entitled to notice pursuant to the LGTCA, that appellant had not complied substantially with the notice requirement, and that appellant had failed to show “good cause” for failure to give the required notice.

This timely appeal followed. 2 ¹²⁴ I. STANDARD OF REVIEW Technically, when a party moves to dismiss for failure to state a claim upon which relief can be granted, as was done in this case, we look only to the allegations set forth in the most recent complaint filed by the plaintiff to see if the plaintiff has stated a cause of action. Bobo v. State, 346 Md. 706, 708-09 , 697 A.2d 1371 (1997). In the subject case, there is no question but that appellant sufficiently alleged that he gave the required notice under the LGTCA, but there is likewise no question that the trial judge, in granting the motion, went outside the four corners of the complaint and considered allegations and materials presented by the plaintiff/appellant in his opposition to the motion to dismiss. Maryland Rule 2-322(c) reads, in pertinent part: If, on a motion to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 2-501, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 2-501.

In the case at hand, no one objected to the appellant’s referral to matters outside the four corners of the amended complaint in his response to the motion to dismiss, and even though the trial court did not specifically say that he was treating the dismissal motion as a motion for summary judgment, it is clear that the motion to dismiss was transmuted by the court into a motion for summary judgment. See Hrehorovich v. Harbor Hospital Ctr., Inc., 93 Md.App. 772, 780-81 , 614 A.2d 1021 (1992) (trial court’s grant of a motion to dismiss treated as the grant of a motion for summary judgment even though trial court made no mention of the motion’s transmutation), cert. denied, 330 Md. 319 , 624 A.2d 490 (1993). In order to grant a motion for summary judgment the trial court must determine that “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no dispute as to any material fact and that the moving party is ¹²⁵ entitled to judgment as a matter of law.” Vanhook v. Merchants Mut. Ins.

Co., 22 Md.App. 22, 25 , 321 A.2d 540 (1974). Our role as an appellate court in reviewing the trial court’s grant of such a motion is merely to determine whether the trial judge was legally correct. Beatty v. Trailmaster Prods. Inc., 330 Md. 726, 737 , 625 A.2d 1005 (1993).

II

DISCUSSION Issue 1 Appellant argues that “the trial court erred in granting appellee’s motion ... since the notice requirement under the Local Government Tort Claims Act does not apply to motor torts arising under the Transportation Article.” The LGTCA is set forth in CJ §§ 5-301 to 5-304. CJ § 5-304 provides, in pertinent part: Actions for unliquidated damages. (a) Notice required. — Except as provided in subsection (c) of this section, an action for unliquidated damages may not be brought against a local government or its employees unless the notice of the claim required by this section is given unthin 180 days after the injury. (b) Manner of giving notice. — (1) Except in Anne Arundel County, Baltimore County, Harford County, and Prince George’s County, the notice shall be given in person or by certified mail, return receipt requested, bearing a postmark from the United States Postal Service, by the claimant or the representative of the claimant, to the county commissioner, county council, or corporate authorities of a defendant local government, or: (iii) In Montgomery County, to the County Executive.

(3) The notice shall be in writing and shall state the time, place, and cause of the injury. (c) Waiver of notice requirement. — Notwithstanding the other provisions of this section, unless the defendant can ¹²⁶ affirmatively show that its defense has been prejudiced by lack of required notice, upon motion and for good cause shown the court may entertain the suit even though the required notice was not given. (Emphasis added). Appellant begins his argument by asserting that the LGTCA “waives governmental or sovereign immunity” when the plaintiff complies with the Act.

This technically is untrue. Pavelka v. Carter, 996 F.2d 645, 649 (1993); Khawaja v. City of Rockville, 89 Md.App. 314, 318 , 598 A.2d 489 , cert. granted, 325 Md. 551 , 601 A.2d 1114 (1992), dismissed, 326 Md. 501 , 606 A.2d 224 (1992). Although the LGTCA does not waive governmental immunity, it does serve the useful function of protecting “local government employees from suit and judgments on alleged torts committed by them within the scope of their employment, in order to maintain their incentive to perform to the best of their abilities.” Pavelka, 996 F.2d at 649 (citing Ennis v. Crenca, 322 Md. 285, 291 , 587 A.2d 485 (1991)). Under the LGTCA, local government entities are obligated to defend their employees for job-related tort claims.

See CJ § 5-301(a). The Act prohibits direct execution of judgment against those employees absent proof of actual malice. Id. In the absence of malice, the Act forces successful plaintiffs to execute their judgment against the local government instead of against the employees.

See CJ §§ 5-302(b) and 5-303(b). Moreover, under the LGTCA, a plaintiff may not sue a local government, such as Montgomery County, directly but must sue, instead, the employee. See Williams v. Prince George’s Co., 112 Md.App. 526, 552 , 685 A.2d 884 (1996). Appellant next asserts that his suit against the county is brought pursuant to TA § 17-107, which reads: (a) Vehicle not covered by required security. — A person who knows or has reason to know that a motor vehicle is not covered by the required security may not: (1) Drive the vehicle; or (2) If he is an owner of the vehicle, knowingly permit another person to drive it. ¹²⁷ (b) Evidence of violation of subsection (a). — (1) In any prosecution under subsection (a) of this section the introduction of the official records of the Motor Vehicle Administration showing the absence of a record that the vehicle is covered by the security required under § 17-104 of this subtitle shall be prima facie evidence that a person knows or has reason to know that a motor vehicle is not covered by the required security.

(2) The introduction of evidence of the records of the Administration may not limit the introduction of other evidence bearing upon whether the vehicle was covered by the required security. (c) Defense of sovereign immunity. An owner or lessee of any motor vehicle registered under Title 13 of this article may not raise the defense of sovereign or governmental immunity as described under § 5-524 of the Courts and Judicial Proceedings Article/[ 3 ] Appellant contends that because he brought suit under TA § 17-107, he need not give notice to the county. Overlooked in this argument, however, is the specific requirements of the LGTCA (CJ § 5-304(a)), which says that except for good cause shown as provided in subsection c, “an action for unliquidated damages may not be brought against a local government or its employees unless the notice of the claim required by this section was given within 180 days after the injury.” Appellant’s claim against Montgomery County is, of course, for unliquidated damages.

Yet, appellant does not, directly, suggest any way around this language. ¹²⁸ Appellant does point out, however, that the LGTCA is “very similar to the Maryland Tort Claims Act (MTCA), which is set forth in the Md.Code (1984,1995 Repl.Vol.), § 12-101 et seq. of the State Government Article (SG). The MTCA governs suits against the State of Maryland or its agencies. Unlike the LGTCA, the MTCA does waive immunity for the State and its agencies, and thus a party can sue a state agency under the MTCA — if certain conditions, including notice to the State Treasurer, are met. See SG §§ 12-107 and 12-108.

The notice of claim provision of the MTCA is set forth in SG § 12-106, and it differs markedly from the notice provision of the LGTCA. SG § 12-106(b) provides: Claim and denial required. — A claimant may not institute an action under this subtitle unless: (1) the claimant submits a written claim to the Treasurer or a designee of the Treasurer within 1 year after the injury to person or property that is the basis of the claim; (2) the Treasurer or designee denies the claim finally; and (3) the action is filed within 3 years after the cause of action arises. (Emphasis added.) By its terms, SG § 12-106(b) does not prohibit the institution of suit except those filed pursuant to the MTCA. In contrast, the LGTCA says that except as provided in CJ § 5-304(c) no claims against local governments or their employees may be brought unless the required 180-day notice is given.

Appellant emphasizes that in Collier v. Nesbitt, 79 Md.App. 729, 733-34 , 558 A.2d 1242 (1989), this Court held