Opinion
C.A. No. 99C-11-007
Date Submitted: April 16, 2001
August 22, 2001
James A. Fuqua Jr., Esquire.
Robert J. Leoni, Esquire.
Dear Counsel:
Pending before me are cross motions for partial summary judgment in this insurance coverage dispute. This letter constitutes my decision in this matter.
BACKGROUND
Donald Nickolson (hereinafter "Plaintiff') filed a Complaint in this Court against Nationwide Mutual Insurance Company (hereinafter "Defendant") alleging breach of contract (Count I), bad faith (Count II), and punitive damages (Count III). The parties agreed to stay Counts II and III until I resolved the coverage issues raised in Count I.
In Count I, Plaintiff alleged that he is covered by an automobile insurance policy (hereinafter the "Maryland Policy") with Defendant. Plaintiff made a claim under his uninsured motorist (hereinafter "UM") coverage on December 14, 1998. The claim was based on Plaintiff's rights pursuant to 10 Del. C. § 3724 to seek damages for the wrongful death of his daughter, Loni Nickolson (hereinafter "Decedent"). Defendant has refused payment.
FACTUAL STATEMENT
The parties have stipulated to the following facts.
Decedent was killed in an automobile accident on October 23, 1998. At the time of the accident, Decedent was 20 years old and physically resided and regularly lived with her mother, Mary Nickolson ("Mrs. Nickolson"), in Felton, Delaware. At the time of the accident, Decedent was operating a vehicle ("Decedent's Vehicle") owned by Mrs. Nickolson that was, coincidentally, also insured by Defendant under a Delaware Automobile Insurance Policy (the "Delaware Policy"). Decedent was a named insured on the Delaware Policy.
Decedent's Vehicle collided with a vehicle operated by April Burns (the "Tortfeasor"). The Tortfeasor's vehicle was uninsured at the time of the accident. The Delaware Policy provided UM coverage in the amount of $100,000.00 per person and $300,000.00 per occurrence. Defendant paid its policy limits to Mrs. Nickolson under the Delaware Policy. There is no evidence that Plaintiff ever presented a claim under the Delaware Policy.
Defendant disputes all allegations of liability, causation, and nature and extent of damages and reserves its right to dispute those allegations in future proceedings. Although liability is disputed, Defendant referred to April Bums as "tortfeasor," and this Court does likewise for purposes of this decision.
Plaintiff is the father of Decedent and resides in Greenbelt, Maryland. Plaintiff and Mrs. Nickolson were divorced at the time of the accident, Decedent did not physically reside or regularly live with Plaintiff at the time of the accident. At the time of Decedent's death, the Maryland Policy had been issued and was in place. The Maryland Policy provided UM coverage in the amount of $100,000.00 per person and $300,000.00 per occurrence. Decedent was not a named insured under the Maryland Policy, nor was she a co-owner of any vehicle insured under the Maryland Policy.
Plaintiff sought UM coverage from Defendant under the Maryland Policy for the wrongful death of Decedent. Defendant denied Plaintiff's claim because Decedent was not an insured or otherwise covered under the Maryland Policy.
ISSUES
1) Whether the Plaintiff can recover UM benefits under the Maryland Policy for the wrongful death of his daughter even though she was not an "insured" under the Maryland Policy?
2) Whether the Plaintiff's recovery would be an improper stacking of benefits?
DISCUSSION
Standard of Review
Summary judgment may be granted only when no material issues of fact exist. The moving party bears the burden of establishing the non-existence of material issues of fact. Moore v. Sizemore, Del. Supr., 405 A.2d 679, 680 (1979). Once the moving party meets its burden, then the burden shifts to the non-moving party to establish the existence of material issues of fact. Id. at 681. Where the moving party produces an affidavit or other evidence sufficient under Super. Ct. Civ. R. 56 in support of its motion and the burden shifts, then the non-moving party may not rest on its own pleadings, but must provide evidence showing a genuine issue of material fact for trial. Super Ct. Civ. R. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If, after discovery, the non-moving party cannot make a sufficient showing of the existence of an essential element of his or her case, then summary judgment must be granted. Burkhart v. Davies, Del. Supr., 602 A.2d 56, 59 (1991), cert. den., 112 S.Ct. 1946 (1992); Celotex Corp. v. Catrett, supra. If, however, material issues of fact exist or if the Court determines that it does not have sufficient facts to enable it to apply the law to the facts before it, then summary judgment is inappropriate. Ebersole v. Lowengrub, Del. Supr., 180 A.2d 467, 470 (1962). In a case involving cross motions for summary judgment, the parties implicitly concede the absence of material factual disputes and acknowledge the sufficiency of the record to support their respective motions. Brown-Ferris v. Rockford Enterprises, Del. Super., 642 A.2d 820 (1993).
Plaintiff's Entitlement to UM benefits Under the Maryland Policy
The first issue to decide is whether or not the Plaintiff's claim is covered under the terms of the Maryland Policy. The UM coverage section of the Maryland Policy states in pertinent part:
We will pay compensatory damages, including derivative claims, which are due by law to you or a relative from the owner or driver of an uninsured motor vehicle because of bodily injury suffered by you or a relative, and because of property damage.
The definition section of the Maryland Policy defines "you" and "your" as the policyholder and spouse if they are living in the same household. "Relative" is defined as one who regularly lives in the policyholder's household and who is related to the policyholder by blood, marriage or adoption.
The Decedent was not an insured under the Maryland Policy. The Decedent was not a "relative" as defined in the Maryland Policy because she did not reside or regularly live with the Plaintiff. Therefore, the Plaintiff is not entitled to UM benefits for the death of the Decedent under the terms of the Maryland Policy, of course, any limitations on coverage or exclusions in the Maryland Policy that are inconsistent with Maryland's UM statute are unenforceable. Nationwide Mut. Ins. Co. v. U.S. Fidelity Guar. Co., Md. Ct. App., 550 A.2d 69 (1988).
Plaintiff's Entitlement to UM Benefits under the Statute
The next issue to decide is whether or not Maryland's UM statute requires UM coverage for the Plaintiff's claim. Md. Ins. Code Ann. § 19-509 states:
(c) Coverage required. In addition to any other coverage required by this subtitle, each motor vehicle liability insurance policy issued, sold, or delivered in the State after July 1, 1975, shall contain coverage for damages, subject to the policy limits, that:
(1) the insured is entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injuries sustained in a motor vehicle accident arising out of the ownership, maintenance, or use of the uninsured motor vehicle; and
(2) a surviving relative of the insured, who is described in § 3-904 of the Courts Article, is entitled to recover from the owner or operator of an uninsured motor vehicle because the insured died as the result of a motor vehicle accident arising out of the ownership, maintenance, or use of the uninsured motor vehicle.
The language of Section 19-509 is unambiguous. The Plaintiff is the "insured." Under subsection (c)(1), the Plaintiff would have UM coverage for a claim for bodily injuries that he sustained as a result of a motor vehicle accident involving an uninsured motor vehicle. Under subsection (c)(2), a surviving relative of the Plaintiff would have UM coverage for a wrongful death claim if the Plaintiff was killed as the result of a motor vehicle accident involving an uninsured motor vehicle. Section 19-509 does not appear to provide UM coverage for the Plaintiff's wrongful death claim for the death of his daughter because his daughter is not an "insured" under the Maryland Policy, as required by subsection (c)(2).
Nevertheless, the Plaintiff argues that subsection (c)(1) provides UM coverage both for a claim for bodily injuries that he may sustain as a result of a motor vehicle accident involving an uninsured motor vehicle and his wrongful death claim for the death of his daughter even though she was not an insured under the Maryland Policy. The Plaintiff's argument is based on the prior version of Section 19-509 and the Court of Appeals' "alternative holding" in Forbes v. Harleysville Mut. Ins. Co., Md. Ct. App., 589 A.2d 944 (1991).
Section 541 is the prior version of Section 19-509. Section 541(c)(2) stated in applicable part:
In addition to any other coverage required by this subtitle, every policy of motor vehicle liability insurance issued, sold, or delivered in this State after July 1, 1975 shall contain coverage, in at least the amounts required under Title 17 of the Transportation Article, for damages which the insured is entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injuries sustained in an accident arising out of the ownership, maintenance, or use of such uninsured motor vehicle. (Emphasis added).
In Forbes, the Court of Appeals made two holdings. One, it held that a child has UM coverage under Section 541(c) for a wrongful death claim for the death of his parent if the deceased parent is an "insured" under the policy. Two, it held that a child has UM coverage under Section 541(c) for a wrongful death claim for the death of his parent even if the deceased parent is not an "insured" under the policy so long as the child is an insured" under the policy. The second of the two holdings is known as the "alternative holding" and is the holding on which the Plaintiff is relying to support his claim in this case.
See Andrew Janquitto, Esq., Uninsured Motorist Coverage in Maryland, 21 U. B alt. L. Rev. 171, 237 (1992); Developments in Maryland Law, J990-91, 51 Md. L. Rev. 507, 740-62 (1992).
It is helpful to review Forbes in detail. Carol and Robin Forbes were married with two children. Although married, Carol and Robin lived apart. Carol was killed in an accident while riding as a passenger in an uninsured motor vehicle. The two children were also passengers in the uninsured motor vehicle and were hurt in the accident. The accident was caused by the uninsured motorist's negligence. Robin filed a complaint against his uninsured motorist carrier. Counts one and two sought damages for the personal injuries that the two children suffered in the accident. Counts three, four, and five were on behalf of the two children and Robin for the wrongful death of Carol. Robin was the "named insured" under the policy. The two children were "insureds" under the policy. It was not clear whether or not Carol was an "insured" under the policy.
The Court of Appeals held that Section 541(c)(2) required UM coverage for a wrongful death claim, reasoning that the portion of Section 541 that referred to the "death of the insured" reflected the General Assembly's contemplation that a wrongful death claim would be covered by the UM statute. The language to which the Court of Appeals referred was set forth in Section 541(c)(1), which stated:
In this subsection, "uninsured motor vehicle" means a motor vehicle whose ownership, maintenance or use has resulted in the bodily injury or death of an insured . . .
The uninsured motorist carrier then argued that Carol was not an "insured" under the policy because she did not reside in the household of the named insured, Robin. The Court of Appeals held that Carol was an "insured," reasoning that a temporary separation between a husband and wife should not be allowed to thwart Maryland's policy of mandatory UM coverage. The Court of Appeals then went on to hold "alternatively" that even if Carol was not an "insured" under the policy, Section 541(c)(2) required the children's wrongful death claims to be covered by the uninsured motorist provisions of the policy.
The "alternative holding" in Forbes is based on the language of Section 541(c)(2), the nature of a wrongful death claim, the underlying purpose of the UM statute, and the fact that the children were "insureds" under the policy. The reasoning, according to the Court of Appeals, is:
The basic coverage language of § 541(c) is set forth in paragraph (2) and requires coverage "for damages which the insured is entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injuries [including death] sustained in an accident arising out of the ownership, maintenance, or use of such uninsured motor vehicle." The Forbes children's wrongful death claims squarely fall within this statutory language even if their mother at the time of the accident was not an "insured" under the language of Harleysville's policy. The children are "insureds" under the Harleysville policy. Under Maryland's wrongful death statute, the children are legally entitled to damages from the owner or operator of an uninsured motor vehicle because of the death of their mother sustained in an accident arising out of the operation of the uninsured vehicle. In fact, a judgment against the owner and operator of the uninsured vehicle has been recovered on their behalf The claims of the insured children clearly are embraced by the critical coverage language of § 541(c)(2). Moreover, the purpose of the uninsured motorist statute supports coverage of the children's wrongful death claims without regard to Carol Forbes's status under the language of the insurance policy. As discussed earlier, the purpose of the statutorily mandated uninsured motorist coverage is to put the insured (including the insured children) in the same position as they would have been if the tortfeasor had maintained liability insurance. (Citations omitted). If the tortfeasor in this case has maintained liability insurance, the children's wrongful death claims would have been paid up to the limits of that liability coverage. Since the tortfeasor failed to have liability insurance, and since the children did have uninsured motorist coverage, their claims should similarly be covered up to the limits of the uninsured motorist insurance.
Thus, according to the "alternative holding" in Forbes, there is UM coverage under Section 541(c)(2) for a wrongful death claim even though the deceased is not an "insured" so long as the person making the claim is entitled to bring a wrongful death claim on account of the death of the deceased and is an "insured." The Plaintiff falls squarely within the "alternative holding" in Forbes. The Plaintiff is a person who can bring a wrongful death claim on behalf of his daughter and he is an "insured" under the Maryland Policy.
For a critical analysis of the "alternative holding" in Forbes see Developments in Maryland Law, 1990-91, 51 Md. L. Rev. 507, 720-62 (1992).
The General Assembly enacted Section 19-509 effective as of July 1, 1991. The Plaintiff and Defendant agree that Section 19-509 applies to Plaintiff's claim. In amending the UM statute, the General Assembly used, for the most part, the language that was in Section 541(c)(2) for Section 19-509(c)(1) and added entirely new language for Section 19-509(c)(2).
The Plaintiff argues that the General Assembly's enactment of Section 19-509 did not alter or reduce the UM coverage provided in Forbes because Section 19-509(c)(1) contains language almost identical to the version of the Maryland UM statute that was in effect when Forbes was decided. The Defendant argues that Forbes is no longer applicable because the General Assembly enacted Section 19-509(c)(2) to clearly provide for a wrongful death claim in the UM context and to require that the deceased be an insured under the policy in order for a surviving relative of the deceased to recover. The Plaintiff's response to this is that the amendment to the UM statute, which for all intents and purposes is subsection (c)(2), merely extends UM coverage to an insured's surviving relatives in the event that it is the insured who is deceased. The Plaintiff interprets both Sections 19-509(c)(1) and (c)(2) as applying to, and requiring UM coverage for, a wrongful death claim. The Defendant argues that the General Assembly could not have intended this interpretation when it amended the statute.
The legislative history is clear. The General Assembly enacted Section 19-509(c)(2) to apply to, and require UM coverage for, a wrongful death claim where the deceased is an insured." In enacting Section 19-509(c)(2), the General Assembly was clearly acting in response to the Court of Special Appeals' decision in Globe Amer. Casualty Co. v. Chung, Md. Ct. Sp. App., 547 A.2d 654 (1988), vacated, Globe Amer. Casualty Co. v. Chung, Md. Ct. App., 589 A.2d 956 (l991). In Globe, the Court of Special Appeals held that Section 541(c)(2) did not apply to, or require UM coverage for, a wrongful death claim. This decision was based on a straightforward reading of Section 541(c)(2). The Court of Special Appeals decided Globe on September 29, 1988. The General Assembly passed Section 19-509 on April 7, 1991. The Governor of Maryland approved Section 19-509 on May, 24 1991. Section 19-509 became effective on July 1, 1991. The Court of Appeals decided Forbes on May 10, 1991. It is clear that the General Assembly was acting in response to Globe and not to Forbes.
The legislative history surrounding the enactment of Section 19-509 refers repeatedly to the Globe decision and nothing else as the impetus for Section 19-509. The legislative history was obtained by the Court after the parties finished briefing.
The issue for me to decide is whether or not the General Assembly's enactment of Section 19-509 invalidated the "alternative holding" in Forbes as of July 1, 1991. I hold that it did. My holding is based on the unambiguous language of Section 19-509, the General Assembly's intent in enacting Section 19-509, and the fact that the Court of Appeals' decision in Forbes is based on a statute that has been substantially amended.
Section 19-509 is unambiguous and it does not require UM coverage for the Plaintiff's wrongful death claim for the death of his daughter.
Sections 19-509(c)(1) and (c)(2) clearly address two very different situations. Under subsection (c)(1), the insured would have UM coverage for bodily injuries that the insured sustained as the result of a motor vehicle accident involving an uninsured motor vehicle. Under subsection (c)(2), a surviving relative of the insured would have UM coverage for a wrongful death claim if the insured was killed as the result of a motor vehicle accident involving an uninsured motor vehicle. If the insured's bodily injuries were so severe that he died, then the insured's personal representative could pursue a "survival action" under (c)(l). A surviving relative of the insured could pursue a "wrongful death action" under (c)(2). A survival action and a wrongful death action are still different actions in Maryland that cover different damages for different people. Jones v. Flood, Md. Ct. Sp. App., 702 A.2d 440 (1997). A survival action would cover damages that the deceased sustained. A wrongful death action would cover damages that a survivor of the deceased sustained as a result of the deceased's death.
The Plaintiff is clearly the only "insured" under the unambiguous language of Section 19-509. Subsection (c)(1) would apply to, and require UM coverage for, a claim for the Plaintiff's bodily injuries sustained, or a claim by the Plaintiff's personal representative if the Plaintiff died, as the result of a motor vehicle accident involving an uninsured motor vehicle. However, subsection (c)(1) does not apply to the Plaintiff's claim because the Plaintiff's daughter, and not the Plaintiff, suffered bodily injuries and died. There is simply no way to reasonably interpret the language of subsection (c)(1) as applying to, and requiring UM coverage for, the Plaintiff's wrongful death claim for the death of his daughter. Subsection (c)(2) would apply to, and require UM coverage for, a claim by a surviving relative of the Plaintiff if the Plaintiff died as a result of a motor vehicle accident involving an uninsured motor vehicle. However, while subsection (c)(2) applies to, and requires UM coverage for, a wrongful death claim, it does not require UM coverage for the Plaintiff's wrongful death claim for the death of his daughter because it was the Plaintiff's daughter who died, not the Plaintiff. Quite simply, Section 19-509 does not require UM coverage because the Plaintiff's daughter was not an insured. The unambiguous language of Section 19-509 is sufficient in and of itself to defeat the Plaintiff's claim. Pennsylvania Nat. Mut. Cas. Ins. Co. v. Gartelman, Md. Ct. App., 416 A.2d 734 (1980).
The General Assembly did not intend Section 19-509(c)(1) to apply to, and require UM coverage for, a wrongful death claim.
The General Assembly's intent in enacting Section 19-509 is clear. The General Assembly intended to enact a statute requiring UM coverage for a wrongful death claim where the deceased was an "insured." This is reflected in both the legislative history and plain language of Section 19-509(c)(2). The General Assembly's enactment of Section 19-509 was in direct response to the Globe decision. In Globe, the Court of Special Appeals held that Section 541(c)(2) required UM coverage for the insured's bodily injuries and for a "survival action" by the insured's personal representative if the insured died. Section 541(c)(2) did not, according to the Court of Appeals in Globe, apply to, or require UM coverage for, a wrongful death claim. The General Assembly wanted to remedy this situation and did so by enacting Section 19-509. The General Assembly used the language of Section 541(c)(2) for the new Section 19-509(c)(1). The General Assembly was obviously content to use this language to cover an insured's bodily injuries and a survival action if the insured died. The General Assembly certainly did not intend Section 19-509(c)(1) to apply to, and require UM coverage for, a wrongful death claim. The Globe decision held that the language that was used in Section 19-509(c)(1) did not apply to a wrongful death claim. The General Assembly was aware of Globe. That is why the General Assembly drafted entirely new language requiring UM coverage for a wrongful death claim and made it Section 19-509(c)(2). While Forbes held that the type of language used in Section 19-509(c)(1) did apply to, and require UM coverage for, a wrongful death claim, Forbes had not been decided when the General Assembly enacted Section 19-509(c)(1). Therefore, it is clear that the General Assembly did not intend Section 19-509(c)(1) to apply to, and require coverage for, a wrongful death claim. The General Assembly instead drafted entirely new language to provide UM coverage for a wrongful death claim. This new language became Section 19-509(c)(2). The General Assembly also required that the deceased be an "insured" for a surviving relative to recover. The General Assembly's intent is clear. The General Assembly intended Section 19-509(c)(2) to apply to, and require UM coverage for, a wrongful death claim. The General Assembly also intended that the deceased be an insured for a surviving relative to recover. This clearly invalidates the "alternative holding" in Forbes that the deceased does not have to be an "insured." To hold otherwise would ignore both the manner in which Section 19-509(c)(2) came about as well as the plain language of Section 19-509(c)(2).
The Court of Appeals' decision in Forbes is based on a statute that has been substantially amended.
It is important to remember that the Court of Appeals' decision in Forbes is based on a statute that has been substantially amended. It is true that Section 19-509(c)(1) contains language that is virtually identical to Section 541(c)(2) and that Forbes held that Section 541(c)(2) applied to, and required UM coverage for, a wrongful death claim even where the deceased is not an insured. However, when the Court of Appeals decided Forbes, Section 541(c) did not include the language that is now in Section 19-509(c)(2). Section 19-509(c)(2) contains language dealing directly with a wrongful death claim. It also contains language requiring the deceased to be an insured. The Court of Appeals did not have to deal with the impact of this language in Forbes because it did not exist then. This language does exist now though. I have to consider Section 19-509 as a whole, not in isolated pieces. Frost v. State, Md. Ct. App., 647 A.2d 106 (1994). The decision in Forbes was based, in large part, on what the Court of Appeals believed to be the General Assembly's intent when it enacted Section 541(c). That is no longer relevant. What is relevant is the General Assembly's intent when it enacted Section 19-509. The General Assembly did not intend for the language in Section 19-509(c)(1) to apply to, and require UM coverage for, a wrongful death claim. The General Assembly did intend Section 19-509(c)(2) to apply to, and require UM coverage for, a wrongful death claim. The General Assembly also intended, based on the unambiguous language of subsection (c)(2), that the deceased be an "insured" for a surviving relative of the deceased to recover for a wrongful death claim. The situation before me is very different than what the Court of Appeals faced in Forbes. The amendment to the UM statute to include the language of Section 19-509(c)(2) changed everything. Quite simply, the whole foundation upon which Forbes rested has been ripped away. I can not read Section 19-509(c)(1) as applying to, and requiring UM coverage for, a wrongful death claim in light of the clear fact that the General Assembly clearly intended Section 19-509(c)(2) to apply to a wrongful death claim and to require UM coverage only where the deceased is an "insured."
The Plaintiff's claim is governed by the unambiguous language of Section 19-509(c)(2). This subsection requires that the deceased be an insured. The Plaintiff's daughter is the deceased. The Plaintiff's daughter was not an insured under the Maryland Policy. Therefore, there is no UM coverage for the Plaintiff's wrongful death claim for the death of his daughter.
Stacking of UM Benefits
I do not need to decide whether the Plaintiff's recovery would be an improper stacking of benefits because the Plaintiff has no claim in the first place under the Maryland Policy.
CONCLUSION
Plaintiff's Motion for Partial Summary Judgment on Count I is denied. Defendant's Motion for Partial Summary Judgment on Count I is granted. The granting of partial summary judgment in favor of the Defendant as to Count I disposes of Counts II and III as well.
IT IS SO ORDERED.