Globe American Cas. Co. v. Chung

Citation547 A.2d 654,76 Md.App. 524
Decision Date01 September 1987
Docket NumberNo. 1581,1581
PartiesGLOBE AMERICAN CASUALTY COMPANY v. Boo Hyun CHUNG, Personal Representative of the Estate of Bo Hyun Chung. ,
CourtCourt of Special Appeals of Maryland

W. Barry Wraga (Galiher, Clarke & Galiher, on the brief), Rockville, for appellant.

George E. Meng (Greenan, Walker, Steuart & Meng, on the brief), Landover, for appellee.

Argued before MOYLAN, WILNER and ALPERT, JJ.

MOYLAN, Judge.

When a victim dies because of the tortious conduct of someone else, two entirely different types of claim may arise. One is a survival action commenced or continued by the personal representative of the deceased victim, seeking recovery for the injuries suffered by the victim and prosecuted just as if the victim were still alive. It is called a "survival action" in the sense that the claim has survived the death of the claimant. The other is a wrongful death action, brought by the relatives of the victim and seeking recovery for their loss by virtue of the victim's death. A deceptive similarity inevitably results from the prominent common denominator fact that the victim has died. In other essential characteristics, however, the two types of claim are clearly distinct. The first arises from the tortious infliction of injury upon the victim; the second, only from the actual death of the victim. In the first, damages are measured in terms of harm to the victim; in the second, damages are measured in terms of harm to others from the loss of the victim. In the first, the personal representative serves as the posthumous agent of the victim; in the second, his surviving relatives do not serve as his agent at all. They act in their own behalf.

In some states, the distinction between the two types of claim has been lost--or badly blurred. In Maryland, in no small measure because of the landmark opinion of Chief Judge James McSherry for the Court of Appeals in Stewart v. United Electric Light and Power Co., 104 Md. 332, 65 A. 49 (1906), that distinction has been meticulously maintained. The distinction is pivotal to this appeal.

The Facts in This Case

At 11:30 p.m. on July 11, 1983, Bo Hyun Chung, the decedent, was operating his service station with his wife, Kum Ja Chung. Barbara Ann Orejuela drove into the station in a 1975 Chevrolet Monte Carlo. Ms. Orejuela filled her gasoline tank with $20.03 worth of gasoline. She then walked over to the cash register booth, told Kum Ja Chung that she had no money and offered the rings she was wearing as payment for the gasoline. Mrs. Chung referred her to the decedent. The two discussed the matter as they walked to the car, but no agreement was reached as to the form of payment. Suddenly, Ms. Orejuela drove away from the service station while the decedent was half leaning into the driver's side of the car. Mrs. Chung had remained in the cash register booth. Heedless of the decedent's cries to stop, Ms. Orejuela proceeded southbound on Maryland Route 355 while the decedent clung to the side of the car. At some point, the decedent was either thrown or fell clear of the automobile. He died sometime later after his admission to the hospital. 1

The Liability of the Uninsured Motorist

Whether for the ultimate benefit of the personal representative, as he pursues the estate's vicarious claim for the bodily injury to the deceased; or for the ultimate benefit of the surviving relatives pursuing their wrongful death claim; or for the ultimate benefit of both, the liability of the uninsured motorist was established in the Circuit Court for Montgomery County. Pursuant to the provisions of Md.Cts. & Jud.Proc. Code Ann. § 3-904 (1984), Kum Ja Chung, on her own behalf as decedent's widow and also as mother and next friend of the decedent's minor child, filed a wrongful death action against Ms. Orejuela. Judgment was entered against Ms. Orejuela on June 21, 1985. The widow was awarded $250,000 compensatory damages and $250,000 punitive damages. The minor child was awarded $100,000 compensatory damages and $100,000 punitive damages.

Both Ms. Orejuela and the vehicle operated by her were uninsured. It was evident as well that Ms. Orejuela was insolvent. To the extent to which anyone might recover anything for the decedent's injury and/or death, it was obvious that such recovery would have to be through the decedent's own insurance policies.

The Decedent's Insurance Policies

At the time of his death, the decedent maintained two policies of insurance. The first was with the Nationwide Mutual Fire Insurance Company (Nationwide). It insured against robbery and burglary.

On behalf of the decedent's widow, demand was made upon Nationwide for benefits in the amount of $6,000. Coverage was initially denied by Nationwide, thus prompting a suit for recovery by Boo Hyun Chung, the personal representative of the decedent's estate and the appellee upon this appeal. The appellee was granted summary judgment by the Circuit Court for Montgomery County. Nationwide forwarded to the appellee a check in the amount of $6,000, along with a release. The release was signed by the appellee on April 23, 1985.

Except for the arguable effect of that release on the obligation under the other insurance policy, the recovery under the policy from Nationwide does not figure further in this appeal. On this appeal, the battle swirls about the second insurance policy. That second policy was a motor vehicle liability insurance policy issued to the deceased by the appellant, The Globe American Casualty Company. As is required by Md.Ann. Code art. 48A, § 541(c)(2) (1957, 1986 Repl.Vol.) for every liability insurance policy issued in this state after July 1, 1975, there was included Uninsured Motorist (U.M.) coverage. The minimum required coverage, tied to Title 17 of the Transportation Article and to §§ 243H and 243I of Article 48A, was "up to $20,000 for any one person and up to $40,000 for any two or more persons." In terms of coverage, the pertinent words for present purposes of § 541(c)(2) are:

"... every policy ... shall contain coverage ... for damages which the insured is entitled to recover ... because of bodily injury sustained in an accident ..."

Should the victim who is injured by the uninsured or underinsured motorist live, there is no problem in interpretation. Only the victim may sue for damages because of bodily injury sustained in an accident. If the victim should die, however, the consequential litigation becomes more ambiguous. Does the statutorily required Uninsured Motorist coverage contemplate a survival action brought by the personal representative of the deceased or a wrongful death action brought by the surviving relatives of the deceased or both? If both, how is the $20,000 "cap" for one victim of bodily injury apportioned between the two claims? If either but not both, which type has priority? Will there be a race to the courthouse door or to the in-basket of the insurance company's claims department? If one but not the other, which is contemplated by the statute mandating the coverage?

The question is squarely before us because in this case two claims were filed, one of each type, under the same Uninsured Motorist provision of the policy issued to the decedent by the appellant. After establishing Ms. Orejuela's liability and being awarded damages in the wrongful death action, the decedent's widow presented her claim to the appellant, pursuant to the decedent's insurance policy, for the satisfaction of the judgment obtained. The policy limited the insurer's obligation to $20,000 "per person" for bodily injury sustained by one person as the result of any one accident. 2 Whether required to under the literal terms of the policy or not, the appellant paid the decedent's widow $20,000 for the wrongful death claim. On August 21, 1984, the widow executed a written release discharging the appellant from any further liability.

The second claim against the same Uninsured Motorist provision of the same liability policy appeared on April 29, 1985. It was on that day that the appellee, Boo Hyun Chung, as the personal representative of the decedent's estate, instituted a survival action against the appellant, seeking payment of what then would have been an additional $20,000 under the Uninsured Motorist provision of the policy. On the basis of the $20,000 payment already made to the decedent's widow and the release executed by her, the appellant denied any further obligation under the policy. As the matter moved toward resolution in the Circuit Court for Montgomery County, cross-motions for summary judgment were filed by both parties. On July 13, 1987, Judge DeLawrence Beard denied the appellant's motion for summary judgment and granted the motion of the appellee/personal representative for partial summary judgment, ruling that the estate through the personal representative was entitled to payment. The parties subsequently entered a consent judgment with the understanding that an appeal would follow. Upon this appeal, the appellant raises the following three questions:

1) Does the decedent's widow and his estate each constitute a separate "person injured" for the purposes of appellant's policy, or, are they various claimants seeking damages for the same person injured?

2) Did the release executed by the decedent's estate in favor of Nationwide Mutual Insurance Company act to discharge the appellant as well?

3) Does the release as executed by the decedent's widow in favor of the appellant discharge the appellant from further liability?

We agree with the appellant in terms of its answer to the first question, but do not agree that that answer is dispositive of the larger issue before us. Conversely, we hold in favor of the appellee/personal representative on the issue of his entitlement to recovery under the policy but do so for a reason different than that advanced by him.

The $20,000 Limitation Under the Policy

Without arguing that the...

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