Aetna Cas. & Sur. Co. v. Souras

• Decision Date: 01 September 1988
• Docket Number: No. 125,125
• Citation: 78 Md.App. 71,552 A.2d 908
• Parties: AETNA CASUALTY & SURETY COMPANY v. Theodore SOURAS. ,
• Court: Court of Special Appeals of Maryland

Page 71

78 Md.App. 71

552 A.2d 908

AETNA CASUALTY & SURETY COMPANY v. Theodore SOURAS.

No. 125, Sept. Term, 1988.

Court of Special Appeals of Maryland.

Feb. 1, 1989.

Michael McGowan (McCarthy, Bacon, Costello & Stephens, Landover, for appellant.

Russell J. Gaspar (Hanna, Gaspar, Osborne & Birkel, on the brief, Washington, D.C., John P. Roth and Schmidt, Roth, Freda & Carroccio, Rockville, on the brief), for appellee.

Argued before MOYLAN, GARRITY, and JAMES S. GETTY (retired, Specially Assigned), JJ.

GARRITY, Judge.

The appellee, Theodore Souras, a passenger in Angelos Poulos' vehicle, brought suit against Aetna Casualty and Surety Company (Aetna), maintaining that he was wrongfully denied coverage under the uninsured motorist provisions of a policy issued to Poulos. The Circuit Court for Montgomery County (Cave, J.) granted summary judgment in the appellee's favor and awarded him $25,000, from which judgment the appellant appeals. The appellee cross-appeals on the grounds of inadequacy of award.

Facts

On August 8, 1982 the appellee was injured in an automobile accident in Falls Church, Virginia, while a passenger in a vehicle operated by Poulos of Gaithersburg, Maryland. The Poulos vehicle was registered and kept in the State of Maryland and was insured by Aetna under an automobile liability insurance policy issued and delivered in Wheaton, Maryland. The policy contained an uninsured motorist endorsement in the amount of $50,000.

Shortly after the accident, the appellee submitted claims to Aetna under the personal injury protection provisions of the policy, which Aetna paid. Thereafter, the appellee brought suit in the Circuit Court for Arlington County Virginia, against Timothy Reich, who was driving the car that collided with Poulos' vehicle. During the pendency of the Reich suit, the appellee also brought suit in Arlington County against Poulos under a claim of contributory negligence. Aetna successfully defended Poulos in this action.

The case against Reich proceeded to trial and on February 15, 1985, judgment was entered on a jury verdict in favor of the appellee for $66,905.90. Reich's insurance carrier paid $25,000 of that judgment. Reich, however, has made no further payments as he is virtually impecunious.

In April, 1985, the appellee submitted to Aetna a claim under the uninsured motorist provision of Poulos' policy to satisfy the remainder of the judgment. Aetna denied the claim. Suit was brought and summary judgment was entered for $25,000, the difference between uninsured motorist coverage and the amount recovered from the tortfeasor's insurer.

On appeal, Aetna initially argues that the Reich vehicle was not an uninsured auto under Maryland law and, therefore, the provisions of the policy are not applicable. Aetna also contends that there was insufficient evidence of the policy before the trial judge to decide a summary judgment motion. Lastly, Aetna contends that the notice was not legally sufficient to satisfy due process standards.

In his cross-appeal, Souras refutes the above arguments and further maintains that the judgment should have been entered for $41,905.90, the amount of the original judgment minus the insurance paid by Reich's carrier.

I.

Although Aetna contends that summary judgment was improperly granted because there was a genuine dispute as to a material fact, Aetna advances arguments suggesting that only legal issues are in dispute.

Aetna initially argues that the Reich automobile was not "uninsured" as that term is defined by applicable Maryland law because Reich had a maximum of $25,000 worth of insurance. We disagree and explain.

Md.Ann. Code art. 48A, § 541(c)(1) (1986 Repl.Vol.), provides that an "uninsured motor vehicle" is one

for which the sum of the limits of liability under all valid and collectible liability insurance policies ... applicable to the bodily injury or death is less than the amount of coverage provided to the insured under this subsection. (emphasis added).

Subsection (c)(2) provides that a motor vehicle liability policy issued in Maryland must contain uninsured motorist coverage for bodily injury or death at least equal to the $20,000 minimum liability coverage requirements of § 17-103(b) of the Transportation Article, but also provides that the insured shall have "the opportunity to contract for higher amounts than those provided under Title 17 ..."

Pursuant to these provisions, Poulos contracted with Aetna on September 22, 1981, for "uninsured motorist coverage of $50,000, each accident," substantially in excess of the minimum requirements of Title 17. Reich's total liability insurance was limited to $25,000--less than the amount of uninsured motorist coverage provided by Aetna to Poulos. Thus, on August 8, 1982, it is clear that Reich was driving an "uninsured motor vehicle" as defined by Maryland law in the above cited statute because the insurance coverage provided to Reich was less than the uninsured motorist coverage provided to Poulos.

Because Poulos was provided coverage under the uninsured motorist provisions of his policy, the appellee, as a passenger in his car, was also a "covered person" under that policy. ¹

Although Section 541(c) refers to "uninsured motorist" coverage, it is clear that its provisions operate as underinsured motorist coverage to the extent that the person responsible for an accident has less liability coverage than the insured under the uninsured provisions of his own policy. Hoffman v. United Services Auto Ass'n, 309 Md. 167, 178, 522 A.2d 1320 (1987). ² Thus, Aetna's arguments concerning the fact that Reich had liability coverage in excess of the Maryland minimum are irrelevant. The only consideration relevant to Aetna's liability on the policy is whether its uninsured motorist coverage provided higher limits than Reich's own liability insurance.

Aetna also contends that a factual dispute exists as to the amount of coverage provided under the policy. Aetna ignores the fact that in the request for admissions, the appellee stated that the uninsured motorist coverage was $50,000 and Aetna replied, "The policy speaks for itself. A copy is attached." The policy shows uninsured motorist coverage to the extent of $50,000.

Consequently, we believe that, contrary to Aetna's assertion that the evidence before the trial judge was not sufficient for him to render an opinion, the policy, declarations page, and admission that the uninsured motorist coverage was in the amount of $50,000, was legally sufficient to allow the trial judge to make his determination.

II.

Aetna maintains that the appellee was required to comply with the Code of Virginia, § 38.1-381(el) ³ which requires a claimant to notify the insurer of any pending suit in instances where the claimant intends to rely on the uninsured motorist coverage required by subsection (b) of the statute. A perusal of § 38.1-381(a), however, reveals that the...