Amalgamated Cas. Ins. Co. v. Helms

• Decision Date: 28 July 1965
• Docket Number: No. 366,366
• Citation: 212 A.2d 311,239 Md. 529
• Parties: AMALGAMATED CASUALTY INSURANCE COMPANY v. Catherine P. HELMS et al.
• Court: Maryland Court of Appeals

Page 529

239 Md. 529

212 A.2d 311

AMALGAMATED CASUALTY INSURANCE COMPANY v. Catherine P. HELMS et al.

No. 366.

Court of Appeals of Maryland.

July 28, 1965.

Thomas G. Andrew, Baltimore (Rollins, Smalkin, Weston & Andrew, Baltimore, on the brief), for appellant.

Melvin J. Sykes, Baltimore (Paul Berman, Baltimore, on the brief), for appellees.

Before PRESCOTT, C. J., and HORNEY, SYBERT, OPPENHEIMER and BARNES, JJ.

PRESCOTT, Chief Judge.

The facts with which we deal in this appeal are, for the main part, undisputed. They may be briefly stated and they follow. On September 27, 1953, an accident occurred on Route 301, a public highway in the State of Maryland. One of the vehicles involved was a taxicab owned by Carl H. Campbell, then being operated by one James E. Duckett with Campbell's permission. This latter fact is mildly disputed, but, for the purposes of this case, we shall assume it to be true. Persons named Helms and Staples were injured in the accident.

At the time of the collision, Campbell's vehicle was insured by appellant (sometimes hereafter referred to as Amalgamated) by a policy given pursuant to the provisions of the Motor Vehicle Financial Responsibility Act. Code (1951), Article 66 1/2, § 114 et seq., now Code (1957), Article 66 1/2, § 116 et seq. (Sometimes hereafter referred to as 'the Act,' and Sections referred to by number only will refer to the 1951 Code). The injured persons sued Duckett, and obtained judgments against him on November 19, 1956. No appeals were taken. On November 18, 1959, appellees brought suit against the appellant to require payment by it, to the extent of its liability, of the judgments obtained against Duckett.

Amalgamated's policy provided, inter alia, that any person who had secured a judgment against anyone insured under the policy would be entitled to recover under the terms of the policy 'in the same manner and to the same extent as the insured.' It also provided that 'no action shall lie against the company unless * * * suit is instituted within two years and one day after date of such judgment * * *.' (It will be noted that suit in the instant case was not commenced until almost three years after the judgments were obtained. ¹ ) The latter contractual period of limitations is the only provision included in the policy which is challenged as not complying with the terms of the Act. Although several questions were raised in the briefs and argued, our conclusion that the said condition is valid is determinative of the appeal.

The precise question seems to be a novel one: no case directly in point is cited by either side (although both sides presented carefully prepared briefs and able arguments), and we have found none.

In order to consider the question properly, we deem it necessary to set forth certain pertinent provisions of the Act. It begins by providing that all persons who operate taxicabs (with certain exceptions not pertinent here) over the highways of this State must first obtain a permit from the Department of Motor Vehicles (Department), and the Department shall not issue such a permit until the person applying therefor files with the Department proof of financial responsibility. One of the permissible modes of establishing proof of financial responsibility is the filing of an insurance policy, which was done by Campbell, and is the policy involved herein. Section 127 of the Act states the kind of policy required by the Act. This Section is quite lengthy and deals with the subject in considerable detail. Pertinent excerpts therefrom follow:

'A policy of insurance, as that term is used in this Article, when offered as proof of financial responsibility under this Article, shall mean an automobile public liability and property damage policy, issued by an insurance carrier authorized by the Commissioner of Insurance * * * to transact business in this State.

'A copy of the form of such policy shall be filed with the Commissioner of Insurance who shall within thirty (30) days approve or disapprove of the same. * * *. * * * and provided further that when a policy of insurance has been issued which purports to be under the terms of this Article, or when a duly authenticated certificate of the insurance carrier has been furnished to the Department * * * then such insurance carrier shall be obligated at least to the extent of the minimum requirements of this Article, any provision of the policy of insurance to the contrary notwithstanding.

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* * *

'A policy or policies of insurance shall provide insurance, in the name of the person insured, to apply to all motor vehicles owned by the person insured; and in addition thereto shall provide insurance, in the name of the person insured, to apply to any motor vehicle operated by, but not owned by the person insured.

'(A) Such policy of insurance shall meet the requirements enumerated hereunder when:

[There then follow six headings of requirements, with one of those headings having six sub-headings, spelling out in detail what the provisions which the policy or policies must contain in order to comply with the Act. None of them provides that the period of limitations for instituting suit must be the general statutory period of limitations; in fact, no mention is made of limitations.]

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'(f) that the liability of the insurance carrier shall become absolute whenever loss or damage included in such policy occurs, and the satisfaction by the insured person of a final judgment for such loss or damage shall not be a condition precedent to the right or obligation of the carrier to make payment on account of such loss or damage.

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'(B) A policy of insurance offered as proof of financial responsibility under this Article may:

* * *

* * *

'(5) contain any agreement, provision or stipulation not in conflict with or contrary to the provisions required in this Article and not otherwise contrary to law;

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'(E) A policy of insurance offered as proof of financial responsibility under this Article, the written application therefor, if any, and any endorsement to such policy which is not in conflict with or contrary to the provisions required by this Article, shall constitute the entire contract between the parties.'

Appellee's counsel frankly admit the 'precise question' here involved 'has not, so far as counsel are aware, been specifically decided by any court,' but contend that the answer to the question being considered in appellee's favor, has been foreshadowed by the cases dealing with the philosophy and purpose of the Act, claiming that the courts have 'sympathetically implemented' the general purpose of the Act and other similar acts. With commendable thoroughness, counsel for the appellee have cited to us about all of the authorities which might tend toward supporting their contention. They cite such cases as Keystone Mut. Casualty Co. v. Hinds, 180 Md. 676, 26 A.2d 761 (decided under Code [1939], Article 56, § 182); Citizens Cas. Co. v. Allied Mut. Ins. Co., 217 Md. 494, 144 A.2d 73; Barrella v. Stewart, 228 Md. 378, 179 A.2d 886; National Indemnity Co. v. Simmons, 230 Md. 234, 186 A.2d 595; Weinreich v. Walker, 236 Md. 290, 203 A.2d 854; Inland Mutual Insurance Company v. Stallings, 263 F.2d 852 (C.A. 4); Gray v. Citizens Casualty Company of New York, 286 F.2d 625, 88 A.L.R.2d 989 (C.A. 4); Olds v. General Acc. Fire & Life Assur. Corporation, 67 Cal.App.2d 812, 155 P.2d 676; and Chatfield v. Farm Bureau Mut. Auto. Ins. Co., 208 F.2d 250 (C.A. 4).

It would serve no useful purpose to analyse, in detail, each of the above cases. We have previously noted that none of them is directly in point. The rationale of the Maryland cases is that the Act is remedial legislation and should be liberally construed against insurance carriers in favor of the public; that its purpose is to assure the ability of certain motor vehicle owners and operators, against whom judgments may be entered on account of negligent driving, to respond in damages to persons injured or whose property has been damaged, as a result of such negligent driving; that in Maryland, as provided by the Act, the liability of the insurance carrier becomes absolute whenever loss or damage covered in the policy occurs; that all policies given to satisfy the requirements of the Act must fully conform therewith, and, if there be any conflict between the Act and the policy, the Act prevails; and that certain defenses may be available to the insurer as against the insured, which are not so available as against an injured member of the public. (And this seems to be the rationale of the out-of-state authorities cited with the exception of the Olds case.) We have no desire to recede one jot or tittle from the holdings in the Maryland cases named above; on the contrary, we reaffirm the same.

However, construing a statute liberally and adding to it, by judicial fiat, a provision which the Legislature did not see fit to include are not one and the same thing. As stated by Justice Brandeis, for the Court, in Iselin v. United States, 270 U.S. 245, 251, 46 S.Ct. 248, 250, 70 L.Ed. 566: 'What the government asks is not a construction of a statute, but, in effect, an enlargement of it by the court, so that what was omitted, presumably by inadvertence [in that case], may be included within its scope. To supply omissions transcends the judicial function.' This is exactly what we are requested to do here. We are not asked to construe any specific provision of the Act, but to write into it an additional provision of something to the following effect. Under Section 127(A), quoted in part above, which states '[s]uch policy of insurance shall meet the requirements enumerated hereunder when:' include an added requirement that the policy shall designate, as between the insurer and a plaintiff member of the public (as distinguished from the insured), a period of limitations equal to, or greater than, the general statutory period...