Berry v. Scott

• Decision Date: 11 October 1973
• Docket Number: No. 13,13
• Citation: 309 A.2d 772,269 Md. 749
• Parties: Thomas F. BERRY et al. v. Norma SCOTT.
• Court: Maryland Court of Appeals

Page 749

269 Md. 749

309 A.2d 772

Thomas F. BERRY et al. v. Norma SCOTT.

No. 13.

Court of Appeals of Maryland.

Oct. 11, 1973.

Robert P. Schlenger, Baltimore (Frederick J. Green, Jr., Lord, Whip, Coughlan & Green, P.A. and Francis B Burch, Atty. Gen. and Raymond Valle, Sp. Asst. Atty. Gen., Baltimore, on the brief), for appellants.

Nelson R. Kandel, Baltimore (Jay M. Caplan, Baltimore, on the brief), for appellee.

Argued before BARNES, McWILLIAMS, SINGLEY, SMITH, DIGGES and LEVINE, JJ.

McWILLIAMS, Judge.

Here we must deal with an attempt to attenuate our holding in Wheeler v. Unsatisfied Claim and Judgment Fund, 259 Md. 232, 269 A.2d 593 (1970). We shall relate only the essential facts.

On 1 September 1968 the appellee (Norma), while standing on a street corner in Baltimore, was struck by Delphine Burman's car which an instant earlier had itself been struck by Thomas Berry's car. On 4 February 1970 she sued Burman and Berry. On 12 January 1971 Foster H. Fanseen, Esq., entered his appearance for Berry. At the end of the jury trial on 19 April 1972 the court directed a verdict in favor of Burman; Norma obtained a verdict of $4,000 against Berry. On 21 June 1972 the court ordered payment of the ensuing judgment out of the Unsatisfied Claim and Judgment Fund. On 1 February 1973 Dorf, J., after several hearings, refused to strike the order of 21 June 1973. Hence this appeal.

Norma insists that in October 1968 she 'gave (the) notice' to the Unsatisfied Claim and Judgment Fund Board (Board) required by Code (1970 Repl.Vol.), Art. 66 1/2, § 7-606(a), ¹ but she was unable to rebut the Board's testimony that it had not received any such notice. She contends also, as she did below, that because Mr. Fanseen entered the case and thereafter defended it the Board is somehow estopped to deny that any timely notice was received. The testimony of Henry Suter, an employee of the Board, was not challenged. He said the notice required by § 7-606(a) was not received by the Board until 18 July 1972. Other cases, arising out of claims by parties injured in the same accident, all properly reported and at issue, had been assigned to Mr. Fanseen's client, State Farm Mutual Insurance Company. It seems his entry into Norma's case, two years and four months after her injury, was either an inadvertence or the result of a misunderstanding.

We think it is entirely clear, however well-intentioned Mr. Fanseen's defense of Norma's suit against Berry may have been, that what he did was without any authority, express or implied, from the Board and we so hold. Indeed, even if he had been authorized to defend the suit, it is unlikely we would hold that his doing so, without more, could amount to a waiver or estoppel by the Board. It has been held that, as a precautionary measure, a potentially valid claim may be defended without acknowledging or incurring liability. Danisi v. Thuemling, 72 N.J.Super. 118, 178 A.2d 26 (1962). It must not be supposed, however, that there...