DeJarnette v. Federal Kemper Ins. Co.

• Decision Date: 01 September 1983
• Docket Number: No. 15,15
• Citation: 299 Md. 708,475 A.2d 454
• Parties: William R. DeJARNETTE v. FEDERAL KEMPER INSURANCE COMPANY. ,
• Court: Maryland Court of Appeals

Page 708

299 Md. 708

475 A.2d 454

William R. DeJARNETTE v.FEDERAL KEMPER INSURANCE COMPANY.

No. 15, Sept. Term, 1983.

Court of Appeals of Maryland.

June 1, 1984.

John Amato, IV, Baltimore (Francis J. Meagher and Goodman, Meagher & Enoch, Baltimore, on brief), for appellant.

D. William Brooke, Baltimore (Frank X. Gallagher, Baltimore, on brief), for appellee.

Reargued before MURPHY, C.J., SMITH, ELDRIDGE, COLE, DAVIDSON and COUCH, JJ., and CHARLES E. ORTH, Jr., retired, Specially Assigned Judge.

COUCH, Judge.

At issue in this case is a motor vehicle liability policy excluding personal injury protection (PIP) coverage for injuries sustained in a motorcycle accident.

The facts of the case are undisputed.William R. DeJarnette, Jr. was riding on a motorcycle as a passenger.The motorcycle went out of control and overturned.As a result of the incident DeJarnette suffered injuries with consequent medical expenses and loss of earnings.At the time of the accident the motorcycle was owned and operated by Timothy James Smith.There was no personal injury protection (PIP) coverage provided in the policy covering the Smith vehicle.However, as a member of his father-in-law's household appellant was insured under an automobile liability policy issued by the appellee, Federal Kemper Insurance Company.

Appellant presented a claim under the PIP provisions of his father-in-law's insurance policy.Appellee denied the claim on the basis of a "use of motorcycle" exclusion contained in the policy.¹ Thereafter, appellant filed suit in the Superior Court of Baltimore City seeking coverage for his damages under the Kemper policy.Appellant and appellee filed Motions for Summary Judgment.The court denied appellant's motion, and granted appellee's cross motion for summary judgment.Appellant appealed to the Court of Special Appeals.The Court affirmed the ruling below.53 Md.App. 47, 451 A.2d 1274(1982).Appellant filed a Motion for Reconsideration.The Court granted same and modified its opinion--but the decision affirming the ruling below was left unchanged.Id.For the reasons stated herein we shall affirm.

Appellant raises two arguments before this Court:

1) Under Maryland law a passenger does not "use" a vehicle, thus, the motorcycle exclusion does not apply in this instance.

2) If such an exclusion were to apply, the exclusion is invalid because it goes beyond the statutory permitted exclusions of PIP benefits under Maryland Code(1957, 1979 Repl.Vol., 1983 Cum.Supp.), Art. 48A, § 545.

(1)

Appellant contends that riding on a motorcycle, as a guest passenger, does not constitute a "use" of the motorcycle.That one can only be said to use a motorcycle as a passenger, if that person exercises direction or control over the operator.Appellant principally relies on Hardware Mutual Casualty v. Mitnick, 180 Md. 604, 26 A.2d 393(1942), andMaryland Indemnity Insurance Co. v. Kornke, 21 Md.App. 178, 319 A.2d 603(1974), to support his contention.However, since those cases were decided in a different context we do not find them persuasive on this narrow issue.

In Mitnick and Kornke the clause at issue was not an exclusion, but rather an omnibus clause which reflects as its dominant purpose an intent to extend coverage.An omnibus clause must be liberally construed in favor of the insured.Coverage under the insurance policies in Mitnick and Kornke extended to " 'any person ... using the automobile * * * with the permission of the named insured.' "Mitnick, supra, 180 Md. at 607, 26 A.2d at 394;Kornke, supra, 21 Md.App. at 180, 319 A.2d at 605.In each case the drivers involved in an accident were not the persons originally given permission to drive by the named insured.The controversy was whether a passenger who exercised control and direction over the operation of the automobile, but who was not the operator, used the vehicle within the meaning of the policy clause in order to extend coverage to the driver of the vehicle.

In Kornke, the Court of Special Appeals held that the passenger (the first permittee) was using the car even though another was driving and that the " 'actual use' was with ... permission ... [since] operation of the car by the second permittee was for a purpose germane to the permission granted."Id. at 193, 319 A.2d at 612.In Mitnick, this Court found actual use with permission where a borrower makes "use of it by riding while driven by another.[At least where the passenger is]'still the director of the enterprise, still the custodian of the instrumentality confided to "her" keeping, still the master of the ship.' "Id.180 Md. at 607, 26 A.2d at 394(citation omitted).Our interpretation of these cases do not support appellant's argument.The cases only indicate that on the facts before the Court, the ordinary accepted meaning of using a motor vehicle would include situations where the operation was within the scope of permission granted, or where the passenger remained in control.The cases do not address the issue presented in the instant case, nor compel a finding that one must maintain direction and control in order to use a motor vehicle.

Appellant further attempts to bolster his argument by relying on Melvin v. American Automobile Insurance Co., 232 Md. 476, 194 A.2d 269(1963), by stating that Melvin cannot be distinguished from the instant case.We do not agree that Melvin is controlling.Melvin involved the same issues as Mitnick and Kornke, only the policy language was different.The question before the Court was whether the non-owner driver was an insured within the language of the policy.The policy afforded coverage to "[a]ny other person ... legally responsible for the use of ... an automobile ... not owned ... by such person ... provided the actual use thereof is by ... an insured...."Melvin, supra, at 478, 194 A.2d at 271.The Court did not hold, as appellant contends, that in all cases"actual use" of a vehicle by a passenger can only be found where there is direction and control.The Court merely refused to "limit the meaning of the words 'actual use' to the operation of a vehicle, where [under the facts of the case] the operator is the agent or servant of another and subject to his immediate and present direction and control."Id. at 478-79, 194 A.2d at 271.

Clearly, these three cases are not controlling on the instant case as the courts were not defining "use" of a motor vehicle but rather "actual use" and "actual use with permission."In the case sub judice, we are not concerned with "actual use" or scope of permission since no such wording appears in the insurance policy clause before us.The previous decisions do not preclude a finding of use on the facts of this case.As we stated in Melvin, operation and use are not synonymous.Id. at 480, 194 A.2d at 272.Use has been held to be a broad catchall encompassing both operating and riding.State Farm Mutual Automobile Insurance Co. v. Pan American Insurance Co., 437 S.W.2d 542(Tex.1969).

Appellant further contends that the natural or general meaning of the word "use" is limited by the terms in the statute.Maryland Code(1957, 1979 Repl.Vol., 1983 Cum.Supp.), Article 48A, § 539(a).²While § 539 does make a distinction between "occupying the insured vehicle as a guest or passenger [and] using it with ... permission"id., we are not convinced this controls the issue before us, for several reasons.

First, the occupying and using language pertains to accidents in an insured vehicle.In the instant case the insured vehicle was not involved in the accident.Appellant derives his coverage from that portion of § 539 that prescribes benefits to the "named insured and members of his family residing in his household ... injured in any motor vehicle accident...."Id.

Second, neither occupy or use is contained in the definition section of the statute.Maryland Code(1957, 1979 Repl.Vol., 1983 Cum.Supp.), Article 48A, § 538.Neither are they defined in the Transportation Article § 11-101, et seq."We have repeatedly stated that where the legislature has chosen not to define a term used in a statute, that term should, ... be given its ordinary and natural meaning."Brown v. State, 285 Md. 469, 474, 403 A.2d 788, 791(1979);Mauzy v. Hornbeck, 285 Md. 84, 400 A.2d 1091(1979);Williams v. Loyola College, 257 Md. 316, 263 A.2d 5(1970).By not defining these words in the statute, there is nothing to indicate the legislature"intended to express a technical meaning."State Tax Commission v. Allied Mortgage Companies, 175 Md. 357, 360, 2 A.2d 399, 400(1938).

Third, § 539 merely provides for coverage in general terms.Section 545, which permits exclusions from benefits required under § 539, however, is more specific.³Although various parts of a statute should be construed to give effect to all of the parts it is a cardinal rule of statutory construction that specific terms prevail over the general language of a statute.Baltimore National Bank v. State Tax Commission of Maryland, 297 U.S. 209, 56 S.Ct. 417, 80 L.Ed. 586(1936);United States v. Milk Distributors Association, Inc., 200 F.Supp. 792(D.Md.1961);Rafferty v. Comptroller, 228 Md. 153, 178 A.2d 896(1962);Montgomery County v. Lindsay, 50 Md.App. 675, 440 A.2d 411(1982).As further support for our finding that § 539 language does not control § 545, we find the terms the legislature chose to employ in § 545 do not conform to the terms used in § 539.For example, § 545(a)(2) permits an exclusion for injury "while operating or voluntarily riding in a vehicle known ... to be stolen."Id.If the language in § 539 was intended to control this section, as appellant contends, it would read--is injured while operating or occupying as a guest or passenger a vehicle known by him to be stolen.Similarly, sections (a)(1) and (3) make no reference to occupy or operate and yet the intent of the legislature is clear and unambiguous.While providing for a specific...