Fisher v. Tyler

• Decision Date: 20 February 1975
• Docket Number: No. 491,491
• Citation: 332 A.2d 265,24 Md.App. 663
• Parties: Richard A. FISHER et al. v. Maxwell C. TYLER et al.
• Court: Court of Special Appeals of Maryland

Page 663

24 Md.App. 663

332 A.2d 265

Richard A. FISHER et al. v. Maxwell C. TYLER et al.

No. 491.

Court of Special Appeals of Maryland.

Feb. 20, 1975.

David M. Buffington and Charles P. Goodell, Jr., Baltimore, for appellants

William A. Franch, Annapolis with whom were John J. Corbley, Baltimore, and Goldsborough & Franch, Annapolis, on the brief, for Maryland Auto. Ins. Fund.

David H. Clark, Salisbury, with whom were Samuel S. Smalkin and Rollins, Smalkin, Weston & Andrews, Baltimore, and Cullen & Clark, Salisbury, on the brief, for other appellees.

Argued before THOMPSON, MENCHINE and MELVIN, JJ.

THOMPSON, Judge.

On January 26, 1973, appellant, Russell A. Taylor, employed as a truck driver for appellant, Fisher Trucking Corporation, was involved in a serious highway accident with numerous individuals near Oxon Hill, Maryland. One of the individuals sued for personal and property injury. He joined appellant, Richard A. Fisher, in the suit as well as Taylor and the corporation.

At the time of the accident, the Fisher Trucking Corporation was insured by the appellee, Northland Insurance Company. The insurance policy had been arranged for Fisher by appellee, Maxwell C. Tyler, as agent for the appellee, The Hardester Corporation. When the accident was reported to Northland, it disclaimed liability and refused to defend the tort actions which arose as a result of the accident. The disclaimer was based on an exclusion in the policy for situations in which one of Fisher's trucks was pulling a trailer belonging to someone else.

As a result of Northland's disclaimer, appellants filed a suit at law for a Declaratory Judgment with an election of a jury trial in the Circuit Court for Worcester County. The case was later removed to the Circuit Court for Dorchester County for trial. Named as defendants were Tyler, Hardester, Northland and the individuals involved in the accident.

Due to the importance to our decision of the substance of the allegations in appellants' declaration, we shall quote relevant parts.

COUNT I

'4. Defendant MAXWELL C. TYLER was an agent and employee of defendant THE HARDESTER CORPORATION, and insurance agency authorized to sell and write automobile liability insurance policies for defendant NORTHLAND INSURANCE COMPANY. Defendants MAXWELL C. TYLER and THE HARDESTER CORPORATION held themselves out to the public as experts, specialists and advisors in the insurance field and habitually do business in Worcester County, Maryland.

'5. Prior to November 1971, defendant MAXWELL C. TYLER solicited the insurance business of plaintiffs RICHARD A. FISHER and FISHER TRUCKING CORPORATION. Defendant MAXWELL C. TYLER met with plaintiff RICHARD A. FISHER at the latter's place of business in Pocomoke City, Worcester County, Maryland, and review the nature of his business operation. Plaintiff RICHARD A. FISHER fully apprised defendant MAXWELL C. TYLER of the nature of his business operation, provided his existing insurance policies for review, specifically advised defendant MAXWELL C. TYLER that his tractors frequently pulled trailers owned by his customers and not owned by him or FISHER TRUCKING CORPORATION, and requested that he obtain liability insurance to provide coverage whether his tractor was pulling a trailer owned by him or FISHER TRUCKING CORPORATION or a trailer owned by any customer.

'6. Defendant MAXWELL C. TYLER represented to plaintiff RICHARD A. FISHER that he would obtain an automobile liability insurance policy containing the coverage requested by plaintiff. Pursuant thereto, defendant MAXWELL '7. Contrary to the representations of defendant MAXWELL C. TYLER, he negligently failed to obtain as part of the policy coverage an endorsement commonly known as a 'hired automobile' endorsement to provide coverage for the plaintiffs while a tractor described in the aforesaid policy was pulling a trailer owned by a customer of plaintiffs, failed to advise plaintiffs of his failure to obtain the endorsement, and failed to advise plaintiff RICHARD A. FISHER of an exclusion in the policy purporting to apply when a tractor described in the policy is pulling a nonowned trailer. Plaintiff RICHARD A. FISHER relied on the purported expertise and advice and representations of defendants MAXWELL C. TYLER and THE HARDESTER CORPORATION to obtain the coverage requested and required by the nature of plaintiff's business operations.

C. TYLER, on behalf of his employer, THE HARDESTER CORPORATION, caused a policy of automobile liability insurance to be issued with NORTHLAND INSURANCE COMPANY, effective November 1, 1971 through November 1 1972. At the expiration of that policy, a renewal policy containing substantially the same coverage and designated as policy number L 07-58-93, a copy of which is attached as Exhibit 1, was issued for the period November 1, 1972 through November 1, 1973.

'10. As a result of the aforesaid negligence of defendants MAXWELL C. TYLER and THE HARDESTER CORPORATION and resulting disclaimer of coverage to plaintiffs, plaintiffs have incurred and will continue to incur substantial expenses and counsel fees in connection with their defense and the aforesaid claims and suit, and will suffer irreparable damage in the event judgments for damages arising out of the accident are entered

against them. Plaintiffs allege that such losses are the result of negligence on the part of defendants MAXWELL C. TYLER and THE HARDESTER CORPORATION, without any negligence on the part of the plaintiffs contributing thereto.'

COUNT II

'1. Defendant MAXWELL C. TYLER, as agent and employee of defendant THE HARDESTER CORPORATION, in consideration of the promise of plaintiffs to pay the premiums on the insurance policy, promised plaintiff RICHARD A. FISHER that he would obtain an automobile liability insurance policy which would cover plaintiffs for liability which would arise out of an automobile accident whether a tractor described in the policy was pulling a trailer described in the policy or a trailer owned by a customer.

'2. Defendants breached their agreement to obtain the policy with the coverage as promised, although the premium was paid and all conditions of the policy met by plaintiffs.'

COUNT III

'1. Defendant THE HARDESTER CORPORATION is an insurance agency representing NORTHLAND INSURANCE COMPANY, with general agency authority to solicit business from members of the public, to bind coverage, and to issue policies of NORTHLAND INSURANCE COMPANY on their behalf, and were acting on behalf of defendant NORTHLAND INSURANCE COMPANY in advising plaintiffs and obtaining the insurance policy.

'2. The negligence, misrepresentation and breach of contract by defendants MAXWELL C. TYLER and THE HARDESTER CORPORATION are inputed to defendant NORTHLAND INSURANCE COMPANY, as their principal.'

COUNT IV

'1. Defendant NORTHLAND INSURANCE COMPANY issued policy number L 07-58-93 to FISHER TRUCKING CORPORATION effective November 1, 1972 through November 1, 1973.

'2. Defendant NORTHLAND INSURANCE COMPANY breached said policy by disclaiming coverage to plaintiffs for the aforesaid accident, refusing to defend the suit filed against the plaintiffs or to pay claims asserted against them or to pay expenses and costs in connection with their defense of the aforesaid action.' ¹

At the conclusion of each count, appellants asked the court to declare that one or all of the appellees were liable to them for any judgment rendered in conjunction with the accident to the extent of the monetary limit of the policy issued by Northland, and to stay a personal injury suit instituted by one of the nominal defendants against the appellants.

On the day before trial began, the appellees moved to transfer the case to equity. The motion was granted over the objection of the appellants.

Trial commenced on April 11, 1974 before the trial court without a jury. The trial court found for the appellees and denied all requested relief. From that decision the appellants prosecute this appeal.

We hold that the trial court erred in transferring the case from law to equity. We do not reach the question of the propriety of denying a jury trial in a declaratory judgment action properly in equity. See, however, Village Books, Inc. et al. v. State's Attorney for Prince George's County,263 Md. 76, 282 A.2d 126 (1971).

Declaratory judgments can be obtained both at law or in equity. Himes v. Day, 254 Md. 197, 254 A.2d 181 (1969). The determination of whether the action is properly at law or in equity must be made by an examination of the nature of the claim asserted and the relief requested. In this regard see Glorius v. Watkins, 203 Md. 546, 548, 102 A.2d 274, 275 (1954):

'If the proceeding is of a legal nature, it does not become equitable when cast in the form of a demand for a declaratory decree; just as a remedy purely legal cannot be sought in an...