Frazier v. Unsatisfied Claim and Judgment Fund Bd.

• Court: Maryland Supreme Court
• Writing for the Court: Argued before HAMMOND; SINGLEY
• Citation: Frazier v. Unsatisfied Claim and Judgment Fund Bd., 277 A.2d 57, 262 Md. 115 (Md. 1971)
• Decision Date: 12 May 1971
• Docket Number: No. 387,387
• Parties: Kevin FRAZIER et al. v. UNSATISFIED CLAIM AND JUDGMENT FUND BOARD.

Page 115

262 Md. 115

277 A.2d 57

Kevin FRAZIER et al. v. UNSATISFIED CLAIM AND JUDGMENT FUND BOARD.

No. 387.

Court of Appeals of Maryland.

May 12, 1971.

Emily M. Rody and Robert S. Rody, Baltimore, for appellants.

H. George Meredith, Jr., Baltimore and William E. Brannan, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen. and Hymes, Keyes & Simmons, Baltimore, on the brief) for appellee.

Argued before HAMMOND, C. J., and BARNES, McWILLIAMS, SINGLEY and SMITH, JJ.

SINGLEY, Judge.

At about 9:45 on the evening of 4 July 1969, Kevin Frazier, then five years of age, was a passenger in the rear seat of an open Chevrolet convertible which was being driven by his mother, Cassandra Frazier, in a northerly direction on Jumper's Hole Road, in Anne Arundel County. According to Mrs. Frazier, an unidentified light blue car, going in the opposite direction, passed her and as it did, the driver of the car threw a lighted firecracker or cherry bomb into the rear seat of her car. Distracted by the explosion and by Kevin's cries, Mrs. Frazier lost control of her can and hit a tree. Both she and Kevin were injured. Pieces of a firecracker were later found near a scorched spot on the upholstery of the rear seat.

Kevin, Mrs. Frazier and Mr. Frazier filed petitions in the Circuit Court for Anne Arundel County, in which they sought leave to sue the Unsatisfied Claim and Judgment Fund Board (the Board). From an order denying their petition, they have appealed. The court below found as a fact that the petitioners had made the reasonable efforts required by the Unsatisfied Claim and Judgment Fund Law, Code (1957, 1970 Repl.Vol.) Art. 66 1/2, subtitle 7, part VI (the Act), § 7-620(5) to ascertain the identity and driver of the unidentified vehicle, see Johnson v. Unsatisfied Claim & Judgment Fund Board, Md., 277 A.2d 5 (decided May 11, 1971), but concluded, as a matter of law, that the injuries sustained did not arise out of the ownership, maintenance and use of the unidentified car.

The Act, § 7-620 provides:

'When the death of, or personal injury to, any person arises out of the ownership, maintenance or use of a motor vehicle in this State * * * but the identity of the motor vehicle and of the operator and owner thereof cannot be ascertained * * * any qualified person who would have a cause of action against the operator or owner, or both, in respect to the death or personal injury * * * may * * * apply to a court of competent jurisdiction for an order permitting him to bring an action therefor against the Board * * *.'

The question, of course, is whether the Fraziers' injuries arose 'out of the ownership, maintenance or use of a motor vehicle.' The same phrase is frequently encountered in automobile insurance policies, and the Board rests its hopes on McDonald v. Great American Ins. Co., 224 F.Supp. 369 (D.C., R.I.1963) and Speziale v. Kohnke, La.App., 194 So.2d 485, writ refused, 250 La. 469, 196 So.2d 534 (1967), both of which involved injuries sustained when firecrackers were thrown from automobiles, and both of which concluded that no coverage was afforded by the automobile insurance policy. Compare, Richland Knox Mut. Ins. Co. v. Kallen, 376 F.2d 360 (6th Cir. 1967) where recovery was permitted under a homeowner's policy for injuries resulting from an unsuccessful attempt by a passenger to throw a firecracker out of the car window. 8 Blashfield, Automobile Law & Practice § 317.1 at 5-6 (Lewis ed. 1966); 7 Appleman, Insurance Law & Practice § 4317 at 144-6 (1942) and an Annotation, 89 A.L.R.2d 150 would seem to support the proposition that whether an injury is or is not within the coverage provided by an automobile insurance policy may well turn on the question whether the use of an automobile is directly or merely incidentally causally connected with the injury, even though the automobile itself may not have proximately caused the injury. Compare, for example, National Indemnity Co. v. Ewing, 235 Md. 145, 200 A.2d 680 (1964) (recovery allowed plaintiff, who fell from insured's car, and was injured while being escorted back to car on foot) and Mullen v. Hartford Accident & Indemnity Co., 287 Mass. 262, 191 N.E. 394 (1934) (injury sustained from slipping on oil leaking from car held to be within provisions of policy) with Commercial Union Ins. Co. of New York v. Hall, 246 F.Supp. 64 (E.D.S.C.1965) (no liability to plaintiff, whose way was blocked by insured's car and was then assaulted by insured) and Kraus v. Allstate Ins. Co., 258 F.Supp. 407 (W.D.Pa.1966), aff'd 379 F.2d 443 (3d Cir. 1967) (insurer not liable to pedestrians when insured detonated dynamite in his car).

We are reluctant to accept the notion that the gloss of judicial interpretation which may surround the provisions of the standard automobile insurance policy should necessarily be controlling in cases under our Unsatisfied Claim and Judgment Fund Law. We have noted that the Act is...