Garay v. Overholtzer

• Decision Date: 01 September 1993
• Docket Number: No. 14,14
• Citation: 631 A.2d 429,332 Md. 339
• Parties: Ana G. GARAY et al. v. Mildred Irene OVERHOLTZER. ,
• Court: Maryland Court of Appeals

Page 339

332 Md. 339

631 A.2d 429

Ana G. GARAY et al. v. Mildred Irene OVERHOLTZER.

No. 14, Sept. Term, 1993.

Court of Appeals of Maryland.

Oct. 4, 1993.

Theodore A. Miller, Rockville, for appellant.

Jeffrey T. Brown, Budow and Noble, P.C., on brief, Bethesda, for appellee.

Before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI and ROBERT M. BELL, JJ.

KARWACKI, Judge.

On December 10, 1986, while walking between several parked cars, Reynaldo Augusti Garay, a two and one-half-year-old boy, emerged from between the parked cars and was struck and injured by an automobile driven by Mildred Irene Overholtzer. Nearly five years later, on November 18, 1991, a two-count complaint was filed by Reynaldo and Reynaldo's parents, Ana G. Garay and Reynaldo A. Garay, against Overholtzer in the Circuit Court for Montgomery County. ¹ In the first count of the complaint, the minor through his mother as next friend alleged that as a result of Overholtzer's negligence he sustained "great bodily injury, disability, pain and suffering ... as well as disfigurement which will continue for the rest of his natural life," for which he sought $1,000,000 in damages. In the second count, the parents alleged that, as a result of Overholtzer's negligence, their son sustained injuries for which "they have expended great sums of time and money and will continue to expend great sums of time and money for their son's recovery during his minority," for which they sought $500,000 in damages.

Overholtzer moved to dismiss the second count of the complaint for failure to state a claim upon which relief could be granted. See Maryland Rule 2-322(b)(2). Overholtzer's motion asserted that under Maryland law the parents of a minor child are responsible for the child's medical care and that the parents' claim for medical expenses incurred on behalf of their son accrued on the date of the accident. Overholtzer further contended that, by failing to file a complaint within three years from the date of the accident, the parents' claim for medical expenses was barred by Maryland's general three-year statute of limitations. ² At the conclusion of a hearing on September 2, 1992, Judge J. James McKenna granted Overholtzer's motion to dismiss the second count in the complaint.

On the very next day, the minor through his mother as next friend filed an amended complaint, containing a single count. In this amended complaint, the minor alleged in relevant part:

"3. That as a result of the negligence of [Overholtzer], great bodily injury, disability, pain, and suffering, were suffered by the [minor] as well as disfigurement which will continue for the rest of his natural life.

"4. By reason of the negligence of [Overholtzer] large sums have been expended for his medical care and great sums will be incurred on his behalf and by him for future medical services during and after his minority."

The amended complaint sought $1,000,000 in damages from Overholtzer.

Overholtzer moved to dismiss the amended complaint for failure to state a claim upon which relief could be granted. Overholtzer asserted that the right to bring a cause of action to recover the sums expended for medical care rests solely with the parents of the minor, that the minor is under no legal obligation to pay for his medical care, that the minor lacks standing to pursue a claim for recovery of sums expended for his medical care, and that, because the parents' claim for medical expenses is barred by limitations, an attempt by the minor to bring the claim amounts to an invalid assignment of the claim.

At the conclusion of a hearing on November 10, 1992, Judge McKenna granted Overholtzer's motion to dismiss the amended complaint. The parents of the minor filed appeals from both judgments to the Court of Special Appeals, which consolidated the appeals. Prior to any consideration of the case by the intermediate appellate court, we issued a writ of certiorari to determine heretofore undecided questions relating to the recovery of medical expenses when a minor is negligently injured.

I.

Maryland Code (1984, 1991 Repl.Vol.), § 5-203(b)(1) of the Family Law Article provides that "[t]he parents of a minor ³ child ... are jointly and severally responsible for the child's support, care, nurture, welfare, and education...." For a chronological history of § 5-203(b)(1), see Middleton v. Middleton, 329 Md. 627, 633, 620 A.2d 1363, 1366 (1993). With regard to this statutory obligation, we have previously stated "[w]hile this statute does not mention 'medical care' in specific terms, we have no hesitancy in holding that it is embraced within the scope of the broad language used." Craig v. State, 220 Md. 590, 596, 155 A.2d 684, 688 (1959); see also State v. Fabritz, 276 Md. 416, 425, 348 A.2d 275, 280 (1975); Levitsky v. Levitsky, 231 Md. 388, 397, 190 A.2d 621, 625 (1963). ⁴

It is well settled that when a person negligently injures a minor two separate causes of action arise; the minor child has a cause of action for injuries suffered by it, and the parent or parents of the minor child have a cause of action for loss of services and for medical expenses incurred by the parent for the treatment of the minor's injuries. Hudson v. Hudson, 226 Md. 521, 174 A.2d 339 (1961); see also Meyers v. Meagher, 277 Md. 128, 352 A.2d 827 (1976); County Comm'rs v. Hamilton, 60 Md. 340 (1883); John H. Derrick, Annotation, Tolling of Statute of Limitations, on Account of Minority of Injured Child, as Applicable to Parent's or Guardian's Right of Action Arising Out of Same Injury, 49 A.L.R.4th 216 (1986 & Supp.1992); L.S. Tellier, Annotation, What Items of Damages on Account of Personal Injury to Infant Belong to Him, and What to Parent, 32 A.L.R.2d 1060 (1953, Supp.1989, & Supp.1993).

In Hudson v. Hudson, supra, a mother brought two separate suits against a tortfeasor whose negligence injured her daughter. One suit was brought by the mother as next friend of her daughter for personal injuries to the daughter. The second suit was filed in her individual capacity for reimbursement of necessary medical expenses incurred by the mother. With regard to the separate causes of action, we stated:

"There can be no doubt that the mother was charged with the support, care, nurture and welfare of her infant daughter until the minor's marriage, the father being deceased. Code (1957), Article 72 A, Section 1. It is almost if not universally recognized that one tortious act may give rise to two or more separate and distinct causes of action; and it is very generally held that where a person negligently injures an infant, under circumstances that create legal liability to the infant, ... ordinarily there arises in the parent or parents of said infant a right of action for loss of services (if such loss can be proven) and for doctors' bills and medical and hospital expenses necessarily and reasonably incurred by the parent for the treatment of the injuries, in those cases where the parent is primarily responsible therefor; and this cause of action is quite separate and apart from any right of action that the infant may have for his or her injuries. And the parent who has actually incurred the obligation to pay for such medical services is entitled to recover for them, although the bill for them has not, in fact, been paid."

226 Md. at 527-28, 174 A.2d at 342 (footnotes omitted). Rejecting the notion that the parent's cause of action for medical expenses was part of the minor's action, we reasoned:

"The [tortfeasor] relies heavily upon the case of Callies v. Reliance Laundry Co., 206 N.W. 198 (Wisc.1925). It is true that the Court in that case (involving negligent injury to a minor by automobile) used some rather broad language and subtle reasoning, and came to the conclusion that the parent's right of action for loss of services and medical expenses of a minor child was really a part of the child's cause of action, and was, therefore derivative in nature and analogous to an assigned contract; ....

"The reasoning in the Callies case (as well as the result) is criticized by Dean Prosser, Prosser, op. cit., p. 702, and other writers upon the subject. 39 Am.Jur., Parent and Child, § 74, says: "Although it has been said that the parent's cause of action is merely a part of the child's cause of action, [citing Callies ] * * * it would seem that, properly considered, the two rights of action are entirely separate and distinct. The parent is not, as is sometimes held, [again citing Callies ] a mere assignee of a part of the child's cause of action. In other words, when a minor child is injured, two causes of action immediately spring into existence: * * *." See also 42 A.L.R. 717, 723, 724. We have little difficulty in reaching the conclusion that the prevailing view is the proper one; namely, that where a parent is entitled to recover for medical expenses incurred as a result of negligent injuries to his minor child, the parent's cause of action is not derivative, in a legal sense, from the infant's cause of action, but is a separate and distinct ground for recovery vested in the parent."

226 Md. at 528-30, 174 A.2d at 343. That separate causes of action exist in the minor and parent was further evidenced by our holding in Hudson that a procedural bar ⁵ to the minor's suit would not preclude the separate parental action, if all the elements of liability to the minor existed. We quoted from the Restatement of Torts, § 703(b) (1938):

"One who by reason of his tortious conduct is liable to a minor child for illness or other bodily harm is subject to liability to

* * * * * * "(b) the parent who is under a legal duty to furnish medical treatment for any expenses reasonably incurred or likely to be incurred for such treatment during the child's minority.

"Comment:

"a. Child's contributory fault or consent. The rule stated in this Section is applicable only if the actor is liable to a child for a tort committed against...