Huber v. Nationwide Mut. Ins. Co.

• Decision Date: 01 September 1996
• Docket Number: No. 128,128
• Citation: 701 A.2d 415,347 Md. 415
• Parties: Paul A. HUBER v. NATIONWIDE MUTUAL INSURANCE COMPANY. ,
• Court: Maryland Court of Appeals

Page 415

347 Md. 415

701 A.2d 415

Paul A. HUBER v. NATIONWIDE MUTUAL INSURANCE COMPANY.

No. 128, Sept. Term, 1996.

Court of Appeals of Maryland.

Oct. 16, 1997.

Andrew Janquitto (Mudd, Harrison & Burch), on brief; (J. Michael Lawlor, on brief), Towson, for petitioner.

Angus R. Everton (Mason, Ketterman & Morgan), on brief, Baltimore, for respondent.

Argued before BELL, C.J., ELDRIDGE, RODOWSKY, CHASANOW, and RAKER, JJ., and ROBERT L. KARWACKI and MARVIN H. SMITH, JJ. (retired), Specially Assigned.

ROBERT L. KARWACKI, Judge, Retired, Specially Assigned.

We issued a writ of certiorari to the Court of Special Appeals in order to review that court's affirmance of a declaratory judgment entered by the Circuit Court for Baltimore County. At issue is the proper construction of the provisions of an automobile liability policy issued by Nationwide Mutual Insurance Company ("Nationwide"), the Respondent, to Paul A. Huber, the Petitioner, relating to uninsured/underinsured motorist coverage. We will be unable to reach the merits of this controversy, however, because the Court of Special Appeals was without jurisdiction to consider the appeal for the reasons we now explain.

Paul Huber, and his wife Agnes, were involved in a motor vehicle accident on April 7, 1990, with an uninsured/underinsured motor vehicle operated by Alberto Arroyo. Agnes Huber was killed and Paul Huber suffered serious injuries. At the time of the accident, Paul Huber maintained an automobile liability insurance policy with Nationwide covering two vehicles, a 1987 Dodge Dakota and a 1982 Oldsmobile Cutlass.

According to the declaration page of the insurance policy, the 1987 Dodge Dakota had uninsured/underinsured motorist coverage limits of $100,000 per person and $300,000 per occurrence. By contrast, the 1982 Oldsmobile Cutlass had uninsured/underinsured motorist coverage limits of $500,000 per person and $500,000 per occurrence. The Hubers were occupying the 1987 Dodge Dakota at the time of the accident.

Petitioner filed suit individually and as personal representative of the estate of Agnes Huber. On January 31, 1991, the original complaint was filed against Diane Arroyo, the personal representative of Alberto Arroyo, deceased and Erika Koch Arroyo, ¹ seeking damages for personal injuries and wrongful death. Petitioner later filed a supplemental complaint adding Nationwide as a defendant and adding counts on a theory of breach of contract. Still later, a second supplemental complaint was filed adding Solomon N. Hoke, an insurance agent/broker, as a defendant in counts based on theories of breach of contract, negligent misrepresentation and professional negligence. The second supplemental complaint also added the same additional counts against Nationwide.

Finally, Petitioner filed a third supplemental complaint containing only one additional count seeking a declaratory judgment as to the rights and liabilities of the parties pursuant to the uninsured/underinsured provisions of the automobile insurance policy Nationwide had issued to the Petitioner. On June 20, 1995, Petitioner filed a motion for summary judgment on the issue of whether the Nationwide policy provided $500,000 per person and $500,000 per occurrence of uninsured/underinsured motorist protection for the April 7, 1990 automobile accident. Petitioner contended that he was entitled to the highest uninsured/underinsured motorist limits available under his insurance policy regardless of which vehicle he was occupying at the time of the accident.

Nationwide opposed the motion and filed a cross motion for partial summary judgment. Nationwide argued that in order for the Petitioner to be entitled to the higher coverage he had to be occupying the specific vehicle for which the higher limits were provided on the declaration page. Therefore, according to Nationwide, Petitioner was only entitled to $100,000 per person and $300,000 per occurrence of uninsured/underinsured motorist coverage as stated on the declaration page for the 1987 Dodge Dakota.

The trial court pursuant to Maryland Rule 2-503(b) ordered a separate trial of the declaratory judgment claim of Petitioner against Nationwide. After oral argument on the motions for summary judgment, the court entered judgment declaring that Petitioner was only entitled to uninsured/underinsured coverage of $100,000 per person and $300,000 per occurrence. Finding that there was no just reason for delay, the trial court purported to certify that judgment as final pursuant to Md. Rule 2-602(b). Petitioner filed a timely appeal, and in an unreported opinion the Court of Special Appeals affirmed the circuit court's declaratory judgment.

As we have previously held, " '[t]he jurisdiction of this Court, and the Court of Special Appeals, is determined by constitutional provisions, statutory provisions and rules; jurisdiction cannot be conferred by consent of the parties.' " Therefore, " 'this Court will dismiss an appeal sua sponte when it notices that appellate jurisdiction is lacking.' " Biro v. Schombert, 285 Md. 290, 293, 402 A.2d 71, 73 (1979), quoting Smith v. Taylor, 285 Md. 143, 147, 400 A.2d 1130 (1979) and Eastgate Associates v. Apper, 276 Md. 698, 700-01, 350 A.2d 661 (1976).

We are unable to reach the merits of this appeal because the Court of Special Appeals lacked jurisdiction to hear the appeal in the first instance. Because the trial court's certification of the declaratory judgment in favor of Nationwide as a final judgment pursuant to Md. Rule 2-602(b) was improper, the Court of Special Appeals should have dismissed Petitioner's appeal. Md. Rule 2-602(b) provides, in relevant part:

"(b) When Allowed.--If the court expressly determines in a written order that there is no just reason for delay, it may direct in the order the entry of a final judgment:

(1) as to one or more but fewer than all of the claims or parties; or...." (Emphasis added). ²

The plain language of the rule requires as a condition precedent to any appeal, that the judgment must be dispositive as to an entire claim or party before it may be certified as final and appealable. Shenasky v. Gunter, 339 Md. 636, 638, 664 A.2d 882, 883 (1995). Diener Enterprises v. Miller, 266 Md. 551, 554-55, 295 A.2d 470, 473 (1972).

The Petitioner's complaint and supplemental complaints contain ten separate counts against Nationwide. Although these counts are based on different legal theories, the Petitioner can only recover a single award of monetary damages based on the facts alleged. Thus, the aggregate of the counts/complaints constitute only one claim upon which relief can be granted. This court has held that where, as here, a claimant presents a number of legal theories, but will be permitted to recover on one of them at most, he or she has but a single claim for relief. Medical Mutual v. Evander, 331 Md. 301, 310, 628 A.2d 170, 174 (1993). Diener Enterprises v. Miller, 266 Md. 551, 556, 295 A.2d 470, 473 (1972). See also, Biro v. Schombert, 285 Md. at 295, 402 A.2d at 74. (Different legal theories for the same recovery based upon the same facts or transaction do not give rise to separate claims under this rule.)

In addition, each count is based on the same factual allegations as recognized by the Petitioner in incorporating all previous allegations in each subsequent count. The issue as to the liability of Nationwide pursuant to the automobile insurance policy arose as a result of the single motor vehicle accident. The rights and responsibilities of the parties under each count spring from one document, the automobile insurance policy issued by Nationwide, and there is but one...