Lee v. Jones, 92-CV-372.

• Decision Date: 25 October 1993
• Docket Number: No. 92-CV-372.,92-CV-372.
• Citation: 632 A.2d 113
• Parties: Donald LEE, et al., Appellants, v. Robert JONES, et al., Appellees.
• Court: D.C. Court of Appeals

632 A.2d 113

Donald LEE, et al., Appellants, v. Robert JONES, et al., Appellees.

No. 92-CV-372.

District of Columbia Court of Appeals.

Submitted September 29, 1993.

Decided October 25, 1993.

Nicholas S. Nunzio, Jr., Washington, DC, was on the brief for appellants.

Benjamin S. Vaughan, Rockville, MD, was on the brief for appellee Jones.

Edwin D. Scorza, Chevy Chase, MD, was on the brief for appellee Government Employees Ins. Co.

Before TERRY, FARRELL, and KING, Associate Judges.

KING, Associate Judge:

Appellants Donald Lee and Diann Montgomery, plaintiffs in the trial court, appeal the grant of summary judgment in favor of trial court defendants Robert Jones ("Jones") and Government Employees Insurance Company ("GEICO"). They contend that the trial court erred in granting summary judgment because: (1) the statutory personal injury protection ("PIP") provision requires a showing of "knowing, conscious and intelligent election of PIP benefits" by the injured person, in lieu of bringing suit for liability, which was a disputed material fact, and (2) appellants could maintain a breach of contract action against GEICO, under the uninsured motorist provision, even though they accepted the PIP benefits. We affirm.

I.

Appellants, in Montgomery's vehicle, were injured on November 16, 1987, when their vehicle, which was stopped at a traffic signal, was struck in the rear by a car being operated by appellee Jones. Appellant Lee was in the driver's seat and appellant Montgomery was seated on the passenger side. Jones maintained that his vehicle, also stopped at the signal, had been forced into the rear of appellants' vehicle after an unidentified motorist struck the Jones vehicle in the rear. Both appellants sustained injuries.

Appellants sought the services of an attorney, James Fairbairn, to obtain compensation for the injuries sustained in the accident. GEICO, appellant Montgomery's auto insurer, provided PIP coverage for medical and rehabilitation expenses and lost wages. The policy also included uninsured motorist coverage as required by D.C.Code § 35-2106(f) (1993).

On November 27, 1987, GEICO sent separate PIP applications to Montgomery and Lee which contained a "No Fault Cover Letter" informing the applicants that under District of Columbia law a victim may choose either to recover under PIP or to pursue a liability claim. Appellants signed the PIP forms, which were then submitted to GEICO by attorney Fairbairn. In response, GEICO sent the PIP payments to Fairbairn, who in turn paid appellants.

On November 14, 1990, appellants filed a four-count complaint in Superior Court against Jones, GEICO, and Fairbairn. Appellants alleged that Jones caused their injuries through the negligent operation of his vehicle, that GEICO breached its contract by failing to pay uninsured motorist protection benefits, and that Fairbairn committed legal malpractice by failing to provide proper legal services.¹

The trial court granted appellees' motions for summary judgment, ruling that appellants were "barred from bringing a lawsuit against defendant Robert Jones and defendant Geico...." On appeal, appellants maintain that the trial court erred in so ruling.

II.

A motion for summary judgment brings into question the legal sufficiency of a claim and, when "supported by verified pleadings, depositions, answers to interrogatories,... may be used to test whether the party opposing the motion has raised a triable issue of fact." Smith v. Washington Metro. Area Transit Auth. ("WMATA"), 631 A.2d 387, 389-390 (D.C.1993) (citations omitted). "The requisite showing of a genuine issue for trial is predicated upon the existence of a legal theory which remains viable under the asserted version of the facts." Id. at 390 (citation and internal quotation omitted); Super.Ct.Civ.R. 56(c). Finally, in reviewing the grant of a summary judgment motion, this court conducts an independent review of the record and makes it own determination of whether the grant of the motion was warranted. Monroe v. Foreman, 540 A.2d 736, 739 (D.C.1988).

III.

We begin our analysis with the applicable provisions of the Compulsory/No-Fault Motor Vehicle Insurance Act of the District of Columbia. Section 35-2105 outlines the procedures to be followed by both the victim of a motor vehicle accident and the insurer. Section 35-2105(d) requires the insurer to notify any identifiable victim of the 60-day election period; while § 35-2105(a) requires that the victim notify the insurance company, within 60 days of an accident, if the victim elects to receive compensation under the PIP provision set forth in Section 35-2104. Section 35-2105(b) explicitly limits the litigation rights of any victim choosing PIP coverage once that option is elected. It provides that:

(b) A victim who elects to receive personal injury protection benefits may maintain a civil action based on liability of another person only if:

(1) The injury directly results in substantial permanent scarring or disfigurement, substantial and medically demonstrable permanent impairment which has significantly affected the ability of the victim to perform his or her professional activities, or usual and customary daily activities, or a medically demonstrable impairment that prevents the victim from performing all or substantially all of the material acts and duties that constitute his or her usual and customary daily activities for more than 180 continuous days; or

(2) The medical and rehabilitation expenses of a victim or work loss of a victim exceeds the amount of personal injury protection benefits available.

This language plainly states that, unless one of the two threshold requirements is met, a victim who opts to accept PIP benefits may not thereafter pursue any action premised on another person's liability. See Thomas v. WMATA, 270 U.S.App.D.C. 77, 78, 846 F.2d 1536, 1537 (1988) (No-Fault statute bars liability actions when PIP benefits are paid unless victim meets statutorily enumerated exceptions).

Appellants do not dispute that they recovered PIP compensation, nor do they assert that their injuries or expenses met either exception set forth above. Rather, they contend that the statutory language "elect" requires that the victim make a knowing, conscious and intelligent election to select PIP as a remedy that precludes other recovery. They also aver that when they agreed to accept PIP benefits, they did not intend to limit their right to file a civil action based on liability.

Appellants first argue that when a victim elects PIP benefits, that decision is open to collateral inquiry as to whether the election was knowing, intelligent, and conscious. We find nothing in the language of the statute, nor in the dictionary definition, to suggest that an election² connotes anything more than a choice. The facts of this case, moreover, even viewed most favorably to appellants, belie appellants' contentions. GEICO, in compliance with the applicable law, sent letters to both Montgomery and Lee explicitly stating that "if personal injury protection benefits are elected, the victim loses the right to make a claim against all other parties on the basis of fault unless he or she has a substantial injury which falls within the definitions of such injury as set forth in Section 6 of the D.C. No-Fault Act" (emphasis added). We have held that "an insured has a duty to read an application which he signs ... and is held to know the contents of his application and is bound thereby...." Metropolitan Life Ins. Co. v. Johnson, 363 A.2d 984, 988 (D.C.1976). Although technically...