Lesch v. Chevron, U.S.A., Inc.

• Decision Date: 01 September 1987
• Docket Number: No. 1151,1151
• Citation: 542 A.2d 1292,75 Md.App. 669
• Parties: Warren Robert LESCH, et al. v. CHEVRON, U.S.A., INC., et al. ,
• Court: Court of Special Appeals of Maryland

Page 669

75 Md.App. 669

542 A.2d 1292

Warren Robert LESCH, et al. v. CHEVRON, U.S.A., INC., et al.

No. 1151, Sept. Term, 1987.

Court of Special Appeals of Maryland.

July 7, 1988.

Glenn E. Bushel (Ira L. Oring, Melnicove, Kaufman, Weiner, Smouse & Garbis, P.A., all of Baltimore, H. Patrick Stringer, Jr. and Mudd, Harrison & Burch, Towson, on the brief), for appellants.

Donald E. Sharpe (Rosewin Sweeney, Elizabeth C. Kelley, Piper & Marbury, David D. Patton and Bossard & Patton, on the brief), Baltimore, for appellee, Chevron, U.S.A., Inc.

Richard L. Flax (Charles N. Ketterman, Susan A. Polis and Donahue, Ehrmantraut & Montedonico, Chartered, on the brief), Baltimore, for appellee, Bay Oil, Inc.

Argued before GILBERT, C.J., and BISHOP, J., and W. ALBERT MENCHINE, Associate Judge of the Court of Special Appeals (retired), Specially Assigned.

W. ALBERT MENCHINE, Judge, Specially Assigned.

Warren Robert Lesch, M.D. and Margaret Marie Lesch (Dr. Lesch, Mrs. Lesch, or the Lesches) ¹ filed an action in the Circuit Court for Harford County against Chevron U.S.A., Inc. (Chevron) and others. ² By amendment, Bay Oil, Inc. (Bay Oil) was made a co-defendant.

The several counts of the complaint against Chevron, as amended, alleged: (I) negligence of its actual or apparent agent; (II) strict liability; and (III) breach of warranty.

The several counts of the complaint against Bay Oil alleged: (IV) negligence of its actual agents; (V) strict liability; and (VI) breach of warranty.

Loss of consortium against both Chevron and Bay Oil was alleged under count VII.

Chevron and Bay Oil filed separate motions for summary judgment. The trial court, by a single order dated August 4, 1987, granted both motions. The order extended final judgments in favor of those two defendants. ³ The Lesches have appealed.

The test for our review in such cases was succinctly stated in Washington Homes v. Inter. Land Dev., 281 Md. 712, 717-18, 382 A.2d 555, 557-58 (1977):

"In reviewing the propriety of the trial court's action on a motion for summary judgment, the appellate court is concerned with whether there was a dispute as to any material fact, and if not, whether the moving party was entitled to judgment as a matter of law. In considering the matter, the duly shown facts which would be admissible in evidence and all reasonable inferences deducible therefrom must be considered in a light most favorable to the party opposing the motion and against the party making the motion. See Rooney [v. Statewide Plumbing & Heating General Contactors, Inc.], 265 Md. at 563-564 [290 A.2d 496 (1972) ]; Shatzer [v. Kenilworth Warehouses, Inc.], 261 Md. at 95 [274 A.2d 95 (1971) ]; Brown [v. Suburban Cadillac, Inc.], 260 Md. at 255 [272 A.2d 42 (1971) ]."

So viewed, the "pleadings, depositions, answers to interrogatories, admissions and affidavits" (Maryland Rule 2-501) demonstrate the existence of admissible evidence legally sufficient to establish the following:

On July 14, 1985 Dr. Lesch had observed "a metal rod lying in the ... highway ... swerved to avoid the rod but obviously did not. The left rear wheel hit the end of the rod, causing it to elevate, and hit against the gas tank." He first noted leaking gas after putting the car in the garage that day. The car was pushed from the garage and the driveway and garage hosed down until all luminescence and odor had disappeared. The car was left outside overnight and the garage door left open.

On July 15, 1985, Dr. Lesch reported by telephone to co-defendant Walker's Chevron, Inc. (Walker's Chevron) that gasoline was leaking from the gas tank of his motor vehicle. Co-defendant Malcolm Weeks (Weeks) arranged to have the vehicle towed to the service station. Neither Walker's Chevron nor Weeks are parties to this appeal.

Dr. Lesch talked to Weeks and was informed that repairs "would involve usually three things. He could repair it, if it was a small hole; it would require welding, if it was a larger hole; and it would need replacement if it was a big large hole." Weeks later told Dr. Lesch "I have fixed your gas tank." He had "fixed" the leak by wrapping air conditioner tape around a wood screw and inserting it into the gas tank. He then sealed the area with a mixture of epoxy substances.

The automobile was returned to Dr. Lesch's possession on July 16, 1985 and was driven between 50 and 70 miles that day. Checks for gasoline leakage were made on the afternoon and evening of that day at 1:00, 5:00, 5:30, 6:00, 7:30 to 8:00, and 9:30 to 10:00. No leaking had occurred on any of those inspections. The vehicle then was garaged.

The home of the Lesches was a ranch-style house, with the garage and basement on the first level, the living quarters above. On the morning of July 17, 1985 Mrs. Lesch noticed an odor, told Dr. Lesch, and both descended to the basement area, then moved through a door into the garage. The basement light switch was already on when the descent was made, but there was no light in the garage itself. Dr. Lesch carried a flashlight because he was "aware of a faint, but definite, maybe a little greater than faint, but a definite odor of gasoline." He lifted the garage door to get more light, retraced his steps so he "could see better under where the tank was" and saw "a little puddling of gasoline in the gas tank area." He said that "... at that moment the garage door triggered the light going on, and there was an instantaneous explosion."

Dr. Lesch sustained second degree burns on 45% of his total body surface. Mrs. Lesch sustained second and third degree burns on 45% of her total body surface. The dwelling and all its contents were destroyed in the ensuing fire.

The Case As To Chevron

The appellants do not contend that actual agency has been shown as to Chevron. Their claim against Chevron is grounded solely upon apparent agency liability.

In the course of an oral opinion, the trial judge said:

"The case appears to me to fall squarely within the facts as presented by BP Oil Company [Corporation] vs. Mabe, decided by the Maryland Court of Appeals, 279 Md. 632 [370 A.2d 554 (1977) ]. Based upon all facts that I have before me and taking the inferences drawn therefrom in the light most favorable to the Plaintiff, I do not believe there is any basis to conclude Chevron made any representation to the Plaintiff, and that the Plaintiff did not, in fact, rely upon any representation made by Chevron. A reliance by the Plaintiff upon the facts as presented did not constitute reasonable and justified reliance upon any apparent agency relationship between Chevron and Walker.

"I therefore conclude that the Motion for Summary Judgment as to Chevron should be granted."

We agree that Mabe fixes the standards by which apparent agency liability may attach in this State. We shall hold, however, that the admissible evidence and the reasonable inferences arising therefrom as shown in the documentary evidence required to be considered under Rule 2-501 would permit a trier of facts reasonably to conclude that apparent agency has been shown. In short, we conclude that the deficit of evidence delineated by Judge Smith in Mabe has been supplied in this case.

In Mabe, supra, Judge Smith said for the Court of Appeals:

"One thing upon which the parties here can agree is that the law applicable to such an agency is that stated in Restatement (Second) of Agency § 267 (1958):

'One who represents that another is his servant or other agent and thereby causes a third person justifiably to rely upon the care or skill of such apparent agent is subject to liability to the third person for harm caused by the lack of care or skill of the one appearing to be a servant or other agent as if he were such.'

(Emphasis added.)

"Restatement of Agency § 267 (1933) is identical to the above. Two Maryland cases are cited in the annotations to it, Pennsylvania R.R. v. Hoover, 142 Md. 251, 120 A. 526 (1923), and Pugh v. Washington Ry. & Elec., 134 Md. 196, 106 A. 522 (1919), 279 Md. at 643, 370 A.2d at 560."

Judge Smith thereafter in Mabe cited and commented upon 1 F. Mechem, Law of Agency § 245 (2nd ed. 1914):

" 'Estoppel is always a matter personal to the individual asserting it and he must therefore show that he was misled by the appearances relied upon. It is not enough that he might have been, or that some one else was, so misled. It must also appear that he had reasonable cause to believe that the authority existed; mere belief without cause, or belief in the face of facts that should have put him on his guard is not enough.' Id. at 177-78.

"The cases we have examined seem to be uniformly in agreement with the statements in the Restatement and Mechem to the effect that for there to be liability in a case such as this there must be actual reliance upon the part of the person injured."

279 Md. at 644-46, 370 A.2d at 561.

Judge Smith carefully delineated the indicia of authority in Mabe as follows:

"The service station in question was painted yellow and green, said to be the BP colors. There was a large BP sign on a pole hanging over the station; BP insignia appeared on the gasoline pumps; there was a tow truck present with a BP sign on it, and the attendant in question wore a uniform with yellow and green BP emblems on his jacket and cap.

"The service station building was leased by the owner to Faison. He leased it to BP who in turn leased it back to Faison. Gasoline tanks, pumps and signs were owned by BP. Under the agreement between Faison and BP, Faison was required to "furnish, install and display continuously on the exterior of the station at a point visible and accessible to the public, a legible sign showing that [he was] occupying said station under a lease and [was] the sole owner of the business." Mabe was asked by his attorney whether there was "any sign up that said anything about being operated by anybody other than BP," to which he replied in the negative. The record is otherwise silent as to...