McNeill v. Maryland Ins. Guaranty Ass'n

• Decision Date: 10 April 1981
• Docket Number: No. 931,931
• Citation: 427 A.2d 1056,48 Md.App. 411
• Parties: Charlie McNEILL v. MARYLAND INSURANCE GUARANTY ASSOCIATION.
• Court: Court of Special Appeals of Maryland

Page 411

48 Md.App. 411

427 A.2d 1056

Charlie McNEILL v. MARYLAND INSURANCE GUARANTY ASSOCIATION.

No. 931.

Court of Special Appeals of Maryland.

April 10, 1981.

Certiorari Denied July 14, 1981.

Lee Gordon, Baltimore, with whom were Gordon & Goodman, P. A., Baltimore, on the brief, for appellant.

Stanford H. Franklin, Baltimore, with whom were Rocklin, Franklin & Karlin, Baltimore, on the brief, for appellee.

Argued before MASON, LISS and WILNER, JJ.

LISS, Judge.

Appellee, Maryland Insurance Guaranty Association, filed a declaratory judgment action in the Superior Court of Baltimore City seeking a determination of automobile liability coverage under an insurance policy issued by the bankrupt Maryland Indemnity Insurance Company (hereinafter MIIC) to its policyholder, Evelyn Watkins. Appellant, Charlie McNeill, answered the bill for declaratory judgment, and the parties agreed to submit the case on a stipulated statement of facts. That statement reads as follows:

On September 2, 1975, Maryland Indemnity Insurance Company issued Policy No. A58318 to Evelyn Watkins for a 1968 Dodge Coronet, Serial No. WP46F8A2379106. That policy was in effect on December 12, 1975.

On December 12, 1975, Charlie McNeill could not start his motor vehicle; whereupon he requested his friend, Evelyn Watkins, to bring her car to his location so that he could "jump-start" or "hot-shot" his car. Evelyn Watkins authorized Edward Hill to take her car to the aid of Charlie McNeill and he did so.

Charlie McNeill connected the cables to the batteries of both cars and the Watkins car engine was running at all times, all at the explicit direction of Charlie McNeill. Charlie McNeill then took off one or more of the battery caps from the battery located in his vehicle. At this time, Edward Hill, who was not in any of the vehicles but was standing in the area as an observer, lit a match causing the battery in the McNeill vehicle to explode resulting in Charlie McNeill being seriously injured.

Negligence and the absence of contributory negligence are admitted and, therefore, are not at issue. The Maryland Insurance Guaranty Association, representing the bankrupt insurer Maryland Indemnity, has filed the Declaratory Judgment action seeking determination of whether coverage may be afforded on the above policy to the claimant McNeill.

At oral argument before this Court the panel of judges hearing this case inquired whether the jumper cables were connected to both cars at all times pertinent; i. e., whether the cables remained connected uninterruptedly from the time they were originally connected until the time the battery exploded. Counsel for the parties were unable to answer this question at argument. Several days later, however, a letter was received in which both parties stipulated that the answer to the query was "yes." Furthermore, the letter (signed by both parties) represented to the panel:

Counsel also wish to bring to the Panel's attention, a clarification on the role of the match in causing the battery to explode. Counsel would agree that the lighting of a match which has absolutely nothing to do with the use or operation of a motor vehicle caused the explosion and ... it is further necessary to point out that the lighting of the match caused an explosion not in the Watkins car, but in McNeill's car. It was McNeill's battery that exploded and it was caused by a match.

Counsel, of course, disagree as to whether appellant's injuries given the factual situation in its totality, "arose out of ... the use of the insured's vehicle."

We have accepted the added stipulation of the parties as an additional portion of the appellate record. ¹

The Watkins vehicle was covered by the aforementioned policy which provided in pertinent part Coverage A Bodily Injury Liability; ...

To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of:

A. bodily injury, ...

arising out of the ownership, maintenance or use of the owned automobile ...

The trial judge, after consideration of the agreed statement of facts and memoranda of law submitted by the parties, held that the injury sustained by appellant did not arise out of the "ownership, maintenance or use" of the Watkins automobile and that MIIC was not liable to appellant under the terms of the Watkins policy. From this judgment, McNeill appeals.

The sole issue to be determined by this appeal is whether the injury sustained by the appellant was caused by an accident arising out of the "ownership, maintenance or use" of the Watkins vehicle.

The standard adopted by the Court of Appeals in the interpretation of provisions of an insurance policy where the disputed provision is susceptible to more than one construction is that the provision must be "liberally construed in order to promote ... recovery for innocent victims of motor vehicle accidents." Pennsylvania National Mutual Casualty Insurance Co. v. Gartelman, 288 Md. 151, 159, 416 A.2d 734 (1980). "Ownership, maintenance or use clauses" do not limit recovery solely to injuries that are caused by direct physical contact with the insured vehicle; nor is it necessary that the damages be directly sustained or inflicted by the operation of the motor vehicle. See also State Farm Mutual Automobile Insurance Co. v. Maryland Automobile Insurance Fund, 277 Md. 602, 356 A.2d 560 (1976); Elliott v. Jamestown Mutual Insurance Co., 27 Md.App. 566, 342 A.2d 319 (1975).

Appellant contends that it is sufficient to establish liability and coverage where there is a substantial nexus between the injury sustained and the use of the motor vehicle as contemplated by the insurance carrier and the insured.

Appellee argues that an automobile liability policy which provides coverage for accidents arising out of the "use" of a covered vehicle does not insure the owner of the vehicle unless it is shown that there is a causal connection between the use of the automobile and the accident, or the creation of the condition which caused the accident.

The Court of Appeals, in Frazier v. Unsatisfied Claim and Judgment Board, 262 Md. 115, 277 A.2d 57 (1971) had before it a factual situation in which a child of five years was a passenger in the rear seat of an open convertible vehicle which was being operated by the child's mother. An unidentified vehicle proceeding in the opposite direction passed the convertible and a lighted firecracker was thrown from the unidentified vehicle into the rear seat of the convertible. Distracted by the occurrence, the mother lost control of her car and struck a tree, severely injuring her child. The trial court concluded as a matter of law that the injuries did not arise out of the ownership, maintenance and use of the unidentified automobile. In reversing the trial court, the Court of Appeals held:

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). (262 Md. at 118, 277 A.2d 57.)

The proposition had previously been established in National Indemnity Co. v. Ewing, supra, where recovery was permitted by a plaintiff who had been thrown uninjured from the insured car but had subsequently sustained injury when the insured driver negligently escorted the plaintiff back to the car on foot by leading plaintiff down the center of the road. The Court permitted recovery under the insurance policy which provided for compensation of injuries arising out of the "ownership, maintenance or use" of the automobile, where it held:

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