Popham v. State Farm Mut. Ins. Co.

• Decision Date: 01 September 1992
• Docket Number: No. 124,124
• Citation: 333 Md. 136,634 A.2d 28
• Parties: Christine POPHAM et al. v. STATE FARM MUTUAL INSURANCE COMPANY et al. ,
• Court: Maryland Court of Appeals

Page 136

333 Md. 136

634 A.2d 28

Christine POPHAM et al. v. STATE FARM MUTUAL INSURANCE COMPANY et al.

No. 124, Sept. Term, 1992.

Court of Appeals of Maryland.

Dec. 7, 1993.

Reconsideration Denied Jan. 13, 1994.

George P. Haldeman, on brief, Rockville, for appellants.

Charles E. Stoner (Charles M. Preston, Stoner, Preston & Boswell, Chtd., all on brief), Westminster, for appellees.

Argued before ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI and ROBERT M. BELL, JJ., and CHARLES E. ORTH, Jr., Judge (retired), Specially Assigned.

ROBERT M. BELL, Judge.

This appeal and cross-appeal from the judgment of the Circuit Court for Montgomery County, which dismissed all but one of the claims before it, require this Court to determine whether the insurer under an "excess" or "umbrella" personal liability policy that includes automobile liability excess coverage must offer in writing to the insured uninsured motorist coverage up to the limits of the excess automobile liability coverage. That inquiry focuses on Maryland Code (1957, 1991 Repl.Vol.) Art. 48A, § 541(c)(2) and (f). This case also presents the issue whether, by alleging the failure of the insurer and its agent to advise the insured that he could purchase uninsured motorist coverage equal to the liability coverage of the "excess" or "umbrella" policy, the appellants stated a cognizable claim in negligence against the appellees.

I.

While appellant Christine Popham ("Christine") was a passenger, an automobile driven by Michael Paul Dowling was involved in a one car accident. As a result, Christine suffered serious and permanent injuries and incurred more than $40,000 in medical expenses. The automobile driven by Dowling was insured by the Maryland Automobile Insurance Fund ("MAIF"), with personal injury liability coverage limits of $20,000/$40,000. Christine was an additional insured on two insurance policies issued to her father, appellant Douglas G. Popham ("Popham") by appellee State Farm Mutual Insurance Co., Inc. ("State Farm"). One, a family automobile insurance policy, provided uninsured motorist insurance coverage, in the same amount as its liability coverage, of $100,000/$300,000. The other, an "excess" personal liability insurance policy, contained liability coverage of $1,000,000, but no uninsured motorist coverage.

The appellants sued State Farm and its agent, appellee Walter Menage ("Menage"). As to State Farm, relying on Maryland Code (1957, 1991 Repl.Vol.) Article 48A, § 541(c)(2), they sought a declaration that they were entitled to uninsured motorist liability insurance coverage under the umbrella policy in the same amount as the liability coverage it provided. In another count, they alleged that both appellees negligently failed to comply with their common law duty to advise Popham, "in writing and in a reasonably commercial manner" of the right to purchase in connection with the umbrella policy, uninsured motorist insurance coverage in the same amount as the liability coverage that policy offered. ¹

The appellees moved to dismiss for failure to state a claim upon which relief could be granted ² each count of the appellants' complaint pertaining to them. The trial court granted the motion following a hearing, ruling that:

it is the finding by this Honorable Court that the personal liability umbrella policy or excess policy issued by State Farm Mutual Automobile Insurance Company to Douglas Popham is a motor vehicle liability policy as contemplated by Art. 48A, § 541(c), and as such it would ordinarily be subject to Art. 48A, § 541(c)(2), which would require the insurer to provide written notice to the insured of the opportunity to purchase uninsured motorist coverage in an amount equal to the liability limits of the policy; however, this Court further finds that the legislative intent of Art. 48A, § 541(f), which states that "Policies of insurance that have as their primary purpose to provide coverage in excess of other valid and collectible insurance or qualified self-insurance may include uninsured motorist coverage as provided in subsection (c) of this section" (emphasis supplied), is that umbrella or excess policies were not to be included in the definition of motor vehicle liability insurance policies, or, alternatively, was to create an exclusion or exemption to the requirements of § 541(c)(2)....

Finding no just cause for delay, it entered final judgment in favor of the appellees pursuant to Maryland Rule 2-602(b).

The appellants timely appealed to the Court of Special Appeals and the appellees cross-appealed, challenging the finding that an excess or umbrella insurance policy is a motor liability policy as contemplated by Art. 48A, § 541(c). We granted certiorari on our own motion prior to consideration by the Court of Special Appeals in order to consider the issues raised by the appeal and cross-appeal, 329 Md. 22, 616 A.2d 1286.

II.

Unless an appeal is from a final judgment, the appellate court does not acquire subject matter jurisdiction to review it. Sisk & Son v. Friendship Packers, 326 Md. 152, 158, 604 A.2d 69, 72 (1992); Estep v. Georgetown Design, 320 Md. 277, 282, 577 A.2d 78, 80 (1990). A judgment is final if it is "so far final as to determine and conclude the rights involved in the action, or to deny to the party seeking redress by the appeal the means of further prosecuting or defending his rights and interests in the subject matter of the proceeding." In Re Buckler Trusts, 144 Md. 424, 427, 125 A. 177, 178 (1924). See also Baltimore City Department of Social Services v. Stein, 328 Md. 1, 10, 612 A.2d 880, 884 (1992); Sigma Repro. Health Center v. State, 297 Md. 660, 665, 467 A.2d 483, 485 (1983); Peat, Marwick, Mitchell & Company v. Los Angeles Rams Football Company, 284 Md. 86, 91, 394 A.2d 801, 804 (1978); Rohrbeck v. Rohrbeck, 318 Md. 28, 41, 566 A.2d 767, 773-74 (1989). In other words, in addition to being intended as an unqualified, final disposition of the matter in controversy, Friendship Packers, 326 Md. at 159, 604 A.2d at 72; Rohrbeck, 318 Md. at 41, 566 A.2d at 773, "[t]he judgment must settle the rights of the parties, thereby concluding the cause of action." Estep v. Georgetown Leather Design, 320 Md. 277, 282, 577 A.2d at 80-81 (1990). See also Stein, 328 Md. at 9-10, 612 A.2d at 884; Wilde v. Swanson, 314 Md. 80, 84, 548 A.2d 837, 839 (1988); Houghton v. County Commissioners, 305 Md. 407, 412, 504 A.2d 1145, 1148, on reconsideration, 307 Md. 216, 513 A.2d 291 (1986); Highfield Water Company v. Washington Sanitary District, 295 Md. 410, 415, 456 A.2d 371, 373 (1983); Schultz v. Pritts, 291 Md. 1, 6, 432 A.2d 1319, 1322 (1981). Of course, the clerk must make a proper record of the judgment in accordance with Maryland Rule 2-601. Rohrbeck, 318 Md. at 41, 566 A.2d at 773. And, when the judgment does not adjudicate all of the claims of the parties, the court must act in accordance with Maryland Rule 2-602(b). ³ See Waters v. U.S.F. & G., 328 Md. 700, 707, 616 A.2d 884, 887 (1992).

As we have seen, the trial court entered final judgment pursuant to Maryland Rule 2-602(b). When it did so, however, there was pending the claim against Dowling and both the appellants' motion for reconsideration, filed within three days of the court's oral ruling, and the appellees' motion to strike the motion for reconsideration. The docket reflects that the court has not yet ruled on either motion.

When it ruled orally, the court contemplated, and so advised counsel, that it would sign an order, embodying that ruling, to be submitted by the appellees' counsel. Clearly, the oral ruling was not, and could not be, a final judgment. See Waller v. Maryland Nat'l Bank, 332 Md. 375, 377-80, 631 A.2d 447, 448-49 (1993); Maryland Rule 2-602(a). ⁴ This raises the question whether unresolved motions filed in response to a ruling not yet final are impediments to appeal when that ruling subsequently is made final when the court signs an order embodying it and containing the certification required by Maryland Rule 2-602(b).

Both the motion for reconsideration and the answering motion to strike related to an opinion of the court not yet embodied in a judgment. While the finality of a judgment, otherwise final, is lost when a party files a motion pursuant to Maryland Rule 2-533, 2-534, or 2-535, within ten days of its entry, Alitalia Linee Aeree Italiane v. Tornillo, 320 Md. 192, 200, 577 A.2d 34, 38 (1990); B & K Rental v. Universal Lift, 319 Md. 127, 132, 571 A.2d 1213, 1215-16 (1990); Yarema v. Exxon Corp., 305 Md. 219, 241 n. 19, 503 A.2d 239, 250 n. 19 (1986); Unnamed Att'y v. Attorney Grievance Comm'n, 303 Md. 473, 486, 494 A.2d 940, 946 (1985), no such effect obtains when a motion to reconsider is filed in connection with an opinion, or non-final order, of the trial court. This is so because no appeal lies from the opinion of a trial court which is not embodied in a judgment. Gluckstern v. Sutton, 319 Md. 634, 650, 574 A.2d 898, 906 cert. denied, 498 U.S. 950, 111 S.Ct. 369, 112 L.Ed.2d 331 (1990); Billman v. Maryland Deposit Ins. Fund, 312 Md. 128, 132, 538 A.2d 1172, 1174 (1988); Doehring v. Wagner, 311 Md. 272, 274, 533 A.2d 1300, 1301 (1987); Administrator, Motor Vehicles Administration v. Vogt, 267 Md. 660, 665, 299 A.2d 1, 3-4 (1973); Alberstadt v. Alberstadt, 257 Md. 552, 553, 263 A.2d 535, 535-36 (1970); Hudson Building Supply Company v. Stulman, 258 Md. 304, 307, 265 A.2d 925, 926 (1970). When the court entered final judgment, taking the action challenged by one side, but urged by the other, it rendered moot both the motion to reconsider and the motion to strike. Therefore, neither did, or could, affect the finality of that judgment.

III.

Maryland Code (1957, 1990 Cum.Supp.) Article 48A, § 541(c)(2), in effect at the time of the accident, in pertinent part, provided: ⁵

In addition to any other coverage required by this subtitle, every policy of motor vehicle liability insurance issued, sold, or...