Quecedo v. Montgomery County

• Decision Date: 22 February 1972
• Docket Number: No. 230,230
• Citation: 264 Md. 590,287 A.2d 257
• Parties: Carlos QUECEDO a/k/a Carlos Quecedo Garcia v. MONTGOMERY COUNTY, Maryland.
• Court: Maryland Court of Appeals

Page 590

264 Md. 590

287 A.2d 257

Carlos QUECEDO a/k/a Carlos Quecedo Garcia v. MONTGOMERY COUNTY, Maryland.

No. 230.

Court of Appeals of Maryland.

Feb. 22, 1972.

Rex L. Sturm, Rockville (R. Edwin Brown, Rockville, on the brief), for appellant.

Paul V. McCormick, Rockville (McInerney, Layne & McCormick, Richard S. McKernon, Acting County Atty., Alfred H. Carter, Deputy County Atty., and Stephen J. Orens, Asst. County Atty., Rockville, on the brief), for appellee.

Argued before HAMMOND, C. J., and BARNES, SINGLEY, SMITH and DIGGES, JJ.

BARNES, Judge.

The appellant, Carlos Quecedo, also known as Carlos Quecedo Garcia, who was the plaintiff below, contends in this appeal that the Circuit Court for Montgomery County (Moorman, J.) erred (1) in holding that the appellee, Montgomery County, did not waive its right to assert its defense of sovereign immunity even though a policy of insurance existed which contained a provision that the insurance company will not use the defense of governmental immunity except upon the written request of the insured and (2) in holding that a police officer, an employee of the County, in effecting an arrest on charges of assault and battery and disorderly conduct, was performing a governmental function rather than a proprietary function and that the County was not liable for injuries resulting from the police officer's alleged tortious acts committed in the performance of his public duty.

We have concluded that Judge Moorman did not err and we will affirm the judgment of August 3, 1971, for costs in favor of the County entered pursuant to Judge Moorman's order of July 26, 1971 (filed on July 28), dismissing all counts of the plaintiff's declaration against the County.

The plaintiff's declaration contains five counts for personal injuries allegedly resulting from the assault and battery, false arrest and malicious prosecution of the plaintiff by a County police officer. In Count V it is alleged that the County is a body politic and body corporate and had:

'* * * contracted with the Insurance Company of North America, and purchased from the said insurance company public liability insurances to protect the said defendant from any and all claims arising from tort liability, and the said policy of insurance specifically provides by endorsement thereon that the said 'insurance company, or its attorneys will not raise defense in any claim against Montgomery County that the County being a political body is immune from the liability alleged in such claim or resulting suit'; and the said policy of insurance further provides by endorsement thereon that 'bodily injury' shall include injuries arising from out of false arrest, malicious prosecution or willful detention or imprisonment; that the said insurance protects Montgomery County, Maryland, for the amount of One Hundred Thousand Dollars ($100,000.00) for each person injured to a total for each occurrence of Three Hundred Thousand Dollars ($300,000.00); and that by reason of said insurance Montgomery County, Maryland, has no government immunity up to and including the available amount of insurance.'

The County filed a Motion Raising Preliminary Objection pursuant to Maryland Rule 323 b in which it stated that the County is a municipal corporation under the Laws of Maryland; that its employee at the time of the occurrence complained of in the declaration was 'in the process of conserving the peace and protecting the dignity and good order of the citizens of the State and of this County and in such capacity was not the agent of the defendant so as to render it responsible for his alleged unlawful act in the discharge of his duties. Accordingly, the said County is entitled to the privilege of governmental immunity from tort liability.'

After considering the memoranda submitted by counsel for the parties and after argument, Judge Moorman, on July 28, 1971, filed a carefully considered opinion indicating that there was no waiver of the defense of sovereign immunity and that the police officer was performing a governmental and not a proprietary function. As we have indicated, an order was entered dismissing all counts of the declaration against the County.

1.

The appellant does not request that we again reconsider our holdings sustaining the doctrine of sovereign immunity where applicable. His claim is that the doctrine does not apply in the present case because, by virtue of the provisions of the liability policy as alleged in Count V of the declaration, the County has waived the protection of the immunity from tort claims up to the amount of the coverage. He cites statutory provisions in regard to the removal of the defense of charitable immunity to the extent of insurance coverage by Code (1968 Repl.Vol.) Art. 48A, § 480 as analogous to the situation in the present case and as indicative of the legislative intention of the Montgomery County Council that in the present case the County cannot avail itself of the immunity.

Art. 48A, § 480 provides:

'Each policy issued to cover the liability of any charitable institution for negligence or any other tort shall contain a provision to the effect that the insurer shall be estopped from asserting, as a defense to any claim covered by said policy, that such institution is immune from liability on the ground that it is a charitable institution.'

It will be noted that this statutory provision applies only to charitable institutions.

There is little doubt that the immunity may be waived by statute. By Section 1013 of the Charter of Prince George's County, it is provided:

'Governmental Liability. The County may be used in actions sounding in tort in the same manner and to the same extent that any private person may be sued. The County shall carry liability insurance with adequate limits to compensate for injury to persons or damage to property resulting from negligence or other wrongdoings of its officers, agents, and employees. Nothing herein shall preclude the County from meeting the requirements of this section by a funded self-insurance program.'

Unfortunately for the appellant, there is no similar type of law applicable to Montgomery County.

This Court indicated in Thomas v. Board of County Com'rs of Prince George's County, 200 Md. 554, 560, 92 A.2d 452, 455 (1952) that in the 'absence of statute, the fact that a charitable corporation carries insurance does not make it liable for torts or make the insurer liable on its policy.' This represents the weight of authority in the country. See annotation, 'Liability or indemnity insurance carried by governmental unit as affecting immunity from tort liability,' 68 A.L.R.2d 1437 in which it is stated at page 1438:

'In a...