Transamerica Ins. Co. v. Brohawn

• Decision Date: 18 October 1974
• Docket Number: No. 892,892
• Citation: 326 A.2d 758,23 Md.App. 186
• Parties: TRANSAMERICA INSURANCE COMPANY v. Mary BROHAWN et al.
• Court: Court of Special Appeals of Maryland

Page 186

23 Md.App. 186

326 A.2d 758

TRANSAMERICA INSURANCE COMPANY v. Mary BROHAWN et al.

No. 892.

Court of Special Appeals of Maryland.

Oct. 18, 1974.

Edward C. Mackie, Baltimore, with whom were Robert W. Fox, Rollins, Smalkin, Weston & Andrew, Baltimore, on the brief, for appellant.

Francis J. Meagher, Baltimore, with whom were Goodman, Meagher & Enoch, Baltimore, on the brief, for appellees.

Argued before ORTH, C. J., and MORTON, THOMPSON, MOYLAN, GILBERT, MENCHINE, DAVIDSON, MOORE and LOWE, JJ.

ORTH, Chief Judge.

The efforts of Mary F. Brohawn and Martha J. Schmidt to remove their grandmother, Ethel Nosier, from a nursing home resulted in their being prosecuted for criminal offenses and sued for damages. Mrs. Rosier had been a resident of the Weeks-Cuppett Nursing Home ¹ in Oakland, Maryland, for some four years, admitted originally by her son, Robert. Mrs. Brohawn, her nineteen year old son, Mark, and Mrs. Schmidt went to the Home on 24 November 1970. They did so, according to Mrs. Brohawn, because Mrs. Schmidt 'talked with the Director at the nursing home, and he told her to come up and get my grandmother within thirty days or he was going to set her out in the street.' There are two disparate versions of what took place after they arrived at the Home. We shall refer to one as the Brohawn-Schmidt version, and the other, because Clara C. Shaffer and Mary Jane Friend, two employees of the Home, were directly involved, as the Shaffer-Friend version. Both versions are gleaned from the transcript of the proceedings in the criminal trial in the Circuit Court for Garrett County at which Mrs. Brohawn and Mrs. Schmidt were jointly tried, and from the answers to interrogatories filed in the civil actions brought by Mrs. Shaffer and Mrs. Friend against Mrs. Brohawn and Mrs. Schmidt.

According to the Shaffer-Friend version, as supplied by Regina Gank, an employee of the Home, the Brohawn entourage arrived about lunchtime. Mrs. Gank asked them to be seated while Mrs. Rosier ate her lunch, 'that we did not allow nobody in while eating, and they insisted on going in, they went in and sit down.' Mrs. Gank went to get Mrs. Shaffer and Mr. Weeks, one of the owners of the Home. 'So, then at the time, Mr. Weeks came over and Mrs. Shaffer, they must have seen them and got out in the lobby again.' After Mrs. Rosier finished lunch, Mrs. Gank told Mrs. Brohawn and her party that they could go in. '(F)irst thing I know, one of the aides come to me and said they are taking Mrs. Rosier out. . . . I said, they can't take her out, the one that signs her in is the one that is supposed to take her out.' Mrs. Brohawn and Mrs. Schmidt 'said some foul language . . .. And they said they were going to take her out, nobody was going to stop them'. Mrs. Gank went again to get Mrs. Shaffer. When they got back, Mrs. Brohawn, Mrs. Schmidt, Mark and Mrs. Rosier were 'outside of the door.' Mrs. Shaffer got hold of one arm of Mrs. Rosier and Mrs. Gank got hold of the other arm. Mark hit Mrs. Gank, and '. . . about that time, Mrs. Shaffer was falling down the cement steps. The Brohawn forces succeeded in leaving with Mrs. Rosier, who was 'pulling back.'

Mrs. Shaffer said she was working in another Annex when called by Mrs. Gank. Mrs. Brohawn and Mrs. Schmidt '. . . were pacing up and down the hall, and they were using profane language. . . . So, we tried, I even tried to talk to them, so I went over to the other side again and thought everything was all right, and then Mrs. Gank came back and called me again and said they were taking her out of the building. So, I proceeded to go back to the building again. And both-they had her out to the door and were going on the outside of the door. So, Mrs. Gank and I both grabbed her, one on each side of the arm, and of course, that is when we had a little tussel, and I was jerked around by the uniform and fell against the arm-railing and hit my side and on down to the bottom floor.' She identified Mrs. Brohawn as the one who 'jerked her around.' Answering the interrogatories she put it a little differently: '(T)he defendant either intentionally struck and assaulted her or carelessly and negligently struck and assaulted her, causing her to fall back against an iron railing and fall down the steps to the ground, sustaining personal injury.'

Mrs. Friend was on duty when the attempt was made to remove Mrs. Rosier. Mrs. Brohawn and Mrs. Schmidt '. . . both came in and . . . tried to take Mrs. Rosier out, and I tried to stop them at the first door to keep them from taking Mrs. Rosier. And Mrs. Rosier said, I do not want to go, that she is good to me and she feeds me, and at that time, she hauled off and hit me on the arm and knocked me back where we have our coats hanging in the cloakroom there.' It appeared from the cross-examination of Mrs. Friend that the person who hit her was Mrs. Brohawn. She also said she saw Mark hit Mrs. Gank.

According to the Brohawn-Schmidt version there was no altercation, no one fell down the steps and no one was struck by anyone. At the criminal trial, Mrs. Brohawn, as we have indicated, testified that she went to the Home because her sister '. . . talked with the Director at the nursing home, and he told her to come up and get my grandmother within thirty days or he was going to set her out in the street. This woman has ran away a number of times and has been brought back by police, and this should be on the police dockets. This woman was very unhappy at this nursing home, and she did not want to be there. She did not put up any struggle when we left. She said none of the things that was said here.' She recounted what happened:

'Well, they said she was having her lunch, and when the woman came-the woman said she was having her lunch came out, my sister went into the room, and all she had was a fourth of a glass of water sitting in front of her.

Well, I followed my sister-after I heard my sister talking to her, then, I also went into the room, and when I got in there, my grandmother was tied and roped to the bed. So, when I saw this, I was very upset and I started untying her, and I did untie her. And then I asked my son to help me because the knots were so tight that it was impossible for me to do it by myself. So, my son helped me untie her, and we got her to her feet, and she was very glad to see me, and she said that she thought we had given her up for lost, she thought she was in there forever, for lost. And I asked where her coat was, and she said, am I going home, and I said, Grandma, we're going home. I said, you're going to be happy once again, and I'm not lying, your Honor, because I've got a Creator to answer to.

We walked completely out, and the little lady with the-the bad-you know, she had the stutter, she said that someone-said to someone that Mrs. Rosier is leaving, and this lady said, well, let them go, don't stop them. Nobody stopped us, we walked out the door, your Honor, we walked to our car and left. Nobody stopped us. And that lady, the blonde lady said, let them go, and then she-after we got outside, she yelled, she says, well, I'm going to call the police, and I says, well, I dare you. And as God is my witness, she will have to answer for her soul for her lying, not me.'

Mrs. Brohawn's answers to interrogatories propounded to her were substantially the same as her testimony. She explained the Mark-Gank episode. Mrs. Gank '. . . placed her hand on the shoulder of Mark Brohawn to detain him and was told to take her hands off. . . . When Mark Brohawn told Mrs. Gank to remove her hand from him, he shrugged his shoulder to loosen the grip she had on him; but aside from this there was no personal contact between the parties known to this defendant.'

The Criminal Prosecutions

On 9 March 1971 criminal informations were filed in the Circuit Court for Garrett County charging that Mrs. Brohawn and Mrs. Schmidt kidnapped Mrs. Rosier and that they assaulted and beat Mrs. Shaffer and Mrs. Friend. When the informations came on for trial on 24 March, Mrs. Brohawn and Mrs. Schmidt pleaded guilty to the assault charges. The pleas were accepted and guilty verdicts were entered. As to each, a jail sentence of 30 days was suspended upon payment of a fine of $100 and costs. The kidnapping charges were dismissed.

The Civil Actions for Damages

On September 1971 Mrs. Shaffer and Mrs. Friend sued Mrs. Brohawn, Mrs. Schmidt and Frederick W. Schmidt ² in the Circuit Court for Garrett County, alleging that Mrs. Brohawn and Mrs. Schmidt 'willfully and maliciously and without any just cause or provocation' made an assault upon Mrs. Shaffer and Mrs. Friend and 'beat, wounded and ill-treated' them, causing them 'to suffer serious, painful and permanent injuries'. Compensatory and punitive damages were claimed. On 14 September 1971, upon suggestion by the Schmidts, the cases were removed to the Circuit Court for Allegany County for trial. Maryland Rule 542. On 3 November 1971 amended declarations were filed, adding a second count alleging that the injuries were incurred due to the negligence of Mrs. Brohawn and the Schmidts. These tort actions have not as yet been tried.

The Declaratory Judgment Proceeding

The Superior Risk Insurance Company issued policy No. 478988 to Mrs. Brohawn and her husband as the insured, effective for three years from 11 June 1969. Superior Risk was a subsidiary of the Ohio Farmer's Company. Transamerica Insurance Company acquired the Maryland policies of Superior Risk in 1969, according to a certification in the record by Transamerica. Under paragraph a, entitled 'Coverage E-Personal Liability', subsection 1 ('Insuring Agreements'), Section II of the policy, the Company agreed with the named insured:

'To pay on behalf of the insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury or property damage, and the Company shall defend any suit against the Insured alleging such bodily injury or...