Travelers Indem. Co. v. Cornelsen

• Decision Date: 21 June 1974
• Docket Number: No. 276,276
• Citation: 272 Md. 48,321 A.2d 149
• Parties: The TRAVELERS INDEMNITY COMPANY v. Ernest Edwin CORNELSEN et al.
• Court: Maryland Court of Appeals

Page 48

272 Md. 48

321 A.2d 149

The TRAVELERS INDEMNITY COMPANY v. Ernest Edwin CORNELSEN et al.

No. 276.

Court of Appeals of Maryland.

June 21, 1974.

William D. Appler, Silver Spring (Joel M. Savits and Carr, Bonner, O'Connell, Kaplan & Thompson, Rockville, on the brief), for appellant.

Edward J. Gorman, Jr., Bethesda (Austin F. Canfeild, Jr., Bethesda, and Leonard T. Kardy, Silver Spring, on the brief), for appellees.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, ELDRIDGE and O'DONNELL, JJ.

PER CURIAM:

Dr. Ernest Edwin Cornelsen and his wife, Mary Wilson Cornelsen, were successful in convincing the Circuit Court for Montgomery County that a proper application of Deems v. Western Md. Ry., 247 Md. 95, 231 A.2d 514 (1967), made possible a double recovery of two $25,000.00 payments under a comprehensive automobile-general liability policy with limits of $25,000.00 for each person and $50,000.00 for each occurrence, issued by The Travelers Indemnity Company (Travelers) to Barwood Cab Co., Inc. (Barwood). For reasons to be developed, we shall reverse the order of the lower court.

In February, 1971, Dr. Cornelsen was injured when his stopped car was struck by a taxicab owned by Barwood. He instituted suit against Barwood for $250,000.00. In a second count in the same declaration, Dr. and Mrs. Cornelsen claimed damages of $50,000.00 for the loss of consortium. ¹ A jury returned a verdict of $251,000.00 (reduced on remittitur to $250,000.00) in Dr. Cornelsen's favor against Barwood. On the second count, the jury's verdict was $65,000.00 (reduced on remittitur to $25,000.00) in favor of Dr. and Mrs. Cornelsen against Barwood.

In force at the time of the accident was a comprehensive automobile-general liability policy, issued by Travelers to Barwood. The policy contained the following limitation:

'The limit of bodily injury liability stated in the declarations as applicable to 'each person' is the limit of the company's liability for all damages because of bodily injury sustained by one person as the result of any one occurrence; but subject to the above provision respecting 'each person,' the total liability of the company for all damages because of bodily injury sustained by two or more persons as the result of any one occurrence shall not exceed the limit of bodily injury liability stated in the declarations as applicable to 'each occurrence." (Emphasis in original.)

After the entry of judgments on the verdicts, and relying on this limitation, Travelers tendered a check in the amount of $25,000.00 in full settlement of its liability under the policy. Dr. and Mrs. Cornelsen joined with Barwood in the filing of a suit for declaratory judgment against Travelers. Relying on the decision of this Court in Deems v. Western Md. Ry., supra, the Cornelsens argued that there were two claims against Travelers, each in the policy maximum of $25,000.00: that of Dr. Cornelsen for personal injuries, and that of Dr. and Mrs. Cornelsen for loss of consortium.

We regard the Cornelsens' reliance on Deems as misplaced. It is entirely clear to us that the decision in that case created a new substantive right, and as a concomitant, delineated a different procedural approach in actions for loss of consortium. Nevertheless, it gave rise to no new cause of action which could be availed...