Unsatisfied Claim and Judgment Fund Bd. v. Holland

• Decision Date: 04 February 1966
• Docket Number: No. 79,79
• Citation: Unsatisfied Claim and Judgment Fund Bd. v. Holland, 216 A.2d 525, 241 Md. 294 (Md. 1966)
• Parties: UNSATISFIED CLAIM AND JUDGMENT FUND BOARD v. Mary S. HOLLAND.
• Court: Maryland Court of Appeals

Page 294

241 Md. 294

216 A.2d 525

UNSATISFIED CLAIM AND JUDGMENT FUND BOARD v.Mary S. HOLLAND.

No. 79.

Court of Appeals of Maryland.

Feb. 4, 1966.

James M. Gabler, Baltimore (Paul E. Burke, Jr., and Smith, Somerville & Case, Baltimore, on the brief), for appellant.

No appearance for appellee.

Before PRESCOTT, C. J., and HORNEY, MARBURY, BARNES and McWILLIAMS, JJ.

McWILLIAMS, Judge.

We are asked, for the first time, to interpret the 1960amendment(1960, ch. 49, § 1) to Code Art. 66 1/2, § 154(a)(1957 Cum.Supp.1965).The Unsatisfied Claim and Judgment Board(the Board) exhorts us to set aside the interpretation of the trial court.The facts, the question presented and the rationale of the decision are all set forth in the trial court's opinion, which follows:

'The above matter was presented to the court on the following stipulation:

'1.The accident upon which the plaintiff's claim is based occurred on September 4, 1960.

'2.The Notice of Intention to Make Claim (form U.C.J. 201) was filed by the plaintiff with the U.C.J. Board on December 21, 1960, more than 90 days after the happening of said accident.The said Notice of Intention to Make Claim incorrectly gave September 25, 1960 as the date of said accident, which later date would be within the 90 days notice period.A copy of said Notice of Intention and physician's certificate was attached hereto.

'3.Suit was filed on behalf of the plaintiff and a General Issue Plea was filed on behalf of the defendant by assigned counsel, Paul E. Burke, Jr., and Smith, Somerville & Case, on November 1, 1961.

'4.Upon discovery that said Notice of Intention had not been filed within 90 days from date of accident, and on instructions from the U.C.J. Board, said assigned counsel filed a Petition to Strike their appearance from said suit on December 15, 1961, and the Order thereon was signed by the Court on May 8, 1963, without prejudice to the question of Notice.

'5.On November 14, 1963, judgment was entered in favor of the plaintiff against the defendant, Lawyer W. Boice, in the total amount of $750.00 plus court costs.The Petition for Payment thereof was served on the Board on March 10, 1964, and the Answer to said Petition was filed on March 23, 1964.

'6.The attached copy of a letter dated November 25, 1960, from Vernon E. Meade, an insurance agent, was received by plaintiff's counsel in due course of mail.

'7.The question for determination by this Court is whether said letter of November 25, 1960, qualifies as a 'notice that an insurer has disclaimed on a policy of insurance so as to remove or withdraw liability insurance coverage for his (her) claim against a person or persons who allegedly caused him (her) to suffer damages', as provided by Chapter 49 Laws of 1960, amendingArticle 66 1/2, Section 154(a).

'The principal issue to be decided is whether or not the letter of November 25, 1960, from the Amalgamated Labor Insurance Service to the attorneys for the plaintiff falls within the statutory exception provided for under Chapter 49 of the Acts of 1960 as follows:

"or (2) that he gave notice to the Board within 30 days of receiving notice that an insurer had disclaimed on a policy of insurance so as to remove or withdraw liability insurance coverage for his claim against a person or persons who allegedly caused him to suffer damages.'

'The letter in question reads as follows:

"Biener and Connell

Azar Building

Ritchie Highway

Glen Burnie, Maryland

Re: Lawyer Boice

PolicyNo. A35-96

Olympic Insurance Company

Gentlemen:

Regarding the above we wish to informe you that Mr. Lawyer Boice has not been insured under the above policy since June 4th 1960.

The Olympic Insurance Company cancelled the policy as of that date and we do not have Mr. Boice insured with any other company at this time.

If I can be of any further help to you in this matter please contact me.

Yours truly,

/s/ VERNON E. MEADE.'

'It is conceded by the parties that the notice to the Board was given within thirty days of receiving the said letter from the alleged insurer.

'The court, in deciding this question, is required to determine whether this letter amounts to a disclaimer under the statutory exception or, as is argued by counsel for the Fund, it is merely a notice that the defendant had no coverage.

'The court must be mindful that this statute and particularly the statutory exception in question should be liberally construed to advance the remedy contemplated by the Legislature, due regard being had for the protection of the Fund and the realization of the essential legislative design.(Mundy [Mundey] v. Unsatisfied Judgment Fund, 233 Md. 169 at 173[195 A.2d 720, 2 A.L.R.2d 755.])

'It is to be noted that the insurer did cover the defendant by a policy of insurance but which expired June 4, 1960--the accident having occurred September 4, 1960.

'Under the plain meaning of the language of the exception '* * * that an insurer had disclaimed on a policy of insurance so as to remove or withdraw liability coverage for his claim * * *', it would seem that to disclaim is to repudiate or to deny or disavow any connection with or responsibility for a legal action.Black's Law Dictionary defines the act of disclaimer as the repudiation or renunciation of a claim or power vested in a person or which he had formerly alleged to be his.

'There seems to be no room for fanciful or theoretical differentiation between a notice of disclaimer and a notice of 'no coverage', as spelled out in the letter,--these are substantially synonymous.To interpret the letter in any other manner would do such violence to the plain meaning of the letter and to the plain definition of the word 'disclaim', so as to defeat the remedial right to which the Petitioner is entitled, and in giving liberal construction to this statutory exception the court believes that it is carrying out the legislative intent of the statute.

'Consequently the Petition for Payment of Judgment from the Unsatisfied Claim and Judgment Fund is hereby granted.'

As pointed out by Judge Sybert, for the Court, in Maddy v. Jones, 230 Md. 172, 176, 186 A.2d 482(1962), the 'Maryland Act[1957] was patterned after the earlier [1952] New Jersey law, New Jersey Statutes Annotated(1961 ed.), Title 39, Chap. 6, Secs. 61-91.'Indeed, except for the fact that New Jersey requires a 15 day notice, whereas Maryland enlarges this to 30 days, the language of the Maryland statute is precisely the same as the New Jersey statute.N.J.Rev.Stat., § 39:6-65(1937 Cum.Supp.1964).

Although we agreed with the Supreme Court of New Jersey, in Mundey v. Unsatisfied Fund, 233 Md. 169, 173, 195 A.2d 720, 2 A.L.R.3d 755(1963), that the statute should "be liberally construed to advance the remedy, due regard being had for the protection of the fund and the realization of the essential legislative design,"we took a dim view of that court's inflation of the concept of 'physical capability'(Giacobbe v. Gassert, 29 N.J. 421, 149 A.2d 214(1959)), as used in the clause immediately preceding the one now under consideration.Nevertheless, we have again looked to the New Jersey decisions for enlightenment.We have also examined the decisions of the New York courts interpreting like provisions of the law of that state creating the Motor Vehicle Accident Indemnification Corporation.Besides New Jersey, New York and Maryland, only North Dakota has adopted similar legislation.The North Dakota statute, however, does not contain the proviso which now requires our interpretation.

In Parrot v. Chiselko, 75 N.J.Super. 138, 180 A.2d 710(1962), cited on the question of residence in Maddy v. Jones, supra, the plaintiff was injured on 30 July 1958.A few days later the defendant informed the plaintiffhe was insured and he exhibited papers purporting to establish coverage by a well known company.Nine months later plaintiff's attorney was advised by the company that defendant's insurance had not become effective until 1 August 1958, two days after the accident.Since it was then too late to do otherwise plaintiff timely filed a notice of intention to make a claim under the disclaimer proviso of the statute.Judge Foley, for the Appellate Division of the Superior Court, said:

'Therefore the single question for determination is whether or not plaintiff's notice of intention to make claim was timely filed with the Fund under N.J.S.A. 39:6-65(b).This section of the statute provides, as an alternative to filing a claim with the Fund within 90 days of the happening of an accident under subsection (a), that a claim is timely if filed within 15 days of receipt by a claimant of notice 'that an insurer had disclaimed on a policy of insurance so as to remove or withdraw liability insurance coverage' for the claim in question.(Emphasis added)Specifically, the problem presented is whether American's letter of April 16, 1959 constituted a 'disclaimer' within the purview of the above italicized words.'Id.180 A.2d at 712.

* * *

* * *

'The Maryland statute(Ann.Code 1957, Art. 66 1/2, § 154(a), as amendedL.1960, c. 49, § 1;L.1961, c 682 § 1) contains the exception to giving notice as follows:

"* * * (1) that he was physically incapable * * * or (2) that he gave notice to the Board within 30 days of receiving notice that an insurer had disclaimed on a policy of insurance so as to remove or withdraw liability insurance coverage for his claim against a person or persons who allegedly caused him to suffer damages. * * *'

'This provision is identical with the one in New Jersey except for the 30 days' (rather than 15 days') limitation.'Id.180 A.2d 713.

Judge Foley then called attention to N.Y. Insurance Law, McKinney's Consol.Laws, c. 28, § 608(c) covering situations where 'the insurer or insurers * * * have disclaimed liability or denied...