Esposito v. Maryland Automobile Insurance Fund
Esposito v. Maryland Automobile Insurance Fund
Opinion of the Court
delivered the opinion of the Court.
In order to qualify to sue the Maryland Automobile Insurance Fund a claimant must comply with the requirements set forth in what is now codified as Maryland Code (1957, 1972 Repl. Vol., 1974 Cum. Supp.) Art. 48A, § 243H.
“All reasonable efforts have been made to ascertain the identity of the motor vehicle and of the owner and operator thereof and either the identity of the motor vehicle and the owner and operator thereof cannot be established, or the identity of the operator who was operating the motor vehicle without the owner’s consent cannot be established.”
What “all reasonable efforts” entails has been the tempest’s origin in a number of this Court’s previous decisions, Neubert v. Maryland Auto. Ins. Fund, 274 Md. 445, 337 A. 2d 59 (1975); Brown v. Unsat. C. & J. Fund Bd., 270 Md. 377, 311 A. 2d 773 (1973); Johnson v. Unsat. C. & J.
“We think it fair to say that, at a minimum, vigorous good faith efforts are required to identify the tortfeasor, the same efforts one would expect an injured party to exert if he knew there would be no recovery unless he actually located the driver. In ruling on investigative efforts the trial judge must exercise discriminating judgment, giving due regard to such variable and interrelated factors as credibility, practicality, the law of diminishing returns, a sensible balancing of the anticipated amount of recovery against the cost of particular modes of inquiry, access to investigative resources, the fresh pursuit of promising clues, and, in the long run, the claimant’s application of good common horse sense.” Id. at 76-77 (emphasis added).
With this general framework in mind we now scrutinize the efforts exerted in the instant case by the appellant,
The events which led up to the present posture of this case are, in a word, tragic. At approximately 2:00 a.m. on December 11, 1972, Frank, Jr., then 13 years of age, was sitting quietly as a passenger in an automobile driven by his father on the Baltimore Beltway near the Milford Mill Road underpass. Suddenly, the vehicle veered to the right and traveled off the roadway nearly 116 feet along the shoulder or berm before colliding sideways into the guardrail with such an impact that it caromed another 24 feet before coming to rest. At least part of the reason the automobile came to a halt where it did is that a portion of the guardrail pierced through the body of the Esposito vehicle and not only impaled and killed Frank’s father but also completely severed one of the boy’s legs and left the other one dangling only by some strands of muscle tissue. Although Frank, Jr. was rushed by ambulance to a nearby hospital soon after the accident, the police were unable to notify his mother, then divorced from his father, until later in the morning.
That same day, after regaining her composure to some extent, Frank’s mother telephoned her ex-husband’s attorney, Robert S. Rody, to inform him of the unfortunate occurrence and to request that he provide any legal assistance that might be necessary. However, it was not until Mrs. Esposito called Mr. Rody back two or three days later — apprising him of Frank’s “broken record” utterances to her while he was in the hospital shock trauma unit to the effect that the Esposito vehicle was run off the road — that the attorney contacted the police, mentioned the phantom vehicle hit-and-run possibility, and asked for a further accident investigation. In response to Rody’s request the police made an additional inquiry. The final police report concluded that there had been no other vehicle involved in
This is the sum total of what the record indicates was done in an effort to locate the phantom vehicle, its owner and its driver. From this it is now necessary to determine, without the use of “20-20 hindsight,” whether there were expended in this case “the same efforts one would expect an injured party to exert if he knew there would be no recovery unless he actually located the driver.” Jones v. Unsat. C. & J. Fund Bd., supra at 76. We agree with Judge Proctor that they were not.
Although the appellant here did somewhat more than did the claimants in Grady, supra (reliance on a “pro forma negative police report”) and Hickman, supra (reliance on police investigation without informing them of contention
In this case, we believe that there were access roads to potential highways of information which it appears the appellant failed to recognize and explore because he made no mention of them at the hearing before Judge Proctor. There is no evidence that the claimant or his agents extensively interrogated all the policemen who had any direct or indirect involvement in the investigation of the accident, or if he did what factual details, rather than conclusions, were
In any event, we determine that this question is one of fact to be decided by the trial judge and thus once he has reached his factual conclusion it may not be interfered with on appeal unless shown to be clearly erroneous; on the record in this case, we do not find Judge Proctor to have been clearly in error when he determined that the appellant had not exhausted all reasonable efforts to learn the identity of the phantom vehicle. Maryland Rule 886.
Order of the Circuit Court for Baltimore County affirmed.
Costs to he paid hy appellant.
. At the time pertinent here this provision, using the same language, was codified as Maryland Code (1957,1970 Repl. Vol.) Art. 66V2, § 7-620 (5).
. These cases were brought under the present statute, Code (1957,1972 Repl. Vol., 1974 Cum. Supp.) Art. 48A, § 243H, or one of its predecessors — Code (1957, 1970 Repl. Vol.) Art. 66V2, § 7-620 (5) or Code (1957) Art. 66V2, § 167 (f). Each of these statutes has the same “all reasonable efforts” requirement.
. Frank, Jr. is joined in this suit by his mother, Mrs. Rose Marie Esposito, as well as by the estate of his father, Frank J. Esposito, Sr.
. Although the new attorney tried to rescue the investigation, many of his efforts must be viewed as tardy in light of the fact that it is imperative in hit-and-run cases to delve into any clues promptly after the accident. See Diamond v. Unsat. C. & J. Fund Bd., 268 Md. 260, 300 A. 2d 215 (1973).
. If the police believed that there may have been a phantom and then accordingly made exhaustive efforts to locate him, it would probably be placing form over substance for the claimant to be required to do again what the police had already thoroughly pursued without success. Johnson v. Unsat. C. & J. Fund Bd., 262 Md. 90, 277 A. 2d 5 (1971). Compare, Grady v. Unsat. C. & J. Fund Bd., 259 Md. 501, 270 A. 2d 482 (1970).
Reference
- Full Case Name
- ESPOSITO, etc. v. MARYLAND AUTOMOBILE INSURANCE FUND
- Status
- Published