# Hardware Dealers Mutual Fire Insurance v. Springmann

> Court of Appeals of Maryland · July 3, 1972 · 266 Md. 200

URL: https://www.frixlaw.com/law-library/cases/9763346

## Case

- **Full name:** HARDWARE DEALERS MUTUAL FIRE INSURANCE COMPANY v. SPRINGMANN Et Al.
- **Court:** Court of Appeals of Maryland
- **Decided:** July 3, 1972
- **Citations:** 266 Md. 200; 292 A.2d 96; 1972 Md. LEXIS 729
- **Precedential status:** Published
- **Opinion:** Dissent by Digges
- **Judges:** Barnes, Digges
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9763346

## Opinion text

Digges, J.,
dissenting:
I find myself in divergence from the majority. In this case the appellee, Lillie E. Springmann, individually and *213 as mother and next friend of Steven A. Springmann, initiated this litigation in the Circuit Court for Prince George’s County. She asked the court to declare that Hardware Dealers Mutual Fire Insurance Company, appellant, was required to provide automobile insurance coverage and a legal defense for her minor son who, while operating a car, collided with a motorcycle driven by Winston Fowlkes. Both parties are in total harmony about the factual pattern — the dissonance arises in interpreting the effect that legislative action has on these particular facts.
It is first necessary to elucidate certain sections of Article 66V2 as that article existed in the Maryland Code (1957, 1967 Repl. Vol. and its 1969 Cum. Supp.) prior to re-enactment in 1970, specifically §§93 and 142. Between 1954 and 1968, § 93 was comprised of five subsections (a through e) which dealt with the application of a minor for a motor vehicle operator’s license. Subsections (a), (b) and (c) were originally enacted in 1943 and have remained intact even to the present time, though subjected to some minor alterations over the years. (Ch. 1007, § 85 of the Laws of Maryland 1943, codified in the 1951 Code as Art. 66½, §§ 92 (a), (b) and (c) and changed in the 1957 Code to §§ 93 (a), (b) and (c).) 1 Pursuant to § 93 (a) it was required that a parent, guardian or, in their absence, a responsible person, sign a minor’s application before he could be issued a license. Section 93 (b) provided that any negligence by the minor while driving an automobile would be imputed to this signatory unless the “minor deposits or there is deposited upon his behalf proof of financial responsibility” with the Department of Motor Vehicles as permitted by section 93 (c). (Emphasis added.) If the option allowed by (c) was utilized then whoever furnished such proof could do so by having an insurance *214 company insure the minor and certify to the Department of Motor Vehicles proof of financial responsibility. 2 This would be accomplished by having the company file a JR-11 form — a “Maryland Minor’s Financial Responsibility Insurance Certificate” — with the Department. It should be emphasized that (c) did not make filing such proof obligatory.
In 1954, the Legislature expanded § 98 by enacting subsections (d) and (e). (Ch. 75 of the Laws of Maryland, codified originally as §§ 92 (d) and (e) in the 1951 Code.) These two additional subsections then made verification of financial responsibility mandatory before any minor could be licensed to operate a motor vehicle in Maryland. Section 93 (d) states:
“Compliance with proof of financial responsibility as required by § 122 of this article. — On and after June 1, 1954, the application of any person under the age of twenty-one (21) years for an instruction permit or operator’s or chauffeur’s license shall be accompanied by such proof of financial responsibility as is required under the provisions of § 122 of this article. Nothing in this subsection shall be deemed or taken to affect in any way any person who, prior to June 1, 1954, has secured an instruction permit or operator’s or chauffeur’s license under the provisions of subsections (a), (b) and (c) herein-above.” 3
It was stipulated in § 93 (e) that such proof would re *215 main in effect until the minor became twenty-one years old and if he should fail to maintain the verification of financial responsibility during his minority “then the Department shall have the right to suspend such license.”
Effective July 1, 1968, the Legislature repealed §§93 (d) and (e) (Ch. 691 of the Laws of Maryland) so that it was no longer mandatory for a minor to prove financial responsibility before becoming a licensed operator of a motor vehicle. The General Assembly also gave serious consideration to rescinding §§93 (b) and (c), but such action was not in fact taken. 4 Therefore, subsequent to June 30, 1968, the JR-11 form could still be filed voluntarily as proof of financial responsibility so as to insulate the signatory under § 93 (a) from imputed liability in the event the minor was negligent in driving a motor vehicle.
At the same legislative session of 1943 in which §§93 (a), (b) and (c) were passed, § 142 was also enacted (Ch. 1007, § 123, codified in the 1951 Code as § 138 and changed to § 142 in the 1957 Code) and still remains in force. 5 That section states:
“When any form of proof of financial responsibility has been certified to the Department or the Public Service Commission as the case may be, such proof shall not be cancelled or annulled by any party in interest except upon not less than thirty (30) days’ notice to the Department or the Public Service Commission as the case may be, except that a motor vehicle liability insurance policy subsequently procured and certified shall, on the effective date of the insurance afforded by such policy, terminate the insurance *216 previously certified with respect to any motor vehicle designated in both certificates.” (Emphasis added.)
Having set forth the background and purpose of these laws the paramount task now is to evaluate their effect in terms of the present case.
On July 22, 1966, the appellant certified to the Maryland Department of Motor Vehicles, on a JR-11 form, that Steven Springmann was insured under his mother’s policy. In March 1968, this policy was cancelled but the insurer, through a clerical oversight, failed to notify the Motor Vehicle Department of the cancellation. On September 17, 1968, Steven was involved in the accident. Appellant was not apprised of this until August 11, 1969 (11 months later), when the Unsatisfied Claim and Judgment Fund Board demanded that Hardware Mutual complete an investigation of the collision and defend the tort action instituted against the Springmanns. When that entreaty was ignored appellee initiated this proceeding for declaratory relief. Judge Mathias granted the Springmanns’ motion for summary judgment, concluding that since Hardware Mutual did not comply with the requirements of § 142 it must provide the appellees with insurance coverage and a defense. From that ruling this appeal results.
The insurance company concedes, as it must, that if Steven’s accident had occurred prior to July 1, 1968 (the repeal date of §§ 93 (d) and (e)), it would have had to provide insurance coverage and a legal defense since it did not comply with the requirements of § 142 by giving the Department 30 days’ notice that the policy had been cancelled. Erie Ins. Exchange v. Gosnell, 246 Md. 724 , 230 A. 2d 467 (1967) ; Peninsula Insurance v. Houser, 248 Md. 714 , 238 A. 2d 95 (1968). However, Hardware Mutual claims, and the majority agrees, that the necessity of notifying the Department concerning cancellation in order to avoid continuing liability was no longer required after June 30, 1968 because the Legislature re *217 pealed § 93 (d). The majority attempts to buttress its precarious position on the assumption that the JR-11 was only filed pursuant to that now discarded section. But clearly such is not the case. The JR-11 was used before the enactment of § 93 (d) and has survived that law’s expiration. On its face that form, as currently utilized, states:
“In the event of cancelation or non-renewal of such policy notice of such cancelation or non-renewal will be filed with the Commissioner of Motor Vehicles thirty (30) days in advance of the effective date of such cancelation or non-renewal.”
It is true that filing proof of financial responsibility is no longer mandatory but the repeal of subsection (d) did not sound the death knell for the JR-11. It has the same purpose today as it had prior to 1954. While there is no statutory compulsion requiring that proof of financial responsibility be filed, once it is, § 142 explicitly makes it a prerequisite that 30 days’ notice be given in order to effectuate the cancellation of “any form of proof of financial responsibility” which “has been certified to the Department.” (Emphasis added.) This section by its unequivocal language does not purport as the majority suggests that its application is constrained to only those circumstances where the filing of proof of financial responsibility is required. In interpreting this very same section (142) and its relation to § 93 (c) Judge Oppenheimer, speaking for the Court in Erie Ins. Exchange v. Gosnell, supra, stated at p. 732:
“When the language of a statute is plain and free of ambiguity, and has definite and sensible meaning, it is conclusively presumed to be the meaning of the Legislature; in ascertaining the legislative intent, all parts of the Act are to be considered together. We hold that Section 142 means, clearly and unambiguously, that when a policy of insurance has been offered as proof of *218 financial responsibility, with an endorsement specifically covering the liability of minors attached, that policy, including the endorsement as a part thereof, shall not be cancelled or annulled except upon not less than 30 days’ notice.” (Citations omitted. Emphasis added.)
In Erie the Court was faced with a strikingly similar problem where “[i]n accordance with Section ... 93 (c), the insurer filed a Certificate of Financial Responsibility (form JR-11) with the Maryland Department of Motor Vehicles.” (Emphasis added.) Id. at 727 . The policy provided that the company “could cancel it by mailing written notice to the insured not less than twenty days prior to the effective date of cancellation.” Id. at 728 . A cancellation notice was sent to both the insured and the Department and on the day after the policy, by its provisions, terminated but within the 30 day period provided by § 142, the insured had an accident. It was held there that the policy was in effect, regardless of the 20 day clause, until the 30 day period had run. In Erie, though § 93 (d) had not then been repealed, this Court specifically stated that the JR-11 was filed in accordance with § 93 (c), the non-obligatory provision, and held that compliance with § 142 was nonetheless mandatory. It would seem, based on the well established doctrine of stare decisis, that the same result is compelled in this case. However, somewhat surprisingly, Judge Barnes, for the majority of the Court, has abandoned this hitherto inviolable doctrine in a tenuous attempt to minimize the scope of Erie. 6 He said:
*219 “the JR-11 form was filed in ‘accordance with Sections 131, 135 and 93 (c) ’; but we do not understand that this language was intended to exclude its filing under § 93 (d) and (e) also. Indeed, an examination of the record in Erie . . . indicates that the JR-11 form was filed pursuant to all of the provisions of § 93.” (Emphasis added.)
The lucid language of Erie, as expressed for the Court by Judge Oppenheimer, does not preclude a finding that the JR-11 was filed not only to satisfy § 93 (c), but also in accordance with §§ 93 (d) and (e). However, this concession is of no significance because it does not follow that as a consequence, notice of cancellation is unnecessary under § 93 (c). If anything, the logical conclusion should be that if the JR-11 was filed pursuant to either § 93 (c), (d), or both, as long as any of these statutory provisions remain effective, notification is still necessary.
The majority has not come to grips with the holding in Erie. Either that case applies or else it must be overruled; but in my opinion it is simply untenable for the majority to ignore the very explicit thrust of that case by concluding Erie and the majority opinion in the present appeal are consistent. Erie, without any hedging, clearly holds that § 142 requires notice of cancellation for a JR-11 filed pursuant to § 93 (c). I find it difficult to understand how this result can be reconciled with the majority’s conclusion here that once §§ 93 (d) and (e) have been repealed notice of cancellation is no longer required for a JR-11 filed under § 93 (c). The majority in its opinion simply has not addressed itself to the fact that the clear and unequivocal language of Erie made cancellation of a JR-11 form, filed “[i]n accordance with Section ... 93 (c),” mandatory. And, it is my feeling, they do not now have the license to conclude that its mention is of no consequence, but rather a gratuity. It seems a strange result indeed to hold that specific ref *220 erence to § 93 (c) is “mere dictum”, while silence or at best the inferential mention of §§ 93 (d) and (e) is binding. The majority should face up to the task of either overruling Erie or abiding by it; but under no circumstances should its force be ignored. The conclusion in the present case should be that once proof is filed, be it by necessity or volition, § 142 comes into effect since it clearly encompasses “any form of proof.” Though optional, § 93 (c) provides protection not only to the insured but also to the public whose interest is served when a driver demonstrates proof of financial responsibility. I therefore would affirm the trial court’s decision.
I am authorized to state that Judge Smith concurs in the views herein expressed.
. When Art. 66½ was re-enacted in 1970 (Ch. 534 Laws of Maryland) §§ 93 (a), (b) and (c) were incorporated as Art. 66½, §§ 6-107 (a), (b) and (c) in the Code (1957, 1970 Repl. Vol.).
. There were also other methods for establishing proof of financial responsibility. Section 130 of Art. 66½, Code (1957, 1967 Repl. Vol.) (now amended and codified as Art. 66½, § 7-320 Code (1957, 1970 Repl. Vol.)) provided that it could be done in any of the following ways:
“(1) By a policy or policies of insurance;
(2) By a surety bond or bonds;
(3) By deposit of money or securities”.
. Section 122 (1957, 1967 Repl. Vol.) required anyone who had been in a motor vehicle accident within this State, resulting in more than $100 damage, to “immediately give and thereafter maintain, for a period of three (3) years, proof of financial responsibility”.
. Ch. 691 of the 1968 Laws of Maryland indicates that as originally introduced, the bill which led to the repeal of (d) and (e) also intended the same fate for (b) and (c). However, prior to passage, the bill was amended so that the other two subsections remained intact. At no time was (a) included in the repeal proposals.
. Section 142 is currently codified as Art. 66½, § 7-325 Code (1957, 1970 Repl. Vol.).
. Judges Barnes in this Court has previously discussed the doctrine of stare decisis in several of his dissenting and concurring opinions. Recently, in State v. Lundquist, 262 Md. 534, 567 , 278 A. 2d 263 (1971) he stated:
“Secondly, I am happy that Judge Smith set out in footnote 1 the statement from the dissenting opinion of Mr. Justice Frankfurter in Barnette showing the extraordinary departure by the Supreme Court in Barnette from the doctrine of stare decisis. This departure from a well-established and recently confirmed constitutional doctrine is, in my opinion, close to judicial irresponsibility and is an added reason why we should not extend the holding in that case.”

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9763346. Public record. Not legal advice.