Esposito v. Maryland Automobile Insurance Fund

337 A.2d 411, 274 Md. 708, 1975 Md. LEXIS 1237
CourtCourt of Appeals of Maryland
DecidedMay 12, 1975
DocketNo. 165
StatusPublished

This text of 337 A.2d 411 (Esposito v. Maryland Automobile Insurance Fund) is published on Counsel Stack Legal Research, covering Court of Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Esposito v. Maryland Automobile Insurance Fund, 337 A.2d 411, 274 Md. 708, 1975 Md. LEXIS 1237 (Md. 1975).

Opinion

Digges, J.,

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.1 One such requisite is that the individual who desires to sue the fund must demonstrate that he has made “all reasonable efforts” to ascertain the identity of the vehicle, its owner and its operator, which he asserts caused the accident. This statutory condition is found in section 243H (a) (l)(iv), and reads:

“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. [710]*710Fund Bd., 262 Md. 90, 277 A. 2d 5 (1971); Jones v. Unsat. C. & J. Fund Bd., 261 Md. 62, 273 A. 2d 418 (1971); Grady v. Unsat. C. & J. Fund Bd., 259 Md. 501, 270 A. 2d 482 (1970); Hickman v. Unsatisfied C. & J. Fund, 255 Md. 267, 257 A. 2d 426 (1969),2 and is also the issue here. Although we have recognized that what constitutes “ ‘[reasonable efforts’ will differ according to the facts and circumstances of each case, and it is not a term which is easily defined or delineated,” Grady v. Unsat. C. & J. Fund Bd., supra at 506, we have also realized that based upon a case-by-case development “the semblance of a rule has commenced to emerge,” Johnson v. Unsat. C. & J. Fund Bd., supra at 91. Frequently quoted as a general guideline in assessing “reasonable efforts” is that language of Jones v. Unsat. C. & J. Fund Bd., supra which states:

“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, [711]*711Frank J. Esposito, Jr.,3 so as to determine whether the trial judge, Kenneth C. Proctor, correctly denied the appellant leave to sue the fund because of his failure to make “all reasonable efforts” to locate the phantom vehicle.

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 [712]*712the Esposito accident and consequently gave no direct information as to the identity of a phantom, if there indeed had been one. In addition to requesting this police investigation, Rody testified that he personally visited the scene of the accident hoping to find nearby residents who witnessed the calamity, talked with the man who towed the vehicle from the beltway, studied the police report and pictures, and, though for one reason or another was unable to gain access to his young client, went to the hospital to interview Frank, Jr. After these efforts were expended by Rody, none of which bore fruit, the investigation came to a standstill. For a several month interim no further efforts were exerted until a new attorney was obtained by Mrs. Esposito to represent Frank, Jr. (Rody, however, continued to represent the estate of Frank, Sr.). The new counsel proffered to the court that he resumed the search for the phantom vehicle largely through the efforts of a private investigator who tried, but to no avail, to find information or clues as to the identity of the phantom by interviewing several of the investigating police officers, talking with the man who serviced the Esposito automobile before the accident and inspected it afterwards, and inquiring to determine if Frank’s father had any enemies who may have desired to harm him by forcing his car off the road. If the investigator or this new attorney did any more it. went unstated.

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 [713]

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Neubert v. Maryland Automobile Insurance Fund
337 A.2d 59 (Court of Appeals of Maryland, 1975)
Hickman v. Unsatisfied Claim & Judgment Fund Board
257 A.2d 426 (Court of Appeals of Maryland, 1969)
Grady v. Unsatisfied Claim & Judgment Fund Board
270 A.2d 482 (Court of Appeals of Maryland, 1970)
Diamond v. Unsatisfied Claim & Judgment Fund Board
300 A.2d 215 (Court of Appeals of Maryland, 1973)
Johnson v. Unsatisfied Claim & Judgment Fund Board
277 A.2d 5 (Court of Appeals of Maryland, 1971)
Jones v. Unsatisfied Claim & Judgment Fund Board
273 A.2d 418 (Court of Appeals of Maryland, 1971)
Brown v. Unsatisfied Claim & Judgment Fund Board
311 A.2d 773 (Court of Appeals of Maryland, 1973)

Cite This Page — Counsel Stack

Bluebook (online)
337 A.2d 411, 274 Md. 708, 1975 Md. LEXIS 1237, Counsel Stack Legal Research, https://law.counselstack.com/opinion/esposito-v-maryland-automobile-insurance-fund-md-1975.