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Hiob v. Progressive American Insurance Co.

Court of Special Appeals of Maryland

June 25, 2013


Krauser, C.J., Kehoe, Berger, JJ.


Krauser, C.J.

The Court of Appeals held, in Houghton v. County Commissioners of Kent County, 305 Md. 407 (1986), that the voluntary dismissal by the plaintiffs of the only remaining defendant in that case, amounted to a final judgment under Maryland Rule 2-601 and therefore triggered the thirty-day period for filing a notice of appeal. Eleven years after that decision, Rule 2-601(a) was amended. It now requires that "[e]ach judgment shall be set forth on a separate document." This appeal presents the question of whether the holding of Houghton retains any precedential value, notwithstanding that amendment.

Deborah Hiob and the passengers of her vehicle—Margaret Nelson, Laura Dusome, and Virginia Hiob—were in an automobile accident, which resulted in the death of Laura Dusome and Virginia Hiob and serious bodily injuries to Deborah Hiob and Margaret Nelson. When, following that accident, a dispute arose as to the amounts due under their uninsured motorists' insurance policies, Deborah Hiob and her husband, Douglas Hiob, individually and as personal representative of the estate of Virginia Hiob, together with Margaret Nelson and the personal representative of the estate of Laura Dusome—all of whom are the appellants in this case—brought a declaratory judgment action in the Circuit Court for Baltimore County against appellee, Progressive American Insurance Company ("Progressive"), as well as Erie Insurance Exchange ("Erie Insurance"). The case was then removed to the United States District Court for the District of Maryland. But that court, upon determining that it lacked jurisdiction to consider the matter, remanded this case to the Circuit Court for Baltimore County.

The Baltimore County circuit court ultimately granted Progressive's motion for summary judgment, eliminating it from the case. Sometime after that, appellants, upon reaching a settlement with Erie Insurance, dismissed it from the case and then noted this appeal.

In response, Progressive moved to dismiss this appeal, asserting that appellants had filed their notice of appeal more than thirty days after Erie's dismissal and that, therefore, their appeal was time-barred under Maryland Rule 8-202(a), which requires that a notice of appeal be filed within thirty days "after entry of the judgment." We denied that motion without prejudice and with leave for Progressive to raise this issue in its brief. As Progressive has done so, we now grant that motion and dismiss this appeal.


On August 17, 2006, Deborah Hiob was driving her 2005 Toyota Corolla westbound on Liberty Road (Maryland Route 26) in Baltimore County. She had three passengers in her car: her mother-in-law, Virginia Hiob, as well as Margaret Nelson and Laura Dusome. At that moment, a truck driven by Raymond Bert Strigle was traveling in the opposite direction on Liberty Road. At some point, Strigle's truck veered across the center line of the road and collided head-on with Hiob's vehicle. All four occupants of Hiob's vehicle sustained serious injuries, and, within the next two months, Virginia Hiob and Laura Dusome died from their injuries. The damages sustained by the four occupants of the Hiob vehicle exceeded the total amount of all available insurance.

On the date of the accident, Strigle owned an automobile insurance policy issued by State Auto Insurance Company ("State Auto"), with "split limits" of liability coverage of $100, 000 per person/$300, 000 per accident. State Auto settled with the Hiob vehicle's occupants, paying the full $300, 000 per accident policy limit, divided among them by mutual agreement, in exchange for waivers by all parties and their insurers of their rights of subrogation against Strigle. As a consequence, neither State Auto nor Strigle has ever been named as a party to this case.

Margaret Nelson, a survivor of the accident, owned an automobile insurance policy issued by Nationwide Mutual Insurance Company ("Nationwide"). Nationwide waived its rights of subrogation and paid $50, 000 to Ms. Nelson under the terms of her uninsured motorists' coverage. As a result, it, too, is not a party to this case.

Virginia Hiob, who died after the accident, owned an automobile insurance policy issued by Erie Insurance. Although initially a party in this case, Erie Insurance eventually settled with Virginia Hiob's estate and is not a party to this appeal. The date that Erie Insurance was dismissed from the case plays, as we shall see, a central role in our disposition of this appeal.

Finally, at the time of the accident, Deborah Hiob and her husband, Douglas Hiob, owned an automobile insurance policy issued by Progressive, providing "split limits" of uninsured motorists' coverage of $250, 000 per person/$500, 000 per accident. Each of the injured occupants of the Hiob vehicle, as well as the estates of the two occupants who had died as a result of the accident, filed claims against Progressive under the uninsured motorists' provision of that policy.

In response to those claims, Progressive asserted that the policy at issue only required it to pay an aggregate of $150, 000; that is, the difference between the $500, 000 per accident limit and the $350, 000 already paid to appellants under other insurance policies. Appellants disagreed, contending that, because the policy stated that the per accident limit was "subject to" the per person limit, the per person limit should control and that, therefore, Progressive was liable for amounts to each of the injured parties up to the respective $250, 000 per person limits, so long as its aggregate payments did not exceed $500, 000. Therefore, according to appellants, Progressive's refusal to pay more than $150, 000 in total was in violation of that policy.

In any event, because appellants and Progressive agreed that Progressive was liable for at least $150, 000, Progressive paid that amount to appellants, dividing it among them as agreed. Then, seeking a resolution of their claim to the remainder of the funds purportedly owed under the uninsured motorists' provision, appellants filed a declaratory judgment action ...

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