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Ross v. Agurs

Court of Special Appeals of Maryland

September 9, 2013

DAVID ROSS
v.
JOHN AGURS and PROGRESSIVE CASUALTY INSURANCE COMPANY

Woodward, Zarnoch, Bair, Gary E. (Specially Assigned), JJ.

OPINION

Bair, J.

The instant appeal arises from a third-party claim filed in the Circuit Court for Prince George's County by appellant, David Ross, against John Agurs and Progressive Casualty Insurance Company ("Progressive"), for damages sustained in a motor vehicle accident for which appellant sought benefits under an underinsured motorist ("UIM") policy issued by Progressive. The motor vehicle accident that gave rise to appellant's third-party claim was a rear-end collision caused by Agurs that occurred on December 8, 2006, while appellant was driving within the scope of his employment with Shelton Transportation ("Shelton"). As a result of the accident, appellant also filed a claim for and received workers' compensation benefits of $84, 446.21.

On November 21 and 22, 2011, a jury trial was held in circuit court, resulting in a verdict in favor of appellant in the amount of $91, 583.90. On November 30, 2011, the circuit court entered judgment ("the judgment") in favor of the appellant in the amount of $91, 583.90. Subsequent to the entry of judgment, appellant filed a Motion to Enforce Judgment, requesting the trial court order Progressive to pay a portion of the judgment under its UIM coverage. Appellant contended that the amount due and owing from Progressive was $51, 875.58, representing the balance of the judgment after reduction for unreimbursed workers' compensation benefits. On July 2, 2012, the circuit court denied appellant's post-trial motion.

On appeal to this Court, appellant presents a single question for our review, which we have slightly rephrased:

Did the circuit court err in denying appellant's motion to enforce judgment against Progressive?

For the reasons that follow, we find no error and affirm the judgment of the circuit court.

Factual and Procedural History

On December 8, 2006, in Washington, D.C., the motor vehicle operated by appellant was struck from the rear by a vehicle driven by John Agurs. Appellant was operating within the scope of his employment with Shelton at the time. The vehicle driven by appellant was insured by Shelton with a commercial liability policy issued by Progressive that included uninsured/underinsured motorist ("UM/UIM") coverage with policy limits of $1, 500, 000. Shelton had a workers' compensation policy through the Injured Workers Insurance Fund ("IWIF") providing coverage for bodily injury and medical expenses. The vehicle driven by Agurs was insured by State Farm with third-party liability coverage of $25, 000/$50, 000.

As a result of the accident, appellant sustained injuries to his left knee and lower back. Appellant sought relief for his injuries by filing a workers' compensation claim, and a third-party claim against Agurs that was later amended to include Progressive.

Appellant initiated this action in the Circuit Court for Prince George's County on November 25, 2009, by filing a third-party claim against Agurs for damages resulting from the motor vehicle accident caused by Agurs' negligence. Appellant also submitted a claim for benefits under Shelton's UIM Policy with Progressive, which was later denied. On December 23, 2009, appellant filed an amended complaint adding Progressive as a defendant and asserting that Progressive's denial of UIM benefits pursuant to Progressive's UM/UIM insurance policy with Shelton constituted a breach of contract. On June 17, 2011, prior to the trial in circuit court, Agurs offered his $25, 000 policy limits to appellant. Within sixty days of receiving notice of the offer, Progressive notified appellant that it would not consent to acceptance of the offer of policy limits and would not waive subrogation. Progressive therefore tendered a check in the amount of $25, 000 to appellant pursuant to Md. Code (1996, 2011 Repl. Vol., Supp. 2012), § 19-511 of the Insurance Article.[1] Accordingly, appellant filed a second amended complaint containing a sole count against Progressive for breach of contract.

On November 21, and 22, 2011, a jury trial was held in the circuit court. The jury returned a verdict in favor of appellant for a total of $91, 583.90, comprised of: $24, 083.90 in past medical expenses, $30, 000.00 in lost wages, and $37, 500.00 in non-economic damages. On November 30, 2011, the circuit court entered judgment in favor of appellant in the amount of $91, 583.90. As a result of the $25, 000 payment made by Progressive prior to trial, the remaining balance of the judgment was $66, 583.90. At the time of the trial, appellant's workers' compensation claim was closed, and the amount of the unreimbursed workers' compensation lien ("the lien") held by IWIF was $84, 446.21.

Following the trial court's entry of judgment, appellant made a written demand of Progressive for payment of a portion of the judgment under its UIM coverage. Progressive declined to make payment. On April 25, 2012, appellant filed a Motion to Enforce Judgment, requesting that the trial court enter an order directing Progressive to pay the sum of $51, 875.58, which appellant contended was the amount due and owing on the balance of the judgment after reduction for unreimbursed workers' compensation benefits.[2] Progressive subsequently filed an opposition to appellant's motion to enforce ...


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