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Woznicki v. GEICO Gen. Ins. Co.

Court of Special Appeals of Maryland

April 29, 2014

JESSICA N. WOZNICKI
v.
GEICO GENERAL INSURANCE CO

Page 499

[Copyrighted Material Omitted]

Page 500

Appeal from the Circuit Court for Cecil County, John Frederick Price, Judge.

Argued by: Angus R. Everton (Morgan, Carlo, Downs & Everton PA of Hunt Valley, MD and Thomas L. Kemp, Kemp & Kemp, PA of Elkton, MD) on the brief for Appellant.

Argued by: Frank F. Daily (Sean P. Edwards, Law Office of Frank F. Daily on the brief) of Hunt Valley, MD for Appellee.

Panel: Matricciani, Kehoe, Berger, JJ.

OPINION

Page 501

[216 Md.App. 717] Kehoe, J.

Appellant, Jessica N. Woznicki, concedes that her lawyer failed to comply with a notice requirement in her automobile liability policy. She asserts, however, that her insurer, appellee, GEICO General Insurance Company, waived compliance or, alternatively, that the law does not permit an insurance company to deny coverage in cases like hers unless it can show prejudice. Reasoning that the record before it did not establish disputes of material fact as to waiver and that [216 Md.App. 718] GEICO was otherwise entitled to judgment, the Circuit Court for Cecil County granted the insurer's motion for summary judgment. Ms. Woznicki has appealed, arguing that the circuit court was incorrect on both scores. We think the circuit court was correct and will affirm its judgment.

Background

On November 12, 2010, Ms. Woznicki was injured in an automobile accident in Cecil County, Maryland. The other driver, James B. Houston, was at fault.

Houston was insured by a liability policy issued by Nationwide Insurance Company, with policy limits of $20,000. Ms. Woznicki was covered by an insurance policy issued by GEICO. Section IV of the GEICO policy provided her with uninsured/underinsured motorist (" UM/UIM" ) benefits in the amount of $300,000, subject to certain exclusions.[1] In relevant part, the GEICO policy stated (emphasis in original):

Section IV does not apply:
1. To bodily injury to an insured if the insured or his legal representative has made a settlement of his claim which exhausts the applicable bodily injury or death limits of the liability insurance without our prior written consent unless:
(a) We are notified in writing by Certified Mail that a tentative agreement to settle for the liability limits of the owner or operator of the other vehicle has been reached;

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(b) We did not make a payment equal to the tentative settlement amount to our insured within 30 days of our refusal to consent to the settlement offer; and
(c) We responded to the written notice of settlement within 60 days.

(We will refer to this provision as the " Consent to Settle Clause." ) The Consent to Settle Clause tracks Md. Code Ann. (2011) § 19-511 of the Insurance Article, [216 Md.App. 719] [2] which provides in pertinent part:

Uninsured motorist coverage--Settlement procedures.
(a) Notice of settlement offer required . -- If an injured person receives a written offer from a motor vehicle insurance liability insurer . . . to settle a claim for bodily injury . . ., and the amount of the settlement offer . . . would exhaust the bodily injury . . . limits of the applicable liability insurance policies . . ., the injured person shall send by certified mail, to any insurer that provides uninsured motorist coverage for the bodily injury . . ., a copy of the liability insurer's written settlement offer.
(b) Response to settlement offer . -- Within 60 days after receipt of the notice required under subsection (a) of this section, the uninsured motorist insurer shall send the injured person:
(1) written consent to acceptance of the settlement offer and to the execution of the releases; or
(2) written refusal to consent to acceptance of the settlement offer.
(c) Payment of settlement offer . -- Within 30 days after a refusal to consent to acceptance of a settlement offer . . ., the uninsured motorist insurer shall pay to the injured person the amount of the settlement offer.
(d) Subrogation rights of uninsured motorist insurer . -- (1) Payment as described in subsection (c) of this section shall preserve the uninsured motorist insurer's subrogation rights against the liability insurer and its insured.
* * * *
(e) Acceptance of settlement offer . -- The injured person may accept the liability insurer's settlement offer and execute releases in favor of the liability insurer and its insured without prejudice to any claim the injured person may have against the uninsured motorist insurer:
[216 Md.App. 720] (1) on receipt of written consent to acceptance of the settlement offer and to the execution of releases; or
(2) if the uninsured motorist insurer has not met the requirements of subsection (b) or subsection (c) of this section.[3]

Ms. Woznicki notified GEICO that she had been injured in an accident. Her claim was assigned to Rebecca Davis, a GEICO adjuster. Ms. Woznicki retained a Delaware attorney, Ben T. Castle, Esquire, to represent her. At some point in March, 2011, Nationwide offered to settle all of Ms. Woznicki's claims against Houston for $20,000, that is, its policy limits, in return for a release for Houston and Nationwide. Castle agreed, at least in principle. On March 29, 2011, Nationwide sent a letter to Castle enclosing a release that " confirms our settlement with you/your client[]" and requesting that it be signed by Ms. Woznicki, witnessed, and returned. The record does not show that Castle discussed

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a possible settlement with GEICO before reaching the agreement with Nationwide.

On the same day that Nationwide sent Castle the release, he wrote to Davis, the GEICO adjuster, stating:

At this time it appears that the driver of the car that caused the accident injuring Ms. Woznicki, James Houston, has only limited liability coverage through Nationwide Insurance Company. We will provide more information as it becomes available.

This letter did not mention a settlement with Nationwide. At this point, the exact sequence of events becomes unclear.

On or a few days before July 7, 2011--our only source of information is his deposition which is a bit vague on the point--Castle contacted GEICO by telephone and received what Ms. Woznicki asserts was GEICO's consent to settle her claim against Houston without prejudice to her right to pursue [216 Md.App. 721] a UIM claim against GEICO. We will discuss what we know about this conversation later in the opinion. On July 7, 2011, Ms. Woznicki signed the release and, on the same day, Castle wrote to Davis stating:

The tortfeasor's insurance carrier, Nationwide, has a limited bodily injury liability policy of $20,000 and has tendered those limits to the injured driver, Jessica Woznicki. We are writing to request GEICO's consent to acceptance of the settlement.
Enclosed for your file is a copy of the Nationwide Policy insuring tortfeasor, James B. Houston, and the Release in exchange for the $20,000.

At some point thereafter--again, the chronology is unclear from the record--Castle sent the signed ...


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