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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2299 September Term, 2004 ______________________________________ CALVIN B. EDWARDS, JR., ET AL. v. MAYOR AND CITY COUNCIL OF BALTIMORE ______________________________________ Ken ney, Woodward, Rodowsky, Lawrence F. (Retired, Specially Assigned), JJ. _______________________________________ Opinion by Woodward, J. _______________________________________ Filed: September 28, 2007 Ken ney, J., participated in the hearing and conference of this case while an active member of this Court; he participated in the adoption of this opinion as a retired, spe cially assigned member of this Court.

REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2299 September Term, 2004 ______________________________________ CALVIN B. EDWARDS, JR., ET AL.

v. MAYOR AND CITY COUNCIL OF BALTIMORE _____________________________________ Kenn ey, Woodward, Rodowsky, Lawrence F. (Retired, Specially Assigned),

JJ. _______________________________________ Opinion by Woodward, J. _______________________________________ Filed: Ken ney, J., participated in the hearing and conference of this case while an active member of this Court; he participated in the adoption of this opinion as a retired, spe cially assigned member of this Co urt.

This appeal arises from a declaratory judgm ent of the Circuit Cou rt for Baltimore County that appellee, the Mayor and City Council of Baltimore ("the City"), is not required to defen d or ind emnif y appellan t, Calvin B. Edw ards, Jr., in relation to a m otor vehicle accident that occurred on April 8, 2002, while appellant was operating a City-owned vehicle. Appellant sought relief from the City in the circuit court based on an earlier judgment for monetary damages entered against him in the District Co urt for Baltim ore Cou nty, wherein the district court found that appellant was negligent in the operation of the City-owned vehicle at the time of the a ccident. On appeal, appellant presents four questions1 for our review, which we have distilled

1

In his brief, appellant presents the following questions for our review:

1. Did the [circuit] co urt err in failing to declare the City had a duty to defend and indemnify its employee, [appellant], in a motor tort case? 2. Was the [circuit] court bound by the district court[`s] findings that "[appellant] was outside the scope of his employment" while operating the City[-]owned vehicle so that it could not conduct a de novo review of the district court complaint and extrinsic evidence offered by [a ppellant] to determine whether the potentiality of coverage was triggered, establishing the City's duty to defend [appellant]? 3. Did the [circuit] court err in determining that the City could rely upon the Local Govern ment To rt Claims A ct . . . to defeat its duty to defend or indemnify [appellant] as required by [Maryland Code (1973 , 2002 Repl. Vo l.), section] 5-524 [of the Courts and Judicial Proceedings Article] and to defeat the mandatory motor veh icle insurance requiremen t set forth in [Maryland Code (1977, 2002 R epl. Vol.), section] 17-103 [of the Transportation Article]? 4. Did the [c ircuit] court fa il to properly apply the holding of BG[]E Home [Prods. & Servs., Inc.] v. Owens [, 377 M d. 326 (20 03)] to the City based upon its conclusion that a specific exclusion for permissive users was implicit in [a] (contin ued...)

into a single question: Did the circuit court err in failing to declare that the City, as the selfinsurer of a City-ow ned vehic le operated by appellant at the time of the motor v ehicle accid ent, had a d uty to indemn ify appellant? We answer that question in the affirmative, and accordingly, we reverse the judgment of the circuit court and remand the case for further proceedings consistent with this opinion.

BACKGROUND
On April 8, 2002, appellant was employed by the City as a Captain in the B altimore City Fire Department ("BCFD"). On that date, appellant was scheduled to work his regular shift from 7:00 a.m. to 5:00 p.m. At approximately 4:30 p.m., while driving a City-owned vehicle, appellant picked up his children from school. At approximately 4:50 p.m., as appellant was driving his children home to feed them dinner, appellant's vehicle collided with the rear of a vehicle operated by Daniel Caulk. At the time of the impact, Caulk was lawfully stopped at a traffic signal on the westbound side of Liberty Road, near the inter section w ith B urmont R oad, in B altim ore C ounty. On May 13, 2003, Erie Insurance Group ("Erie"), as subrogee of Caulk, filed a complaint in the District C ourt of M aryland for B altimore C ounty against both appellant and

(...continued) local government's self-insured contracts? In the argument section of his brief, however, appellant sets forth questions 2, 3, and 4 above in the form of arguments in support of his proposed resolution of question 1.

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the C ity. 2 In its com plaint, E rie allege d, inter alia : For that on or about April 8 , 2002, the Defendant, Calvin B. Edwards, Jr., while acting as the agent, servant and/or employee of the Defend ant, Mayor an d City Council of Baltimore, negligently and carelessly struck the v ehicle ow ned by Da niel Caulk, whose vehicle was lawfully and properly stopp ed for traff ic on We stbound L iberty Road near the intersection with Burmont Roa d in B altim ore C ounty. And the damages to D aniel Caulk's vehicle w ere caused by the negligence of the De fendant, C alvin B. Ed wards, Jr., in that he failed to keep a proper look out, failed to yield r ight of w ay and gene rally operated his vehicle in a negligent and careless manner thereby collidin g with t he Ca ulk veh icle. The Defendant, Mayor and City Council of Baltimore, was negligent in that he entru sted the veh icle to the Defendant, Calvin B. Edwards, Jr., who operated the vehicle as the agent, servant and/or employee of the Defendant, Mayor and City Council of Baltimore, and the De fenda nt, Ma yor and C ity Coun cil of B altimore , as the owner of the vehicle is vicariously liable for the conduct of the Defend ant, Calvin B. Edwards , Jr. his agent, servant and/or employee, who was driving the vehicle. Thereafter, on June 30, 2003, appellant received a letter from the City's Law Departm ent, which informed him of the City's intent to deny coverage for the April 8, 2002 accident. Specifically, the letter advised appellant that the City would not defend him in the district court laws uit or indemnify him if a judgment was rendered against him, because the allegations in the complaint placed him "outside the scope of [his] employment" and "not acting w ithin [hi s] autho rized of ficial ca pacity at th e time o f the inc ident." On Augu st 26, 2 003, a trial was held in the district court. At the conclusion of the

Erie Ins. G rp. (as subro gee of Da niel Caulk ) v. Calvin B . Edward s, Jr., et al. , Dist. C t. for Ba ltimore C ounty, C ase No . 08-04 -0015 438-2 003. -2-

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trial, the court (Wilson, J.) gave an oral opinion from the bench: This court must be guided by the law with respect to whether indeed on this occasion there was agency between Captain Edwards at the time and the Mayor and City Council of Baltimore with respect to an accident which occurred on April the [8]th of 200 2. It is true to be ce rtain that there is a presumption of agency as stated by counsel. State Farm verses Martin Marietta does presume an agency between principal and agent, which is rebuttable, but evid ence [wa s] produced t o the contrary. Before me I have the testimony and Mr. Edwards acknowledges that on the date and time in question he had picked up his two children from sch ool and w as transportin g them to h is house with the intention of preparing a dinner meal for them to feed them before he again returned to a work assignment at the comm unity action meeting to be held in Mondawmin. The accident occurs w hile Mr. Edwards is in the process of transporting his two minor children home . *** The court must look to see that if at the time of the event the defenda nt, Mr. Edwards, was furthering th e business o f his employer, or as counsel stated, acting in furtherance of his own personal goals. If he [was] ac ting in furthe rance of h is own pe rsonal goa ls there is no agen cy, he is beyond the scope of his duties as a fire department employee and theref ore there w ould be no coverage extended to him throug h the M ayor and City Cou ncil for Baltim ore City. The testimony is that at the time of this accident he was transporting his children home for the purpose of preparing dinner. The chief testified that that was not in furtherance of any fire department business. It very well may have been a common practice that individuals who were assigned these cars used them for many purposes occasionally beyond the scope of their emplo yment, but it is for this court to co nsider on th is occasion whe ther this defendant, M r. Edwards, was outside the scope of his employment, as he was not engaged in the busine ss of the M ayor and City C ouncil for Baltimore -3-

City. He was not furthering the business of the fire department. On the date and time of this event he was beyond the scope of his employment by transporting his children in the nonemergency service vehicle to his home fo r the purpose of prep aring their dinner. There was no evidence to su ggest that the Mayor an d City Counc il for Baltimore in any way ratified his actions or took any steps to accept or adopt as the ir responsibility his course of action in taking his children ho me for din ner on the date and time this accident occurr ed. Upon those findings, the district court entered judgment in favor of the City as to Erie's claim. With respect to Erie's claim against appellant, the district court entered a judgment against him in the amount of $8,094.84 for property damage and car rental expen ses, plus $40.00 in cour t costs. Appellant did not ap peal the district court judgmen t. On January 29, 2004, appellant assigned to Erie his claim for indemnification against the City. On M arch 8, 200 4, appellant, to his own use and the use of Erie, filed a complaint for declaratory relief against the City in the Circu it Court for B altimore C ounty seekin g, inter alia , indemnif ication for th e judgment entered ag ainst him by the district court. 3 Of

importance to this appeal, appellant alleged in the complaint that the City was self-insured pursuant to Md. Code (1977, 2006 Repl. Vol.),

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