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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1875 September Term, 1994 _______________________________

PROGRESSIVE CASUALTY INSURANCE COMPANY v.

GEORGE E. DUNN, et al. ________________________________ GEORGE E. DUNN v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY _______________________________ Wilner, C.J., Wenner, Cathell, JJ. _______________________________ Opinion by Wilner, C.J. _______________________________ Filed: September 29, 1995

This case arises out of an accident that occurred on July 17, 1989. In an amended complaint filed in the Circuit Court for Anne

Arundel County, Lawrence and Alice Silbaugh alleged that, as Mrs. Silbaugh was standing in the driveway of her property, she was struck by a golf cart owned by her neighbors, George and Chris Dunn, and driven by Mr. Dunn. The Silbaughs sued the Dunns for the The suit was based on the

injuries sustained by Mrs. Silbaugh.

alleged negligence of Mr. Dunn in his operation of the cart. We are not concerned here, directly, with the accident. The

issues before us relate to insurance coverage: whether the Dunns are entitled Casualty to a defense, Company and to indemnity, by Progressive automobile

Insurance

(Progressive),

their

insurance carrier, and by Nationwide Mutual Fire Insurance Company (Nationwide), their homeowner insurance carrier. In a declaratory

judgment proceeding, the Circuit Court for Anne Arundel County, acting on cross-motions for summary judgment, declared that

Progressive was liable for both the defense and indemnity (up to the policy limits) and that Nationwide was not liable. From the

judgments entered in conformance with those declarations, Mr. Dunn and Progressive have appealed. Dunn asserts that the court erred

in finding no coverage under the Nationwide policy; Progressive claims that the court erred in finding coverage under its policy. We believe that the court was correct in its construction of the Nationwide policy but incorrect in its construction of the Progressive policy. We therefore shall affirm the judgment as to

the one but reverse and remand with respect to the other.

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THE NATIONWIDE POLICY The Policy Provisions In the section of the policy dealing with liability coverage (Coverage E), Nationwide agreed to pay damages Dunn is legally obligated to pay due to an "occurrence". An "occurrence" is

defined as bodily injury or property damage resulting from an accident. In the section on exclusions, however, the policy states

that Coverage E does not apply to bodily injury or property damage arising out of the ownership, maintenance, or use of "a motor vehicle owned or operated by . . . an insured."1 The term "motor vehicle" is defined as including "a motorized golf cart, snowmobile or other motorized land vehicle owned by an insured and designed for recreational use off public roads, while off an insured location." The definition continues that "[a]

motorized golf cart while being operated to or from, or on the premises of a golf course is not a motor vehicle." policy defines "insured location" as meaning Finally, the the "residence

premises" and certain other property used by the insured as a residence or rented to the insured. Discussion Nationwide's defense is straightforward. According to the

amended complaint and other relevant documents produced in the asyet-untried Silbaugh suit, the accident arose from the use by Dunn

The highlighted words in our quotations from the policy are highlighted in the policy itself. Most likely, that is because those words are defined terms in the policy. - 3 -

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of a motorized golf cart off the Dunns' residence premises, on no other insured location, and not while on or going to or from a golf course; hence, no coverage and no duty to defend. Dunn's response, in essence, is that, while the policy

language may be clear, its application to the facts is not, and therefore judgment. He first attacks Nationwide's characterization of the vehicle as a "golf cart." Ignoring the fact that he himself characterized the case should not have been resolved on summary

it as a "golf cart" in his answers to interrogatories filed by the Silbaughs in the negligence case and by Progressive in this case,2 he now contends that the vehicle was not a golf cart, but rather a "utility garden cart." This is based on his assertion that the

vehicle was not used, or bought for use, in connection with golf but was instead used on his property for gardening and other household uses. In an effort to bring the vehicle affirmatively within the policy, he points to a provision excluding coverage for "motor vehicles, except trailers and those used to service an insured's residence." Contending that this cart was used to service his

In response to Progressive's interrogatory asking how the accident occurred, Dunn stated that he, his wife, and his daughter "were riding in a golf cart I had recently purchased . . . ." The actual collision happened when he attempted to drive the cart with his left foot "[a]s I have done and as other golfers do frequently for a short move of the cart." At least five more times in his answers, he referred to the cart as a "golf cart." We note that his wife, Chris, in an affidavit attached to her motion for summary judgment against Progressive, also consistently characterized the vehicle as a golf cart. - 4 -

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residence, he asserts that it is therefore not a motor vehicle excluded from coverage and, for that reason, must be covered. What

he neglects to mention, for it is fatal to his position, is that the language he relies on appears in an exclusion to Coverage C, for personal property. It has no relevance to Coverage E

(liability coverage). Having himself, under oath, described the vehicle as a golf cart, Dunn cannot reasonably contest the court's finding that it was indeed a golf cart. That he may have used it for some other

purpose does not cause it to lose its character as a motorized golf cart. Moreover, even if, because of its alternative use, it was

not a golf cart, the vehicle would certainly qualify as an "other motorized land vehicle owned by an insured and designed for

recreational use off public roads."

As such, it would still fall

within the definition of "motor vehicle" and thus be excluded from liability coverage. Dunn next contends that there is some ambiguity or dispute over whether the cart was off the insured premises at the time of the accident. In their amended complaint and in their affidavits,

the Silbaughs averred that Mrs. Silbaugh was standing in the driveway of their residence when she was struck. In a Statement of

Material Facts Not In Dispute, included in a memorandum filed in support of his motion for summary judgment, Mr. Dunn acknowledged that the accident occurred "in front of Mrs. Silbaugh's house," which was "located directly across a dead end cul-de-sac from the Dunn house." In his brief in this Court, he concedes that he was - 5 -

"a few feet from the edge of his property line" when the accident happened. Yet, for reasons that escape us, he contends that the

accident may have happened on the "residence premises" or on some zone around it included within the ambit of "insured location." There is utterly no factual support in this record for such a suggestion. It is clear, as a matter of law, that there was no liability coverage, and no potentiality of liability coverage, under the Nationwide policy. Nationwide therefore had no duty to defend and

no obligation to indemnify Dunn. THE PROGRESSIVE POLICY The Policy Provisions The Progressive policy provided liability coverage for bodily injury caused by accident and arising out of the ownership,

maintenance, or use of the "owned automobile." automobile" is defined as including

The term "owned

"a private passenger, farm or utility automobile, ownership of any of which is acquired by the named insured during the policy period, provided . . . the Company insures all private passenger automobiles, farm automobiles and utility automobiles owned by the named insured on the date of such acquisition and the named insured notifies the Company within 30 days following such date." The principal issue raised by Progressive is whether the golf cart qualifies as an "owned automobile," which, in turn, depends on whether it falls within the policy definitions of private

passenger, farm, or utility automobile. A "private passenger automobile" is defined as "a four-wheel - 6 -

private passenger, station wagon or jeep type automobile."

A "farm

automobile" is defined as "an automobile of the truck type with a load capacity of fifteen hundred pounds or less not used for business or commercial purposes other than farming." automobile" is defined as "an automobile, other A "utility a farm

than

automobile, with a load capacity of fifteen hundred pounds or less of the pick-up body, sedan delivery or panel truck type not used for business or commercial purposes." Discussion Notice Before considering the main issue, we take note of

Progressive's assertion that it was not notified of the Dunns' acquisition of the cart prior to the accident. contest that statement. The Dunns do not

The cart was acquired on July 4, 1989, The accident occurred on July

which was during the policy period.

17, within 30 days after the acquisition. The record before us does not indicate with any clarity just what notice the Dunns ever gave to Progressive. In response to

Progressive's request for an admission that no request was made to add the vehicle to the policy prior to the accident, Mrs. Dunn stated that "there was no requirement to request that said golf cart be added to the subject insurance policy since the golf cart was sold within thirty (30) days of its acquisition." In his brief

in this Court, Mr. Dunn asserts, without any reference to the record, that he notified Progressive that the cart "should be considered an `owned automobile' under the Progressive policy - 7 -

within 30 days of the acquisition date." We see no relevance to the fact that notice of the acquisition did not precede the accident. The policy imposes no such

requirement.

The only requirement in this regard is that notice be When this issue was

given within 30 days after the acquisition.

raised at the hearing below, the court asked if the cart would not have been automatically insured for the first 30 days after

acquisition.

Counsel for Progressive indicated agreement with that

view, and indeed stated that "[t]he thirty days is not dispositive of anything." It appears to us that the point was essentially waived by that response. Even if it were not, we concur with the suggestion Clauses such as

implicit in the question from the circuit court.

the one at issue here have generally been construed as providing automatic coverage during the 30-day notice period. See Inland

Mut. Ins. Co. v. Stallings, 263 F.2d 852 (4th Cir. 1959); Pendleton v. Ricca, 232 So.2d 803 (La. App. 1970); Missouri Managerial Corporation v. Pasqualine, 323 S.W.2d 244 (Mo. App. 1959); Patrick

v. State Farm Mut. Auto. Ins. Co., 217 A.2d 909 (N.J. Super. 1966); McCarty v. Grange Mutual Casualty Co., 273 N.E.2d 345 (Ohio App. 1971); 6B Appleman, Insurance Law & Practice

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