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No. 28, September Term, 1996 West American Insurance Company v. John Popa, et al.

[Involves Several Issues Arising Under The Uninsured Motorist Provisions Contained In A Policy Of Automobile Insurance Sold In Maryland]

IN THE COURT OF APPEALS OF MARYLAND No. 28 September Term, 1996 ___________________________________________

WEST AMERICAN INSURANCE COMPANY

v.

JOHN POPA, et al. ____________________________________________ Bell, C.J., Eldridge Rodowsky Chasanow * Karwacki Raker Murphy, Robert C. (Retired, specially assigned) JJ. ___________________________________________ Opinion by Eldridge, J. __________________________________________ Filed: *Karwacki, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and the adoption of this opinion.

This case presents several issues arising under the uninsured motorist provisions contained in a policy of automobile insurance sold in Maryland. I. On July 1, 1991, Jonathan David Popa was operating an automobile which was stopped below the crest of a hill on U.S. Route 1 in Cecil County, Maryland. His vehicle was struck by a Maryland State Police car driven by Trooper Rodney Manuel, resulting in Jonathan's death. The car which Jonathan was operating at the time was owned by his parents and insured under a policy issued by West American Insurance Company. The policy contained uninsured and underinsured motorist coverage in the amount of $300,000. On July 1, 1992, Jonathan's parents, John and Tommie Sue Popa, individually and as personal representatives of Jonathan's estate, filed suit in the Circuit Court for Cecil County against Trooper Manuel, the Maryland State Police and the State of Maryland, asserting wrongful death and survival claims. Trooper Manuel subsequently filed a separate suit in the Circuit Court for Cecil County against Jonathan's estate for his personal injuries arising out of the accident. The Popas promptly notified West American of both lawsuits, and West American retained counsel to defend Jonathan's estate in the action filed by Trooper Manuel. West American did not at that time seek to intervene in the action filed by the Popas. The two cases were consolidated, and a jury trial was held from January 24 through January 27, 1994. During the first day of the trial, the counsel retained by West American

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settled Trooper Manuel's suit against Jonathan's estate. The trial continued on the Popas' wrongful death and survival claims, and the jury returned a verdict finding that Trooper Manuel was negligent and that Jonathan was not contributorily negligent. The jury awarded a total of $867,000 in damages. Judgment was entered in that amount against the State of Maryland only on January 31, 1994. By letter dated February 7, 1994, the Popas made a claim for underinsured motorist benefits under the policy issued by West American, seeking the full amount of their coverage less any amount paid by the State. Meanwhile, the State filed a motion pursuant to Maryland Rule 2-535 to reduce the judgment to $50,000 because state law at the time limited the State's liability under the Maryland Tort Claims Act, Maryland Code (1984, 1993 Repl. Vol.),

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Maryland Law