Berry & State Farm v. Queen ( 2020 )

Desiree Berry and State Farm Mutual Automobile Insurance Company and State Farm
Fire and Casualty Co. v. Andrae Queen, and others similarly situated., Misc. No. 10,
September Term, 2019; Maryland Insurance Administration v. State Farm Mutual
Automobile Insurance Co., No. 63, September Term, 2019. Opinion by Getty, J.
INSURANCE LAW—UNINSURED MOTORIST STATUTE—STATUTORY
INTERPRETATION—DAMAGE TO PROPERTY
The Court of Appeals held that the phrase “damage to property”—as incorporated by
Maryland’s Uninsured Motorist Statute—includes loss of use damages such as rental costs
because of the ordinary and popular meaning of the words “damage” and “property,” this
Court’s prior interpretation of property damage, and the context and purpose of the
uninsured motorist statute.
United States District Court IN THE COURT OF APPEALS
for the District of Maryland
Case No. 1:18-cv-02625-PWG
OF MARYLAND
Circuit Court for Baltimore City
Case No. 24-C-19-001819 Misc. No. 10 and No. 63
September Term, 2019
Argued: May 28, 2020
______________________________________
DESIREE BERRY AND STATE FARM
MUTUAL AUTOMOBILE INSURANCE
COMPANY AND STATE FARM FIRE AND
CASUALTY CO.
v.
ANDRAE QUEEN, and others similarly
situated.
______________________________________
MARYLAND INSURANCE
ADMINISTRATION
v.
STATE FARM MUTUAL AUTOMOBILE
INSURANCE CO.
______________________________________
Barbera, C.J.
McDonald,
Watts,
Hotten,
Getty,
Booth,
Biran,
JJ.
______________________________________
Pursuant to Maryland Uniform Electronic Legal Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document
is authentic.
Suzanne Johnson
Opinion by Getty, J.
2020-07-27 13:49-04:00 ______________________________________
Filed: July 27, 2020
Suzanne C. Johnson, Clerk
The cost of automobile accidents is high,
whether it be measured in lives lost, injuries
inflicted, or damage to property.
The . . . monetary loss of the victims of
automobile accidents [is] exacerbated by
situations where one or more of the parties
involved turned out to be uninsured.
- Report of the Task Force on Maryland
Automobile Insurance
In the early 1980s, the Maryland General Assembly sought to combat a growing
statewide problem: the increased prevalence of uninsured motorists on state roads and
highways. A. Janquitto, Maryland Motor Vehicle Insurance (3d ed. 2011), § 3.12(A) at
66–70. Initially, the House Economic Matters Committee formed an insurance task force
in 1982. The task force conducted an interim study to recommend ways to enforce
Maryland’s compulsory insurance laws and reduce the high number of uninsured motorists
through new legislative proposals. See Final Report of the Insurance Task Force of the
House Economics Matters Committee (January 1983),
http://dlslibrary.state.md.us/publications/house/EM/MdE2352.3.F491_1983.pdf (last
visited on July 21, 2020), archived at https://perma.cc/UF89-KEVV.
In 1984, the General Assembly’s Legislative Policy Committee created a bicameral
task force to make additional recommendations, such as “[r]efining existing procedures for
identifying uninsured motorists in order to minimize the burden on the general motoring
public.” See Report of the Task Force on Maryland Automobile Insurance 2 (December
1984), http://mdlaw.ptfs.com/awweb/pdfopener?md=1&did=8682 (last visited on July 21,
2020), archived at https://perma.cc/C5F9-SE32. The General Assembly’s strong policy
determinations that followed these reports have resulted in legislation, over the ensuing
forty years, expanding Maryland’s Uninsured Motorist Statute to its present state. Md.
Code (1957, 2017 Repl. Vol., 2019 Supp.), Insurance (“IN”) §§ 19-509 to 19-511.1
Desiree Berry & State Farm Mutual Automobile Insurance Company & State
Farm Fire and Casualty Company v. Andrae Queen (“Misc. No. 10”) and Maryland
Insurance Administration v. State Farm Mutual Automobile Insurance Company (“No.
63”) arrived in this Court by different procedural vehicles. Misc. No. 10 is a certified
question from the United States District Court for the District of Maryland. No. 63 is an
appeal from the Circuit Court of Baltimore City; we granted certiorari while the matter was
pending in the Court of Special Appeals. While these appeals have not been formally
consolidated, the Court set both matters for oral argument on the same day. Due to the
similarity in the underlying facts, and identical legal issue presented in both Misc. No. 10
and No. 63, we issue one opinion.
In both cases, we must determine whether the phrase “damage to property,”
incorporated by reference in the uninsured motorist statute, requires an insurer to reimburse
loss of use damages, such as rental car costs, to an insured. To answer this question, our
analysis begins with the ordinary and popular meaning of the words “damage” and
“property.” Both legal and non-legal sources confirm that these words, together, connote
a loss of one’s ability to use an object. Building on this common understanding, our
1
For a more detailed explanation of Maryland’s Uninsured Motorist Statute’s legislative
history, consult Nationwide Mutual Insurance Co. v. Shilling, 468 Md. 239, 249–54 (2020).
2
analysis examines this Court’s earlier jurisprudence interpreting property damage and
related legislation. Two particular cases guide us. This Court’s prior articulation of the
measure of damages where personal property is injured but not destroyed, beginning in
Washington, Baltimore & Annapolis Electric Railway Co. v. William A. Fingles, Inc., 135
Md. 574 (1920), confirms that loss of use damages are part and parcel of “damage to
property.” Indeed, this Court applied that principle to the uninsured motorist statutory
scheme in D’Ambrogi v. Unsatisfied Claim & Judgment Fund Board, 269 Md. 198 (1973).
There, we held that loss of use damages were recoverable under the predecessor statute to
Maryland’s Automobile Insurance Fund (“MAIF”) because such damages were
encompassed in the phrase “damage to property.” Finally, as with any exercise of statutory
interpretation, we view the phrase in the context and purpose of the larger statutory scheme.
Here, such a reading undoubtedly leads this Court to conclude that the phrase “damage to
property” includes loss of use damages.
BACKGROUND
We recently explained that “[u]ninsured and underinsured[2] motorist coverage is a
statutorily required component of every motor vehicle liability insurance policy issued in
Maryland.” Nationwide Mut. Ins. Co. v. Shilling, 468 Md. 239, 242 (2020). “This
mandatory coverage protects insured drivers involved in motor vehicle accidents from
2
These terms are synonymous. See Shilling, 468 Md. at 248–49 (citation omitted) (“[A]n
uninsured motorist or motor vehicle is, for all intents and purposes, the same as an
underinsured motorist or motor vehicle.”).
3
paying out-of-pocket expenses when the liable party, a tortfeasor, is either completely
uninsured or inadequately insured to cover the extent of the insured’s injuries.” Id.The underlying facts of these cases do not affect our analysis. Still, we briefly
summarize them for context.
Misc. No. 10
The following information is derived from the U.S. District Court’s Certification
Order. Andrae Queen owned a car and obtained a motor vehicle liability insurance policy
through State Farm Fire and Casualty Company (“State Farm”). Mr. Queen did not
purchase the optional rental car coverage as a part of the policy. On February 15, 2018, an
uninsured motorist struck Mr. Queen while he was operating his car in St. Mary’s County,
Maryland. The accident damaged Mr. Queen’s vehicle. As a result, Mr. Queen obtained
a rental car—which cost $306.23—while his car was being repaired. Mr. Queen submitted
a claim with State Farm under the Uninsured Motor Vehicle Property Damage Coverage3
portion of his policy to recover his rental car expenditure. State Farm denied the claim.
Mr. Queen filed suit against State Farm in the Circuit Court for Baltimore City on
behalf of himself and sought to proceed as a class action. State Farm removed the action
3
The Uninsured Motor Vehicle Property Damage Coverage portion of Mr. Queen’s policy
provides for coverage of “Bodily Injury” and “Property Damage” and defines property
damage as follows:
Property Damage means damage to or destruction of:
1. your car or a newly acquired car; and
2. property owned by an insured while contained in your car or a newly
acquired car.
4
to the United States District Court for the District of Maryland and filed a motion to
dismiss. In a Memorandum Opinion and Order, the U.S. District Court denied State Farm’s
motion. See Queen v. State Farm Mut. Auto. Ins. Co., No. PWG-18-2625, 2019 WL
2568336 (D. Md. June 20, 2019). The U.S. District Court determined that under Maryland
law, “[Mr.] Queen ha[d] stated plausible claims, notwithstanding the unambiguous
language of the [State Farm Insurance] Policy excluding the coverage [Mr.] Queen
demand[ed].” Id. at *5. The U.S. District Court ordered State Farm to answer Mr. Queen’s
complaint.
At State Farm’s request, the U.S. District Court then certified a question of law to
this Court pursuant to the Maryland Uniform Certification of Questions of Law Act. Md.
Code (1957, 2013 Repl. Vol.), Courts & Judicial Proceedings § 12-601 et seq. This Court
accepted the certified question on November 22, 2020. State Farm filed, with Mr. Queen’s
consent, a motion to accelerate the briefing schedule and set the matter for oral argument
with No. 63, which we granted on December 10, 2019.
No. 63
The following information is derived from the Joint Stipulation of Facts agreed upon
by the Maryland Insurance Administration (the “Administration”) and State Farm.4
Arndrea Hoyle owned a car and obtained a motor vehicle liability insurance policy through
(Emphasis in original).
4
We see no principled reason to distinguish “State Farm” of Misc. No. 10 and “State Farm”
of No. 63. In the discussion below, we refer to a singular “State Farm.” In both cases,
State Farm is represented by the same counsel and makes principally the same arguments.
5
State Farm. Ms. Hoyle’s policy included the following coverage: (1) Car Rental Expense
Coverage,5 providing eighty percent of car rental expenses up to the $1,000 limit; (2)
5
In pertinent part, the policy provides:
PHYSICAL DAMAGES COVERAGE
This policy provides:
4. Car Rental and Travel Expenses Coverage if “R1” is shown
under the “SYMBOLS” on the Declarations Page.
Insuring Agreements
4. Car Rental and Travel Expenses Coverage
a. Car Rental Expense
We will pay the daily rental charge incurred when you
rent a car from a car business while your car . . . is:
(2) being repaired . . . as a result of a loss which would
be payable under . . . Collision Coverage.
Limits – Car Rental and Travel Expenses Coverage
1. Car Rental Expense
The limit for Car Rental Expense is shown on the Declarations
Page under “Limit – Car Rental Expense – Each Day, Each
Loss.
a. The limit shown under “Each Day” is the most we will
pay for the daily rental charge. If:
(1) a dollar amount is shown, then we will pay the daily
rental charge up to that dollar amount; or
(2) a percentage amount is shown, then we will pay that
percentage of the daily rental charge.
(Emphasis in original).
6
Collision Coverage,6 with a $250 deductible; and (3) Uninsured Motorist Coverage, with
a $250 deductible.7 The uninsured motorist coverage obligated Ms. Hoyle to pay a separate
premium charge of $55.59 per policy period, which she paid.
On January 5, 2018, an unidentified vehicle struck and damaged Ms. Hoyle’s car
while it was parked and unoccupied. That same day, Ms. Hoyle submitted a claim with
State Farm. State Farm responded with a coverage letter, which stated, in pertinent part:
6
In pertinent part, the policy provides:
PHYSICAL DAMAGES COVERAGE
This policy provides:
2. Collision Coverage is [sic] “G” is shown under the
“SYMBOLS” on the Declarations Page.
Insuring Agreements
2. Collision Coverage
a. We will pay the loss caused by collision to a covered
vehicle.
(Emphasis in original).
7
In pertinent part, the policy provides:
UNINSURED MOTOR VEHICLE COVERAGE
Insuring Agreement
We will pay compensatory damages for bodily injury and property
damage an insured is legally entitled to recover from the owner or
driver of an uninsured motor vehicle.
Limits
2. Property Damage
The Uninsured Motor Vehicle Coverage limit for property
damage is shown under the Declarations Page under
7
The policy provides uninsured motorist property damage coverage for
property damages you are legally entitled to collect from the owner or driver
of an uninsured motor vehicle. Damages may include the repair costs, actual
cash value of the property and diminished value, if any. Based upon our
investigation, your uninsured motorist property damage coverage will apply
to this loss.
State Farm paid Ms. Hoyle $369.78 pursuant to the policy’s Collision Coverage provision
for property damage to the vehicle.8
While Ms. Hoyle’s car was being repaired, she rented a replacement from Hertz
Corporation, a car rental agency. In total, the rental car cost $264.07. State Farm paid
Hertz directly in the amount of $208.40: eighty percent of the daily rental rate, plus tax,
“Uninsured Motor Vehicle Coverage – Property Damage Limit
– Each Accident.” This limit is the most we will pay for all
property damage resulting from any one accident.
“Property Damage” is specifically defined in the Policy as:
damage to or destruction of:
(1) your car or a newly acquired car; and
(2) property owned by an insured while contained in
your car or a newly acquired car.
Exclusions
THERE IS NO COVERAGE:
8. FOR THE FIRST $250 OF PROPERTY DAMAGE
RESULTING FROM ONE ACCIDENT.
8
The policy also contains a nonduplication provision, which provides:
We will not pay under Uninsured Motor Vehicle Coverage any damages:
2. that are property damages and could have been paid or could
be paid to or for the insured:
c. under any policy of property insurance.
8
pursuant to the Car Rental Expense provision of the policy. State Farm did not pay Ms.
Hoyle the balance—$55.67—which represented twenty percent of the total rental car
expense.
Ms. Hoyle filed an administrative complaint with the Administration, which
reviewed the complaint and issued a determination letter on April 27, 2018. In the letter,
the Administration concluded that State Farm acted without just cause and in an arbitrary
and capricious manner when it denied Ms. Hoyle’s claim for rental car expenses. See IN
§§ 4-113 and 27-303(2). Therefore, the Administration directed State Farm to pay Ms.
Hoyle’s out-of-pocket rental expenses.
State Farm disagreed and requested a hearing before an administrative law judge.
The Administration and State Farm filed Cross Motions for Summary Decision,
acknowledging that there was no dispute of fact and the only issue for resolution involved
whether State Farm violated IN §§ 4-113 and 27-303(2). The parties appeared for an
administrative hearing on January 24, 2019. One month later, the Associate Insurance
Commissioner issued a Final Order granting the Administration’s Motion for Summary
Decision and denying State Farm’s Motion for Summary Decision. The Associate
Commissioner’s order affirmed the Administration’s initial determination.
State Farm filed a petition for judicial review in the Circuit Court for Baltimore
City. The circuit court held a hearing on September 25, 2019. After reviewing the parties’
filings and hearing argument, the circuit court determined that the Associate Commissioner
premised its decision on an error of law. As a result, the circuit court entered summary
decision in favor of State Farm. The Administration noted an appeal to the Court of Special
9
Appeals. While still pending in that court, we granted certiorari. Md. Ins. Admin. v. State
Farm Mut. Auto. Ins. Co., 466 Md. 513, 513 (2019).
Question Presented
Both cases present a single, identical question of law for this Court’s review:
Whether the Maryland Uninsured Motorist statutory provision of Md. Code
Ann., Ins. §19-509(e)(1), and the provisions of Title 17 of the Transportation
Article [(“TR”)] and Title 20 Subtitle 6 of the Insurance Article incorporated
therein, require an insurer to pay benefits for loss of use of a vehicle damaged
by an uninsured driver, regardless of any limitations or omissions that may
exist in the applicable policy of insurance.
For the reasons that follow, we hold that the phrase “damage to property,” as
incorporated by reference in the uninsured motorist statute, embraces loss of use damages.
Consequently, an insurer is required to provide uninsured motorist coverage for loss of use
damages, such as rental costs, caused by an uninsured driver, regardless of a policy’s
limitations or purported omissions to the contrary.
DISCUSSION
A. The Parties’ Contentions.
Misc. No. 10
State Farm contends that the uninsured motorist statute is unambiguous and fails to
provide for loss of use damages. State Farm’s argument focuses less on the express
language of the statute and more on text it believes is missing. Specifically, State Farm
asserts that the words “loss of use” or “rental car coverage” must explicitly appear in the
statute for it to cover such damages. State Farm distinguishes D’Ambrogi as inapplicable
10
because that case interpreted now-inapplicable statutory language since replaced by the
statutory scheme implicated in the instant case.
Mr. Queen counters that the term “damage to property,” as it has been defined in
our case law, recognizes recovery for loss of use damages. In Mr. Queen’s view, this
Court’s interpretation of MAIF’s predecessor statute in D’Ambrogi is instructive. More
broadly, Mr. Queen contends that the uninsured motorist statute’s remedial nature
encourages a liberal construction to effectuate its purpose; i.e., assuring that innocent
victims recover when injured at the hands of uninsured motorists.
No. 63
The Administration argues that the Associate Commissioner properly interpreted
IN § 19-509 and TR § 17-103. The Administration contends that IN § 19-509 requires an
insurer to provide uninsured motorist coverage equal to the liability coverage all Maryland
drivers must maintain under Title 17 of the Transportation Article. In turn, the minimum
liability coverage requirements of TR § 17-103 provide for reasonable rental car
expenses—i.e., loss of use damages—when an innocent claimant’s car is being repaired.
Against this statutory framework, the Administration maintains that State Farm’s denial of
Ms. Hoyle’s claim for loss of use damages was arbitrary and capricious because the denial
was not undertaken pursuant to a lawful principle.
State Farm counters with the language of Ms. Hoyle’s motor vehicle insurance
policy; specifically, that the uninsured motorist provisions of the policy do not include
rental car expenses. More broadly, State Farm responds that the uninsured motorist statute
clearly and unambiguously does not provide coverage for loss of use damages. In State
11
Farm’s view, it is not responsible for loss of use damages because (1) the text of the statute
does not explicitly include “loss of use”; (2) the phrase “damage to property” cannot be
defined as including loss of use; and (3) the General Assembly could have included
coverage for “damages resulting from” property damage, but it did not. Finally, State Farm
asserts that its denial of Ms. Hoyle’s claim for rental expenses was not arbitrary and
capricious; rather, that it denied coverage according to a lawful principle.
B. Principles of Statutory Interpretation.
Before engaging with the statutory language, we reiterate the pertinent guiding
principles of statutory interpretation. The interpretation of a statute is a question of law
that this Court reviews de novo. Johnson v. State, 467 Md. 362, 371 (2020). Our chief
objective is to ascertain the General Assembly’s purpose and intent when it enacted the
statute. Neal v. Balt. City Bd. of Sch. Comm’rs, 467 Md. 399, 415 (2020) (citing Wash.
Gas Light Co. v. Md. Pub. Serv. Comm’n, 460 Md. 667, 682 (2018)). It is well established
that
[t]his Court provides judicial deference to the policy decisions enacted into
law by the General Assembly. We assume that the legislature’s intent is
expressed in the statutory language and thus our statutory interpretation
focuses primarily on the language of the statute to determine the purpose and
intent of the General Assembly. We begin our analysis by first looking to
the normal, plain meaning of the language of the statute, reading the statute
12
as a whole to ensure that no word, clause, sentence or phrase is rendered
surplusage, superfluous, meaningless or nugatory.
Brown v. State, 454 Md. 546, 550–51 (2017) (quoting Phillips v. State, 451 Md. 180, 196–
97 (2017)).
Our inquiry is not confined to the specific statutory provision at issue on appeal.
Neal, 467 Md. at 415. Instead, “[t]he plain language ‘must be viewed within the context
of the statutory scheme to which it belongs, considering the purpose, aim or policy of the
Legislature in enacting the statute.’” Johnson, 467 Md. at 372 (quoting State v. Johnson,
415 Md. 413, 421 (2010)). To this end, it may be beneficial to “analyze the statute’s
‘relationship to earlier and subsequent legislation, and other material that fairly bears on
the fundamental issue of legislative purpose or goal, which becomes the context within
which we read the particular language before us in a given case.’” Blackstone v. Sharma,
461 Md. 87, 114 (2018) (quoting Kaczorowski v. Mayor & City Council of Balt., 309 Md.
505, 515 (1987)).
While not necessary in every instance, we often find it prudent to scrutinize the
legislative history to confirm that our interpretation of the statute’s plain language accords
with the legislature’s intent. Neal, 467 Md. at 415–16; see also In re: S.K., 466 Md. 31,
50 (2019) (“In addition to the plain language, the modern tendency of this Court is to
continue the analysis of the statute beyond the plain meaning to examine ‘extrinsic sources
of legislative intent’ in order to ‘check [ ] our reading of a statute’s plain language’ through
examining ‘the context of a statute, the overall statutory scheme, and archival legislative
history of relevant enactments.’” (alteration in original) (quoting Brown, 454 Md. at 551));
13
State v. Roshchin, 446 Md. 128, 140 (2016) (“[E]ven when the language is unambiguous,
it is useful to review legislative history of the statute to confirm that interpretation and to
eliminate another version of legislative intent alleged to be latent in the language.”).
C. The Term “Damage to Property” Includes “Loss of Use.”
Our analysis begins by discerning the ordinary and popular meaning of the words
we seek to interpret: “damage” and “property.” Words, however, often have multiple
meanings. As a result, we look to the context in which the words are used. This Court has
examined the measure of damages involving injury to property in our early jurisprudence.
Additionally, the broad purpose of the uninsured motorist statute informs the proper
meaning of the phrase. Our independent interpretation of the phrase is confirmed by
subsequent legislative action amending the statutory language of IN § 19-509.
1. The Ordinary and Popular Understanding of “Damage” and “Property.”
As a starting point, we first consider the dictionary definitions of the words
“damage” and “property” to derive their common understanding as those words are used
in the English language.9 This is an essential starting point because the “ordinary, popular
understanding of the English language dictates interpretation of [the statute’s]
9
See Couret-Rios v. Fire & Police Emps’. Ret. Sys. of Balt., 468 Md. 508, 530 n.8 (2020)
(“To determine the ordinary meaning of those words, we find it helpful to consult their
dictionary definitions.” (quoting Neal, 467 Md. at 417 n.10)); see also Marriott Emps. Fed.
Credit Union v. Motor Vehicle Admin., 346 Md. 437, 447 (1997) (“Although dictionary
definitions do not provide dispositive resolutions of the meaning of statutory terms,
dictionaries do provide a useful starting point for determining what statutory terms mean,
at least in the abstract, by suggesting what the legislature could have meant by using
particular terms.” (internal citations and original alteration omitted)).
14
terminology.” Johnson, 467 Md. at 372 (quoting Blackstone, 461 Md. at 113). Here, as to
whether the phrase “damage to property” contemplates loss of use damages, the definitions
of “damage” and “property” are telling.
The word “damage” is defined in similar ways in both legal and non-legal sources.
Black’s Law Dictionary defines “damage” in part as “[l]oss or injury to person or
property.” Black’s Law Dictionary 488 (11th ed. 2019); see also Damage, Garner’s
Dictionary of Legal Usage 242 (3d ed. 2011) (defining the term as “[l]oss, injury or
deterioration”). Merriam-Webster defines the term as “loss or harm resulting from injury
to person [or] property.” Damage, Merriam-Webster, https://www.merriam-
webster.com/dictionary/damage (last visited on July 21, 2020), archived at
https://perma.cc/5NK3-DMSV. What plainly appears across these definitions is that a
“loss” is customarily associated with damage.
The legal and non-legal definitions of “property” also accord with each other.
Black’s Law Dictionary defines “property” in part as “the rights in a valued resource such
as . . . chattel[; or a]ny external thing over which the rights of possession, use, and
enjoyment are exercised.” Black’s Law Dictionary 1470 (11th ed. 2019).10 Merriam-
Webster likewise provides the following pertinent definitions: “something owned or
10
Garner’s Dictionary of Legal Usage mirrors this definition:
The traditional legal meaning of the term is “a right over a determinate thing,
either a tract of land or a chattel.” The transferred sense that nonlawyers
commonly attach to the term is “any external thing over which the rights of
possession, use, and enjoyment are exercised.”
Property, Garner’s Dictionary of Legal Usage 721 (3d ed. 2011).
15
possessed[;] the exclusive right to possess, enjoy and dispose of a thing[; or] something to
which a person . . . has a legal title.” Property, Merriam-Webster, https://www.merriam-
webster.com/dictionary/property (last visited on July 21, 2020), archived at
https://perma.cc/JT6J-AVZ6. These definitions confirm the uncontroversial notion that, as
relevant here, “property” is a thing that an individual may use as he or she sees fit.
From these sources, we glean that the term “damage” necessarily means a loss of
something. Simply put, to equate “damage” with its ordinary understanding—a loss of
some sort—is not an imaginative leap; such an interpretation naturally flows from the
word’s definitions. The remaining question, then, is loss of what? Fortunately, that portion
of the equation is exceedingly straightforward: a loss of property. Inherent in the concept
of property is the right to enjoy, possess and use the object. Fundamentally then, the
essence of the term “damage to property” means that the lawful owner is deprived of the
ability to apply the object in a manner that he or she desires—i.e., a loss of use.
We find these definitions enlightening; however, “[w]ords can have multiple
meanings and often do. And the numerous meanings of a particular word may each satisfy
the ordinary and popular understanding of that word. In order to interpret a word’s specific
meaning in a particular statute we look to the context in which the word is used.” Chow v.
State, 393 Md. 431, 448 (2006). With this foundation, we turn to early cases in which this
Court articulated the types of damages encompassed by the concept of damage to property:
16
Washington, Baltimore & Annapolis Electric Railway Co. v. William A. Fingles, Inc., 135
Md. 574 (1920) (“Fingles”) and Taylor v. King, 241 Md. 50 (1965).
2. Case Law Interpreting Damage to Property.
In Fingles, a motor vehicle accident between two vehicles—one operated by
Charles Bransby and the other operated by a Washington, Baltimore & Annapolis Electric
Railway (the “Railway”) employee—caused damage to William Fingles’ passenger car.
135 Md. at 575–76. As a result, Mr. Fingles’ vehicle “was materially damaged, and [Mr.
Fingles] was deprived of the use thereof.” Id. at 576. The accident further deprived Mr.
Fingles of the use of his vehicle “for a considerable length of time while the [car was]
overhauled and repaired.” Id. A trial ensued, and as it is relevant here, resulted in a
judgment in favor of Mr. Fingles against the Railway in excess of seven hundred dollars.
Id. The Railway appealed, arguing among other things that the court improperly calculated
the damage amount.
Ultimately, the Fingles Court found no error and affirmed the judgment, which
awarded a sum of money for loss of use damages. Id. at 583. In reaching this conclusion,
we quoted Volume 17 of the Corpus Juris11 and said, “the measure of damages for injury
to personal property, which has not been entirely destroyed, according to some authorities,
‘is the cost of repairing (the property), together with the value of the use of the property
11
Corpus Juris, first published in 1914, is the second in a series of three legal encyclopedias
providing a comprehensive review of the “body of law.” See Kazadi v. State, 467 Md. 1,
39 n.9 (2020).
17
during the time it would take to repair it.’” Id. at 579–80 (alteration in original) (quoting
17 C. J. § 183(b), 877).
The Fingles Court only cited to the Corpus Juris in passing; we pause to offer a
more detailed explanation. From the broader section entitled “Damages,” the Court quoted
an excerpt of “Injuries to Personal Property—Injuries Short of Loss or Destruction.” In
full, that passage provides the following:
The measure of damages for an injury to personal property which has not
been entirely destroyed is the difference between its value at the place
immediately before and immediately after the injury. Where personal
property has been wrongfully seized by a public officer acting in good faith,
the measure of damages is the difference in value of the property at the time
and place where seized and the time and place where returned to the
possession of the plaintiffs. According to some authorities, however, it is the
amount required to restore the property to its previous condition, or the cost
of repairing together with the value of the use of the property during the time
that it would take to repair it, or the reasonable cost of repairs. Where the
difference in the value of the article before and after the injury will not afford
a fair measure of the owner’s real loss, a different standard may be resorted
to, such as the fair cost of repairs made necessary by the injury, less the
increased value of the repaired article, if any, over its value before the
accident. However, evidence of the value of the article before and after the
accident may be fairly considered with the other facts in the case from which
the amount of plaintiff’s loss may be determined. The amount awarded must
be less than the value of the property before it was injured.
17 C.J. § 183(b), 877–78 (footnotes omitted and emphasis added). Reading this passage
in full makes clear that the Fingles Court made a conscious decision to calculate damage
to property as including the “value of the use of the property during the time that it would
take to repair it.” Indeed, 17 C.J. § 183 surveys different approaches taken by courts across
the country in defining damage to property where the property has not been entirely
destroyed. While this Court could have defined damage to property as “the amount
18
required to restore the property to its previous condition” or “the reasonable cost of
repairs,” we declined the opportunity. Instead, as the plain and ordinary understanding of
the words indicate, we defined the term as including the value of the use while the property
is repaired.12
Since Fingles, we have had occasion to reaffirm the proposition that the measure of
damages for injury to property includes the “value of the use of the property during the
time it would take to repair” the property. See, e.g., Fisher v. City Dairy Co., 137 Md. 601,
603 (1921) (“In [Fingles], this Court held that the measure of damages for injury to
personal property, where the property has been damaged but not entirely destroyed, is the
cost of repairing the property, together with the value of the use of the property during the
time that it would take to repair it.”); Hopper, McGaw & Co. v. Kelly, 145 Md. 161, 167
(1924) (“In [Fingles], this Court quoted with approval the statement in 17 Corpus Juris,
877, that the measure of damages for injury to personal property, which has not been totally
destroyed, ‘is the cost of repairing (the property) together with the value of the use of the
12
The outcome in Fingles accords with the meaning of the word “damage” at the time of
that case. Returning momentarily to the ordinary and popular understanding of “damage,”
the Corpus Juris is exceptionally enlightening. It provides several definitions, the most
insightful of which include “[l]oss, injury or deterioration, caused by the negligence, or
accident of one person to another, in respect to the latter’s person or property,” “the loss
caused by one person to another, or to his property . . . with negligence and carelessness,
or by inevitable accident,” and “the loss or injury which results from an unlawful act.”
Damage, 17 C.J. 698. These definitions confirm the modern-day usage of the word
“damage” aligns with our understanding of the word’s meaning when this Court
determined the types of damages encompassed by the concept of “damage to property.”
19
property during the time it would take to repair it,’ and there is nothing . . . in this case
requiring the application of a different rule.”).
Forty-five years after Fingles, in Taylor v. King, this Court confronted the issue yet
again. 241 Md. at 53–55. Taylor, like Fingles, required us to determine the proper measure
of damages recoverable when an automobile was damaged, but not completely destroyed.
Id. at 51. Reiterating our pronouncement in Fingles, and its confirmation in Fisher, we
ultimately held that
the rule in Maryland with respect to the measure of damages for injury to a
motor vehicle, which has not been entirely destroyed, is the reasonable cost
of the repairs necessary to restore it to substantially the same condition that
it was in before the injury, provided the cost of repairs is less than the
diminution in market value due to the injury. And when the cost of restoring
a motor vehicle to substantially the same condition is greater than the
diminution in market value, the measure of damages is the difference
between its market value immediately before and immediately after the
injury. In addition, the measure of damages may include a reasonable
allowance for loss of use of the vehicle.
Id. at 54–55 (footnote omitted and emphasis added). Against this uniform framework,
wherein the Court has incorporated the value of the loss of use in calculating damage to
property under our common law, we turn to our prior statutory interpretation of the
phrase.13
3. D’Ambrogi v. Unsatisfied Claim and Judgment Fund Board.
In 1972, the General Assembly enacted legislation to create Maryland’s Uninsured
Motorist Statute and MAIF. Shilling, 468 Md. at 249; State Farm Mut. Auto. Ins. Co. v.
13
State Farm suggests that because these cases, specifically Taylor, sound in common law
tort, they are inapposite to our analysis of the statutory language in this case. We disagree.
An insured’s claim against an uninsured motorist that causes injury—a tortfeasor—
20
DeHaan, 393 Md. 163, 171 (2006); 1972 Md. Laws, ch. 73. MAIF, a state-owned
automobile insurance company, was created to provide motor vehicle insurance to
individuals unable to obtain a policy in the private market. Van Horn v. Atlantic Mut. Ins.
Co., 334 Md. 669, 681 (1994). Beyond this function, MAIF succeeded the Unsatisfied
Claims and Judgment Fund (“UCJF” or the “Fund”) “in its role of protecting innocent
persons injured by uninsured or improperly insured motorists, and not covered by an
uninsured motorist endorsement.” Nationwide Mut. Ins. Co. v. Webb, 291 Md. 721, 726
n.3 (1981). As noted above, and consistent with our primary goal of statutory
interpretation, it is beneficial to consider earlier, related legislation. See Blackstone, 461
Md. at 114. Fortunately, in D’Ambrogi, this Court interpreted a provision of the UCJF
statute—the predecessor of the MAIF statute—concerning damage to property.
D’Ambrogi involved another motor vehicle accident and the amount of recoverable
damages. There, Frances Gray was operating an automobile when she struck Paul
D’Ambrogi’s truck. 269 Md. at 199. As a result of the damage to his truck, Mr.
D’Ambrogi paid $862.92 to rent a truck while his was being repaired. Id. Mr. D’Ambrogi
brought suit and the Circuit Court for Anne Arundel County entered judgment against Mrs.
Gray and her husband in the amount of $1,512.92. A component of the damage award
accounted “for loss of the use of [Mr. D’Ambrogi’s] truck”—i.e., the cost of obtaining a
rental vehicle. Id. When the Grays failed to pay the judgment, Mr. D’Ambrogi sought
intrinsically implicates tort law. Prior cases discussing the proper measure of damages
when injury to property occurred, even before the existence of the uninsured motorist
statute, are instructive.
21
compensation from the Fund. Id. The circuit court ordered that the Fund pay the portion
of the judgment relating to Mr. D’Ambrogi’s personal injuries but denied the loss of use
damages. Id. Mr. D’Ambrogi appealed. Id.On appeal, the D’Ambrogi Court began its analysis with the relevant language of
the UCJF statute:
Any qualified person, who suffers damages resulting from bodily injury or
death or damage to property arising out of the ownership, maintenance, or
use of a motor vehicle . . . [shall give notice to the Fund of an intention to
make a claim for damages otherwise uncollectible].
Id. at 200 (alteration in original) (quoting Article 66 1/2 § 7-606(a)). Mr. D’Ambrogi
argued that “damage sustained as a result of loss of use of a motor vehicle [was] properly
payable from the Fund.” Id. at 199. The Fund countered that, for Mr. D’Ambrogi to
prevail, the UCJF statute must have used—but did not—the phrase “damages resulting
from” to modify “damage to property.” Id. at 200. The Fund contended that, to do so, the
statute should have read: “[a]ny qualified person, who suffers damages resulting from
bodily injury or death or [damages resulting from] damage to property . . . .” Id. We
determined that Mr. D’Ambrogi had the “better of the argument” on two grounds. Id. First,
we agreed with Mr. D’Ambrogi’s ancillary argument that the remedial nature of the statute
encouraged a liberal construction designed to afford relief. Id. Second, and importantly
for our purposes, we concluded that
[n]o extensive citation of authority is necessary to support the proposition
that the measure of damages for injury to personal property which has not
been entirely destroyed is the cost of repairing the property together with the
value of the use of the property during the time it would take to repair it.
22
Id. at 201 (emphasis added) (citing Fingles, 135 Md. at 579–80). As a result, this Court
reversed the judgment of the circuit court and ordered that the Fund compensate Mr.
D’Ambrogi for loss of use damages. Implicit in this result is the notion that the statute’s
inclusion of the phrase “damage to property” encompassed loss of use damages. The
qualifying language—“damages resulting from”—did not need to modify “damage to
property” in large part because of the settled proposition tracing back to Fingles: the value
of the use of the property while it undergoes repair is included in the measure of damage
to property.
4. Interpreting “Damage to Property” as Incorporated by IN § 19-509(e).
We now turn to the statutory language before us: “damage to property.” IN § 19-
509(e)(1)14 requires that a motor vehicle liability insurance policy contain uninsured
motorist coverage equal to at least the amounts set out in Maryland’s financial
responsibility law—codified at TR § 17-101 et seq.—and the MAIF statute—codified at
IN § 20-601 et seq. As applied to this case, the financial responsibility law requires
adequate security to provide at least for “[t]he payment of claims for property of others
14
IN § 19-509(e) provides, in pertinent part:
(e)(1) The uninsured motorist coverage contained in a motor vehicle
liability insurance policy:
(i) shall at least equal:
1. the amounts required by Title 17 of the Transportation
Article; and
2. the coverage provided to a qualified person under Title 20,
Subtitle 6 of this article.
23
damaged or destroyed in an accident of up to $15,000, in addition to interest and costs.”
TR § 17-103(b)(2). The MAIF statute, subject to limitations, permits claims against the
Fund if “the claim is for . . . damage to property greater than $250.” IN § 20-601(b)(1)(i)
(emphasis added). The maximum amount payable from the Fund is “$15,000 for damages
to property.” IN § 20-602(a)(3).
In our analysis of this language, State Farm urges us to ignore D’Ambrogi because
that case interpreted the statutory language of Article 66 1/2 § 7-606, a now-inapplicable
statute. State Farm suggests D’Ambrogi is “entirely inapplicable” because the “damages
resulting from” language does not appear in the current uninsured motorist statute. Further,
State Farm contends that the D’Ambrogi Court found the “damages resulting from”
language “persuasive” in determining that the Fund should pay loss of use damages. We
disagree.
In D’Ambrogi, we interpreted the phrase “damage to property”—without the
prefatory language “damages resulting from”—as including loss of use damages. In this
regard, we think the U.S. District Court’s reading of D’Ambrogi aptly summarizes our
view:
Significantly, not only did [this Court] not agree with the Fund that the phrase
“damages resulting from” needed to appear immediately before “damage to
property” for “damage to property” to include damages for loss of use, but it
also did not construe the statutory language to refer to “damages resulting
from damage to property.” Indeed, the statute refers to “damages resulting
from bodily injury or death” and “damage to property,” not “damages
resulting from bodily injury, death, or damage to property,” such that, as the
Fund asserted, it does not explicitly cover “damages resulting from damage
to property.” Nonetheless, [this C]ourt concluded that the phrase “damage
to property” on its own (not the broader language “damages resulting from
damage to property”) included loss of use damages.
24
Queen, 2019 WL 2568336, at *5 (citations omitted and emphasis in original). The General
Assembly’s decision to remove the prefatory clause “damages resulting from” when it
enacted the MAIF statute does not render D’Ambrogi inapplicable. It is clear that neither
our analysis nor the result in D’Ambrogi relied, even in small part, on the prefatory
language “damages resulting from.”
This Court presumes that the General Assembly is aware of our jurisprudence when
it enacts new legislation. Allen v. State, 402 Md. 59, 72 (2007). Where the General
Assembly does not clearly abrogate a particular holding, we conclude that it has acquiesced
in the outcome. Id.; see also WSC/2005 LLC v. Trio Ventures Assocs., 460 Md. 244, 258
(2018) (“Although the Legislature may abrogate the common law through statutory
enactments, we have also required a strong pronouncement from the Legislature as
evidence of an intention to do so.”). It is clear, then, absent a strong indication to the
contrary, that the General Assembly’s post-1973 modifications to the uninsured motorist
statute have accounted for the D’Ambrogi Court’s interpretation of “damage to property”—
i.e., that the phrase includes loss of use damages.
Viewing “damages to property” in the context of the uninsured motorist statute, and
considering the purpose and policy of the General Assembly in enacting this statutory
scheme, urges the same result. See Johnson, 467 Md. at 372. This Court has often
reiterated that the purpose of the uninsured motorist statute is to protect innocent
individuals injured by uninsured motorists as if the uninsured tortfeasor carried motor
vehicle liability insurance in the amounts required by law. See Erie Ins. Exch. v. Heffernan,
25
399 Md. 598, 612 (2007) (“The purpose of the uninsured motorist statute is to provide
minimum protection for individuals injured by uninsured motorists . . . .”); Webb, 291 Md.
at 737 (“[T]he purpose of uninsured motorist statutes is that each insured under such
coverage have available the full statutory minimum to exactly the same extent as would
have been available had the tortfeasor complied with the minimum requirements of the
[statute.]” (internal quotation marks omitted)); Kritsings v. State Farm Mut. Auto. Ins. Co.,
189 Md. App. 367, 375 (2009) (“The effect [of the uninsured motorist statute is] to provide
an injured insured with compensation equal to that which would have been available had
the tortfeasor carried liability insurance in an amount equal to the amount of the injured
insured’s [uninsured motorist] coverage.”).
Indeed, the uninsured motorist statute is designed to achieve a worthy goal: restoring
injured insureds to the same position they occupied before being injured by an uninsured
motorist. The remedial nature of the statute requires a liberal construction to carry out the
statute’s purpose. DeHaan, 393 Md. at 176; see also State Farm Mut. Auto. Ins. Co. v. Md.
Auto. Ins. Fund, 277 Md. 602, 605 (1976) (noting that “the remedial nature of the statutory
plan . . . dictates a liberal construction in order to effectuate its purpose of assuring
recovery for innocent victims of motor vehicle accidents”). It is no surprise, then, that
reading the phrase “damage to property” as including loss of use damages harmonizes the
plain language of the statute with its purpose.
As such, mindful of the ordinary and popular meaning of the words “damage” and
“property,” and cognizant of the uniform interpretation of the phrase in our case law, we
conclude that the phrase “damage to property” encompasses loss of use damages.
26
Therefore, IN § 19-509(e), which incorporates by reference TR § 17-101 et seq. and
IN § 20-601 et seq., requires that uninsured motorist coverage reimburse “the value of the
use of the property during the time it would take to repair it.” Fingles, 135 Md. at 579–80
(quoting 17 C. J. § 183(b), 877).
5. A Sequel: House Bill 144 of the General Assembly’s 2020 Regular Session.
Since the issuance of the Circuit Court for Baltimore City’s order in No. 63, the
General Assembly enacted new legislation revising the uninsured motorist statute. House
Bill 144 of the 2020 Regular Session (“H.B. 144”)—a departmental bill15—became law
just twenty days before oral argument in these cases. 2020 Md. Laws, ch. 77. The
legislation made a simple, yet notable alteration to the language of IN § 19-509(c) and (e).
15
We have explained:
For a bill to be introduced in the General Assembly, it must be sponsored by
a member of the Senate or House of Delegates. There is no constitutional
provision for the introduction of bills from other sources, such as a citizen’s
initiative for legislation or draft legislation submitted directly by the voters.
However, there are two exceptions to this rule: (1) administration bills, which
provide the Governor an opportunity to introduce major initiatives; and (2)
departmental bills, which constitute requests from departments and agencies
to make revisions to statutes for general housekeeping purposes or to close
loopholes. See Library and Information Services, Maryland Department of
Legislative Services, Legislative Lingo, at 5 (defining a departmental bill as
a “bill introduced by a committee chairman at the request of the Executive
Branch of State government.”). As part of a long-standing courtesy provided
by custom in the General Assembly, the bills requested by the departments
are introduced by committee chairmen as described in the Legislator’s
Handbook. See Department of Legislative Reference, Maryland General
Assembly, Legislator’s Handbook, at 13, 49 (1990).
Blackstone, 461 Md. at 126 n.19 (emphasis added).
27
We lay out the prior language of the statute in regular typeface and H.B. 144’s revised
language in bold:
(c) In addition to any other coverage required by this subtitle, each motor
vehicle liability insurance policy issued, sold, or delivered in the State after
July 1, 1975, shall contain coverage for damages, subject to the policy limits,
that:
***
(2) the insured is entitled to recover from the owner or operator
of an uninsured motor vehicle because of property damage,
including loss of use of the insured vehicle . . . .
***
(e)(1) The uninsured motorist coverage contained in a motor vehicle liability
insurance policy:
(i) shall at least equal:
1. the amounts required by Title 17 of the Transportation Article for
bodily injury and property damage, including loss of use of the
insured vehicle . . . .
IN § 19-509.
House Bill 144 originated in response to the Circuit Court for Baltimore City’s order
in case No. 63. The Fiscal and Policy Note indicates as much:
A recently issued circuit court ruling interpreted § 19-509 of the Insurance
Article as not requiring [uninsured] . . . coverage to pay for the loss of use of
the insured’s vehicle (which typically means reimbursement for a rental car).
[The Administration] advises this is a departure from how it and almost every
private passenger automobile insurer interprets that provision. Thus, the bill
clarifies that such coverage must pay for the loss of use of the insured’s
vehicle.
Dep’t Legis. Servs., Fiscal and Policy Note, House Bill 144, at 2 (2020 Session).
28
Understandably, the parties ascribe differing levels of significance to H.B. 144. On
one hand, State Farm argues that the legislation is a substantive revision to the uninsured
motorist statute. In State Farm’s view, H.B. 144 adds a new requirement that makes loss
of use coverage mandatory. From this perspective, State Farm argues that the uninsured
motorist statute in effect at the time of these cases does not mention, or therefore include,
loss of use coverage. On the other hand, Mr. Queen and the Administration view H.B. 144
as a non-substantive, corrective bill. In their view, IN § 19-509 always required insurers
to provide loss of use damages as a part of uninsured motorist coverage. They contend that
H.B. 144 simply clarified the statutory language—without modifying the substance—to
prevent future denials of coverage on the grounds that loss of use damages are not explicitly
mentioned.
While a subsequent revision to statutory language is not controlling as to the law’s
prior meaning, it may be helpful to determine legislative intent. Chesek v. Jones, 406 Md.
446, 462 (2008) (citing Reier v. State Dep’t of Assessments & Taxation, 397 Md. 2, 35
(2007)). It is undisputable that IN § 19-509’s new language, which takes effect on October
1, 2020, now expressly incorporates loss of use damages into the statute. This does not
mean, however, that the former statutory language did not encompass loss of use damages
where such explicit language was lacking. We are persuaded that H.B. 144 simply clarified
the statute to expressly state that loss of use damages are covered. This conclusion stems
from the legislation’s origin as a departmental bill, Blackstone, 461 Md. at 126 n.19, and
purpose paragraph.
29
A purpose paragraph, which describes what the bill does, provides insight into
legislative intent. Duffy v. CBS Corp., 458 Md. 206, 229 (2018); see also Chesek, 406 Md.
at 462 (gleaning that the use of the word “clarifying” in a purpose paragraph indicates that
the revision of statutory language, in fact, clarified existing law without making substantive
changes); Johnson v. Mayor & City Council of Balt., 430 Md. 368, 389 (2013) (discussing
Chesek and noting that “the General Assembly’s actions in ‘clarifying’ the law did not
create a new power but merely acknowledged a power already in existence”). Here, H.B.
144’s purpose paragraph states that the legislation is intended
FOR the purpose of clarifying that certain motor vehicle liability insurance
policies must contain coverage for damages . . . that the insured is entitled to
recover from the owner or operator of certain motor vehicles because of
property damage, including the loss of the insured vehicle.
2020 Md. Laws, ch. 77 (emphasis added). Indeed, H.B. 144 acknowledges the coverage
already in existence and serves to prevent future insurers from attempting to deny coverage
for those losses in accord with the purpose of the uninsured motorist statute. Mindful of
our independent statutory interpretation, we think that H.B. 144’s unanimous passage in
the General Assembly confirms that loss of use damages are, and always were, a
component of damage to property.
D. Application to the Present Cases.
As a final matter, we apply this interpretation to both cases before the Court. First,
though, we must address the apparent exclusion of loss of use damages from both motor
vehicle insurance policies.
30
It is not a novel proposition that an insurance policy omitting or purporting to
exclude statutorily required coverage will be read as if the policy contains the minimum
amounts of required coverage because such omissions and exclusions are void. Nationwide
Mut. Ins. Co. v. U.S. Fid. & Guar. Co., 314 Md. 131, 135 (1988); see also Forbes v.
Harleysville Mut. Ins. Co., 322 Md. 689, 698 (1991) (“[L]imitations on coverage or
exclusions in insurance policies, which are inconsistent with the purpose of the uninsured
motorist statutory provisions, are unenforceable.”). If the statutory language of the
Insurance Article denotes broader coverage than the applicable insurance policy, the
statutory language prevails. Heffernan, 399 Md. at 610. Therefore, because we conclude
today that the phrase “damage to property” as incorporated by the uninsured motorist
statute includes loss of use damages, we shall read Mr. Queen’s and Ms. Hoyle’s respective
policies as providing the same.
In Misc. No. 10, we answer the certified question of the U.S. District Court in the
affirmative. Maryland’s Uninsured Motorist Statute requires an insurer to pay benefits for
loss of use of a vehicle damaged by an uninsured driver as those damages are a component
of “damage to property,” notwithstanding the insurer’s attempt to provide less coverage
than is statutorily mandated.
In No. 63, we reverse the judgment of the Circuit Court for Baltimore City. The
Associate Commissioner correctly determined that State Farm’s denial of coverage
31
violated the Insurance Article. We remand No. 63 to the Circuit Court for Baltimore City
for further proceedings consistent with this opinion.
CONCLUSION
In consideration of the ordinary and popular meaning of the words “damage” and
“property,” bolstered by this Court’s prior interpretations of property damage, and the
context and purpose of the uninsured motorist statute, we conclude that the phrase “damage
to property” includes loss of use damages.
IN MISC. NO. 10, CERTIFIED
QUESTION OF LAW ANSWERED.
COSTS TO BE DIVIDED EQUALLY
BETWEEN THE PARTIES.
IN CASE NO. 63, THE JUDGMENT OF
THE CIRCUIT COURT FOR
BALTIMORE CITY IS REVERSED.
CASE REMANDED TO THAT
COURT FOR FURTHER
PROCEEDINGS CONSISTENT WITH
THIS OPINION. COSTS TO BE PAID
BY RESPONDENT.
32