HARRELL, J.
The parties in this appeal—an insurance company and two of its insureds—disagree as to how to calculate the proceeds due to the insureds pursuant to the underinsured motorist provisions of their policy. The insureds argue that the express terms of the insurance contract mandate that the insurance company pay them $300,000. The insurance company argues instead that its insureds are owed only $100,000. To settle this dispute, we are called upon to interpret the subject policy. In so doing, we conclude that the policy is not ambiguous. We agree with the insurance company that the terms of the policy mandate that the insureds are owed $100,000.
The facts are not in dispute. On 14 August 2009, Robert and Linda Connors (collectively, the "Connors," the "Plaintiffs," or the "Petitioners"), husband and wife, took an ill-fated stroll in their Waldorf neighborhood. A motor vehicle operated by Adam Pond ("Pond"), while backing out of a residential driveway at 3269 Captain Dament Drive, struck the Connors. Plaintiffs alleged, in their subsequent Complaint, that, as she was struck, Linda Connors hit the vehicle with her hand and screamed, causing it to come to a stop. Pond saw allegedly Linda screaming on the ground and nonetheless resumed moving the vehicle again, backing over Robert Connors, as he attempted to flee the scene.
Both of the Connors sustained injuries. Robert sustained serious injuries to his head, including a traumatic brain injury, as well as injuries to his neck, body, and limbs. He was taken to Holy Cross Hospital for treatment of his injuries and transferred later to the Crofton Rehabilitation Center, where he died on 31 January 2011.
Each of the Connors then submitted claims for underinsured motorist coverage to GEICO under the terms of their policy. The Connors sought $300,000 total from GEICO. GEICO agreed that the Connors were owed a total of $100,000 under the terms of the policy, but disputed the additional $200,000 claimed by them. Pursuant to an agreement reached between the parties, GEICO paid the Connors the $100,000 it agreed was owed them, with the understanding that the Connors could proceed with a Complaint for Declaratory Judgment as to the $200,000 in dispute.
On 16 December 2010,
The Circuit Court heard on 5 May 2011 arguments from all parties and ruled from the bench as to the pending motions and the Complaint. The trial judge agreed with GEICO's interpretation of the policy, and determined that the Plaintiffs should recover only $100,000 from GEICO.
In an Order entered on 3 June 2011, the trial judge granted GEICO's cross-motion for summary judgment and denied the Connors' motion for summary judgment. In a Declaratory Judgment entered on 6 June 2011, the trial judge determined that (1) the Plaintiffs were insured under the GEICO policy and were entitled to collect UIM benefits under the policy; (2) the GEICO policy was not ambiguous and GEICO was obligated under the policy to pay the Connors $100,000 together in satisfaction
On 9 June 2011, the Petitioners filed a Notice of Appeal. The Court of Special Appeals, in a reported opinion, affirmed the judgment of the trial court. Connors v. Government Employees Insurance Co., 216 Md.App.418, 421, 88 A.3d 162, 164 (2014).
Petitioners filed a Petition for Writ of Certiorari, which we granted on 18 July 2014. In their Petition, they asked us to consider the following question solely:
Connors v. Government Employees Insurance Co., 439 Md. 327, 96 A.3d 143 (2014).
When we consider a declaratory judgment in tandem with the grant of summary judgment, and no material facts are in dispute, we consider "whether that declaration was correct as a matter of law." Springer v. Erie Ins. Exchange, 439 Md. 142, 155-56, 94 A.3d 75, 83 (2014) (internal quotations omitted); see Catalyst Health Solutions, Inc. v. Magill, 414 Md. 457, 471, 995 A.2d 960, 968 (2010). Whether the trial court granted properly summary judgment is a question of law, which we review without deference. River Walk Apartments, LLC v. Twigg, 396 Md. 527, 541-42, 914 A.2d 770, 778-79 (2007); see Standard Fire Ins. Co. v. Berrett, 395 Md. 439, 450, 910 A.2d 1072, 1079 (2006).
Maryland law requires every motor vehicle insurance policy issued in Maryland to contain minimum uninsured motorist coverage.
The general purpose of Maryland's UIM statutory scheme is to "provide minimum protection for individuals injured by uninsured motorists and should be liberally construed to ensure that innocent victims of motor vehicle collisions are compensated for their injuries." Brethren Mut. Ins. Co. v. Buckley, 437 Md. 332, 347, 86 A.3d 665, 673 (2014) (citing Erie Ins. Exch. v. Heffernan, 399 Md. 598, 612, 925 A.2d 636, 644 (2007)). Specifically, Maryland's UIM scheme is designed to "provide an injured insured with resources equal to those which would have been available had the tortfeasor carried liability coverage equal to the amount of uninsured motorist coverage which the injured insured purchased from his own insurance company." Waters, 328 Md. at 714, 616 A.2d at 890. Maryland is, accordingly, a "gap theory" state—the injured insureds may recover the difference between their UIM coverage and money received from the tortfeasor.
The relevant portions of the GEICO policy are:
(emphasis added in subsection (2)). Finally, the "DEFINITIONS" portion of "SECTION IV—UNINSURED MOTORISTS COVERAGE" includes the following statement in the middle of its definition of an uninsured motor vehicle:
The parties have provided us with various formulas by which to calculate the benefits due to the Connors under the terms of their policy. By our count, the parties' disagreement centers on two alleged ambiguities in the contract. First, the parties dispute the proper interplay between subsections (1) and (2). Second, the parties appear to dispute (but not as vigorously) the point at which subsection (4) comes into play.
The Connors suggest the following interpretation and calculation: The Connors begin their analysis with subsection (1), which mandates a $300,000 limit for "each person" resulting from "one accident." The Connors suggest that the "subject to" language in subsection (2) makes the $300,000 limit governing "each accident" subservient to the $300,000 limit for "each person" from subsection (1). If subsection (2) is subject to subsection (1), then "[e]ach individual claimant's recovery is limited to the per-person limits, with the maximum payout for the occurrence limited to the per-occurrence limit." The Connors summarize their position: "[The policy] states when more than one person is injured it will pay up to the per person limit, less payments to that person, with a cap of $300,000 for all payments from GEICO for one accident."
GEICO suggests a much different method of calculation is appropriate. GEICO asserts that "subsection (1) simply is not the relevant provision to analyze when
The trial court and the Court of Special Appeals agreed with GEICO's method of calculating the UIM benefits due to the Connors pursuant to the policy.
As a general rule, we interpret the language of an insurance policy with the same principles and rules of construction that we use to interpret other contracts. See DeHaan, 393 Md. at 193, 900 A.2d at 225-26; Megonnell v. United Services Auto. Ass'n, 368 Md. 633, 655, 796 A.2d 758, 772 (2002); Cole v. State Farm Mut. Ins. Co., 359 Md. 298, 305, 753 A.2d 533, 537 (2000). Like any other contract, an insurance contract is "measured by its terms unless a statute, a regulation, or public policy is violated thereby." Pacific Indem. Co. v. Interstate Fire & Cas. Co., 302 Md. 383, 388, 488 A.2d 486, 488 (1985). We give the words of insurance contracts their customary, ordinary, and accepted meaning, as determined by the fictional "reasonably prudent lay person." Beale v. Am. Nat'l Lawyers Ins. Reciprocal, 379 Md. 643, 660, 843 A.2d 78, 89 (2004). When contractual language is plain and unambiguous, we enforce the terms of the contract as a matter of law. Calomiris v. Woods, 353 Md. 425, 445, 727 A.2d 358, 368 (1998); Pacific Indem. Co., 302 Md. at 389, 488 A.2d at 489. When interpreting contracts,
Cochran v. Norkunas, 398 Md. 1, 17, 919 A.2d 700, 710 (2007). If the language of the contract is ambiguous, we may turn to extrinsic evidence to determine the intent of the parties. Clendenin Bros., Inc. v. U.S. Fire Ins. Co., 390 Md. 449, 459, 889 A.2d 387, 393 (2006); Pacific Indem. Co., 302 Md. at 389, 488 A.2d at 489. A policy term is considered "ambiguous if, to a reasonably prudent person, the term is susceptible to more than one meaning." Cole, 359 Md. at 305-06, 753 A.2d at 537.
Some of our sister states maintain that insurance policies should, as a matter of course, be construed against the insurer. Megonnell, 368 Md. at 655, 796 A.2d at 771. Maryland does not follow this rule.
In this case, the policy is not ambiguous and therefore we may enforce the terms of the policy as a matter of law. For ease of reference, we reproduce here subsections (1) and (2) as our point of departure for our explication of why there is no ambiguity:
(emphasis added in subsection (2)).
Subsection (2) addresses the "limit of liability" in situations where "bodily injury" was "sustained by two or more persons as the result of one accident." Subsection (2) refers, however, to subsection (1) by its own terms and ensures therefore that something about subsection (1) impacts the meaning of subsection (2). The Connors contend that the two commas "convert the statement into the qualifying clause." The Connors argue further that the "plain language of the policy makes clear that the `per occurrence' provision is subject to the `per person' provision. The `per occurrence' provision is subject to what is in between the commas, which makes the `per person' provision the main clause dictating the calculation of coverage of UIM benefits." GEICO, on the other hand, accuses the Connors of "reading out" the comma between "is" and "subject," which, in GEICO's view, "converts the `subject to the above provisions respecting each person' into a qualifying clause that makes it `subservient to' the per occurrence limit, not the other way around." Practically speaking, GEICO argues that the "subject
Despite spending numerous pages debating the fine points of grammar and the proper labels to give to various clauses,
The policy held by the Connors had policy limits of $300,000 per person and $300,000 per occurrence. Again, bracketing any potential contributions from the tortfeasor, if the value of the Connors' claims exceeded $300,000 each as it did here, the method for calculating the proceeds due to the Connors from GEICO proceeds the same as in the hypothetical. It just so happens that the end result is the same because the limits are the same—bracketing any contributions from Allstate, the Connors may recover together no more than the $300,000 per accident limit.
In our view, the actual dispute between the parties is, at its heart, over the point in time at which the contributions from Pond's insurance carrier are taken into account. At two separate points the policy mandates that GEICO's liability is reduced by whatever payments Pond's carrier made to the Connors. Subsection (4) provides "[t]he amount payable under this coverage will be reduced by all amounts: (a) [p]aid by or for all persons or organizations liable for the injury...." Also, the definition of "uninsured motor vehicle" notes that the limit of GEICO's liability is "the amount of Uninsured Motorists coverage as stated in the Declarations less the amount paid to the insured that exhausts any applicable liability insurance policies, bonds, and securities on behalf of any person who may be held liable for the bodily injury or death of the insured." (emphasis removed).
Subsection (4) provides that the "amount payable under this coverage" will be reduced by payments received from persons or organizations liable for the injury, such as Allstate on behalf of Pond. We interpret the phrase "this coverage" to refer to the uninsured motorist coverage generally. Therefore, once the parties get through the calculations and caps of subsection (1) and (2) and arrive at a penultimate number, they are required at that point by subsection (4) to "credit" payments made by other entities such as Allstate. This is the final amount owed by GEICO. This understanding of subsection (4) is confirmed by the policy's definition of "uninsured motor vehicle," which mandates that any other amount paid to the insured of any person who may be held liable for the bodily injury or death of the insured be deducted from the amount calculated pursuant to the declarations.
We conclude that the policy is not ambiguous and the terms of the policy mandate
Parties to a contract "are presumed to contract mindful of the existing law and [] all applicable or relevant laws must be read into the agreement of the parties just as if expressly provided by them, except where a contrary intention is evident." Auction & Estate Representatives, Inc. v. Ashton, 354 Md. 333, 344, 731 A.2d 441, 447 (1999). When language in an insurance policy is nearly identical to the language contained in statutory text, it is reasonable to infer that the insurer intended the same meaning given to the statute. State Farm Mut. Auto. Ins. Co. v. DeHaan, 393 Md. 163, 194, 900 A.2d 208, 226 (2006).
In their petition for writ of certiorari, the Connors asked us only to interpret their contract. The Connors did not ask us, for example, to re-examine Maryland common law and recognize that terms contained in an insurance contract are not the product of equal bargaining, but instead must be construed strictly against the insurer. GEICO recognized rightly in their brief that the Connors failed to raise this larger, more existential question before the Court of Special. Appeals or in their Petition for Writ of Certiorari. See Maryland Rule 8-131(b) ("Unless provided by the order granting the writ of certiorari, in reviewing a decision rendered by the Court of Special Appeals ..., the Court of Appeals ordinarily will consider only an issue that has been raised in the petition for certiorari or any cross-petition and that has been preserved for review by the Court of Appeals...."); Worsham v. Greenfield, 435 Md. 349, 355 n. 4, 78 A.3d 358, 362 n. 4 (2013); Casey v. Mayor and City Council of Rockville, 400 Md. 259, 322-24, 929 A.2d 74, 112-13 (2007); Giddins v. State, 393 Md. 1, 17 n. 6, 899 A.2d 139, 148 n. 6 (2006).
With each exchange of briefs here, the parties focused more intensely on People's Insurance Counsel Div. v. State Farm Fire & Casualty Co., 436 Md. 501, 83 A.3d 779 (2014), where we granted certiorari to consider the following question, among others: "[s]hould this Court reexamine Maryland common law on construing insurance contracts and, recognizing that such contracts are not the product of equal bargaining, hold that terms contained in an insurance policy must be strictly construed against the insurer?" Id. In their initial brief, the Connors provided us with a list of states (attached originally to the Petitioner's Brief in People's Insurance) following purportedly the rule that insurance policies are contracts of adhesion and are to be construed strictly against the insurer. GEICO, in its brief, argues that, if the Connors had wanted us to re-examine Maryland common law regarding whether insurance policies should be construed strictly against the insurer, the Connors should have raised the issue before the Court of Special Appeals or in their petition for certiorari, as did the petitioners in People's Insurance.
The Connors, in their reply brief, concede that they only argued the issue in their briefs after we granted certiorari in People's Insurance. They note, however, that Rule 8-131(a) permits appellate courts to consider unpreserved issues "if necessary or desirable to guide the trial court or to avoid the expenses and delay of another appeal." The Connors argue further that the fact that we granted certiorari in People's Insurance "indicat[es] [we] intend[] to consider whether the archaic rule established one hundred and seventy-seven (177) years ago should be maintained." Finally, the Connors argue that no party is prejudiced by raising this issue on appeal as GEICO was afforded the opportunity to brief fully its response to this argument in its reply to the amicus curiae brief filed by the Maryland Association for Justice, Inc. (the "MAJ"). The MAJ argued first that Maryland should adopt the view that a consumer insurance policy should be construed liberally in favor of the insured and construed strictly against the insurer, and second that judicial action is required to modify the "insurer-friendly approach" to construing insurance policies currently embodied in Maryland common law.
GEICO responded that the MAJ's amicus curiae "should not be permitted to otherwise revive an issue that has not otherwise been preserved for review." GEICO advanced further a host of arguments for why we should reject the arguments advanced by the MAJ and the Connors encouraging us to re-examine Maryland common law. GEICO argued that (1) stare decisis dictates that we construe insurance contracts in the same manner as other contracts; (2) Maryland already construes strictly ambiguous policy terms against insurers as the drafters; and (3) the MAJ overstates the "majority" rule from other jurisdictions. GEICO then provided us with amici briefs from People's Insurance as well as charts describing the interpretation methodologies of various other states.
By per curiam order dated 24 February 2015, we dismissed (but not without quarrel) the writ of certiorari in People's Insurance as granted improvidently. People's Insurance Counsel Div. v. State Farm Fire & Cas. Co., 442 Md. 55, 109 A.3d 1208 (2015); see id. at 56-64, 109 A.3d 1208 (Adkins, J., dissenting); id. at 64-65, 109 A.3d 1208 (McDonald, J., dissenting). Generally, we dismiss a case after briefing and argument on the ground that the petition for writ of certiorari was granted improvidently in cases where the grant was (or was proven to be) a mistake, "either because it becomes apparent later that there is truly no issue of public importance in the case or because there is such an issue, but it was not preserved below or the record in the case provides an inadequate basis for rendering useful guidance on that issue." Sturdivant v. Maryland Dept. of Health & Mental Hygiene, 436 Md. 584, 589, 84 A.3d. 83, 86 (2014).
We chose not to re-examine Maryland common law in People's Insurance when we dismissed the writ of certiorari as granted improvidently. We choose not to re-examine Maryland common law in this case because the Connors did not raise the issue before the Court of Special Appeals nor in their petition for writ of certiorari. Finally, and most importantly, consideration of this question is not "necessary" here as the parties' insurance contract is not ambiguous.
The parties direct our attention to two statutory interpretation cases in which we discussed the nature of qualifying clauses and the impact of commas. In Kane v. Board of Appeals, 390 Md. 145, 162, 887 A.2d 1060, 1070 (2005), we analyzed the effect of the qualifying clause and commas in the following provision of the Prince George's County Code: "any order or notice issued pursuant to this Subtitle shall be served upon the owner, operator, occupant, agent or other person responsible for the condition or violation...." We recognized that qualifying clauses are ordinarily "confined to the immediately preceding words or phrase—particularly in the absence of a comma before the qualifying clause." Id. (quotations omitted). We noted further that, when the qualifying clause is set apart by a comma, "it is clear that it modifies every element within the list." Kane, 390 Md. at 164, 887 A.2d at 1071. Kane does not aid us in our interpretation task here because there is no list of terms in subsection (2) nor any question regarding which term among many the "subject to" clause might modify or qualify. Maryland Dep't of the Environment v. Underwood, 368 Md. 160, 175-76, 792 A.2d 1130, 1139 (2002), is unhelpful for similar reasons.
By our reading, the plain text of the policy flies in the face actually of the rules of grammar. We take as our guide two popular volumes concerning modern grammar: Bryan A. Garner's A Dictionary of Modern Legal Usage (2d. ed. 1995) and Lynne Truss' Eats, Shoots & Leaves: The Zero Tolerance Approach to Punctuation (2003).
Garner compares restrictive and nonrestrictive clauses. Restrictive clauses "take no commas (for commas would present the added information as an aside)." Garner, supra at 765. Garner identifies several mistakes in the usage of restrictive clauses, one of which is making wrongly a restrictive clause nonrestrictive. Garner, supra at 766. This "fairly common" error occurs when the relative clauses are set off illogically by commas when it is necessary actually to the meaning of the sentence. Id.
Truss has this to say about "commas that come in pairs," such as the commas bookending the "subject to" clause in this case: "[t]he first rule of bracketing commas is that you use them to mark both ends of a `weak interruption' to a sentence—or a piece of `additional information.' The commas mark the places where the reader can—as it were—place an elegant two-pronged fork and cleanly lift out a section of the sentence, leaving no obvious damage to the whole." Truss, supra, at 90.
The presence of the commas bookending the phrase "subject to the above provision respecting each person" renders technically the phrase nonrestrictive. But the meaning of subsection (2) changes radically if one ignores the "subject to" clause, as one must do with a nonrestrictive clause. In order to avoid a nonsensical and wholly meaningless interpretation of the clause, we overlook the GEICO gecko's violation of grammatical rules and treat the clause (as it clearly was intended to be treated) as if it were restrictive. See Cochran v. Norkunas, 398 Md. 1, 17, 919 A.2d 700, 710 (2007) ("`[I]f reasonably possible, effect must be given to each clause so that a court will not find an interpretation which casts out or disregards a meaningful part of the language of the writing unless no other course can sensibly and reasonably be followed.'" (quoting Sagner v. Glenangus Farms, 234 Md. 156, 167, 198 A.2d 277, 283 (1964))).
