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Rhea v. Burt4/1/2005
This appeal from the Circuit Court for Calvert County arises out of an automobile accident that occurred on November 2, 1999. On October 10, 2002, David Rhea and Valerie Rupert, appellants, filed a Complaint in which they asserted personal injury and property damage claims against appellee Allen E. Burt (Mr. Burt). In the first two paragraphs of their Complaint, appellants alleged that they "were the occupants of a vehicle stopped at a red traffic signal on Routes 2 and 4 near Plum Point Road in Calvert County, Maryland [when] a vehicle driven by [appellee] Allen E. Burt . . . rear-ended the vehicle occupied by the [appellants]." In an ANSWER filed on November 14, 2002, Mr. Burt stated
"THAT HE DID NOT COMMIT THE WRONGS ALLEGED."
On April 29, 2003, Mr. Burt filed a MOTION FOR SUMMARY JUDGMENT that, in pertinent part, stated:
1. The defendant Burt was not operating the vehicle at the time of this accident;
2. That defendant Burt's father-in-law Robert R. Wurtz (hereinafter "Wurtz") was operating Burt's vehicle at the time of the accident;
3. That Wurtz was operating Burt's vehicle for his own personal purposes with the express permission of defendant Burt;
9. That the undisputed material facts establish that, at the time of the occurrence, Wurtz was performing no work, business or any other activity on behalf of his son-in-law, Burt. These undisputed material facts clearly establish Burt's entitlement to summary judgment because Burt was not the operator of the vehicle and no agency relationship existed between Burt and Wurtz at the time of the occurrence. Rather, the undisputed material facts establish that Wurtz's use of the vehicle at the time of the occurrence was solely personal and not for the benefit of Burt. For these reasons, Burt is entitled to summary judgment.
On May 16, 2003, the appellants filed an OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT that, in pertinent part, stated:
3. At the scene of this crash, the driver, who was unknown to the Plaintiffs, identified himself . . . as Allen E. Burt, and at no time was it disclosed to either Plaintiff that the driver of the car which caused this crash was alleged to have been anyone other than Allen Burt until the Answers to Interrogatories were received by the Plaintiffs in this case.
On June 5, 2003, appellants filed an AMENDED COMPLAINT that asserted a cause of action against appellee Diane W. Burt, the Personal Representative of the Estate of Robert R. Wurtz. Count III of the amended complaint, in pertinent part, asserted:
11. The Defendant, Allen E. Burt, has alleged in Answers to Interrogatories filed in April of 2003 that he was not the driver of the vehicle at the time of the occurrence alleged in Plaintiffs' Complaint, and that the driver of his vehicle was actually Robert R. Wurtz.
12. Counsel for the Defendant Burt has also advised that Robert R. Wurtz has passed away and that his daughter, Diane W. Burt, is the personal representative of the Estate of Robert R. Wurtz.
13. If the Defendant, Allen E. Burt, is to be believed, the negligence of the Defendant, Robert R. Wurtz was the proximate cause of the accident, and said Defendant Wurtz negligent failed to yield the right-of-way, negligently failed to keep proper control of his vehicle, negligently failed to keep a proper look-out for other vehicle, negligently operated his vehicle at a speed too great for the conditions existing, and was otherwise careless and negligent, thereby rear-ending the motor vehicle occupied by the Plaintiffs.
On September 8, 2003, "the Estate of Robert R. Wurtz" filed a MOTION TO
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