Circuit Court for Baltimore City

Case No. 24-C-12-002377

Argued: 11/10/14

IN THE COURT OF APPEALS OF MARYLAND

No. 21

September Term, 2014

 

PEOPLE'S INSURANCE COUNSEL DIVISION

 v.

STATE FARM FIRE AND CASUALTY

COMPANY, et al. 

 

 

Barbera, C.J.

Harrell

Battaglia

 Greene

Adkins

McDonald 

Watts,

 JJ.

 PER CURIAM ORDER

 Adkins and McDonald, JJ., dissent.

Filed: February 24, 2015
PEOPLE'S INSURANCE COUNSEL * IN THE

DIVISION

 * COURT OF APPEALS

v. * OF MARYLAND

* No. 21

STATE FARM FIRE AND CASUALTY * September Term, 2014

COMPANY, et al.

 PER CURIAM ORDER

 

The petition for writ of certiorari in the above-entitled case

having been granted and argued, it is this 24 day of February, th

2015,

ORDERED, by the Court of Appeals of Maryland, that the writ of

certiorari be, and it is hereby, dismissed with costs, the petition

having been improvidently granted.

 /s/ Mary Ellen Barbera 

 Chief Judge

Judge Adkins and Judge McDonald dissent.
Circuit Court for Baltimore City 

Case No.: 24-C-12-002377

Argued: 11/10/2014 

IN THE COURT OF APPEALS

OF MARYLAND 

 

No. 21 

September Term, 2014 

 

PEOPLE’S INSURANCE COUNSEL 

DIVISION

v. 

STATE FARM FIRE AND CASUALTY 

COMPANY, et al. 

 

Barbera, C.J. 

Harrell

Battaglia 

Greene

Adkins

McDonald

Watts, 

JJ.

 

Dissenting Opinion by Adkins, J., which 

McDonald, J., joins. 

 

Filed: February 24, 2015 
Because I think that this Court should act with great restraint when choosing to 

dismiss a case as improvidently granted, both because it is unfair to the parties and a waste 

of judicial resources, I dissent. 

This appeal arose from an insurance dispute between Gregory and Moira Taylor and

their insurer, State Farm Fire and Casualty Company. The Taylors’ carport collapsed under 

the weight of snow during the 2010 blizzard, a severe storm that presumably led to similar 

property damage to perhaps thousands of other Marylanders. The Taylors challenged State 

Farm’s decision that their homeowner’s insurance policy did not cover the damage. They 

asked the Maryland Insurance Administration (“MIA”) for a formal investigation of the 

claim denial. The MIA denied the complaint,1

and the Circuit Court for Baltimore City 

affirmed its decision. On appeal, the Court of Special Appeals affirmed, holding that 

“[b]ecause State Farm’s decision to deny the Taylors’ claim was based on a correct legal 

interpretation of the language of the Policy, it was not arbitrary, capricious, or made 

without good faith.” People’s Ins. Counsel Div. v. State Farm Fire & Cas. Ins. Co., 214 

Md. App. 438, 457, 76 A.3d 517, 528 (2013).

The People’s Insurance Counsel Division2

 petitioned this Court for a writ of 

certiorari, asking us to answer the following questions: 

 

1

 After the MIA’s initial determination denying the complaint and concluding that 

State Farm did not violate any insurance laws, the Taylors requested a hearing, at which 

time the People’s Insurance Counsel Division joined the litigation. The MIA again denied 

the Taylors’ complaint. 

2

 The People’s Insurance Counsel Division was created in 2005 as part of the 

Maryland Patients’ Access to Quality Health Care Act of 2004, Md. Code (1984, 2009 

Repl. Vol.), §§ 6-301–08 of the State Government Article (“SG”). Its duties include: (1) 
2

1. Should 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?

2. Did the Commissioner err in allowing State Farm to deny 

coverage for damage to a collapsed carport under a policy 

that insured against “the sudden, entire collapse of a 

building” based on a restrictive definition of the term 

“building” that does not appear in the insurance policy or 

any other written document, and is based solely on oral 

instructions given to a catastrophe claims adjuster when she 

was dispatched to handle claims following a severe 

snowstorm?

After we granted the writ, the parties filed briefs, and we held oral argument on November 

10, 2014. A majority of this Court now thinks that grant of certiorari was error and 

dismisses the appeal as improvidently granted. I disagree and would address the merits. 

Writing for the Court, Judge McDonald recently described the limited bases upon 

which we will dismiss a case as improvidently granted:

On occasion, this Court dismisses a case after briefing and 

argument on the ground that the petition for writ of certiorari 

was improvidently granted. In such cases the grant of the 

petition was 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 

 

evaluating matters pending before the MIA and intervening on behalf of insurance 

consumers; (2) reviewing rate increases of 10% or more filed with the MIA; and (3) 

conducting investigations and requesting the MIA to initiate an action to protect the 

interests of insurance consumers. SG § 6-306. 
3

or the record in the case provides an inadequate basis for 

rendering useful guidance on that issue.

Sturdivant v. Md. Dep’t. of Health & Mental Hygiene, 436 Md. 584, 589, 84 A.3d 83, 86 

(2014). Thus, to dismiss a case as improvidently granted, we should first conclude that 

there is no issue of public importance, that the issue was not preserved, or that there is an 

inadequate record by which to render useful guidance. As I will explain, none of these 

grounds is present here. First, though, further review of the law on such dismissals is in 

order. 

This is not the first time a judge on this Court has criticized a decision to dismiss as 

improvidently granted (or “DIG,” as it is colloquially termed). In a dissent from one such 

dismissal, Chief Judge Robert Bell (ret.) opined: 

The Court of Appeals has a responsibility to decide any case 

properly presented that meets the threshold criteria: presenting 

issues that it is desirable and in the public interest to decide. 

That responsibility, as to any issue, may be triggered by such 

considerations as novelty, complexity, conflicting precedents, 

impact or importance and the breadth or extent thereof and 

likelihood of recurrence.

Once a “cert” worthy case has been accepted on certiorari, 

there must be a compelling reason not to decide it; it really 

must have been improvidently granted. 

Koenig v. State, 368 Md. 150, 151, 792 A.2d 1124, 1125 (2002) (Bell, C.J., dissenting) 

(emphasis added). Chief Judge Bell (ret.) brought into focus the injury to the Court’s 

reputation that can arise from a DIG, when he said: 

On the morning that this case was heard, a young lawyer spent 

the first part of her argument thanking the Court for taking the 

case that she was arguing as the petitioner. At great length, she 

spoke of the importance of the issue, the complexity and the 
4

need for resolution for the guidance of bench and bar and, 

again, expressed her gratitude that the Court had granted 

certiorari to review it. Being of the view that there was no 

reason for the attorney to thank the Court for doing what it is 

mandated to do, I interrupted her, offering a simple, but what I 

thought was, and still think is an, accurate, explanation for 

doing so: “That is what we do.” Granting certiorari to 

consider and resolve some novel, difficult and complex 

issue and broadly relevant issue is indeed what we do. In 

fact, as the court of last resort in this State, charged, in 

addition with setting the legal policy, that is, it may be said, 

the Court’s “raison d’etre.” In this case, I fear that we have 

not justified to the people of this State, whom we are 

mandated to serve, our “raison d’etre.” 

Id. at 159, 792 A.2d at 1129–30 (emphasis added). I, too, fear that in issuing a DIG after 

oral argument in this case, we have not justified our “raison d’etre.” 

Dismissal of a meritorious case as improvidently granted draws attention and 

criticism from Court observers and commentators. See, e.g., Samuel Estreicher & John E. 

Sexton, A Managerial Theory of the Supreme Court’s Responsibilities: An Empirical 

Study, 59 N.Y.U. L. Rev. 681, 802 (1984) (“Occasionally the Justices dismiss a writ of 

certiorari as improvidently granted. As recently illustrated by Gillette Co. v. Miner [459 

U.S. 86, 103 S. Ct. 484, 74 L. Ed. 2d 249 (1982)] and Westinghouse Electric Corp. v. 

Vaughn, [466 U.S. 521, 104 S. Ct. 2163, 80 L. Ed. 2d 531 (1984)] this practice wastes 

scarce judicial resources and seriously damages the Court’s credibility.”).3

 

3 Although one “DIG” will not jeopardize a Court’s credibility, we must ever remain 

alert to court practices and decisions that might produce even a smidgen of distrust in our 

proceedings. See Thurgood Marshall, Supreme Justice: Speeches and Writings, at 268 (J. 

Clay Smith, Jr. ed., 2003) (“We must never forget that the only real source of power that 

we as judges can tap is the respect of the people.” (footnote omitted)). 
5

Looking to our sister states, I find dissenting judges equally disturbed about the 

unfairness to the litigants and the injury to the court’s reputation that will arise from the 

majority’s decision to dismiss a case as improvidently granted. See, e.g., In re D.C., 157 

Ill. 2d 525, 526, 648 N.E.2d 602, 603 (Ill. 1995) (Miller, J., dissenting) (“[D]ismissal of 

the present appeal can be explained on only one ground: that members of this court who 

initially voted in favor of review have now concluded that the issue raised here does not 

warrant our attention. Although we do not lack the authority to dismiss a discretionary 

appeal because of a change of mind, we must also be aware that the repeated exercise 

of the dismissal power on this ground calls into question the adequacy of our 

procedures for selecting cases for review.” (emphasis added)); Smith v. State, 72 S.W.3d 

353, 354–55 (Tex. Crim. App. 2002) (Cochran, J., dissenting) (“[T]his Court was fully 

aware of these procedural problems and record omissions when we granted the State’s 

petition. We knew that granting the petition would require us to cut through a Gordian 

knot, and now we have shrunk from that task. Our dismissal is not fair to the litigants, 

who have spent countless hours preparing their briefs, researching the law, and 

presenting cogent written arguments to this Court.” (emphasis added)); Israel Pagan 

Estate v. Capital Thrift & Loan, 771 P.2d 1032, 1033 (Utah 1989) (Howe, J., dissenting) 

(“I believe that dismissing the writ as having been improvidently granted and refusing to 

reach and rule on the merits of the case are grossly unfair to the parties at this juncture. 

There has been no change in circumstances since the writ was granted, nor has the basis 

upon which review was permitted been found to be nonexistent.” (emphasis added)). All 

these reasons militate against dismissal in this case.
6

We should carefully abide by a fair and consistent standard in making decisions to 

dismiss writs as improvidently granted. Sturdivant was clear and straightforward in its 

enunciation of the standard. To dismiss this case as improvidently granted, then, we must 

first conclude that: (1) there is no issue of public importance presented; (2) the issue was 

not preserved; or (3) there is an inadequate record by which to provide useful guidance. 

See Sturdivant, 436 Md. at 589, 84 A.3d at 86. This case does not fit any of these criteria. 

The public importance of the issues presented in this case is clear. Interpretation of 

this policy language would impact thousands of Marylanders with carports or similar 

structures. Further, with this dismissal, both insureds and insurance companies will be 

denied the benefit of a definitive ruling from this Court interpreting this widely-used 

contract and assessing what constitutes a failure to act in good faith within the meaning of 

Md. Code (1995, 2011 Repl. Vol.), § 27-303 and § 27-1001 of the Insurance Article (“IN”). 

A decision on the merits affords an opportunity to refine our law establishing the rules 

regarding construction of insurance policies, especially when an ambiguity is present. 

Regarding Sturdivant’s third criterion, the adequacy of the record before this Court 

cannot be assailed. The MIA proceedings included extensive evidence-gathering and 

testimony. The parties provided us with extensive documentation of the insurance policy, 

the claims dispute, and the proceedings below. 

I can only speculate that the Court now dismisses on preservation grounds. Yet, I 

see no procedural defect in this appeal. In February 2010, a blizzard caused the Taylors’ 

carport to collapse from the weight of snow. When State Farm denied them coverage for 

damage to the carport, they filed a complaint with the MIA. Throughout this process, the 
7

Taylors and People’s Insurance Counsel Division contended that the policy should include 

coverage for the carport’s collapse. They consistently asserted that State Farm arbitrarily 

made the policy determination to exclude coverage for carports only in the immediate wake 

of the 2010 blizzard. State Farm offered nothing to contradict the assertion, and indeed, 

its own employees and experts testified that they were not previously aware of this policy. 

State Farm argues instead that the Taylors incorrectly brought their claim under 

IN § 27-303—which addresses unfair claim settlement practices—under which the Taylors 

had an administrative remedy, but had to prove that State Farm failed to act in good faith. 

They—and amici—argue that IN § 27-1001 of the Insurance Article was the proper vehicle 

under which to challenge State Farm’s interpretation of their policy. Perhaps the Taylors 

would have fared better under IN § 27-1001, where they could recover damages for a mere 

breach of contract under subsection (e)(2).4

 But they still have the right to pursue a claim 

 

4

 In pertinent part, Md. Code (1995, 2011 Repl. Vol.), § 27-1001 of the Insurance 

Article reads: 

(e)(2) With respect to the determination of damages under 

paragraph (1)(i)5 of this subsection:

(i) if the Administration finds that the insurer 

breached an obligation to the insured, the 

Administration shall determine the obligation of 

the insurer to pay:

1. actual damages, which actual 

damages may not exceed the limits 

of any applicable policy; and 

2. interest on all actual damages 

incurred by the insured[; and] 

(ii) if the Administration also finds that the 

insurer failed to act in good faith, the 

Administration shall also determine the 

obligation of the insurer to pay: 
8

under IN § 27-303, so long as they can prove State Farm engaged in an unfair settlement 

practice, which in this case would mean they failed “to act in good faith, as defined under 

§ 27-1001.” IN § 27-303(9). Even with the more limited scope of such an administrative 

claim, the Court should go forward with its decision to grant certiorari—we did not grant 

the writ only to decide a claim under the broader IN § 27-1001. 

Another procedural roadblock thrown up by State Farm is that the Taylors did not 

argue, at the Circuit Court level, as they do here, that Maryland’s law on contract 

interpretation involving insurance policies should be modified so that the terms of the 

policy “should be strictly construed against the insurer.” This may be so, although 

Petitioner made the argument to the Court of Special Appeals. But any failure to preserve 

this issue would have minimal impact on our decision. The absence of the broad issue of 

contract interpretation does not make the important and far-reaching issues in this case 

disappear. No one questions that Maryland abides by the “construe against the drafter” 

principle of contract interpretation. See Sullins v. Allstate Ins. Co., 340 Md. 503, 508–09, 

667 A.2d 617, 619 (1995). And the insurance company is always the drafter. Although 

the rule advocated by Petitioner and our existing rule may have subtle distinctions, the case 

can certainly be resolved using our well-settled rules of contract construction. So, 

 

1. expenses and litigation costs 

incurred by the insured, including 

reasonable attorney’s fees, in 

pursuing recovery under this 

subtitle; and

2. interest on all expenses and 

litigation costs incurred by the 

insured[.] 
9

regardless of whether the first issue is preserved, we should resolve the question of whether 

we should reverse the MIA’s decision that State Farm did not act arbitrarily in denying the 

claim under IN § 27-303(2) or (9). If we hold that the MIA erred, then the statute provides 

a remedy under IN § 27-301 and IN § 27-303. If the MIA acted reasonably in finding that 

State Farm’s actions were not arbitrary, then this section does not provide the Taylors or

People’s Insurance Counsel with the administrative remedy they sought. By dismissing 

this case as improvidently granted, we leave this issue unresolved.

In the absence of any of the three reasons we have previously offered for dismissing 

a case as improvidently granted, we should consider and rule upon the merits of this case. 

As Chief Judge Bell (ret.) said, in dissenting to another DIG, “[t]he Court was not misled 

concerning the case by information supplied or withheld. Nor could there be any mistaken 

assumptions about the case. It is not enough to want to avoid an issue, squarely presented.” 

Jacobson v. Sol Levinson & Bros., 371 Md. 442, 449, 809 A.2d 691, 695 (2002) (Bell, C.J., 

dissenting). 

Our decision to avoid these questions does nothing to clarify or advance the law. 

And it gives short shrift to the litigants before us after they have performed the onerous 

work of preparing briefs and record extracts, as well as preparing and conducting oral 

arguments. We owe the parties and the people of the State due consideration of the issues 

properly presented. Here, unfortunately, the litigants and public are left in the dark again, 

in a case that could impact thousands of Maryland homeowners.
10 

Chief Judge Bell (ret.) wrote in Koenig, “[i]n this case, I fear that we have not 

justified to the people of this State, whom we are mandated to serve, our ‘raison d’etre.’” 

368 Md. at 159, 792 A.2d at 1130. I fear the Court repeats this mistake today. 

Judge McDonald has authorized me to state that he joins in the views expressed in 

this dissenting opinion.
Circuit Court for Baltimore City 

Case No.: 24-C-12-002377

Argued: 11/10/2014 

IN THE COURT OF APPEALS

OF MARYLAND 

 

No. 21 

September Term, 2014 

 

PEOPLE’S INSURANCE COUNSEL 

DIVISION

v. 

STATE FARM FIRE AND CASUALTY 

COMPANY, et al. 

 

Barbera, C.J. 

Harrell

Battaglia 

Greene

Adkins

McDonald

Watts, 

JJ.

 

Dissenting Opinion by McDonald, J. 

 

Filed: February 24, 2015 
Sometimes we make a mistake when we grant a petition for certiorari. When we 

do, we should admit it and correct it, even if the correction is couched in passive voice and 

a five-syllable adverb (“dismissed as improvidently granted”). But, for the reasons that 

Judge Adkins explains well, that is not this case. It is “desirable and in the public interest” 

that we resolve the issue of how an insurance contract such as the one in this case should 

be construed under Maryland common law. 

As an aside, I note that the five-vote majority in favor of dismissing this petition is 

the minimum that ought to be necessary for dismissing a petition. An explanation: Under 

the longstanding practice of this Court, consistent with the statute that sets forth our 

certiorari jurisdiction, a petition for certiorari is granted if three judges vote to do so (even 

if four judges do not favor granting the petition). See Inner Workings of the Court of 

Appeals of Maryland, <http://www.mdcourts.gov/coappeals/coaoverview.html>.1

 If a 

petition, once so granted, could be immediately dismissed on an identical 4-3 vote, it would 

be at odds with the three-vote standard for granting petitions and with the statute that caps 

the requisite number of votes at three. See Maryland Code, Courts & Judicial Proceedings 

Article, §12-203 (“The Court of Appeals may by rule provide for the number of its judges 

who must concur to grant the writ of certiorari in any case, but that number may not exceed 

 

1

 If only five members of the Court are available to consider a petition, the Court 

has required only two affirmative votes to grant the petition. Glenn T. Harrell, Jr., To 

Certiorari and Beyond (January 18, 2012) at p.3 n.4. 
2

three”) (emphasis added). The upshot is that we should not dismiss a petition as 

improvidently granted unless we do so by a super-majority vote of at least 5-2.2

 

2A similar question has arisen, from time to time, in the United States Supreme 

Court where the nine justices apply what is known as the “Rule of Four” to grant petitions 

for certiorari – i.e., a petition is granted if at least four of the nine justices concur in the 

grant. On occasion, that Court has dismissed a case, by a 5-4 vote, on the ground that the 

petition was “improvidently granted.” It has been pointed out that such an action is 

inconsistent with the “Rule of Four.” United States v. Shannon, 342 U.S. 288, 298 (1952) 

(Douglas, J. dissenting) (“If four can grant and the opposing five dismiss, then the four 

cannot get a decision of the case on the merits. The integrity of the four-vote rule on 

certiorari would then be impaired.”); Ferguson v. Moore-McCormack Lines, 352 U.S. 521, 

560 (1957) (Harlan, J., concurring and dissenting) (“permitting the ... writ to be thus 

undone would undermine the whole philosophy of the ‘rule of four’”); R. Revesz & P. 

Karlan, Nonmajority Rules and the Supreme Court, 136 U. Penn. L. Rev. 1067, 1082-95 

(1988). Nevertheless, the Supreme Court has sometimes dismissed a case on such a vote. 

There is an important distinction between our Court and the Supreme Court here. 

When the Supreme Court dismisses a case on the ground that the petition for certiorari was 

improvidently granted on a 5-4 vote, in contradiction of the “Rule of Four,” it is simply 

violating its own informal convention which, though referred to as a “rule,” has never been 

formally adopted. See New York v. Uplinger, 467 U.S. 246, 251 (1984) (Stevens, J., 

concurring) (“the Rule of Four is a valuable, though not immutable, device for deciding 

when a case must be argued”). By contrast, the statute that sets forth our certiorari 

jurisdiction prohibits us from requiring more than three affirmative votes to grant a writ of 

certiorari to review a case on the merits.