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10/25/93 DONALD LEE v. ROBERT JONES

October 25, 1993

DONALD LEE, ET AL, APPELLANTS
v.
ROBERT JONES, ET AL, APPELLEES



Appeal from the Superior Court of the District of Columbia; (Hon. Michael L. Rankin, Trial Judge)

Before Terry, Farrell, and King, Associate Judges.

The opinion of the court was delivered by: King

KING, Associate Judge: Appellants Donald Lee and Diann Montgomery, plaintiffs in the trial court, appeal the grant of summary judgment in favor of trial court defendants Robert Jones ("Jones") and Government Employees Insurance Company ("GEICO"). They contend that the trial court erred in granting summary judgment because: (1) the statutory personal injury protection ("PIP") provision requires a showing of "knowing, conscious and intelligent election of PIP benefits" by the injured person, in lieu of bringing suit for liability, which was a disputed material fact, and (2) appellants could maintain a breach of contract action against GEICO, under the uninsured motorist provision, even though they accepted the PIP benefits. We affirm.

I.

Appellants, in Montgomery's vehicle, were injured on November 16, 1987, when their vehicle, which was stopped at a traffic signal, was struck in the rear by a car being operated by appellee Jones. Appellant Lee was in the driver's seat and appellant Montgomery was seated on the passenger side. Jones maintained that his vehicle, also stopped at the signal, had been forced into the rear of appellants' vehicle after an unidentified motorist struck the Jones vehicle in the rear. Both appellants sustained injuries.

Appellants sought the services of an attorney, James Fairbairn, to obtain compensation for the injuries sustained in the accident. GEICO, appellant Montgomery's auto insurer, provided PIP coverage for medical and rehabilitation expenses and lost wages. The policy also included uninsured motorist coverage as required by D.C. Code § 35-2106 (f) (1993).

On November 27, 1987, GEICO sent separate PIP applications to Montgomery and Lee which contained a "No Fault Cover Letter" informing the applicants that under District of Columbia law a victim may choose either to recover under PIP or to pursue a liability claim. Appellants signed the PIP forms, which were then submitted to GEICO by attorney Fairbairn. In response, GEICO sent the PIP payments to Fairbairn, who in turn paid appellants.

On November 14, 1990, appellants filed a four-count complaint in Superior Court against Jones, GEICO, and Fairbairn. Appellants alleged that Jones caused their injuries through the negligent operation of his vehicle, that GEICO breached its contract by failing to pay uninsured motorist protection benefits, and that Fairbairn committed legal malpractice by failing to provide proper legal services. *fn1

The trial court granted appellees' motions for summary judgment, ruling that appellants were "barred from bringing a lawsuit against defendant Robert Jones and defendant Geico . . . ." On appeal, appellants maintain that the trial court erred in so ruling.

II.

A motion for summary judgment brings into question the legal sufficiency of a claim and, when "supported by verified pleadings, depositions, answers to interrogatories, . . . may be used to test whether the party opposing the motion [has raised a triable issue of fact]." Smith v. Washington Metro. Area Transit Auth. ("WMATA"), 631 A.2d 387,1993 D.C. App. LEXIS 231, No. 91-CV-529, slip op. at 4-5 (D.C. Sept. 16, 1993) (citations omitted). "The requisite showing of a genuine issue for trial is predicated upon the existence of a legal theory which remains viable under the asserted version of the facts." [Slip Op.] at 5 (citation and internal quotation omitted); Super. Ct. Civ. R. 56 (c). Finally, in reviewing the grant of a summary judgment motion, this court conducts an independent review of the record and makes it own determination of whether the grant of the motion was warranted. Monroe v. Foreman, 540 A.2d 736, 739 (D.C. 1988).

III.

We begin our analysis with the applicable provisions of the Compulsory/No-Fault Motor Vehicle Insurance Act of the District of Columbia. Section 35-2105 outlines the procedures to be followed by both the victim of a motor vehicle accident and the insurer. Section 35-2105 (d) requires the insurer to notify any identifiable victim of the 60-day election period; while § 35-2105 (a) requires that the victim notify the insurance company, within 60 days of an accident, if the victim elects to receive compensation under the PIP provision set forth in Section 35-2104. Section 35-2105 (b) explicitly limits the litigation rights of any victim choosing PIP coverage once that option is elected. It provides that:

(b) A victim who elects to receive personal injury protection benefits may maintain a civil action based on ...


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