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MTLA-Proposed Legislation Approved by the General Assembly Equitably Alters Proof

of Defendant’s Uninsured Status in UM Cases by Eric N. Schloss

Eric N. Schloss (Gordon, Feinblatt, Rothman, Hoffberger & Hollander, LLC, Baltimore) received his J.D. from the University of Baltimore School of Law. He is a member of MTLA’s President’s Club as a contributor. Mr. Schloss is currently serving as chair of the Auto Negligence Section. He is also a member of the Association of Trial Lawyers of America, Trial Lawyers Association of Metropolitan Washington, D.C., and Virginia Trial Lawyers Association. He is licensed in the State of Maryland, District of Columbia, and the Commonwealth of Virginia. Mr. Schloss is a partner in Gordon, Feinblatt’s Personal Injury Group and his practice concentrates on motor vehicle injuries.

In the months leading up to each

session of the General Assembly, the MTLA Legislative Committee seeks sug- gestions from MTLA members regarding proposed legislation. Prior to the 2005 session, MTLA Legislative Committee Chair, Robert J. Zarbin, requested that I seek suggestions from members of the Auto Negligence Section. MTLA member, J. Scott Robertson

(Laws & Robertson, P.A., Salisbury), pro- posed legislation to change the burden of proof in uninsured motorist (UM) cases regarding the uninsured status of the tortfeasor. Mr. Robertson noted that while the insurance carrier sometimes stipulated to the uninsured status of the tortfeasor, he had also experienced situations in which the carrier refused to stipulate.

This refusal to stipulate resulted in an awkward “proving a negative” situation. Securing testimony to prove a tortfeasor is uninsured is complicated by the fact that uninsured motorists are usually in default and often ignore subpoenas to testify. Mr. Robertson recommended legisla-

tion to create a rebuttable presumption that the tortfeasor was uninsured after the plaintiff established by testimony or otherwise that the tortfeasor did not have the automobile insurance coverage listed on the accident report. The burden would then shift to the UM carrier to prove that the driver was insured. At the start of the 2005 General As-

sembly Session, the MTLA Legislative Committee met with MTLA lobbyists to discuss suggestions for legislation of-

fered by members of the Association. Support for Mr. Robertson’s suggestion was unanimous. Bob Zarbin and MTLA lobbyist, Daniel T. Doherty, Jr., began the task of drafting the proposed legislation, with valuable assistance from Charles E. Matz (Jacob Matz, P.A., Towson). Delegate Darryl A. Kelley (District

26, Prince George’s County) agreed to sponsor the proposed legislation, which became known as House Bill 1162. Toward the end of the 2005 General Assembly Session, the bill received a fa- vorable report from the House Judiciary Committee and passed the House 134–0. The bill next received a favorable report from the Senate Judicial Proceedings Committee and passed the full Senate 33-12. The bill was then sent to the desk of Governor Robert L. Ehrlich, Jr. for consideration. Despite the fact that the legislation had overwhelming approval in both houses of the General Assembly, Governor Ehrlich vetoed House Bill 1162 on May 20, 2005. During the next eight months, mem-

bers of MTLA’s Legislative Committee and MTLA lobbyists met with leaders in both the House and Senate in a push to override the Governor’s veto at the beginning of the next legislative session. At the beginning of the 2006 session, the House voted to override the veto 95-41 and the Senate voted 31-16. Pursuant to the Maryland Constitution, House Bill 1162 became law thirty days from the date of the override on January 25, 2006. Section 10-921 of the Courts and Ju-

dicial Proceedings Code Annotated now provides as follows:

(a) In general. — In an action against an insurer or the Maryland Auto- mobile Insurance Fund under a policy providing uninsured motor vehicle liability coverage, the person asserting the uninsured status of a motor vehicle shall have the burden to prove that status.

26 Trial Reporter

(Continued on page 28) Summer 2006

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