cy limits, as an inducement to settle by the company; and actions which demonstrate a greater concern for the company’s monetary interest than the financial-risk attendant to the insured’s predicament.
MPJI 14:10 Duty to Settle-Bad Faith. If the liability-insurance carrier refuses
to settle for policy limits, practitioners should strongly consider taking the case to trial and attempting to obtain an excess verdict against the insured. Even if there is inadequate insurance coverage, and even if the defendant has no assets to sat- isfy the judgment, the defendant/insured can assign its bad-faith claim to your cli- ent, and your client can attempt to collect the excess judgment from the insurance company that acted in bad faith.43
Claim Against Insurance Agent
Insurance brokers owe a duty to their
customers to exercise reasonable care and skill performing their duties, and if they fail to do so, they are liable based on negligence and breach of contract.44 If coverage is inadequate, and the in- jured client purchased his automobile insurance through an agent or broker, then a cause of action against the agent/ broker for negligently failing to obtain adequate uninsured motorist coverage should be considered.45
Did the agent/
broker explain what uninsured motorist coverage is? What do the documents in the insurance agent/broker’s file indicate regarding the risks that your client asked the broker to insure against? Did the insurance agent/broker act reasonably in
43
Medical Mut. Liability Ins. Soc. of Maryland v. Evans, 330 Md. 1, at 29, 622 A.2d 103, at 116 - 117 (Md. 1993) (holding that as- signment of bad faith cause of action to injured party is permitted).
44 45
Bogley v. Middleton Tavern, 288 Md. 645, 650, 421 A.2d 571, 573 (1980).
See Popham v. State Farm, 333 Md. 136, 156 634 A.2d 28, 38 (1993) (recognizing a cause of action against insurance agent for failing to offer adequate uninsured motorist coverage).
Summer 2008 Trial Reporter 25
insuring against those particular risks? A tortfeasor may have a claim against his/ her insurance agent and/or insurance broker for failing to obtain adequate liability insurance.
If a large judgment
is obtained against a tortfeasor, consid- eration should be given to having the tortfeasor assign to your client any claim he or she may have against the insurance agent for negligence.
Conclusion The representation of those with
catastrophic injuries from automobile collisions is a major responsibility in terms of experience, time, money, and resources. Practitioners need to ap- proach these cases with creativity and diligence. Those who take on such cases need to be aware of the various theories of liability and causes of action that should be considered in order to obtain fair and proper compensation for the catastrophically-injured client.
Furthermore, you also need to be will- ing to “think outside the box” in order to maximize insurance coverage. Doing so allows you to best represent a client who has been victimized because of the carelessness of another, and seek justice for that individual and her family. n
About the Author
Kevin I. Goldberg is President-Elect of MTLA and is a founding partner of Goldberg, Finnegan & Mester, LLC which is located in Silver Spring, Mary- land. Mr. Goldberg graduated from the Catholic University Columbus School of Law Magna Cum Laude in 1996. He was an Associate Editor of the Catholic University Law Review. Mr. Goldberg was selected for inclusion in Maryland SuperLawyers Magazine and Washington, D.C. SuperLawyers Magazine in 2007 and 2008. His practice concentrates on the representation of catastrophically- injured clients and their families.
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