Litigating the Underinsured
Auto-Tort Case After Maurer by Rodney M. Gaston
Introduction On March 7, 2008, the Maryland
Court of Appeals handed down a deci- sion that forever changed the manner in which lawsuits against automobile- insurance carriers for underinsured motorists (hereinafter referred to as “UIM”) benefits are litigated. The hold- ing in the case of Maurer v. Pennsylvania National Mutual, 404 Md. 60, 945 A.2d 629, (2007), caught both the Plaintiff and Defense bars off guard, and resulted in a procedural mandate that some at- torneys praise while others regret. The holding in Maurer relevant to this article is quite simple. Under Maurer, when the UIM motorist carrier consents to the Plaintiff accepting the liability policy limits from the Defendant tortfeasors’ carrier, it cannot thereafter litigate the issue of tort liability. Perhaps the most shocking part of the Maurer decision is that neither the Plaintiff nor the Defendant raised this issue at the Trial Court level and never raised nor briefed this issue in the subsequent appeal that followed. The issue did not draw any significant oral argument before the Court of Appeals, and under the author- ity of Maryland Rule 8-131(a), the Court unabashedly laid down the law for all of us to follow.
The Precursor For those attorneys who have a pro-
clivity for perusing slip opinions from the Court of Appeals, the original slip opinion of Erie Insurance Exchange v. Heffernan, 399 Md. 598, 925 A.2d 636, (2007) was the “preview of coming attractions.” The slip opinion in Erie appeared on the Maryland Judiciary website on April 10, 2007, and was re- placed by a subsequent opinion of the
Summer 2008
Court dated June 13, 2007. In Erie, the Court of Appeals answered two questions certified by the United States District Court for the District of Mary- land under the Maryland Certification of Questions of Law Act. (See Md. Code Ann., Cts. & Jud. Pro. Art., §§ 12-601, et. seq.) Erie involved a lawsuit arising out of an automobile collision that occurred in the State of Delaware in which the Plaintiffs’ daughter was killed. The tort- feasor carried an automobile-liability policy with limits totaling $35,000. The Plaintiffs were insured with Erie under two insurance policies that provided UIM motorist benefits totaling $1.3 million. The liability carrier tendered its $35,000 policy limits in settlement of the tort claim and Erie consented to the settlement, pursuant to Md. Code Ann., Ins. Art. § 19-511 et seq. Thereafter, the Plaintiffs filed a suit in the Circuit
Court for Baltimore City against Erie for breach of the UIM motorist contracts. Erie removed the matter to Federal Court. The two questions certified from the Federal Court are irrelevant to this article, however, the opinion contains an excellent choice of law analysis for any trial attorney who may be struggling with choice of law questions pertaining to Maryland automobile-insurance poli- cies applicable to accidents that occur outside of the State of Maryland. The passages that were omitted from the final opinion laid the groundwork for the eventual holding in Maurer. The final opinion in Erie was not
dispositive of the issues the Court of Appeals reached sua sponte in Maurer, however, three passages in the old slip opinion in Erie actually became the holding we now find in Maurer. These three passages were carefully dissected
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