Md. at 75, 945 A.2d at 638. Harkening to the slip opinion in
Erie, the Court of Appeals claimed to merely clarify existing standards when it pronounced that Maryland’s law is clear that an uninsured/underinsured motorist carrier, which consents to the settlement of its insured’s tort claim against an uninsured/underinsured tortfeasor, is bound by the settlement. The uninsured/underinsured carrier cannot thereafter contest tort liability. . . . Id. at 75, 945 A.2d at 636. In support of its holding, the Court
stated that insurance policies that do not contain a “consent to settle clause” permit the insured to settle his claim with the tortfeasor and the UIM car- rier is bound by the settlement. (Citing as authority West American v. Poppa 352 Md. 455, 723 A.2d, 1 (1998). If the policy contains a “consent to settle clause,” and the UIM carrier consents to the settlement, the carrier is also bound by the settlement and cannot thereafter contest tort liability. (Citing Nationwide v. Webb, 291 Md. 721, 436 A.2d 465, (1981). The Court in foot- note four of the opinion reasoned that Section 19-511 on the Insurance Article was in fact a statutory “consent to settle” clause. When the Plaintiff follows the procedural mandates outlined in Section 19-511, and the UIM carrier consents to the settlement of the tort action, all that is left to be resolved is the issue of the Plaintiff ’s damages.
The Motion for Reconsideration and the Legislative Response
Not pleased with the Court’s ruling
on Dec. 6, 2007, Erie filed a Motion for reconsideration. State Farm and the Maryland Insurance Administration also joined in the battle. On March 7, 2008, the Court of Appeals issued its Mandate and Order denying the Motion for Reconsideration. Two identical bills were introduced
into the Maryland General Assembly during the pendency of the Motion for Reconsideration in an attempt to nullify
Summer 2008 Trial Reporter 49
Maurer. Senate Bill 902 was introduced on Feb. 18, 2008, and House Bill 1494 was introduced a day later. The bills attempted to add a new paragraph to Insurance Article Section 19-511. While both bills failed to garner a vote, the proposed paragraph read as follows:
(F) THE FAILURE OF THE UN- INSURED MOTORIST INSURER TO RESPOND TO A NOTICE OF SETTLEMENT OFFER SENT UNDER SECTION (A) OF THIS SECTION OR THE CONSENT OF THE UNINSURED MOTORIST INSURER TO ACCEPTANCE OF A SETTLEMENT OFFER UNDER SUBSECTION (B)(1) OF THIS SECTION SHALL NOT OPERATE AS A WAIVER OF ANY DEFENSE AVAILABLE TO THE UNINSURED MOTORIST INSURER IN ANY ACTION BETWEEN THE UN- INSURED MOTORIST INSURER AND THE INJURED PERSON, IN- CLUDING DEFENSES AVAILABLE ON THE ISSUES OF LIABILITY AND DAMAGES.
The Fallout from Maurer and the Plaintiff’s Burden of Proof
Attorneys litigating UIM cases are
now keenly aware that carriers will have less incentive to consent to the Plaintiff ’s acceptance of the liability carrier’s policy limits. The Plaintiff ’s lawyer who prefers a trial with only one named defendant, an insurance carrier, and only one defense attorney to cross examine her client, may be disappointed to find now that more often than not she will be dealing with two defense lawyers instead of one. Perhaps both parties will agree to allow the UIM carrier to consent to the Plaintiff ’s acceptance of the liability carrier’s offer, and still retain the right to litigate the tort defenses at trial. Parties to a contract dispute can certainly enter into agreements during the pendency of the dispute in this regard. In those auto-tort cases, wherein
the testimony of the Defendant driver is required to establish liability in the Plaintiff ’s case in chief, Maurer has relieved the Plaintiff of this burden pro- vided that the UIM carrier “consents” to
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