the tort settlement under Section 19-511 of the Insurance Article. The standard two-day auto-tort jury trial has now been reduced to a one day trial on dam- ages only. The Plaintiff ’s lawyer must be mind-
ful that Maurer did not extinguish any of the contract defenses available to the UIM carrier in a breach of contract ac- tion. The Plaintiff must still prove that she is a beneficiary under the policy, has met all conditions precedent to bring- ing the breach of contract action, has exhausted all available liability policy limits, and must also prove her damages. In any such action, the Plaintiff should NEVER allow the jury to decide insur- ance policy issues that can be resolved via a Motion for Summary Judgment. A well-prepared Request for Admissions of Facts will go a long way to accomplishing this purpose. In the event that Plaintiff ’s Motion
for Summary Judgment based upon the holding in Maurer fails in cases where the UIM carrier consents to the settle- ment of the underlying tort action, a Motion under Maryland Rule 2-502 – Separation of Questions for Decision by Court – should be pursued. Simply because the pre-trial motion’s judge denied the Motion for Summary Judg- ment does not mean that the issue must be resolved by the jury. This legal issue should be resolved by the Court. Indeed, the Plaintiff ’s lawyer should also request in his Motion that the trial judge rule on this Motion before the jury is impaneled and certainly before opening statements. The resolution of this legal issue “pre- trial” will preclude the Defendant from introducing facts that may suggest that
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50 Trial Reporter
the tortfeasor was not negligent, or that the Plaintiff was contributorily negligent or assumed the risk. A Motion in Limine may also be filed in conjunction with the Motion filed under Rule 2-502 to insure that all possible prejudicial issues are removed from the jury’s consideration after the Court rules in the Plaintiff ’s favor on the issue of liability. The failure to exhaust all liability poli-
cies is a condition precedent/contract defense that remains viable even after Maurer. The Plaintiff must establish this element in her case in chief. (See Kurtz v. Erie Insurance Exchange 157 Md. App. 143, 849 A.2d 1050, (2004) for guidance on this issue.) If the tort case is resolved prior to the filing of a lawsuit, the Plaintiff ’s attorney should obtain an affidavit from the tortfeasor that he or she does not have any other insurance polices available to him that would provide liability coverage for the incident at bar. If the tort case is resolved after litigation has begun, then the wise Plaintiff ’s attorney will obtain an admission or stipulation from the UIM carrier that deals with the liability policy limits issue. Maurer and Section 19-511 of the
Insurance Article fail to address those cases wherein the Plaintiff is covered under two separate UIM policies, and one carrier consents to the tort settle- ment and the other carrier does not. This dilemma will likely be resolved by a future appellate court decision. The insurer may preserve all of their
tort defenses by not consenting to the settlement, and by paying the tort policy limits amount to the Plaintiff under Sec- tion 19-511 of the Insurance Article. If
the carrier is successful, and prevails at trial on the issues of primary negligence, contributory negligence, or in some cases, the assumption of the risk, the Plaintiff under Ohio Casualty v. Cham- berlin, 172 Md. App. 229, 914 A.2d 160, (2007) can still retain the monies paid to him by his own UIM carrier. In conclusion, Maurer has placed UIM
carriers on notice of the consequences they now face by consenting to the Plaintiff ’s settlement of the underlying tort action. If they intend to thwart the liability settlement, and preserve all of their tort and contract defenses, then they must pay for this privilege by ten- dering the liability offer to the Plaintiff. They can no longer consent to the tort settlement and challenge the tortfeasor’s liability at trial. Hopefully, the holding in Maurer will
result in shorter trials wherein frivolous defenses are nowhere to be found, and the jury devotes all of their time and effort to what is truly at stake – the Plaintiff ’s injuries and damages. Thanks to Maurer, we are one step closer to that day. n
About the Author
Rodney M. Gaston graduated with honors from the University of Maryland School of Law in 1987. Mr. Gaston is admitted to the practice of law in all Maryland State Courts, the United States District Court for the District of Maryland, the United States Court of Appeals for the Fourth Circuit, and the United States Supreme Court. He has extensive trial experience in both the District Courts and Circuit Courts throughout the State and has presented oral arguments before the Maryland Court of Special Appeals. Mr. Gaston’s legal practice focuses on
obtaining compensation for those per- sons injured in motor vehicle collisions and persons who have been the victims of medical malpractice. Mr. Gaston works out of the Miller & Zois office in Anne Arundel County and also handles a large number of serious personal-injury cases in Salisbury, Maryland.
Summer 2008
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