Winter 2018

Recent F&P Success: Half Million Dollar Verdict Overturned for Improper Admission of Evidence from the Lack of Insurance

The plaintiff was a pedestrian when he was struck and injured by a dump truck making a right turn on its way to deliver asphalt and other materials to a construction site. At the time of the accident the truck driver’s license was suspended, the registration for the dump truck had expired and the insurance on the vehicle had lapsed for non-payment. The plaintiff sued the driver and the motor carrier company, but also sued the construction company who had hired the carrier. The plaintiff claimed the construction company (who was F&P’s client) had directly hired the driver, who was therefore an agent of the construction company, such that it was vicariously liable for the driver’s negligent actions under the legal theory of respondeat superior. The plaintiff also claimed that the construction company was directly liable for negligent hiring, because there was no liability insurance on the vehicle as required by law.

In support of the negligent hiring count, the plaintiff elicited testimony from a police officer and an insurance representative that there was no insurance on the dump truck. Maryland law generally provides that “[e]vidence that a person was or was not insured against liability is not admissible upon the issue of whether the person acted negligently or otherwise wrongfully.” However, while the trial court agreed with our arguments that evidence of insurance was inadmissible on the vicariously liability count, it concluded that evidence of lack of insurance was relevant to the negligent hiring claim.

The jury returned a verdict of $529,000.00 in favor of the plaintiff. F&P noted an appeal to the Court of Special Appeals (Maryland’s intermediate appellate court). The Court of Special Appeals reversed the jury’s verdict. The Court found that the lack of liability insurance was relevant to the driver’s fitness/competency to operate a motor vehicle (since Maryland law requires that all persons driving a motor vehicle have liability insurance), but the driver’s unfitness based on the lack of liability insurance was NOT a proximate cause of the accident or the plaintiff’s injuries. Specifically, the Court explained “it was not [the driver’s] lack of insurance coverage that caused the accident. Rather, it was [the driver’s] negligent driving that caused [the plaintiff’s] injuries and damages.”

The plaintiff noted an appeal to the Court of Appeals of Maryland (Maryland’s state supreme court). Following full briefing and recent oral argument, the Court of Appeals affirmed the decision of the Court of Special Appeals – throwing out the more than half million dollar judgment. Franklin & Prokopik again argued that the driver’s lack of liability insurance alone did not speak to his ability to safely operate a motor vehicle. The Court of Appeals agreed, holding that it was legal error to admit evidence of the driver’s lack of liability insurance coverage, because this was not the “cause and effect” of the plaintiff’s injuries and “was not probative” of the client’s control over the driver. The Court further explained that this error was prejudicial because it likely was a factor included in the jury’s deliberations and determination of liability on the count of vicarious liability. Specifically, the Court of Appeals opinion provides that the lack of liability insurance coverage “greatly increased the likelihood that the jury inferred fault . . . and considered that evidence in finding [defendant] liable under a theory of respondeat superior.”

Moran Perry v. Asphalt & Concrete Services, Inc., 447 Md. 31 (2016)