Maryland Court upholds waiver of UM coverage
In Swartzbaugh v. Encompass Insurance Company of America, No. 100, September Term 2011 (Md. April 25, 2012), the Court held that in the context of a waiver of UM benefits under a Maryland motor vehicle insurance policy, the phrase "first named insured" refers to a person insured under the policy and specifically named in the policy, who acts on behalf of the other insured parties and is designated as such in the policy documents. In so holding, the Court rejected the insured's argument that the "first named insured" literally means the first rated driver listed on the policy.
The compulsory minimum automobile insurance liability limits under Maryland law are currently $30,000 per person for personal injuries, $60,000 aggregate, and $15,000 for property damage. A policy must include UM coverage, which under Maryland law refers both to uninsured as well as under-insured motorists. Under the Maryland Insurance Code, the default limits of UM coverage must be equal to the liability coverage under the policy. However, this level of coverage may be waived in favor of a lower amount that is at least equal to the minimum coverage required by the motor vehicle law. The waiver must be in writing on a form devised by the Maryland Insurance Administration that complies with the applicable statute. Thus, the waiver is supposed to be signed by the "first named insured", as required by statute. However, the statute does not define what the "first named insured" means.
In the Swartzbaugh case, the waiver was signed by Mrs. Swartzbaugh, who handled the family finances with respect to insurance, and who had applied for the insurance. The policy listed three vehicles, and named her husband, herself, and her daughter as drivers. Unfortunately, the daughter was later injured by an under-insured driver while she was riding as a passenger. The daughter challenged the effectiveness of the waiver of UM coverage, on the grounds that Mrs. Swartzbaugh was not in fact the "first named insured" on the policy -- rather, the father was actually the first name listed in a section labeled "Policyholder."
The Court of Appeals rejected this view, finding that name order was not determinative. Rather, the named insureds are entitled to determine who will exercise that choice and serve as primary or first named insured. The MIA waiver form fills that gap be requiring the individual who executes the form to certify his or her status as "first named insured." The Court found that this was preferable to an arbitrary designation of first named insured as whomever's name was typed first on the policy.
Posted by David B. Stratton on 05/21/2012 at 12:49 AM
Motor Vehicle Accidents
Virginia Insurance Coverage: Supreme Court interprets auto policy’s workers compensation exclusion
In Christy v. Mercury Casualty Company, No. 102138 (March 2, 2012), the Supreme Court of Virginia held that an exclusion in an automobile insurance policy barred the insured from receiving any payment for medical expenses where a portion of medical expenses had already been paid by workers' compensation benefits.
The plaintiff police officer was a passenger in a car driven by a Washington County sheriff's deputy. The car was struck from behind, and the plaintiff sustained a number of injuries. The parties did not dispute that the accident arose out of and occurred during the course of the plaintiff’s employment with the town. Among other injuries, the plaintiff’s physician opined that he experienced a tear of the labrum in his left shoulder as a result of the accident, that required surgery.
At the time of the accident, the plaintiff was covered by three different insurance policies. The Town of Abington obtained its workers’ compensation coverage through the Virginia Municipal League Insurance Programs ("VMLI"). The plaintiff received his primary health insurance coverage through a physician-hospital organization ("PHO"). Additionally, the plaintiff was insured under an automobile liability policy issued by Mercury Casualty Company. The Mercury policy included coverage for medical expenses incurred as a result of injuries arising out of the use of a motor vehicle. In relevant part, the policy provided that it did not apply "to bodily injury sustained by any person to the extent that benefits therefor are in whole or in part payable under any [workers'] compensation law."
The workers’ compensation insurance carrier, VMLI, paid a portion of the plaintiff's total medical expenses. However, VMLI denied claims for the plaintiff’s surgery to repair his labrum, asserting that the injury was a pre-existing condition and therefore not compensable under the workers’ compensation policy. The balance of the plaintiff's medical expenses was either paid or resolved by the plaintiff and the PHO.
The plaintiff subsequently submitted a claim to Mercury demanding payment under the medical expense coverage of his policy. Mercury denied the claim, asserting that the exclusion provision barred coverage due to the fact that some of the plaintiff’s medical expenses were, in part, payable under workers’ compensation law.
On appeal, the plaintiff argued that the exclusion applied only “to the extent” that some portion of his medical expenses were paid by workers' compensation benefits. The plaintiff argued that the exclusion acted only to offset any amount actually paid by the workers' compensation carrier, without regard to whether he successfully pursued a claim for all medical expenses. In doing so, the plaintiff argued that the policy language operates to prevent a "double recovery" by not allowing the insured to receive full payment for medical expenses from both a workers' compensation provider as well as an automobile insurance provider.
Defendant Mercury argued its interpretation of the exclusion, asserting that it excluded all coverage if any portion of plaintiff’s medical expenses were subject to workers’ compensation.
The Court ultimately found in favor of defendant Mercury Casualty, holding that the policy exclusion limited the scope of coverage for medical expenses, rather than the amount of coverage in the form of a set-off against workers’ compensation benefits. The court noted the fact that VMLI did pay a portion of plaintiff’s medical expenses pursuant to its workers' compensation policy. The court also noted that there was no dispute over whether the accident arose out of and in the course of the plaintiff's employment. Accordingly, the Court held that the clear and unambiguous language of the exclusion permitted defendant Mercury Casualty to deny coverage where the expenses were payable under workers’ compensation law. Thus, the exclusion permitted Mercury Casualty to deny coverage for any expenses which would have been subject to workers' compensation coverage by VMLI without regard to whether all of those expenses were actually paid by VMLI.
Negligence per se based on traffic regulations: A D.C. refresher
Two recent opinions from the U.S. District Court for the District of Columbia provide a refresher on D.C. law concerning negligence per se based on the violation of D.C. traffic regulations.
In Mahnke v. Washington Metropolitan Area Transit Authority, No. 10-0021 (D.D.C. Oct. 20, 2011), the plaintiff was a pedestrian who marched out into a crosswalk when she had the "walk" light, and was hit by a WMATA bus which had started through the eight lane intersection on a yellow light. The accident was videotaped, and WMATA filed a motion for summary judgment on the grounds that the plaintiff was contributorily negligent for not looking for oncoming traffic before stepping off the curb as the video appeared to show. As the bus neared the intersection, the bus driver saw the traffic light change from green to yellow, and she accelerated in an effort to clear the eight-lane intersection. WMATA conceded that the light turned red before the bus exited the intersection. The video showed that the bus was halfway through the intersection when the plaintiff entered the crosswalk. The plaintiff sustained numerous injuries, allegedly including a fractured, skull, epidural hematoma, broken clavicle, fractured ribs, collapsed lung, pelvis fracture, and traumatic brain injuries, and she claimed $20 million in damages as of the time of the trial court's opinion.
The plaintiff not only denied that summary judgment could be granted based on contributory negligence, but also filed a motion in limine to prevent WMATA from raising the contributory negligence defense at trial. The parties also filed 11 other motions in limine to preclude the admission of certain evidence at trial.
The trial court denied WMATA's motion for summary judgment because the parties disputed whether the plaintiff checked for oncoming traffic before crossing the street, whether the plaintiff would have been able to see the WMATA bus if she had looked for oncoming traffic, and whether the WMATA bus driver had the last clear chance to avoid the accident. Among other things, when the plaintiff stepped off the curb after waiting for the "walk" sign, another pedestrian stepped off the curb with her and might have blocked her view. (The other pedestrian saw the bus coming and stepped back onto the curb.)
The trial court denied the plaintiff's motion in limine to preclude a contributory negligence defense because the determination of whether the defendant was negligent per se rests on jury determinations, and in any event, a defendant's violations of traffic regulations do not bar a contributory negligence defense. The trial court noted, among other things, that the D.C. Court of Appeals has explicitly stated that there is "no merit" to the contention that a "violation of a traffic regulation precludes application of a contributory negligence defense." Massengale v. Pitts, 737 A.2d 1029, 1032 n.1 (D.C. 1999).
Following the Mahnke opinion, the case settled before trial.
In Sibert-Dean v. Washington Metropolitan Area Transit Authority v. Woodson, No. 08-2145 (D.D.C. Dec. 4, 2011), the trial court denied WMATA's post-trial motion for a new trial, based on the court's instructions to the jury that a violation of any of the seven traffic regulations applicable in this case would constitute negligence per se.
This case involved a WMATA bus accident, in which a WMATA bus collided with Woodson's car, when Woodson made a left turn in front of the bus in order to enter a grocery store parking lot. The plaintiff was a passenger on the bus, and injured her shoulder and neck in the accident. Prior to trial, WMATA asserted that Woodson]s violation of traffic regulations constituted negligence per se and evidence of negligence. The traffic regulations included 18 DCMR sec. 2213.4, which provides that "[a]n operator shall, when operating a vehicle, give full time and attention to the operation of the vehicle." The plaintiff requested inclusion of 18 DCMR sec. 2206.1, which provides that "[n]o person shall start a vehicle which is stopped, standing, or parked unless and until the movement can be made with reasonable safety."
At a charging conference near the conclusion of the trial, the trial court concluded that the negligence per se instruction was appropriate. However, before the jury was instructed, WMATA objected to the negligence per se instruction, on the grounds that traffic regulations are generally not the type of regulation for which a violation creates negligence per se. The trial court overruled the objection.
At trial, the jury returned a verdict against WMATA and the third party defendant, Woodson, concluding that both defendants' negligence proximately caused the accident, and awarded the plaintiff $675,000 in damages.
In its motion for new trial, WMATA argued that the trial court erred when it included traffic regulations 18 DCMR secs. 2213.4 and 2206.1 among the seven traffic regulations in the Court's negligence per se instruction. WMATA's argument was that these two regulations are inappropriate for a negligence per se instruction because they do not establish specific guidelines governing the defendant's actions, but merely reiterate the duty of care established by the common law.
The trial court rejected this argument. It began by noting that in the District of Columbia, unexplained violations of traffic regulations may constitute negligence per se. D.C. courts have repeatedly held that the unexplained violation of a traffic regulation enacted to prevent the type of accident that occurred constitutes negligence per se. The trial court agreed with the proposition that in general, a statute or regulation offered to establish a standard for negligence per se purposes must not merely repeat the common law duty of reasonable care, but must set forth specific guidelines to govern behavior. However, the trial court found that the regulations objected to in this case are appropriate for a negligence per se instruction. The Court found that:
Contrary to WMATA's contention, 18 DCMR ?? 2213.4 and 2206.1 prescribe a sufficiently specific standard of care for vehicle operators to warrant a negligence per se instruction. Traffic Regulation 2213.4 states that "[a]n operator shall, when operating a vehicle, give full time and attention to the operation of the vehicle." This regulation does more than simply require a driver to pay attention, but demands "full attention," which, as the plaintiff notes, requires a driver to "not be distracted, and not be engaging in other activities while driving (certainly a problem in these days of multitasking and technology)."
Similarly, 18 DCMR ? 2206.1 also sets forth a specific standard of conduct. The regulation states that "[n]o person shall start a vehicle which is stopped, standing or parked unless and until the movement can be made with reasonable safety." The plaintiff correctly observes that Regulation 2206.1 "specifically applies to beginning to move your vehicle before it is safe to do so. It speaks to a driver understanding his/her surroundings and checking to make sure everything is safe before starting."
The trial court also found that these regulations were similar in specificity to the traffic regulations which the D.C. Circuit determined warranted a negligence per se instruction in Burns v. Washington Metropolitan Area Transit Authority, 114 F.3d 219 (D.C. Cir. 1997). Among those regulations were 19 DCMR sec 2200.3, which states, in relevant part, that "no person shall drive a vehicle on a street or highway at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing," and sec. 2200.5, which provides that "[t]he driver of every vehicle shall, consistent with requirements of this section, drive at an appropriate reduced speed when approaching and crossing an intersection . . . Or by reason of weather . . . ."
Finally, the trial court observed that WMATA presented no evidence at trial to establish that its bus driver's failure to comply with applicable regulations was excusable. A jury should be instructed that the violation of a statute is merely evidence of negligence, and not negligence as a matter of law, if a party charged with statutory or regulatory negligence produces competent evidence tending to explain or excuse his or her violation of the statutory or regulatory standard. The trial court found that the testimony cited by WMATA did not offer an excuse or explanation for violation of traffic regulations, but rather merely reflected an effort to prove that no violation occurred. In other words, a denial is not an explanation. An excuse or explanation can only arise if a violation did occur, therefore a denial is obviously not the sort of explanation that rebuts a negligence per se charge.
Posted by David B. Stratton on 01/01/2012 at 11:17 PM
District of Columbia
Motor Vehicle Accidents