Last week I spent three days trying a car accident case in the Circuit Court for Charles County. There were two defendants- the driver who caused the accident, and my client’s insurance carrier. There was a direct suit against the insurance carrier because the defendant driver had the minimum insurance permitted in Maryland (20k per person, 40k per incident), and we alleged that the plaintiff’s damages exceeded the defendant’s policy limit. So we brought in my client’s insurance company as a defendant because there were underinsured motorists’ benefits available to cover the damages that exceeded the defendant driver’s policy.
When you are litigating against the tortfeasor and the UM/UIM carrier, there are two legal issues you should expect to address before the trial begins.
First, it is a near-certainty that the insurance company will make a motion to allow it to try the case without being identified to the jury. This makes sense from their perspective because they do not want the jury to know that any damages will be paid by an insurance company, or that the Plaintiff was forced to sue his own insurer.
The only problem is that Maryland law on this issue is exactly the opposite. There is a 2004 case from the Court of Special Appeals of Maryland that is directly on point. It is called King v.
State Farm. When the insurance company is a party to the lawsuit, it may not remain anonymous. The insurance company may be identified to the jury, and the jury may be told why the carrier is a party to the case. I keep a copy of this case in my desk drawer and bring it to court whenever I am trying a UM/UIM case. Normally, once this controlling authority is presented to the trial court, the insurance company’s motion to stay anonymous is quickly denied.
The second legal issue is that when it comes time for jury selection, the two defendants will ask the court to award them each separate peremptory challenges. In a civil jury trial in Maryland, generally each side gets 4 peremptory challenges, plus one for the alternate juror. What typically happens is that the tortfeasor and the UM/UIM carrier ask to be awarded separate sets of peremptory challenges. This would be bad for the Plaintiff, since it would give the defendants twice as much control over the makeup of the jury.
All Maryland personal injury lawyers who handle these kinds of cases need to know about Md. Rule 2-512(e). Under the rule, joint defendants are considered a single party for the purposes of awarding peremptory challenges unless the trial judge determines that there are “adverse or hostile interests” between the defendants AND that the nature of those interests justifies granting them separate peremptory challenges. In a typical UM/UIM case, separate strikes should not be granted because the two defendants have identical interests with respect to the plaintiff- defending on liability and damages. Even where there is a cross-claim between the defendants, normally their interest against the plaintiff will be identical, and therefore they should share a single set of challenges. See Kloetzi v. Kalmbacher, 65 Md.App. 595, 501 A.2d 499 (1985).
So before you head to court to try a UM/UIM case, always be ready to address these two issues. If you try a lot of car accident cases, I recommend doing what I do. I keep the authority on these two issues in a folder in my file cabinet and bring it with me for all of my UM/UIM trials. Since the law is generally favorable to the Plaintiffs on these points, it is nearly malpractice to be unprepared to present it to the court.