Legal Opinions - Maryland Court of Appeals: December 17, 2007

Daily Record, The (Baltimore), Dec 17, 2007

Civil Procedure

Failure to properly instruct jury

BOTTOM LINE: Trial judge erred by instructing jury that violation of a statute is evidence of negligence and, immediately after that instruction, describing statutes that were irrelevant to the issues before the jury.

CASE: Maurer v. Pennsylvania National Mutual Casualty Insurance Co., No. 131, September Term, 2006 (filed Dec. 6, 2007) (Judges Raker, Cathell, Harrell, Greene, ELDRIDGE (retired, specially assigned), Wilner (retired, specially assigned) & Bloom (retired, specially assigned)).

FACTS: On January 9, 2004, 19-year-old Thomas Hesselbein invited his friend, David Maurer, also 19 years old, to go to a restaurant and bar named "Champs." Hesselbein, driving his own automobile, picked up Maurer at Maurer's parents' home.

The two men, with Hesselbein driving, went directly to Champs, arriving at approximately 11:15 p.m. Upon arriving at Champs, Maurer used a false identification card to purchase a "shot." Hesselbein also apparently purchased and consumed the same type of alcoholic beverage.

Next, Maurer and Hesselbein sat at a table with two other persons, and they both recalled that there was a pitcher of beer on the table. Both of them left Champs after about two and a half hours, with Hesselbein driving and Maurer occupying the front passenger seat.

On their way home, Hesselbein lost control of his car and struck an object on the front lawn of a house. Neither Hesselbein nor Maurer remembered the accident, but there were two eyewitnesses. Neither eyewitness saw anything in the road to cause the accident.

One of the eyewitnesses saw Hesselbein's car slide around a corner and hit a telephone pole. A police officer concluded that Hesselbein was driving at a high rate of speed. At the time of the accident, Hesselbein's blood alcohol level was 0.16 grams per milliliter of blood, and Maurer's blood alcohol level was 0.19 grams per milliliter of blood.

Maurer notified his insurer Pennsylvania National Mutual Casualty Insurance Co. (Penn National) of the accident. Subsequently Hesselbein's liability insurer, GEICO, offered to Maurer the $25,000.00 liability policy limit under Hesselbein's automobile insurance policy as a settlement.

This represented only partial compensation for Maurer's damages. Maurer notified Penn National of the settlement offer, thereby giving Penn National 60 days either to consent to the settlement offer or to send a "written refusal to consent to acceptance of the settlement offer." See IN [section]19-511(b). Penn National consented to the settlement, and Maurer then accepted the $25,000.00 from GEICO.

Thereafter, Maurer filed in the circuit court a complaint against Penn National, seeking additional payment, pursuant to the "underinsured" coverage of his insurance policy, for his injuries sustained in the accident. Maurer's policy issued by Penn National contained uninsured and underinsured motorist coverage with limits of $225,000.00.

The complaint asserted that Penn National breached the insurance policy when it failed to pay Maurer's damages in excess of the $25,000.00 received from Hesselbein's liability insurer.

The circuit court granted Maurer's motion for partial summary judgment, holding that Hesselbein was negligent as a matter of law. After the close of the evidence, Maurer also moved for judgment on the ground that there was insufficient evidence to submit the issues of Maurer's alleged contributory negligence and assumption of the risk to the jury. The court denied this motion.

The issues presented to the jury were whether Maurer was contributorily negligent and/or whether he assumed the risk of his injuries. If the jury answered no to both of those questions, it was to determine the damages to be awarded to Maurer.

After explaining to the jury that it should not make any finding regarding Hesselbein's negligence, the trial judge instructed the jury as follows: "I instruct you that the violation of a statute which is a cause of the plaintiff's injuries or damages is evidence of negligence. There is a section of the Maryland criminal law code which provides as follows: 'An individual may not knowingly and willfully make a misrepresentation or false statement as to the age of that individual to another or to any person licensed to sell alcoholic beverages for the purpose of unlawfully obtaining, procuring, or having unlawfully furnished an alcoholic beverage.' I further instruct you that under the law of Maryland, and this is also part of the statutes of Maryland, that if at the time of testing a person has an alcohol concentration of 0.08 or more as determined by an analysis of that person's blood or breath, that that person shall be considered under the influence of alcohol per se. Which means just by the fact that it exsts."

Maurer had objected to these jury instructions before they were given and also objected to them after they were read to the jury. The jury found in favor of Penn National, deciding that Maurer was contributorily negligent. Maurer appealed to the Court of Special Appeals.