Maurer v. Pa. National
| Decision Date | 06 December 2007 |
| Docket Number | No. 131, September Term, 2006.,131, September Term, 2006. |
| Citation | 945 A.2d 629,404 Md. 60 |
| Parties | David MAURER v. PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE CO. |
| Court | Court of Special Appeals of Maryland |
JOHN C. ELDRIDGE, Judge, Retired, Specially Assigned.
The appellant David Maurer was the passenger in an automobile involved in an accident, and he sustained serious personal injuries. Maurer initiated this underinsured motorist action against his insurer, the appellee Pennsylvania National Mutual Casualty Insurance Co., in the Circuit Court for Baltimore City. Following a jury verdict and judgment in favor of the defendant Penn National, Maurer has prosecuted this appeal. Maurer argues that the trial judge erred when he instructed the jury that violation of a statute is evidence of negligence and, immediately after that instruction, described statutes which were irrelevant to the issues before the jury. The statutes are Maryland Code (1977, 2006 Repl.Vol.), §§ 11-174.1 and 21-902(a)(2) of the Transportation Article, making it illegal to drive any vehicle when the driver has "an alcohol concentration at the time of testing of 0.08 or more," and Maryland Code (2002), § 10-113 of the Criminal Law Article, prohibiting the making of a false statement as to age for the purpose of unlawfully obtaining an alcoholic beverage. Penn National argues that the statutes were relevant to its defenses of contributory negligence and assumption of the risk. We shall hold that the trial judge erred in giving the challenged instructions and that, therefore, the judgment shall be reversed and the case remanded for a new trial.
On the night of 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" consisting of "Jagermeister, Rumplemintz, and Goldschlager," and called "liquid heroin" or "liquid cocaine." 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. Apart from their initial drinks, Maurer and Hesselbein could not remember how much they drank at Champs. Maurer testified that, to the best of his recollection, he did not purchase any alcoholic beverages for Hesselbein. According to Hesselbein's testimony, he could not recall that anyone purchased alcoholic beverages for him, or how much he consumed. 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 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. Pursuant to Maryland Code (1996, 2006 Repl.Vol.), § 19-511(a) of the Insurance Article, 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 § 19-511(b) of the Insurance Article. Penn National consented to the settlement, and Maurer then accepted the $25,000.00 from GEICO.
Thereafter, Maurer filed in the Circuit Court for Baltimore City 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. Maurer alleged in his complaint that he had "complied with all terms of the policy and is entitled to be paid by Penn National for any and all damages sustained by plaintiff resulting from the negligence of Hesselbein." 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.
During the trial, Penn National agreed that Maurer's insurance policy covered damages for bodily injuries and losses sustained from an underinsured motorist in a maximum amount of $225,000.00. 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:
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. Prior to argument in the intermediate appellate court, this Court issued a writ of certiorari. Maurer v. PA National, 397 Md. 107, 916 A.2d 256 (2007).
Maurer argues that the Circuit Court erred because it gave the jury irrelevant and prejudicial instructions. He asserts that the "influence of alcohol per se" statute referenced in the jury instructions did not concern the intoxication or negligence of a passenger in a car and that, therefore, the statute was irrelevant in determining whether Maurer's behavior was contributorily negligent. Furthermore, Maurer points out that the jury knew that the instruction and statutory reference did not apply to Hesselbein, because the judge had instructed the jury not to consider Hesselbein's negligence. According to Maurer, the instructions misled the jury to the conclusion that Maurer's blood alcohol concentration, which was above 0.08, violated the per se statute, showed that he was intoxicated, and thus was evidence of his contributory negligence.
Similarly, Maurer argues that the trial court erred by instructing the jury that the misrepresentation of one's age to purchase alcohol in violation of Maryland law may be evidence of negligence. Maurer contends that his violation of the age misrepresentation statute was not a proximate cause of the accident responsible for his injuries and, consequently, is not evidence of his contributory negligence.
Penn National responds that the trial judge properly instructed the jury. According to Penn National, the instruction concerning the blood alcohol level of 0.08 was "a harmless means of providing the jury some additional context for their consideration of the evidence of blood alcohol levels." (Appellee's brief at 13). Penn National argues that it was relevant "for the jury to know that the law deems a driver to be intoxicated at 0.08 and, if Mr. Hesselbein was .16 as so stipulated, then Mr. Maurer perhaps should have had an easy appreciation of that intoxication." (Id. at 14). In addition, Penn National asserts that, even if the instruction was erroneous, it was not prejudicial because there was other evidence of Hesselbein's intoxication. In light of the other evidence of Hesselbein's intoxication, Penn National maintains that the jury could still conclude that Maurer understood that Hesselbein should not drive.
Penn National also argues that the instruction regarding the misrepresentation of one's age to purchase alcohol was relevant to the...
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