Reference to Defendant’s Need to Pay is not Inappropriate Mention of Insurance

Barry Zalma
Oct 17, 2023

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When I was a young adjuster 55 years ago California and every state allowed a plaintiff’s contributory negligence – no matter how small – to defeat a negligence claims. In 1975 Li v. Yellow Cab Co., 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, 78 A.L.R.3d 393 (Cal. 1975) established the system of contributory negligence that has been followed in most states. Maryland, however, still applied contributory negligence and has refused to adopt comparative negligence.

In Michael Lewis v. Pedro Romero, No. 1932-2022, Court of Special Appeals of Maryland (October 10, 2023) Mr. Lewis lost his negligence action against Mr. Romero whose vehicle struck pedestrian Mr. Lewis in a bank parking lot.

Michael Lewis (“Lewis”) sued Pedro Romero (“Romero”) for negligence. Ultimately, the jury found that while Romero was negligent, Lewis was contributorily negligent, barring Lewis from recovering damages.
FACTUAL BACKGROUND

The incident occurred on October 9, 2019, outside of the Capital One Bank (the “bank”) in Frederick, Maryland. The bank has two points of access for vehicles. There is a one-way, single lane road spanning the perimeter of the bank with painted one-way arrows. This road does not have any crosswalks. Both parties agreed that on the date of the incident, Romero was driving a pickup truck on the one-way road around the perimeter of the bank when he struck Lewis, a pedestrian, who was exiting the bank.

Lewis testified that he walked on foot from a nearby hotel where he was staying to the bank in order to withdraw money. Lewis admitted that at the time of the impact, his cell phone was in his hand. However, Lewis denied that he was talking on the phone at the time he was struck by Romero’s vehicle.
ANALYSIS

On the issue of contributory negligence when measuring contributory negligence, the standard of care is the conduct of an ordinarily prudent person under circumstances ordinarily. The court found that Romero met their burden of production regarding contributory negligence and that is that Romero has introduced more than a mere scintilla of evidence meaning more than a surmised possibility or conjecture that Lewis has been guilty of negligence and that Romero generated a jury issue.

During closing argument, after discussing Lewis’ alleged damages, Romero’s counsel stated, “[Lewis] is asking you to award him [money] for the choices he has made. He wants Mr. Romero to pay him for some of these choices.” The court denied Lewis’ motion for mistrial. The jury returned a verdict, finding that while Romero was negligent, Lewis was contributorily negligent, barring Lewis from any recovery.

DISCUSSION

Maryland follows the majority rule that evidence of insurance on the part of a defendant is generally inadmissible. The Supreme Court of Maryland has also held that a mere inference that there may be insurance would not necessarily require a termination of the trial.

Romero’s counsel made an ambiguous comment during closing argument that Lewis wanted “Romero to pay him for some of [his] choices.” There is nothing in the record to suggest that the comment surpassed the threshold of being an improper statement that warranted further consideration.

WHAT IS CONTRIBUTORY NEGLIGENCE?

Contributory negligence occurs whenever the injured person acts or fails to act in a manner consistent with the knowledge or appreciation, actual or implied, of the danger or injury that his or her conduct involves. Contributory negligence is defined as the doing of something that a person of ordinary prudence would not do, or the failure to do something that a person of ordinary prudence would do, under the circumstances.

The question of whether the plaintiff has been contributorily negligent is ordinarily for the jury to decide. To find contributory negligence as a matter of law, the injured party’s action must be distinctive, prominent, and decisive from which reasonable minds would not differ as to the negligent character.

The case was properly submitted to the jury because, even when viewing the facts in the light most favorable to Lewis, the evidence establishing his contributory negligence amounted to more than surmise, possibility, or conjecture. Lewis’ decision to leave the sidewalk and walk mid-way into the road while only glancing for oncoming traffic constituted a distinctive, prominent, and decisive decision from which the jury could find that Lewis was contributorily negligent. Notably, Lewis’ testimony that he was “hit from behind” on a one-way road indicates that he was facing away from oncoming traffic and not looking for vehicles coming in his direction. Upon these facts, the appellate court concluded that the trial court properly submitted the question of contributory negligence to the jury.

ZALMA OPINION

The application of Contributory Negligence as an absolute defense to a negligence cause of action is considered, in most states, to be Draconian and that comparative negligence is fair and reasonable. Maryland is in the minority. That Maryland continues to apply the common law is appropriate and since the jury found both parties to be negligent Mr. Lewis recovered nothing from his suit.

(c) 2023 Barry Zalma & ClaimSchool, Inc.

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