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To Participate Or Not To Participate? That Is Now An Easier Question For Insurers To Answer In Maryland: The Recent Keller Opinion Protects Insurers Who Want To Participate At Trial, But Remain In The Background

When an injured party has insurance coverage, it’s a tricky thing figuring out what a jury should know about that insurance during trial. It can be even trickier when the insurer is an actual party, standing there fully represented in the courtroom. At least in Maryland, however, where insurance isn’t an issue in the case, the jury doesn’t have to know why the insurer’s involved.

In the recent case of Keller v. Serio & GEICO Ins. Co., Court of Appeals of Maryland, Case No. 48, September Term 2013, the plaintiff, Ms. Keller, got into a fender-bender and then went home. After talking to her attorney, Ms. Keller decided to check herself into the hospital. Five years, and more than $27,000 in medical bills later, she sued the other driver, Mr. Serio, in the Circuit Court for Baltimore County and notified her insurer, GEICO of a claim for underinsured-motorist coverage (“UM” in common insurance parlance) under that policy. GEICO then intervened in the lawsuit on the chance that an award might trigger the UM coverage.

During opening statements, Ms. Keller’s attorney identified GEICO as her insurer and the provider of her UM coverage. The rest of the trial dealt solely with Ms. Keller’s injuries and whether the accident caused them; GEICO didn’t come up again. At the close of evidence, Ms. Keller asked for a jury instruction explaining UM coverage, but the Court didn’t go for it, ruling that the instruction wasn’t warranted because insurance hadn’t been an issue in the case.

The jury awarded Ms. Keller compensation for her medical bills but not for pain and suffering. Ms. Keller asked for a new trial, arguing that the refusal to explain UM coverage when GEICO was present in the case had confused the jury. The Court denied the request, and the Court of Special Appeals’ review found no error. Maryland’s highest appellate court picked up the case to decide whether a trial court is required to explain the reason for the insurer’s presence at trial to the jury, in cases where an insurer is a party but the insurance isn’t directly at issue.

Ms. Keller first argued that the existence of UM insurance was part of her “theory of the case” and she was therefore entitled to an instruction on it. In making this argument, Ms. Keller relied solely on opinions issued in insurance coverage cases, not personal injury matters. The Court of Appeals easily distinguished the line of authority from coverage disputes from Ms. Keller’s personal injury case, where the insurer was merely present as a nonparticipating party. The Court ultimately held that the UM coverage couldn’t have been part of Ms. Keller’s “theory of the case,” because – other than mentioning it during opening statements, which isn’t evidence – she didn’t seek to establish any facts whatsoever about that coverage during the trial. An instruction about the coverage, the Court reasoned, would have improperly gone beyond the evidence presented.

Ms. Keller also hypothesized that the refusal to instruct the jury on GEICO’s presence was confusing to the jury and invited it to speculate as to the insurer’s involvement, perhaps creating the false impression that Ms. Keller was trying to double-recover, that Mr. Serio would have to pay out of pocket for any amount above his insurance, or that Ms. Keller would be able recover any amount above her actual medical expenses in a separate action against GEICO. The Appellee/Defendants argued in response that it was Ms. Keller that was actually responsible for any confusion because it was Ms. Keller’s counsel who mentioned GEICO in her opening statements in the first place. Because she didn’t have to mention GEICO at all, they contended, doing so shouldn’t trigger some judicial duty to give certain jury instructions about insurance.

The Court didn’t find any evidence of jury confusion and noted that, if she had wanted to, Ms. Keller could have used her opening statement to better explain GEICO’s role in the case. Even if an instruction had been given, the Court wrote, the jury wouldn’t know what to make of the information unless it also knew the limits of the policies involved. In sum, given that Ms. Keller brought the UM issue up, it wasn’t the trial court’s job to fix any confusion she might have caused.

Keller suggests that insurers in Maryland can intervene in a case without fear that, merely by doing that, they’ve forced the trial court to identify them to the jury and fully explain the coverage circumstances –actions that could raise other thorny questions about what the jury might do with that understanding. Rather, if the insurance isn’t an issue in the case, an insurance company can enter and quietly wait it out to see whether its interests are implicated. For any questions related to Keller or any other issues regarding an insurer’s role at trial, contact Bill Sinclair, head of STSW’s commercial litigation group, at 410-385-9116 or, or associate Chris Mincher at or 443-909-7505.

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