The burden is on the plaintiff in Maryland in an uninsured or underinsured motorist claim to prove that the negligent car, truck or motorcycle was uninsured or underinsured. The attorney’s inability to establish lack of insurance is fatal to an uninsured motorist claim. Some jurisdictions, such as Texas, realize how difficult it is to prove that an automobile is not insured and shifts the burden of proof to the insurance company. See Tex. Ins. Code. Ann. art. 5.06–1(7). It is sometimes very hard, as they say, to prove a negative.
While not as accident victim friendly as Texas, there is a bill pending in the Maryland General Assembly that would make the difficult job of proving a negative a great deal easier. House Bill 1162 would enable plaintiffs bringing uninsured motorist claims to prove that the negligent driver was uninsured by one of two methods:
- Submission of a certified copy of the Maryland Motor Vehicle Administration (MVA) record (or similar record from another state) indicating the absence of insurance coverage on the date of the auto accident, or;
- a document submitted by “the insurer that has been identified as the insurer of the motor vehicle” by the MVA or similar agency of another state; signed by the owner or driver of the car; and a police report from the accident investigator.
If the attorney could make such a showing under this bill, the burden of proof would shift to the insurance company to prove by a preponderance of the evidence that either the car or the driver had insurance coverage.
The bill passed unanimously passed the Maryland House of Delegates (134-0) and also passed the Maryland State Senate but the bill was vetoed by Governor Robert Ehrlich. Supporters are trying to get the votes necessary to override the veto, a task they were unable to accomplish last year. Why Governor Ehrlich opposes the bill is anyone guess. The Maryland Automobile Insurance Fund opposes the bill, almost certainly at the Governor’s express or implied request, but the rest of the insurance industry apparently understands the logic of the bill and has not opposed it. But Governor Ehrlich appears willing to stand on a virtual island on this issue.
Maryland House Bill 1162, sponsored by former Delegate Darryl Kelley (now a full-time practicing lawyer in Prince George’s County), was passed a few days after this post was written by the Maryland General Assembly over Governor Ehrich’s veto. This new bill really was useful in assisting plaintiffs in Maryland dealing with uninsured motorist claims.
Could Maryland law be made even better? Certainly. The Texas law cited above really makes the most sense. This is what they are doing in two other states that I think Maryland should model if they don’t adopt the Texas version
- Arkansas: the jury can presume that both the motorist and the vehicle are not insured if the at-fault driver failed to provide within 90 days after the collision a certificate that shows the vehicle was insured
- Colorado: the allegedly at-fault driver is deemed uninsured if
- if the alleged tortfeasor cannot be located for service of process after reasonable attempts to serve the tortfeasor, service of process on the tortfeasor’s insurer is determined by a court to be insufficient or ineffective after reasonable attempts at service of process have failed, or
- (2) the law enforcement agency investigating the accident fails to disclose the insurer covering the tortfeasor’s vehicle and the alleged torteasor’s coverage is not actually known by the person attempting to serve process
Why make it easier on plaintiffs’ lawyers to make their case? Ultimately, who is in the best position to prove whether a driver is uninsured. They have access to all kind of information and, more importantly, they can get the cooperation of other insurance companies.