Alexander & Alexander, Inc. v. B. Dixon Evander & Associates, Inc.

WILNER, Chief Judge. B. Dixon Evander, through a corporation containing his name, operates a general insurance agency in Baltimore. ⁶⁷⁷ For many years he was the procurer of medical malpractice insurance for the University of Maryland hospital and most of its medical staff. In 1985, the hospital entered into other arrangements to satisfy its insurance needs, thereby terminating its relationship with Evander. That decision by the hospital and the circumstances surrounding it led Evander to file suit in the Circuit Court for Baltimore City against (1) the hospital, 1 (2) Alexander & Alexander, Inc. (A & A), the insurance broker who replaced Evander, (3) Mary Scheeler, an A & A vice-president, (4) Mutual Fire, Marine & Inland Insurance Company (Mutual Fire), the insurance company that had been procured by Evander, and (5) Shand, Morahan and Company (Shand), the underwriting agent for Mutual Fire.

Evander’s action against the hospital and certain of his claims against the other defendants were dismissed during the course of the litigation. Three claims set forth in Evander’s third amended complaint were submitted to the jury: Count II, charging that A & A and Scheeler tortiously interfered with a contract between Evander, Shand, and Mutual Fire; Count VIII, charging Shand and Mutual Fire with breach of contract; and Count XIV, charging A & A, Scheeler, Mutual Fire, and Shand with civil conspiracy. The jury returned verdicts in favor of Evander as follows: against all defendants, $250,052 in compensatory damages; against Shand, $70,104 in punitive damages; and against A & A, $40 million in punitive damages. In post-trial proceedings, the court, by remittitur, reduced the $40 million punitive damage award to $12.5 million, added an agreed amount to the compensatory award, but ⁶⁷⁸ otherwise refused to interfere with the verdicts.

These appeals ensued in which the defendants present a number of issues and sub-issues directed at each of the claims presented to the jury, at the punitive damage awards, and at the manner in which the case was tried. Evander has dismissed his claim for punitive damages against Shand, and so that is no longer an issue. I. THE RELEVANT FACTS This case took three weeks to try. Much was in dispute.

The evidence, viewed in a light most favorable to Evander, the prevailing party, showed the following. Evander had obtained medical malpractice insurance for the hospital since 1962. In 1975, the insurer for the hospital and indeed for most of the medical community in Maryland, St. Paul Fire & Marine Insurance Company, decided to withdraw from the medical malpractice market in this State and not renew any of its existing policies. See St. Paul Fire & Mar. v. Ins.

Comm’r, 275 Md. 130 , 339 A.2d 291 (1975). In an effort to find replacement insurance, Evander did a great deal of research, telephoning, and travel, including at least one trip to London. He finally was able to negotiate a policy with Mutual Fire, through its underwriting agent, Shand. At that time and at all times relevant to this case, Shand was a subsidiary of A & A, subject to corporate control by it.

The Mutual Fire policy was written on a “claims made” basis, i.e., it covered only claims made while the policy was in force. The insured would therefore be at risk with respect to a claim made after the policy expired, even if the claim was based on conduct occurring during the period the policy was in force. See St. Paul Ins. Co. v. House, 73 Md.App. 118 , 533 A.2d 301 (1987) aff'd, 315 Md. 328 , 554 A.2d 404 (1989).

In order to protect the hospital against that exposure, Evander negotiated the inclusion in the policy of an Optional Extension Provision (OEP) extending the claims reporting period beyond the expiration of the policy. ⁶⁷⁹ The original policy had a three-tiered OEP: the claims period was automatically extended one year; the hospital had an option, for an additional premium, to extend it for two more years; and for a further premium, it had the option to extend the claims reporting period indefinitely. This three-tiered system, according to Evander, was not a satisfactory arrangement for the hospital, but it was the best he could obtain at the time. Over the succeeding years, however, he pursued negotiations with Shand and, in 1981, was successful in obtaining a better deal. Beginning with the 1981 policy and in the all the renewals thereafter, the OEP (Endorsements 7 and 9) allowed the hospital to extend the claim reporting period indefinitely by paying a one-time premium, upon exercise of the option, equal to 155% of the annual premium for the final year of the policy.

The option had to be exercised and the premium had to be paid within 30 days after cancellation or termination of the policy. Contemporaneously with his obtention of the initial Mutual Fire policy, Evander entered into a producer’s agreement with Shand that lies at the heart of this litigation. The agreement, signed in March, 1975, called for Mutual Fire, through Shand, to issue malpractice insurance to Maryland physicians through Evander and to pay Evander commissions of 12.5%, later amended to 8%. It set forth an exclusive arrangement for both Shand and Evander.

Paragraph IX obligated Evander to submit all proposals for professional liability insurance for physicians practicing in Maryland exclusively to Shand and, unless the proposal was rejected by Shand, to no one else. In return, Shand agreed “not to-accept proposals for professional liability insurance for physicians and surgeons practicing in the state of Maryland from insurance agents or brokers other than [Evander].” The agreement could be terminated by either party upon 90 days written notice but was to remain in effect until so terminated. It was never terminated by written notice. ⁶⁸⁰ In 1984, the hospital, which had recently become corporately independent from the University of Maryland, undertook a review of its insurance program and needs. To that end, through a committee created for the purpose, the hospital sent requests for proposals to a number of brokers.

The parties appear to agree (although the record extract references cited by them do not support the proposition) that the request required the brokers to bid on a flat fee-for-service basis, rather than on a commission basis. The request also demanded consideration of self-insurance by the hospital. Six brokers, including Evander and A & A, responded. After reviewing the proposals, the hospital selected A & A as its exclusive broker, confirmation of which came in the form of two letters.

The first, dated January 31, 1985, announced “To Whom It May Concern” that, as of that date, A & A had been appointed exclusive broker of record “in all matters relating to property/casualty insurance, including medical malpractice.” Its representatives were authorized to negotiate with any insurance company respecting changes in existing policies, including “all policies presently placed with [Mutual Fire] through [Shand].” This letter was intended to allow A & A to gather information and commence negotiations, but not to actually replace any existing policies; it did not provide for any payment to A & A. The second letter, which was signed a few days later, confirmed A & A’s appointment as broker of record but stated that the term of the appointment was to be for one year, commencing July 1, 1985. This letter set forth a broad range of duties for A & A, including the. actual procurement of insurance. For these various services, A & A was to be paid a fee of $250,000. Paragraph 6 of the letter, added at the hospital’s insistence, provided that: “The fees are intended to replace the commissions associated with procuring insurance.

Therefore, all insurance quotations should be obtained net of commission fees. If this ⁶⁸¹ is not possible a credit mil be granted in an amount equal to the commission.” (Emphasis added.) By virtue of this second letter, Evander would cease to have any relationship with the hospital as of July 1, 1985. Evander now accepts that decision and makes no complaint either as to the hospital’s right to make it or to the process used by the hospital in arriving at it. The decision by the hospital to place its insurance through A & A created a problem with respect to the policies issued by Mutual Fire, for, as noted, Shand had an exclusive arrangement with Evander and had agreed not to accept Maryland business through anyone else.

At the time, renewal of the Mutual Fire policies was still a viable option under consideration by the hospital, and neither Shand nor Mutual Fire desired to lose the business. Nonetheless, although still a subsidiary of A & A, Shand, through Robert Liston, a vice-president responsible for the hospital’s account, informed A & A and the hospital that it intended to honor its exclusive agreement with Evander and that it would not accept the hospital’s business through any other broker. The manner in which this dilemma was resolved was in some dispute. Evander produced evidence that, at a meeting then in progress in Scottsdale, Arizona, the top management of A & A, including its president, Michael White, prevailed upon the top management of Shand to reverse its decision, to remove Liston from further participation, and to accept hospital policies through A & A unless Evander was successful in getting the hospital to withdraw its appointment of A & A within 10 days.

This directive was communicated to both the hospital and Evander. Evander did indeed attempt to persuade the hospital to reconsider its decision, but to no avail. In that manner, according to Evander, A & A gained access to Mutual Fire, through Shand, notwithstanding the 1975 producer’s agreement still in effect between Shand and Evander. ⁶⁸² A & A’s appointment did not serve to displace Evander entirely while the existing Mutual Fire policies were in effect, i.e., until July 1, 1985. During the interim, Evander continued to service the policies, handling the billing and adding and deleting persons as they joined or left hospital employ, and A & A began to plan for the period after July 1.

A & A and the hospital eventually decided, for reasons not relevant here, not to renew the Mutual Fire policies but to self-insure the basic coverage. That decision, as a practical matter, required the hospital to exercise the OEP provided for in the existing policies. Evander promptly asserted his right to a commission on the premium for that extended coverage, and, when Shand was notified of the hospital’s decision not to renew the policies, it informed A & A and the hospital that Evander was entitled to that commission. An 8% commission on the OEP premium amounted to over $250,000, and A & A perceived that if Evander was entitled to that commission, its fee under the second letter of appointment would be in jeopardy — that is, if the option was exercised on or after July 1, the hospital, under ¶ 6 of that letter, would likely insist on setting off any commission paid to Evander against A & A’s fee.

Evidence was produced that A & A, largely through Ms. Scheeler, a vice-president with responsibility for the account, then determined to remove Evander entirely from the scene and see to it that no commission was paid to him. Some of this evidence showed an actual and personal animus on her part: she was quoted as having said that “she hates [Evander’s] ass and she’s going to get [Evander],” and that she intended to put Evander out of business; she spread word that Evander had not done a good job for the hospital and that his accounts should be audited; she falsely accused Evander of improperly collecting from the hospital a State tax on the Mutual Fire premiums when in fact no such tax was ever collected. It appears, from Evander’s evidence, that A & A devised several schemes for circumventing his claim to a commis ⁶⁸³ sion on the OEP. As it perceived his claim to be based on the notion that he was the broker of record until July 1 and was currently servicing the policy, A & A decided (1) to cancel the Mutual Fire policies and thus end Evander’s relationship with all of the parties on June 1, and (2) to begin servicing the policy itself in the meanwhile.

Second, and more significant, it proposed, and forced Shand over its initial objection to accept, a purchase of the OEP through A & A, notwithstanding the exclusivity provision in the producer’s agreement, and also to accept a net billing of the OEP premium, i.e., the 155% of the 1984-85 premium less the 8% that would have been Evander’s commission. 2 On July 16, 1985, A & A billed the hospital for the net premium; the hospital paid that net amount, which A & A then remitted to Shand. This was defended on the ground that A & A had purchased the extended coverage for the hospital as part of its flat fee, and that no commission was due to anyone. 3 There was evidence that, in pursuing this course of conduct, A & A was warned that a net billing arrangement under these circumstances might be regarded as a violation of the Maryland anti-rebating statute, Md.Ann. Code art. 48A, § 226, and that it proceeded nonetheless. ⁶⁸⁴ When, as a result of these transactions, Evander found himself without a commission, he filed this lawsuit. In Count VIII, he sought from Shand and Mutual Fire the commission allegedly due on the OEP pursuant to the 1975 producer’s agreement; in Count II, he pursued damages against A & A and Scheeler for tortiously interfering with that agreement and thereby depriving him of the commission; and in Count XIV, he charged the defendants with conspiring to interfere with the contracts and business relationships that he had with the hospital and with Shand and Mutual Fire.

II

BREACH OF CONTRACT — COUNT VIII Evander’s action for breach of contract was straightforward. He claimed that the 1975 producer’s agreement entitled him to an 8% commission on all premiums collected on policies produced by him, that the OEP was a coverage produced by him, and that he was therefore entitled to a commission on that premium. Apart from the contract itself, he produced an expert witness, Edward Siver, who opined that the custom in the insurance industry is that the producer of the policy is the one who is entitled to a commission on an OEP exercised upon termination of the policy and that Evander was the producer of the policy at issue. Shand/Mutual Fire raise three defenses to this claim.

First, they contend that it is barred by limitations; second, they assert that, because Shand was obliged by law to recognize A & A as the hospital’s exclusive broker, it owed no commission to Evander and that if anyone did it would be the hospital; and third, they complain that Mr. Siver should not have been allowed to testify as an expert. A & A and Scheeler, who are not directly involved with Count VIII but who assert that Evander had no contractual right to a commission on the OEP as part of their defense of Counts II and XIV, add two other arguments — (1) that the 1975 producer’s agreement does not entitle Evander to a commission on the OEP, and (2) even if it did, that agree ⁶⁸⁵ ment was replaced by a 1982 modification and the 1985 agreement with A & A and for those reasons cannot serve as the basis for a commission. Some of these defenses overlap, of course, and those we shall consider together. We are not persuaded by any of them.

A. The 1975 Contract The March, 1975 agreement is in the form of a letter from Shand to Evander which Evander countersigned. The purpose of the letter, as set forth in its first paragraph, is to “state the terms and conditions under which you [Evander] will produce Medical Malpractice Insurance business for which policies will be issued by [Shand] as underwriting agents for [Mutual Fire].” Although not expressly articulated in the agreement, it was clearly implicit that Evander would collect the gross premiums due from the hospital rather than having the hospital pay the premiums directly to Shand or Mutual Fire. That, indeed, is the way the parties proceeded. Paragraph XIII required Shand to render a monthly accounting to Evander summarizing the policies in effect during the preceding month and then obligated Evander to “render payment net of commissions for such policies____” The commission rate, as we said, was originally stated to be 12.5% but, in 1981, was renegotiated to 8%.

The A & A/Scheeler argument is that, because this agreement does not specifically address the OEP, it does not allow a commission on that coverage. They tell us in their brief that, in order for this contract to support Evander’s claim “it would have to contain language saying, in substance, that if the insured changed brokers during the policy period, and thereafter exercised the right to purchase the [OEP], only the broker who placed the original coverage would be paid the commission on the purchase of the [OEP].” We reject that approach. The producer’s agreement and the Mutual Fire policy were constituent parts of an overall business arrangement between Evander, on the one hand, ⁶⁸⁶ and Shand and Mutual Fire, on the other. The agreement, fairly read, contemplated that Evander would be an exclusive producer of Maryland malpractice policies for Shand and Mutual Fire and that, at least with respect to the hospital account, he would receive the agreed-upon commissions on all premiums emanating from those policies.

The OEP was part of the policy produced by Evander. It was, indeed, a critical and integral part of that policy. From the beginning, all parties seem to have recognized the likelihood that the OEP would have to be purchased if the Mutual Fire policies were ever cancelled or non-renewed, and that is why Evander worked so hard to have that provision, in its most liberal form, included in the policy. To suggest that the OEP was a mere appendage for which Evander, as the producer of the policy, was to receive no consideration is to ignore both reality and the evidence.

Quite apart from the corroborating testimony of Mr. Siver, the evidence sufficed to show that, under the contract as written, the parties intended that a commission would be due to Evander on the OEP if the option was exercised in accordance with the policy. 4 B. Continuing Effect of 1975 Agreement The contention that this intended arrangement was superseded either by a 1981 agreement or by the 1985 broker’s agreement with A & A is specious. Although Shand did indeed propose a modification to the 1975 agreement in 1981 that would have superseded that agreement and eliminated the exclusivity provisions, the evidence shows that the 1981 proposal was never put into effect by the parties. Evander signed the draft proposal prepared by Shand subject to a modification which Shand found unacceptable, and the par ⁶⁸⁷ ties continued to do business pursuant to the 1975 agreement. Evander’s right to a commission on the OEP, as we have indicated, arose from an admixture of the 1975 producer’s agreement with Shand and the 1975 policy procured by him from Shand/Mutual Fire, as renewed through June, 1985.

Neither the appointment of A & A as the hospital’s exclusive broker nor the exercise of the OEP after July 1, 1985 can affect that right. The hospital certainly had the right to change brokers; that is not in question. But the appointment of a new broker and the authority given to it to replace existing coverage cannot defeat a contractual right arising from a policy and a producer’s agreement already in existence. This, indeed, is the central point either overlooked or ignored by all of the appellants.

The OEP was not a new coverage obtained by A & A; it was a coverage obtained, with some considerable effort, by Evander, intended to protect the insureds against liability for conduct occurring before July 1, 1985. Nor can the scheme devised by A & A/Scheeler and acquiesced in by the hospital, Shand, and Mutual Fire of terminating the Mutual Fire policy prior to July 1 and exercising the OEP after that date negate Evander’s contractual right to a commission on that extended coverage. Although, in the absence of any supervening law or third-party rights, the parties to an insurance policy may ordinarily terminate the policy whenever they choose, such termination does not necessarily deprive an agent of his right to commissions earned under the policy. As stated in 4 Couch, Cyclopedia of Insurance Law, 2d ed., § 26A:224: “In the absence of a provision in the agency contract to the contrary, the insurer and the insured cannot deprive the insurer’s agent of his right to the full commission earned by him in writing the policy through their rescission of the contract, unless such rescission is for some legally sufficient cause from which an agreement to repay the commission would be implied by law.” ⁶⁸⁸ See also 16B Appleman, Insurance Law and Practice, § 9001.

This is especially the case here, where Evander not only had an exclusive arrangement with Shand but there was evidence showing that the device of early termination was for the principal, if not the sole, purpose of attempting to defeat Evander’s claim. 5 This is not a question, then, as appellants would have us believe, of whether the hospital had a right to change brokers, or even whether Shand was obliged to recognize that change; it is simply a question of whether Evander was entitled to a commission on the OEP because he had procured that coverage and because Shand had agreed to pay a commission on all premiums collected from the policy he procured. The answer is “yes.” C. Testimony of Siver The court found Mr. Siver to be qualified as an expert in insurance matters, and there was evidence to support that finding. He said that he was familiar with custom and usage in the industry. Despite constant interruptions and objections to nearly every question put to him, Siver was permitted to testify that the custom in the industry is that “the producing agent is the person or the firm entitled to ... any of the commission that’s earned and on the policy, yes, the tail” and that Evander was the producer of the policy containing the OEP.

Given both the other evidence in the case, including the insurance policy and the producer’s agreement itself, and the vigor with which Mr. Siver’s qualifications and testimony were attacked, whether this opinion actually contributed much to Evander’s case is questionable. In any event, the allowance of expert or opinion evidence is largely within the discretion of the trial court, and we find no abuse of that discretion in this case. The standard to be applied is ⁶⁸⁹ whether the opinion is likely to be of appreciable help to the trier of fact in deciding the issue before it. This was a complicated commercial dispute involving a huge medical complex, an insurance company, an underwriter, and two brokers, in which a great deal of conflicting evidence and argument was presented.

Notwithstanding the harsh and persistent attack upon Mr. Siver’s knowledge and qualifications, we cannot say, as a matter of law, that his opinion could not have been of appreciable help to the jury. D. Limitations We turn, then, to the final defense to Count VIII— Shand/Mutual Fire’s claim that it is time-barred. This is based on the notion that the breach of contract claim against Shand and Mutual Fire was first made in the third amended complaint, filed in February, 1990, more than three years after the alleged breach occurred. In pre-trial rulings, the court initially agreed that Count VIII was time-barred and granted summary judgment on that claim but, in response to Evander’s motion to reconsider, reinstated the count.

The reinstatement was apparently based on the contention that, although the breach of contract claim against Shand and Mutual Fire was first made in the third amended complaint, the facts on which the claim was based were asserted in the second amended complaint, which was filed within the limitations period, and that Evander was therefore entitled to a “relation back” to the date the second amended complaint was filed. The law in this regard was well stated in Crowe v. Houseworth, 272 Md. 481, 485-86 , 325 A.2d 592 (1974): “A frequently encountered problem, which is the result of the more liberal use of amendments, is whether a new action has commenced, an action which may be barred by limitations, or whether the doctrine of relation back is applicable: that is, whether the assertion of the original complaint tolled the running of the statute. The modern view seems to be that so long as the operative factual situation remains essentially the same, no new cause of ⁶⁹⁰ action is stated by a [complaint] framed on a new theory or invoking different legal principles. As a consequence, the doctrine of relation back is applied, and the intervention of a plea of limitations prevented.” As is the case with so many legal tests or standards, this one is easier to state than to apply.

What is the “operative factual situation?” In Kirgan v. Parks, 60 Md.App. 1 , 478 A.2d 713 (1984), we drew from Cline v. Fountain, Etc., Company, 214 Md. 251, 261 , 134 A.2d 304 (1957), the notion that “if evidence which would support the amended [complaint] would support the original, that is, if judgment for the plaintiff on the amended [complaint] would bar suit on the original, the amendment does not set forth a new cause of action and, therefore, is not barred by limitations.” See also Priddy v. Jones, 81 Md.App. 164 , 567 A.2d 154 (1989), but compare Morrell v. Williams, 279 Md. 497 , 366 A.2d 1040 (1976). The second amended complaint was filed in February, 1988, clearly within three years after the foundational events of June and July, 1985. Unlike the gravamen of the third amended complaint, which centers on the producer's agreement with Shand, the thrust of the second amended complaint was that the denial of commissions to Evander on the OEP constituted a breach of contract between Evander and the hospital, and the hospital was sued for breach of that contract. The counts against Shand, A & A, and Mutual Fire rested on the charge that their conduct constituted an improper interference with the relationship Evander had with the hospital; they were sued for malicious interference with the alleged contract itself and with the overall business relationship between Evander and the hospital.

In pleading those actions, however, Evander did allege that he also had a contract with Shand that was violated. In If 24, he averred that under contractual agreements with Shand, Mutual Fire, and the hospital, he was entitled to commissions on all premiums collected from the hospital under the Mutual Fire policies, including premiums paid to ⁶⁹¹ effectuate the OEP coverage; in ¶¶ 26 and 34, he alleged that he performed his obligations under those agreements; and in ¶ 75, he claimed that, as a result of intentional interference by Shand and Mutual Fire, he did not receive the commission on the OEP that he had earned and that was legally due him. To the extent that the “operative factual situation” refers to the basic relationships among the parties and the conduct of the defendants, there is a sufficient similarity here to permit relation back. It is no doubt true, as Shand asserts, that some more particular facts had to be proved to sustain Count VIII that would not have had to be proved to sustain the counts pled in the second amended complaint, and thus the evidence presented to prove the one would not have been identical to that needed to prove the other.

But identity, either in facts or in evidence, is not required. Different legal theories often require some different facts to be proved. The important operative facts for purposes of Count VIII were that Evander had a contractual right to the commission from Shand and that Shand refused to pay the commission without just cause. Those facts were also alleged in the second amended complaint, albeit in a somewhat scattered fashion.

For these reasons, we find no fault with the award of compensatory damages on Count VIII.

III

INTERFERENCE WITH CONTRACT — COUNT II In Count II, Evander charged A & A and Scheeler with maliciously interfering with Evander’s contractual right under the producer’s agreement with Shand to a commission on the OEP. Those defendants effected that interference, he contended, by inducing the hospital to pay, through A & A, a net premium exclusive of the 8% commission and by A & A, as the parent corporation, causing Shand to accept that premium from A & A and then decline to pay a commission to Evander. This scheme, he alleged, constituted a violation of the Maryland anti-rebating statute, Md. Ann.Code art. 48A, § 226. The court instructed the jury on ⁶⁹² the several elements of the tort and read to them the anti-rebating statute, whereupon the jury, in special verdicts, found that A & A and Scheeler had maliciously interfered with that contract and, as a result of that interference, Evander was deprived of the commission.

In this appeal, A & A/Scheeler make two complaints with respect to Count II — first, that Evander failed to prove a contract entitling him to the commission, and second, that if there was such a contract, A & A and Scheeler were privileged to interfere with it and the court should have instructed the jury on privilege. We have already rejected the first of these complaints, and we now declare no merit in the other. The privilege defense is based on the hypothesis that Evander lost his right to the commission because he was replaced as the hospital’s broker and that A & A was privileged to compete for that position and to try to persuade the hospital to choose it over Evander. It is true, of course, that “lawful competition must be sustained and encouraged by the law,” Knickerbocker Co. v. Gardiner Co., 107 Md. 556, 566 , 69 A. 405 (1908), and that A & A was therefore privileged to take all lawful steps in an effort to supplant Evander as the hospital’s exclusive broker.

But that is not the nature of Evander’s complaint; nor was it the basis of the jury’s verdict. The jury found from the evidence, not improperly in our view, that Evander’s right to a commission on the OEP arose from existing contracts— the 1975 policies, as annually renewed through June, 1985, and the producer’s agreement with Shand. Evander’s replacement by A & A as the exclusive broker — the object of the competition — did not and could not, of itself, serve to deprive Evander of his right to that commission. It might abrogate his right to any commission emanating from any new or renewed policy acquired after the termination of his agency status (cf. C & P Telephone Co. v. Murray, 198 Md. 526 , 84 A.2d 870 (1951)), but it could not affect a right that he already had. ⁶⁹³ The complaint made in Count II was that A & A and Scheeler deliberately and maliciously interfered with that existing contractual right by (1) causing the hospital to remit, through A & A, a net premium and (2) exercising A & A’s corporate control over Shand to cause it to accept that net premium and then decline to pay Evander the commission.

In presenting their privilege defense, A & A/Scheeler do not deny that they did these things; they simply say they were entitled to do them. They were not so entitled. The law in this regard was succinctly restated in Sharrow v. State Farm Mutual, 306 Md. 754, 765 , 511 A.2d 492 (1986): “It is thus clear from our cases that even though a third party may for his own benefit intentionally induce one party to terminate a contract with another, this alone will not render him liable in an action for tortious interference if he had a right to cause the breach since, in such circumstances, the conduct would not be wrongful or improper, [citations omitted] But if the party causing the breach acts solely to benefit himself, or to cause injury to another, without a right to so act, such conduct is improper and may subject the party to liability for the injury suffered.” As we indicated earlier in this Opinion, there was evidence showing that A & A perceived a self-interest in depriving Evander of the OEP commission — a concern that the hospital would set that commission off against A & A’s flat fee compensation. This was not, then, a matter of competing for business, but rather a question of maximizing its own gain.

There was also evidence that, when Evander learned of what was afoot and began to protest and insist on his right to the commission, Scheeler and A & A began to act not just in self-interest but also out of animus, in an effort to hurt Evander. A finding as to either motive would justify a verdict for compensatory damages under Count II. ⁶⁹⁴ IV. CIVIL CONSPIRACY — COUNT XIV A. Nature of the Claim Count XIV charged the defendants with having conspired with one another and with the hospital “to interfere with contracts between Evander and Shand and Mutual Fire, to interfere with economic relations between Evander and the [hospital], to interfere with economic relations between Evander and Shand and Mutual Fire, to convert monies lawfully due to Evander, to commit fraud, non-disclosure and concealment of material and pertinent facts to the detriment of Evander on which Evander materially and substantially relied to his detriment.” This rather broad complaint was considerably narrowed during the trial; the special verdict sheet given to the jury simply asked whether A & A and Scheeler entered into a conspiracy with Shand and Mutual Fire “to deprive Evander of commissions due under his contract” and, if so, whether Evander lost the commission “as a direct and proximate result of the conspiracy.” The civil conspiracy rested essentially on the same evidence relied upon by Evander to prove his other charges, but, in an effort to show that the defendants used unlawful means to achieve their objective, he asserted that the scheme of billing the hospital for the OEP premium net of commissions and having Shand accept that net premium constituted, under the circumstances, a violation of the anti-rebating statute. To that end, evidence concerning the statute was admitted and the statute was read to the jury as part of the court’s instructions.

Focusing on that, the defendants argue that (1) the statute was not applicable because Mutual Fire was a surplus lines, non-admitted insurer, (2) even if it were applicable, it is enforceable only by the Insurance Commissioner and therefore cannot be the subject of a civil conspiracy or give rise to a private cause of action, and (3) even if applicable and enforceable in a civil action for damages, it was not violated. ⁶⁹⁵ In a footnote to their argument with respect to the anti-rebating statute, A & A/Scheeler throw in the additional assertion that no conspiracy is possible between A & A and Scheeler, its employee, or between A & A and Shand, its wholly owned subsidiary. The relegation of this argument to a footnote to a wholly different point accords the argument its proper value. Even assuming the validity of the two propositions, 6 the fact is that the conspiracy charged under Count XIV did not rest just on concerted action by A & A, Scheeler, and Shand. That count alleged that Mutual Fire and the hospital were also part of the conspiracy, and the evidence sufficed to show significant participation by ⁶⁹⁶ the hospital in the concerted effort to deprive Evander of his commission.

It is true, of course, that the hospital had been dismissed as a defendant in the action, but the law permits a plaintiff to recover against any one or more of the conspirators without naming them all as defendants. See Kimball v. Harman, 34 Md. 401, 409-10 (1871); Sayadoff v. Warda, 125 Cal.App.2d 626 , 271 P.2d 140 (1954); Rood v. Newman, 74 Ga.App. 686 , 41 S.E.2d 183 (1947); Brown v. Brown, 338 Mich. 492 , 61 N.W.2d 656 (1953), cert. denied, 348 U.S. 816 , 75 S.Ct. 27 , 99 L.Ed. 644 (1954); Driscoll v. Burlington-Bristol Bridge Co., 8 N.J. 433 , 86 A.2d 201 , cert. denied, 344 U.S. 838 , 73 S.Ct. 25 , 33, 97 L.Ed. 652 (1952); Burton v. Dixon, 259 N.C. 473 , 131 S.E.2d 27 (1963); C. Hayman Construction Co. v. American Indemnity Co., 473 S.W.2d 62 (Tex.Civ.App.1971); Lyle v. Haskins, 24 Wash.2d 883 , 168 P.2d 797 (1946); Nailor v. Western Mortgage Company, 54 Wash.2d 151 , 338 P.2d 737 (1959); Rose Hall, Ltd. v. Chase Manhattan Overseas Bank, 494 F.Supp. 1139 (D.Del.1980); 15A C.J.S. Conspiracy § 23, p. 668; 16 Am.Jur.2d Conspiracy § 66, p. 278. 7 We turn, then, to the question of the anti-rebating statute. ⁶⁹⁷ B. The Anti-Rebating Statute The anti-rebating statute is part of the subtitle of the Insurance Code defining and prohibiting unfair methods of competition and trade practices. Section 213 of art. 48A declares broadly that “[n]o person shall engage in this State in any trade practice which is defined in this subtitle as, or determined pursuant to this subtitle to be, an unfair method of competition or an unfair or deceptive act or practice in the business of insurance.” (Emphasis added.) Section 214 defines as an unfair method of competition and unfair and deceptive practice “[t]he commission of any one or more of the acts prohibited by §§ 217 to 234, inclusive.” Section 226, the one in point here, contains four provisions relevant to this case. Subsection (a) provides, in relevant part: “No insurer or any employee or representative thereof, and no agent or broker shall pay, allow, or give, directly or indirectly, as an inducement to insurance, or after insurance has been effected, any rebate, discount, abatement, credit or reduction of the premium named in the policy of insurance ... except to the extent provided for in an applicable filing with the Commissioner as provided by law.” (Emphasis added.) Subsection (b) prohibits an insured from knowingly accepting such a rebate, discount, abatement, credit, or reduction.

Subsection (c) prohibits insurers from making any unfair discrimination between insureds or property having like insuring or risk characteristics in the premiums or rates charged for insurance. Subsection (d) exempts from the section “the payment of commissions or other compensation to duly licensed agents or brokers” and the returning to participating policyholders of “lawful dividends, savings or unabsorbed premium deposits.” A proper reading of this statute in light of the evidence produced by Evander reveals the fallacies in the several arguments posited by the defendants. ⁶⁹⁸ C. Applicability of the Statute There can certainly be no doubt that the statute applies to A & A and Shand; indeed, they do not argue otherwise. Nor is Mutual Fire excluded because it is a surplus lines carrier. Such carriers are exempt from some regulation by the Insurance Commissioner, but they are not exempt from all regulation (see art. 48A, §§ 183-199), and we see no basis for concluding that they are exempt from § 226.

Subsection (a), as noted, states that “[n]o insurer” shall engage in the prohibited practices. The term “insurer” is defined in § 3 of the article as including “every person engaged as indemnitor, surety, or contractor in the business of entering into contracts of insurance.” (Emphasis added.) There is no exclusion in either the definition or the substantive provision for non-admitted companies; nor, given the purpose of the provision, should one be read into it. Ignoring that, Mutual Fire looks to the clause in subsection (a) allowing special benefits to be given “to the extent provided for in an applicable filing with the Commissioner,” and argues from it that, as the statute references a filing with the Commissioner, it must apply only to companies required to make such a filing. That, of course, is nonsense.

The proscribed act is prohibited unless it is permitted in a filing approved by the Commissioner; if there is no filing, it remains prohibited. All of the defendants are therefore subject to the statute. D. Relevance of the Statute We turn then to the argument that a civil conspiracy cannot rest upon a violation of § 226 because that statute is in the nature of a trade regulation, the enforcement of which is committed exclusively to the Insurance Commissioner, subject to limited judicial review. The underpinning of this argument is that (1) a civil conspiracy requires proof of some “illegal act,” which itself would be actionable; (2) the illegal act alleged by Evander was a violation of § 226, and (3) § 226 creates no private right of action and therefore cannot serve as the requisite illegal act. ⁶⁹⁹ The Court of Appeals defined the tort of civil conspiracy most clearly and succinctly in Green v. Wash.

Sub. San. Comm’n, 259 Md. 206, 221 , 269 A.2d 815 (1970) as “a combination of two or more persons by an agreement or understanding to accomplish an unlawful act or to use unlawful means to accomplish an act not in itself illegal, with the further requirement that the act or the means employed must result in damages to the plaintiff.” From this, we noted in Beye v. Bureau of National Affairs, 59 Md.App. 642, 658-59 , 477 A.2d 1197 (1984), that “[requisite to establishing a conspiracy, then, is a showing that the object of the agreement is either an unlawful act or a lawful act to be accomplished by unlawful means.” (Emphasis added.) The Maryland law is clear that the “unlawful” act or means required for a civil conspiracy need not be criminal in nature. Columbia R.E. Title Ins.

Co. v. Caruso, 39 Md. App. 282, 288 , 384 A.2d 468 (1978). Rather, as noted in Debnam v. Simonson, 124 Md. 354 , 92 A. 782 (1914), Knoche v. Standard Oil Co., 138 Md. 278 , 113 A. 754 (1921), and Goldman v. Building Assn., 150 Md. 677 , 133 A. 843 (1926), the act (or means) need only be “of such a character as to create an actionable wrong.” Knoche [138 Md.] at 282, 113 A. 754 . In Van Royen v. Lacey, 262 Md. 94 , 277 A.2d 13 (1971), the Court held that the fraudulent conveyance of a debtor’s property would suffice as an unlawful means of depriving a creditor of an ability to collect a judgment against the debtor and thus, had the creditor suffered any loss as a result of it, would support a civil conspiracy when the conveyance was part of a concerted effort by two or more people to achieve that result. There is no doubt that Evander pushed “to the hilt” his claim that the net billing scheme concocted by the defendants constituted a violation of § 226, and, for purposes of this appeal, we shall assume, without deciding, that § 226 was intended by the Legislature to constitute a governmental trade regulation enforceable principally by ⁷⁰⁰ the Insurance Commissioner, subject to limited judicial review, and not to create a private right of action. 8 It seems clear, however, from both the third amended complaint and the verdict sheet, that the statutory violation was neither asserted nor submitted to the jury as the basis of Evander’s cause of action.

It was not portrayed as the unlawful object of the conspiracy, which consisted instead of the tortious interference with Evander’s contractual right to a commission, but rather as part of the means used by the defendants to achieve that unlawful objective. In hindsight, it was not necessary for that purpose; if, as turned out to be the case, Evander was successful in proving that ⁷⁰¹ the defendants reached and implemented an agreement to deprive him of a commission and that such deprivation constituted a tortious interference with his contract, he would not need to prove as well that the means used to implement the agreement were themselves unlawful. The tortious interference would itself be an unlawful act. But that would not make evidence of a statutory violation irrelvant.

It could bear on the nature of the agreement, the intent of the parties, and, considering the fact that they were warned in advance that the ne premium scheme might constitute a violation of the statute coupled with the administrative and criminal sanctions imposable for such a violation, the extent to which they were willing to go to achieve their objective. Viewed in this light, it is not important whether § 226 creates or allows a private right of action for its violation. Evander was not seeking to recover simply for a violation of the statute. Although there is authority for the proposition that a civil conspiracy cannot rest solely upon the violation of a statute that creates no private right of action (see City and County of San Francisco v. United States, 443 F.Supp. 1116, 1129 (N.D.Cal.1977), aff'd, 615 F.2d 498 (1979)), no case has been cited to us, and we know of none, holding that a regulatory statute enforceable only by an administrative agency or by criminal prosecution cannot be considered in determining the existence or the nature of a civil conspiracy.

Because Evander was not using the statute as the basis of his claim, there is no problem here of a failure to exhaust administrative remedies available under the statute. Moreover, as the jury was not asked specifically to determine whether the statute had been violated and because a violation was not a requisite element of the claim, we do not see that its injection into the case created any danger of interference with the authority and discretion given to the Commissioner or the State’s Attorney. Compare Silkworth v. Ryder Truck Rental, 70 Md.App. 264 , 520 A.2d 1124 , cert. denied, 310 Md. 2 , 526 A.2d 954 (1987). ⁷⁰² E. Violation of the Statute We turn, then, to the final argument as to the statute — that the evidence failed to show that it was violated. A & A/Scheeler argue that “[t]he two hallmarks of an illegal rebate are (1) discrimination between premiums charged identical policyholders, and (2) offering the ‘rebate’ to induce the purchase.” Neither, they contend, was established here.

The hospital policy, they say, was unique, and so there were no identical policyholders upon whom discrimination could be practiced. Moreover, they urge that, because the commission for the OEP was built into A & A’s flat fee, the net premium arrangement did not constitute an inducement. As we have just indicated, the jury was not specifically asked to determine whether the statute was violated and it returned no special verdict on that matter. Nevertheless, we need to address these arguments, because if the evidence failed to show any basis for a finding that the statute was violated, its injection into the case would have been improper.

That, however, was not the case. Both of these arguments are based on an unduly narrow reading, and thus a misconstruction, of the statute. Section 226 is not aimed just at discrimination between identical policyholders. Subsection (c) addresses that evil; it specifically prohibits an insurer from unfairly discriminating “between insured or property having like, insuring or risk characteristics, in the premium or rates charged for insurance.” Subsection (a) is the part dealing with rebates.

It prohibits an insurer, among other things, from giving any “reduction of the premium named in the policy of insurance” unless provided for in a filing with the Commissioner. The premium for the OEP coverage was stated in the policy; it was to be 155% of the last annual premium, which included an 8% agent’s commission. That was what the hospital was obligated to pay under the policy if, upon termination, it elected to purchase the optional coverage. Under the arrangement with Shand, Evander was to collect that premium, deduct his commission, and remit the bal ⁷⁰³ anee.

A & A did not collect the stipulated premium from the hospital; it collected less and deducted nothing. The second strand of A & A/Seheeler’s argument ignores the plain wording of § 226(a). It does not prohibit a rebate only when given as an inducement to insurance but also when given “after insurance has been effected.” For all of these reasons, we find no error in the verdict rendered on Count XIY. V. CONDUCT OF THE TRIAL A & A/Scheeler’s final complaint, other than as to punitive damages, is that “the record in this case shows outrageous and insulting behavior, without restraint by the trial judge, who did not moderate or govern the proceedings properly.” In an earlier brief, appellants attempted to call our attention to some of this alleged behavior through an appendix.

We struck that brief and appendix, however, because (1) the matter included in the appendix was wholly inappropriate for an appendix, and (2) with that appendix, the brief far exceeded the 35-page maximum provided for in the Maryland Rules. In the brief now before us, appellants document this rather serious charge with only two references to the record, one where they claim that Evander’s attorney was permitted to impeach Evander with his deposition testimony and the other where they contend that the attorney was permitted to ask a question as to a purely legal issue. We have examined the passages cited; suffice it to say that, if limited to them, the complaint would be wholly frivolous. In a reply brief, A & A/Scheeler attempt to call our attention to a number of other instances where they claim that one of Evander’s attorneys, Mr. O’Doherty, made inappropriate remarks during the trial or repeated improper questions.

Apart from the fact that these further references should have been included in the main brief and are not really in the nature of rebuttal, they do not support the underlying contention that the trial was