Creveling v. Government Employees Insurance

⁷⁹ RAKER, Judge. Appellants Ashleigh Creveling, Sharon Ferguson-Owens, and Michael Pettiford filed suit against appellees Government Employees Insurance Company (GEICO) and State Farm Mutual Automobile Insurance Company (State Farm), alleging breach of contract for the companies’ failure to pay the full amount of their Personal Injury Protection (PIP) insurance claims. The overarching question presented by these consolidated cases is whether the trial court properly denied class certification. We shall hold that the Circuit Court of Baltimore City did so, and accordingly, shall affirm.

I. Facts A. Creveling v. GEICO Appellant Ashleigh Creveling was injured in an automobile accident on November 15, 1997. As a result of her injuries, she sought medical treatment. On November 9, 2000, Crevel-ing’s attorney submitted a PIP claim 1 for $363.00, an amount ⁸⁰ reflecting expenses paid by her health maintenance organization (HMO), Kaiser Permanente. Her insurer, appellee GEI-CO, did not pay the claim.

Instead, on December 1, 2000, a GEICO claims examiner responded with a short letter noting: “We have received the medical billing presented for your client. Under Maryland Personal Injury Protection (PIP), we will consider expenses that are incurred by the patient. Please provide documentation of payments made by Ms. Crev-eling for her care with Kaiser. Once we receive this information, we will consider these invoices.” Her claim was denied because a collateral source — her HMO — had incurred the costs of treatment.

Creveling filed a class action complaint in the Circuit Court for Baltimore City on April 19, 2001, to recover PIP benefits she previously had been denied. The Second Amended Complaint alleged one count — breach of contract — and prayed for class certification, monetary damages, injunctive and declaratory relief. The complaint alleged that GEICO’s refusal to pay her PIP claim in full constituted a breach of the insurance contract. Creveling asserted the claim on behalf of herself and a class of persons for whom GEICO denied or reduced PIP benefits “as a consequence of payments allegedly made by any collateral source or as a consequence of limiting such payments to the sum actually paid, or lost, by the covered person.” On July 23, 2001, Creveling filed a Motion for Class Certification pursuant to Maryland Rule 2-231(b)(3).

While the motion was pending in the trial court, GEICO tendered to ⁸¹ Creveling the full amount of her PIP claim plus interest. 2 Creveling rejected the tender and pursued her individual claim and class certification. B. Ferguson-Owens v. State Farm On May 26, 2000, appellant Sharon Ferguson-Owens was injured in an automobile accident. After seeking medical treatment for her injuries, Ferguson-Owens filed a PIP claim with her insurer, appellee State Farm, that included a $80.00 bill from her HMO, University Care. State Farm reimbursed Ferguson-Owens for $10.00, the amount of her co-payment, but, without comment, did not pay the remainder of the claim.

On July 20, 2000, appellant Michael Pettiford suffered an injury in an automobile accident. Pettiford submitted a PIP claim to his insurer State Farm in the amount of $499.50 for medical treatment provided by his HMO, Kaiser Permanente. On January 16, 2001, State Farm denied PIP benefits sought on his behalf by Kaiser Permanente in a letter that explained the company’s then current policy that pre-dated our decision in Dutta v. State Farm, 363 Md. 540 , 769 A.2d 948 (2001). State Farm noted that “the HMO, and not State Farm, is solely liable to the health care provider for the covered services provided to the HMO insured. “Pursuant to the plain language of the PIP statute, State Farm’s liability for a health care charge arises only if and when the HMO insured ‘incurs’ or becomes personally liable for the expense.” In short, State Farm denied liability on the basis that PIP insurance coverage excluded expenses incurred by entities other than the insured.

Ferguson-Owens filed a class action complaint against State Farm in the Circuit Court for Baltimore City on the same date as Creveling — April 19, 2001 — seeking reimbursement ⁸² for the portion of her PIP claim previously denied. Her complaint alleged breach of contract and requested class-action status, monetary damages, injunctive and declaratory relief. The complaint proposed the same class as the Crevel-ing complaint: persons whose PIP benefits were denied or reduced because of collateral source payments. Before Ferguson-Owens moved for class certification, State Farm tendered full payment of her PIP claim, with interest.

Ferguson-Owens rejected the payment; nevertheless, State Farm moved to dismiss the complaint on the grounds that its tender had rendered her individual claim moot. The Circuit Court denied the motion. A few days after the tender, July 27, 2001, Ferguson-Owens filed a Motion for Class Certification. In response to the tender, she filed a Second Amended Complaint on September 5, 2001, to add appellant Pettiford as a named plaintiff; State Farm tendered full payment to him as well.

C. The Trial Court Following individual hearings on each Motion for Class Certification, the Circuit Court for Baltimore City denied the motions. In both cases, the trial court found that the proposed class satisfied the numerosity, typicality, and adequacy of representation requirements of Rule 2-231(a) but that the proposed class did not satisfy the commonality requirement. The court reasoned that the cases presented many liability issues requiring individual inquiry unique to each class member, including whether the medical treatment received was accident related, whether the treatment was necessary in light of the injury sustained, and whether the amount sought reflects a reasonable cost for the services provided. The trial court ruled that class certification was inappropriate under Rule 2-231 (a) because the plaintiffs failed to satisfy the requirement that there be questions of law or fact common to the class.

Following these decisions, defendants again tendered to plaintiffs the unpaid portion of their PIP claims. Plaintiffs then moved for summary judgment on their individual claims. Defendants opposed these motions on moot ⁸³ ness grounds; State Farm filed a counter-motion for summary-judgment or dismissal, and GEICO filed a motion to dismiss. The trial court granted plaintiffs’ motions for summary judgment.

Plaintiffs noted timely appeals of the class certification denials to the Court of Special Appeals, and defendants filed timely cross-appeals to that court seeking review of the denial of their motions. Pursuant to Rule 8-302, plaintiffs petitioned this Court for writs of certiorari before the Court of Special Appeals entertained the appeals. We granted certiorari and ordered that argument in the two cases be heard together. Ferguson-Owens v. State Farm, 371 Md. 261 , 808 A.2d 806 (2002); Creveling v. GEICO, 371 Md. 68 , 806 A.2d 679 (2002).

The primary issue presented in this appeal is the propriety of the trial courts’ denial of class certification. Appellants also ask this court to determine the appropriate standard of review for a denial of class status and whether an insurance company, by denying a claim on one ground, waived or is estopped from reevaluating claims during the remediation process and arguing other grounds for denial of coverage. Appellees’ cross-appeal raises the question whether the tender of the full amount of appellants’ PIP claims, prior to and after the denials of class certification, rendered the actions moot. We hold that the trial court properly denied the Motions for Class Certification. 3 ⁸⁶ II.

Dutta v. State Farm, Appellants filed suit against appellees following this Court’s recent decision, Dutta v. State Farm, 363 Md. 540 , 769 A.2d 948 (2001). In that case, Dr. Sisir Dutta, injured in an automobile accident, submitted a PIP claim seeking reimbursement for medical treatment. Id. at 543-44 , 769 A.2d at 950 . His insurer, State Farm, refused to reimburse the portion of his hospital bill that had been paid originally by Dutta’s HMO and only paid him the amount of his co-payment.

Dutta filed suit, alleging that State Farm wrongly denied his PIP claim under Maryland insurance law. We considered whether the cost of Dutta’s treatment was an incurred expense for which he was entitled to recover even though his HMO actually incurred the costs. Id. at 547 , 769 A.2d at 952 . We held that, under Maryland Code (1997 Repl.Vol.) § 19-505 of the Insurance Article, insurers must pay PIP benefits to an insured regardless of the fact that a collateral source such as an HMO incurred the expense.

Id. at 563-64, 769 A.2d at 961-62 . Prior to Dutta , appellees interpreted Maryland law as requiring insurers to pay for medical expenses incurred by the insured, not including expenses paid for by a third party such as an HMO. Appellants’ purportedly seek to enforce the holding of Dutta . Nine days after we filed Dutta , appellants initiated these actions to obtain reimbursement for PIP claims denied because of collateral source payments.

Around the same time, appellees changed their policy prospectively to comply with Dutta and initiated a “remediation” program to reimburse their insureds for medical expenses an HMO paid ⁸⁷ on his or her behalf. Through the remediation process, appellees reviewed past claims to determine which required additional payment and paid wrongly denied portions with statutory interest. The Dutta ruling, therefore, set the stage for the instant cases.

III

Class Certification The central question before this Court is the propriety of the denials of class certification. Maryland Rule 2-231 authorizes class action litigation. The Rule provides, in relevant parts, as follows: “(a) Prerequisites to a class action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. “(b) Class actions maintainable.

Unless justice requires otherwise, an action may be maintained as a class action if the prerequisites of section (a) are satisfied, and in addition: “(1) the prosecution of separate actions by or against individual members of the class would create a risk of “(A) inconsistent or varying adjudications with respect to individual members of the class that would establish incompatible standards of conduct for the party opposing the class, or “(B) adjudications with respect to individual members of the class that would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or “(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby mak ⁸⁸ ing appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or “(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions, (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class, (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum, (D) the difficulties likely to be encountered in the management of a class action. “(c) Certification. On motion of any party or on the court’s own initiative, the court shall determine by order as soon as practicable after commencement of the action whether it is to be maintained as a class action. A hearing shall be granted if requested by any party.

The order shall include the court’s findings and reasons for certifying or refusing to certify the action as a class action. The order may be conditional and may be altered or amended before the decision on the merits.” Rule 2-231(a) presents four threshold requirements: numerosity, commonality, typicality, and adequacy of representation. These requirements are necessary but not alone sufficient; a putative class also must fall into one of three subcategories of Rule 2-231(b). 4 See Philip Morris v. Angeletti, 358 Md. 689, 727 , 752 A.2d 200, 221 (2000). The party ⁸⁹ seeking class certification bears the burden of proving that all of the Rule’s requirements have been satisfied.

Id. at 726 , 752 A.2d at 220 . A trial court must conduct a “rigorous analysis” of these prerequisites before certifying a class. See Gen. Tel.

Co. of Southwest v. Falcon, 457 U.S. 147, 161 , 102 S.Ct. 2364, 2372 , 72 L.Ed.2d 740 (1982). In so doing, a trial court should accept a plaintiffs allegations as true, Philip Moms, 358 Md. at 726 , 752 A.2d at 220 , but may look beyond the pleadings to determine whether class certification is appropriate. See Falcon, 457 U.S. at 160 , 102 S.Ct. at 2372 , 72 L.Ed.2d 740 ; see also Castano v. Am. Tobacco Co., 84 F.3d 734, 744 (5th Cir.1996) (“Going beyond the pleadings is necessary, as a court must understand the claims, defenses, relevant facts, and applicable substantive law in order to make a meaningful determination of the certification issues.”).

A trial court may not, however, conduct a review of the merits of the lawsuit. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78 , 94 S.Ct. 2140, 2152-53 , 40 L.Ed.2d 732 (1974) (noting that “[i]n determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met”). “Class relief is ‘peculiarly appropriate’ when the ‘issues involved are common to the class as a whole’ and when they ‘turn on questions of law applicable in the same manner to each member of the class.’ For in such cases, ‘the class-action device saves the resources of both the courts and the parties by permitting an issue potentially affecting every [class member] to be litigated in an economical fashion.” Falcon, 457 U.S. at 155 , 102 S.Ct. at 2369 , 72 L.Ed.2d 740 (alteration in original) (citations omitted). In the instant cases, appellants sought certification pursuant to Rule 2-231(b)(3). 5 The Circuit Court denied the ⁹⁰ motions because appellants had not satisfied the necessary-prerequisites of 2-2Sl(a); the court did not consider the requirements of 2-231(b)(3). 6 With this background, we review the trial court’s orders. We ordinarily review a trial court’s decision regarding whether to certify a class action for an abuse of discretion.

Philip Morris, 358 Md. at 726 , 752 A.2d at 220 ; see also, e.g., In re Linerboard Antitrust Litig., 305 F.3d 145, 149-50 (3d Cir.2002); Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 295 (1st Cir.2000); Washington v. CSC Credit Serv. Inc., 199 F.3d 263, 265 (5th Cir.2000); McAuley v. Int’l Bus. Mach.

Corp., 165 F.3d 1038, 1046 (6th Cir.1999); Keele v. Wexler, 149 F.3d 589, 592 (7th Cir.1998); Heaven v. Trust Co. Bank, 118 F.3d 735, 737 (11th Cir.1997); Alpern v. UtiliCorp United, Inc., 84 F.3d 1525, 1539 (8th Cir.1996); Hartman v. Duffey, 19 F.3d 1459, 1471 (D.C.Cir.1994); 4 A. Conte & H. Newberg, Newberg on Class Actions § 13:62, at 475-76 (4th ed.2002). Implicit in this standard is a recognition that the basis of the certification inquiry is essentially a factual one, and thus, deference is due. See Allison v. Citgo Petroleum Corp., 151 F.3d 402, 408 (5th Cir.1998). However, whether the trial court used a correct legal standard in determining whether to grant or deny class certification is a question of law that we review de novo.

Philip Morris, 358 Md. at 726 , 752 A.2d at 220 ; Allison, 151 F.3d at 408 . Without actually articulating a workable standard, appellants urge this Court to apply a different standard of review when the trial court denies class certification — suggest ⁹¹ ing perhaps a “narrowed approach” or a less deferential one. In our view, the standard of review does not depend upon whether the trial court grants or denies the class certification. We perceive no reason to apply a different standard of review when a trial court denies, rather than grants, a motion for class certification because in both instances, a deferential standard appropriately recognizes the factual nature of a class certification inquiry and a trial court’s power to manage its docket.

See 4 A. Conte & H. Newberg, supra, § 13:62, at 475. A. Commonality The trial court denied appellants’ Motions for Class Certification on the grounds that the putative classes lacked common questions of law or fact as required by Rule 2 — 231(a)(2). The court noted that the cases involved liability issues requiring an “individual inquiry unique to each putative class member.” The court concluded that “there is no determinative critical issue which overshadows all other issues and therefore [appellants] cannot meet the commonality prong of Md. Rule 2-231(a).” The court held that, although appellants satisfied the numerosity, typicality, and adequacy of representation requirements, there was inadequate commonality to certify the proposed classes. Appellants argue that the trial court erred by applying a legal standard more rigorous than that required by Rule 2-231(a)(2).

They maintain that there need be only one common question of law or fact, not a determinative issue that overshadows all others, and that they have identified common questions. Furthermore, they contend that the only individual issue to be decided is damages because appellees waived or are estopped from reviewing each claim and from raising additional defenses. Rule 2-231(a)(2) requires that “there are questions of law or fact common to the class.” 7 Md. Rule 2-231(a)(2). ⁹² This Court recently discussed the commonality standard at length in Philip Morris v. Angeletti, 358 Md. 689 , 752 A.2d 200 (2000). This prerequisite “promotes ‘convenience, uniformity of decision, and judicial economy,’ because common issues are litigated ‘only once on behalf of all class members.’ ” Id. at 734 , 752 A.2d at 225 .

A common question must exist, but common questions need not predominate over individual issues. Id., 752 A.2d at 225 . While the commonality requirement is less demanding than Rule 2-231(b)(3)’s requirement that common questions predominate over individual ones, see Amchem Products, Inc. v. Windsor, 521 U.S. 591, 623-24 , 117 S.Ct. 2231, 2250 , 138 L.Ed.2d 689 (1997), “an issue of law or fact should be deemed ‘common’ only to the extent its resolution will advance the litigation of the entire case.” Philip Morris, 358 Md. at 736 , 752 A.2d at 226 . Although the trial court may have applied too demanding a commonality standard, that court did not err in denying class certification on this basis.

Under any standard, appellants failed to satisfy the commonality requirement. The only possible common question presented herein is whether an. insurer must pay PIP benefits to an insured when an expense is incurred on his or her behalf, regardless of whether a collateral source paid the bill. Appellants concede, however, that the question of whether appellees’ policy of denying PIP benefits because of collateral source payments is legal has been answered by this Court in Dutta . Following Dutta , it became settled Maryland law that an insurer must pay PIP benefits to an insured when an expense is incurred on his or her behalf, regardless of whether a collateral source, such as an HMO, actually paid the bill. 363 Md. 540, 562 , 769 ⁹³ A.2d 948, 961 (2001).

When the instant cases were filed, merely nine days after the Dutta ruling, there was no question that appellees’ practice of denying PIP benefits involving collateral source payments was illegal. The only question that remained was whether appellees owed particular individuals additional PIP benefits. As such, the legality of appellees’ PIP payment policy is not a question common to the class. Other jurisdictions have found a lack of commonality where previous litigation settled the alleged common question.

In McCabe v. Burgess, 75 Ill.2d 457 , 27 Ill.Dec. 501 , 389 N.E.2d 565, 570 , cert. denied, 444 U.S. 916 , 100 S.Ct. 230 , 62 L.Ed.2d 170 (1979), the Illinois Supreme Court affirmed a trial court’s order denying class certification because there were no questions of law or fact common to the class. James McCabe filed suit and sought class certification to enforce prior court rulings. The court noted with approval that the “trial court specifically found that the question of law common to the members of the purported class had been decided in People v. McCabe [ 49 Ill. 2d 338 , 275 N.E.2d 407 (1971)] and People v. Meyerowitz [ 61 Ill.2d 200 , 335 N.E.2d 1 (1975)]. The court also found that a class action would not in any way relieve the court or the litigants of any burden or time expended in resolving the factual questions material to the claimants’ right to recover and that the factual questions that would be involved would require the examination of each individual ease.

Thus the court found that there were no unresolved questions of law or fact common to the members of the class and that maintaining the class action would not result in an increased efficiency in the adjudication of the claims.” Id. at 567. The court noted that “[o]nly a clear abuse of discretion or an application of impermissible legal criteria as shown justifies a reversal of the trial court.” Id. at 568. The court held that the trial court was correct in finding a lack of commonality. McCabe’s proposed questions regarding the constitutionality of the statute and the right of those convicted under it were “no longer controverted.” Id. at 569.

The court observed that “[a]ll that remains are the questions that ⁹⁴ relate only to individuals who were convicted under the invalid statute: (1) Of what offense was each convicted? and (2) What were the fines and costs paid? These questions must be determined as to each individual.” Id. Settled precedent could not satisfy the commonality prerequisite. The court concluded that “[tjhere is no common question which predominates to be adjudicated independently of these questions that relate only to the individuals.” Id.

In Ralph v. American Family Mutual Insurance Co., 835 S.W.2d 522, 523-24 (Mo.Ct.App.1992), the Missouri Court of Appeals held that no common question of law or fact existed to support class certification. Marvin Ralph filed a class action complaint on behalf of persons insured by American Family Mutual Insurance Company who had not received full medical benefits because of a policy set-off provision that reduced medical payments by amounts received under uninsured motorist coverage. Id. at 523 . Two years prior, in Kuda v. American Family Mutual Insurance Co., 790 S.W.2d 464 (Mo.1990), the Missouri Supreme Court had found such a policy provision invalid.

As a result of this previous ruling, the Ralph court affirmed the trial court order denying class certification for lack of commonality. The intermediate appellate court stated: “This case was filed two days after the decision in Kuda . At that time the only question of law or fact common to the class, i.e., the validity of the set-off provision, was no longer a question, it had been answered. If a case existed for class action treatment it was Kuda .

After Kuda the issues remaining in cases to recover medical payments were fact questions such as whether the policy contains medical payment coverage, the amount of medical treatment, whether that treatment was necessary, whether the charges are reasonable, and whether the treatment was for injuries sustained in the accident. All of those questions are specific to the individual claimant, not common to the class.” Id. at 524 . In the instant cases, Dutta answered the question that appellants urge is common to the putative classes. Appellees’ ⁹⁵ former practice is illegal; they changed their practice and instituted a program to reimburse claims previously denied on the basis of collateral source payments.

As a result, only individual issues remain to be resolved in this litigation, including the liability limit of a particular claimant’s policy, whether the medical treatment received was necessary and related to the accident, whether the charges for those treatments were reasonable, and whether additional benefits that were previously denied because of a collateral source payment are now due. Appellants next argue that the doctrine of waiver operates to establish commonality. In the instant cases, appellants, in effect, argue that the cases pose no individual questions because of the doctrine of waiver. Appellants ask this Court to find as a matter of law that appellees waived the right to raise additional defenses during this litigation.

Appellants argue that appellees have waived the right to review claims and raise additional defenses because they based their previous denials on only one basis — collateral source payments. As such, they contend that the cases present no individual questions because appellees have waived their right to assess claims for necessity, reasonableness, and accident relatedness. Assuming we find waiver under the facts, appellants further argue that waiver would not extend coverage impermissibly because appellees have acknowledged coverage by paying the co-payment portion of the claims. Furthermore, and presumably in the alternative, appellants contend that there is a common question as to whether appellees waived their right to review each claim during the post-Dutta remediation process.

The trial court did not address waiver specifically but reasoned that the cases required analysis of individual claims, including whether such claims were reasonable, medically necessary, and accident related. Implicitly, the lower court found waiver inapplicable. We hold that the trial court did not err by finding waiver inapplicable; appellees did not waive their right to raise defenses so as to eliminate the need for ⁹⁶ individual inquiries and establish commonality. Appellees have not waived their rights to review individual claims during the remediation process because, assuming arguendo there is sufficient evidence of implied waiver, waiver would operate impermissibly to expand coverage.

The doctrine of waiver may work to deprive an insurer of a right it would otherwise possess. See GEICO v. Medical Services, 822 Md. 645 , 650, 589 A.2d 464, 466 (1991). Waiver, in general, is “the intentional relinquishment of a known right, or such conduct as warrants an inference of the relinquishment of such right, and may result from an express agreement or be inferred from circumstances.” Food Fair v. Blumberg, 234 Md. 521, 531 , 200 A.2d 166, 172 (1964) (citations omitted). In insurance law, waiver requires “ ‘an actual intention to relinquish an existing right, benefit, or advantage, with knowledge, either actual or constructive, of its existence, or such conduct as to warrant an inference of such intention to relinquish.’ ” Medical Services, 322 Md. at 650-51 , 589 A.2d at 466 (quoting 16B Appleman, Insurance Law and Practice § 9085 (1981)).

Whether waiver exists in a given case “is normally a question for the trier of fact, for the determination of its existence vel non turns on the intent of the party ostensibly waiving the right, a state of mind which is to be derived from the facts and circumstances surrounding the purported relinquishment.” St. Paul Fire & Mar. Ins. v. Molloy, 291 Md. 139, 145 , 433 A.2d 1135, 1138 (1981); see also 16B J.A. Appleman & J. Appleman, Insurance Law and Practice, § 9084 (Rev.Vol.1981). The doctrine of waiver cannot operate to expand or establish insurance coverage. See Medical Services, 322 Md. at 651 , 589 A.2d at 467 ; Neuman v. Travelers Indemnity Co., 271 Md. 636, 654 , 319 A.2d 522, 531 (1974); Aetna Cas. & Sur.

Co. v. Urner, 264 Md. 660, 668 , 287 A.2d 764, 768 (1972); A/C Electric Co. v. Aetna Ins. Co., 251 Md. 410, 419 , 247 A.2d 708, 713 (1968). Judge Wilner, writing for the Court of Special Appeals in Insurance Co. of North America v. Coff- ⁹⁷ man, described the doctrine of waiver and this exception as follows: “[T]he Court of Appeals sees a distinction between defenses founded upon lack of basic coverage and those arising from the failure of the claimant to satisfy some ‘technical’ condition subsequent. The former, it is apparent, may not be waived merely by the company’s failure to specify them in its initial response to the claim, for the effect of that would be to expand the policy to create a risk not intended to be undertaken by the company.” 52 Md.App. 732, 742-43 , 451 A.2d 952, 957 (1982); see also Medical Services, 322 Md. at 651 , 589 A.2d at 467 .

In this regard, Maryland law reflects the majority rule. 8 See, e.g., Aetna Cas. & Sur. Co., 264 Md. at 668 , 287 A.2d at 768 ; Brown Mach. Works & Supply Co. v. Ins. Co. of N. Am., 659 So.2d 51, 53 (Ala.1995); Am.

States Ins. Co. v. McGuire, 510 So.2d 1227, 1229 (Fla.Dist.Ct.App.1987); W. Food Prod. Co. v. United States Fire Ins. Co., 10 Kan.App.2d 375 , 699 P.2d 579, 584 (1985); Palumbo v. Metro.

Life Ins. Co., 293 Mass. 35 , 199 N.E. 335, 336 (1935); Albert J. Schiff Assoc., Inc. v. Flack, 51 N.Y.2d 692 , 435 N.Y.S.2d 972 , 417 N.E.2d 84, 87 (1980); Currie v. Occidental Life Ins. Co., 17 N.C.App. 458 , 194 S.E.2d 642, 643 (1973); Turner Liquidating Co. v. St. Paul Surplus Lines Ins. Co., 93 Ohio App.3d 292 , 638 N.E.2d 174, 178 (1994); Texas Farmers Ins.

Co. v. McGuire, 744 S.W.2d 601, 603 (Tex.1988); Estate of Hall v. HAPO Fed. Credit ⁹⁸ Union, 73 Wash.App. 359 , 869 P.2d 116, 118 (1994); Potesta v. United States Fid. & Guar. Co., 202 W.Va. 308 , 504 S.E.2d 135, 146-47 (1998); Utica Mut. Ins. Co. v. Klein & Son, Inc., 157 Wis.2d 552 , 460 N.W.2d 763, 767 (1990); 16B Appleman, supra, § 9083, 9090; Annot., Insurance Coverage — Estoppel— Waiver 1 A.L.R.3d 1139 (1965); 18 G. Couch, Couch on Insurance 2d § 71:40 (Rev. ed.1983).

But see Tate v. Charles Aguillard Ins. & Real Estate, Inc., 508 So.2d 1371, 1375 (La.1987). To determine whether the doctrine of waiver may apply, the pivotal issue is whether a policy clause or condition proffered as a defense pertains to coverage or whether it arises from “the failure of the claimant to satisfy some ‘technical’ condition subsequent.”