Hickey v. Kendall

SALMON, Judge. On April 26, 1991, appellee Shirley Kendall (“Shirley”) was involved in an accident with a vehicle driven by Carl Hickey (“Hickey”). Shirley, at the time of the accident, was driving a 1986 Pontiac with her husband, appellee Herbert Richard Kendall (“Herbert”), sitting next to her. As a result of this accident, Herbert filed suit in the Circuit Court for Montgomery County against Shirley and Hickey. 1 Shirley, for her part, filed a cross-claim against Hickey, wherein she alleged that as a result of Hickey’s negligence she was injured.

She asked for both compensatory and punitive damages against Hickey. In addition, Shirley’s cross-claim sought indemnification and/or contribution from Hickey in the event that she was held liable for her husband’s injuries. Hickey, in turn, filed a cross-claim against Shirley praying for indemnification and/or contribution in the event Herbert recovered damages against him. Shirley and Herbert each suffered extensive injuries as a result of the April 26, 1991 accident.

Hickey’s vehicle was covered by a policy issued by the Maryland Automobile Insurance Fund (“MAIF”), which had bodily injury liability limits of only $20,000 per claimant, $40,000 per accident. As a result of these low limits, Shirley made a claim against Nationwide Mutual Insurance Company (“Nationwide”), her insurer, under the uninsured/underinsured (“U/M”) portion of her policy. 2 ⁵⁸² Shirley claimed that, even though she was driving a vehicle with $20,000/$40,000 U/M coverage at the time of the accident, she was entitled to the U/M coverage of $100,000/$300,000 that applied to her 1975 Chevrolet Cavalier. Alternatively, she claimed that Nationwide had breached the duty, set forth in Maryland Code, Article 48A, section 541(c)(2)(ii) (1957, 1994 RepLVol.), to offer her, in writing, the opportunity to contract for U/M coverage equal to the $100,000/$300,000 liability coverage on the 1986 Pontiac. Nationwide, for its part, denied coverage to Shirley but was granted leave to intervene in the pending tort action as a party defendant.

Nationwide contended that it had complied with the requirements of Article 48A, section 541(c)(2)(ii) and that the U/M limits applicable to the subject accident were the same as Hickey’s liability limits. On February 5, 1992, Shirley filed a pleading entitled “Motion for Partial Summary Judgment Involving Declaratory Relief as to Uninsured Motorist Coverage” against Nationwide. Shirley contended in her motion that her policy allowed her to select the highest U/M coverage available for any of the three cars that were covered by the Nationwide policy. Herbert eventually also made a claim against Nationwide, which was similar to Shirley’s, and he moved for summary judgment against Nationwide on the same ground as his wife.

A hearing was held on the summary judgment motions on May 14, 1992. The trial judge granted the relief sought by Shirley and Herbert, saying, “I am going to grant [the] Motion [for partial summary judgment], the coverage is a hundred [thousand dollars per claimant].” ⁵⁸³ After ruling against Nationwide on the coverage issue, the court bifurcated the tort case. A jury trial commenced on August 23, 1993, devoted exclusively to the issue of liability. The jury, after a four-day trial, concluded that Hickey’s negligence caused the subject accident and that Shirley was not negligent.

Hickey filed a Motion for Judgment Notwithstanding the Verdict, which was denied. Subsequently, on March 20, 1995, Judge Leonard Rubin presided at a bench trial that dealt solely with the issue of damages. The court awarded $100,000 to Shirley and $81,551.91 to Herbert as damages. After these judgments were entered in favor of Shirley and Herbert and against Hickey, Nationwide and Hickey both filed appeals, and Herbert filed a timely cross-appeal.

The insurance coverage issue raised by Nationwide in this appeal is: Did the trial court err in finding that Mr. and Mrs. Kendall were each entitled to the $100,000 underinsured [U/M] coverage limits purchased in connection with a 1975 Chevrolet, even though at the time of the subject accident they were in a 1986 Pontiac, which had much lower limits, but was insured under the same policy? We answer “Yes” to this question. As a result, this case must be remanded so that the court can rule on the Kendalls’ claim that the applicable U/M limits were $100,000/$300,000 because (allegedly) Nationwide failed to notify them that they could contract for U/M coverage on the 1986 Pontiac that was equal to their liability limits. Also presented are several more mundane issues that concern the conduct of the negligence phase of the lawsuit.

I. COVERAGE ISSUES The 1986 Pontiac that Shirley was driving at the time of the accident, like two other cars owned by the Kendalls (a 1978 Chevrolet and a 1975 Chevrolet), was insured through Nationwide. The Nationwide policy declaration set forth the following coverages: ⁵⁸⁴ Veh Make Year Veh Make Year Veh Make Year # 1 Pont. ’86 # 2 Chev. ’78 # 3 Chev. ’75 U/M 3 $ 20,000/40,000 $ 20,000/40,000 $100,000/300,000 BI 4 100,000/300,000 100,000/300,000 100,000/300,000 PD 5 10,000 10,000 50,000 The premium for six months U/M coverage on the 1986 Pontiac and the 1978 Chevrolet was $11.80 each, and the six-month U/M premium for the 1975 Chevrolet was $22. Shirley contends that, as to her, the U/M coverage is “personal” and she should be allowed to select the highest coverage. She acknowledges that everyone else who makes a U/M claim under the policy is subject to the U/M limits applicable to the insured automobile occupied at the time of injury.

Herbert takes a broader view. He claims that the U/M coverage is “personal” to himself and Shirley but “vehicle specific” to everyone else who claims U/M coverage under the policy. The insuring agreement in the Kendalls’ Nationwide policy provided: For your payment of premiums in amounts we require and subject to all of the terms and conditions of this policy, we agree to provide the coverages you have selected. Your selections are shown in the attached Declarations, which are a part of this policy contract....

Under the policy, the term “uninsured motor vehicle” is defined to include: [A]n underinsured motor vehicle. This is one for which there are bodily injury liability coverage or bonds in effect. Their total amount, however, is less than the limits of this coverage. These limits are shown in your policy’s Declarations. ⁵⁸⁵ The “U/M” coverage itself is described by the following policy language: Under this coverage we will pay all sums for bodily injury and property damage that you [defined as the policyholder first named in the Declarations (here, Mrs. Kendall) and includes that policyholder’s spouse (Mr. Kendall) if living in the same household] or your legal representative are legally entitled to recover as damages from the owner or driver of an uninsured motor vehicle.

Damages must result from an accident arising out of the ownership, maintenance, or use of the uninsured motor vehicle. * * * * Bodily injury means bodily injury, sickness, disease, [or] death. Relatives living in your household also are covered for bodily injury damages under this coverage. Anyone else is protected while occupying: 1. Your auto. * * * * 2. any other motor vehicle while it is being operated by you.

However, the vehicle must not be owned by or furnished to you or a relative living in your household for regular use. * * * * LIMITS AND CONDITIONS OF PAYMENT-AMOUNTS PAYABLE FOR UNINSURED MOTORISTS LOSSES. Our obligation to pay uninsured motorists losses is limited to the amounts per person and per occurrence stated in the attached Declarations. The following conditions apply to these limits: * * * * 3. The insuring of more than one person or vehicle under this policy does not increase our Uninsured Motorists payment limits.

Limits apply to each insured vehicle as stated in the Declarations. In no event will any insured be entitled to more than the highest limit applicable to any one motor vehicle under this or any other policy issued by us. We begin by discussing the general prohibition against the “stacking” (or aggregation) of coverage, a topic that is related to—although distinguishable from—the issue we must decide. The seminal “stacking” case in Maryland is Howell v. Harleysville Mutual Insurance Co., 305 Md. 435 , 505 A.2d 109 (1986).

John Howell, while driving a van owned by his employer (the Pritchett Transportation Company, Inc., hereinafter, “Pritch ⁵⁸⁶ ett”), was severely injured in a collision with an uninsured motor vehicle. Pritchett owned a fleet of 19 vehicles, all of which were insured through the Harleysville Mutual Insurance Company (“Harleysville”); nevertheless, Pritchett’s U/M coverage with Harleysville specified that “the most that will be paid for any one accident or loss is $50,000.” Id. at 437 , 505 A.2d 109 . Howell argued that the $50,000 limit applied to each vehicle in Pritchett’s fleet and that, therefore, Pritchett’s total available U/M coverage for his particular accident was $950,000. In other words, Howell sought to “stack” Pritchett’s U/M benefits, a practice that the Court of Appeals held violated both the clear language of the governing policy and— more important—common sense: A total of 19 vehicles were insured.

Applying the mathematics ... we would find that if Howell’s contentions were to prevail there would be an exposure for each vehicle of $950,000 (19 X $50,000). If all 19 vehicles were on the road at one time the total exposure of the insurance company would be $18,050,000 (19 X 950,000). All of this coverage would be available for a premium of $76. This would be a truly absurd result.

Id. at 442 , 505 A.2d 109 . The holding in Howell was concise: “We shall hold in this case that there cannot be intra-policy ‘stacking’ or pyramiding of uninsured motorists benefits.” Id. at 436 , 505 A.2d 109 . A similar result was reached in Hoffman v. United Services Automobile Association, 309 Md. 167 , 522 A.2d 1320 (1987), a case that presented facts analogous to those in Howell . In Hoffman , the Court of Appeals stated: In our opinion, the Howell decision controls the present case---- The declarations page provides limits of $300,000 for each person and $500,000 for each occurrence.

The endorsement further states that these limits “shall be the total limit of the company’s liability for all damages because of bodily injury.” * * * * ⁵⁸⁷ In sum, the principles established in [Howell ] preclude stacking the underinsured motorist coverage in this case. 309 Md. at 182-83 , 522 A.2d 1320 . By applying the holdings of Howell and Hoffman to the case at bar, we note that Herbert and Shirley Kendall would have been precluded from “stacking” the Nationwide coverage on their three vehicles to obtain a total “stacked” per person coverage of $140,000 ($20,000 from the 1986 Pontiac, plus $20,000 from the 1978 Chevrolet, plus $100,000 from the 1975 Chevrolet). Stacking their coverages, however, is not what the Kendalls are currently seeking to do. Rather, they seek to “blend” their coverages, ie., they seek to be able to select the vehicle under the policy that will provide maximum coverage, as opposed to combining the full limits of all available policies.

The appellate courts of this state have never specifically addressed the propriety of blending coverages. Before deciding whether “blending” of policy limits is allowable, it is important to remember the reason why insurers charge additional premiums for each additional vehicle insured. In 8C Appleman, Insurance Law and Practice, § 5101, at 444-4,51 (1981), the author provides an explanation of this principle, which was quoted in both Howell, 305 Md. at 441-42 , 505 A.2d 109 , and Hoffman, 309 Md. at 181-82 , 522 A.2d 1320 : But, in considering basic underwriting and the actuarial computation of rate structures, we must take into consideration the customary procedures of mankind. Automobile policies are now written so as to afford liability protection not only to the named insured, who is usually the owner, but to members of his family, perhaps persons residing in the same household, and—with a few exceptions—anyone operating with the permission of the named insured or adult members of his household.

When it comes to UM coverages, we have a like multiplication of exposure, since we have classes of risk, including all of the persons stated above, and pedestrians as well, with benefits granted in many circum ⁵⁸⁸ stances when one may be in another vehicle or even upon the highway. When the insured then owns more than a single vehicle, almost always it is with the contemplation that the second, or. third, vehicles will be operated by others. And those others may, also, if injured by an uninsured motorist, expose the insurer to loss under that aspect of the contract. The declarations sheet in the Nationwide policy stated that, “Premium is based on use of vehicle.” The use of the vehicle was listed as “Pleasure” for all three vehicles.

The “rated driver” for the 1986 Pontiac was Shirley, who was described as an “adult—female” eligible for a “senior discount”; the “rated driver” for the 1978 Chevrolet was Herbert, described as an “adult male” also eligible for a “senior discount” 6 ; the rated driver for the 1975 Chevrolet with the $100,000/$300,000 U/M limits was described as “male, age 21, married.” As can be seen, by insuring three vehicles, Nationwide had greater risk than if it insured only one. The $22 premium on the 1975 Chevrolet paid for, inter alia, “the increased risk of the added passengers and miles.” Hoffman, supra, 309 Md. at 183 , 522 A.2d 1320 . The increased premium on that vehicle also reflected that it would be operated by someone other than Shirley or Herbert and that Nationwide would have higher U/M exposure than on the other two vehicles. In Powell v. State Farm Ins.

Co., 86 Md.App. 98 , 585 A.2d 286 (1991), the insured was involved in an accident with an uninsured motorist while driving his wife’s vehicle, which had U/M limits of $20,000/$40,000. Id. at 100 , 585 A.2d 286 . The insured also owned another vehicle, not involved in the accident, covered by a separate policy with $100,000/$300,000 uninsured motorist coverage. The separate policy with the higher limits excluded: BODILY INJURY TO YOU ...

WHILE OCCUPYING ... A MOTOR VEHICLE OWNED BY YOU, YOUR ⁵⁸⁹ SPOUSE OR ANY RELATIVE, and which is not insured under the liability coverage of this policy. Id. In Powell , the insured contended that the exclusion was inapplicable because “the mandatory Maryland coverage extends to any vehicle being driven by [him] as a named insured.” Id. at 101 , 585 A.2d 286 .

Therefore, the insured asserted, he had U/M coverage even while driving his wife’s vehicle. We rejected that contention and interpreted the exclusion as meaning that the second policy did not “apply if he was occupying a motor vehicle owned by his wife that was not described as an insured vehicle in his policy.” Id. at 103 , 585 A.2d 286 . We said: To apply its language as the appellant urges would invite multi-vehicle families to insure only one vehicle. It would play havoc with premium determinations and otherwise be detrimental to the process of proving liability protection to the motorists, and others, of Maryland.

Appellant’s interpretation of the clause, if adopted would be, as we see it, contrary to public policy. As far as we have been able to determine, the prior cases voiding exclusionary language in respect to uninsured motorist UM coverage and personal injury protection (PIP) have not voided a provision that excludes coverage for a vehicle owned by the insured or his spouse which is not insured under the policy. Id. at 107-108 , 585 A.2d 286 (footnotes omitted). We continued: We think that the doctrine of avoiding absurd results is also applicable.

The policy at issue in Howell, 305 Md. at 442-43, 505 A.2d 109 , covered 19 separate vehicles. The issue before the court was the existence (or lack thereof) of intra-policy “stacking” of coverage. After referring to the possibility of absurd results mentioned in J. Appleman, Insurance Law and Practice § 5106 (1981), the Court stated: ⁵⁹⁰ Views similar to that expressed by Appleman relative to the high exposure for a small premium have been expressed in [several other cases]. The Kentucky court in Ohio Cas.

Ins. Co. [v. Stanfield], 581 S.W.2d [555] at 559 (Ky.1979), quoted reasoning to that effect. ij; # ❖ # sjs ❖ To hold as appellant also urges, ie., that his wife’s vehicle was not uninsured because it was covered under another policy, would be to permit an owner to buy excess coverage under one policy for one vehicle at a relatively small premium and coverage under a separate policy for his other vehicles at a lesser cost, and have the excess coverage of the first policy apply to the vehicles covered under the subsequent policies. Id. at 109-10, 585 A.2d 286 (footnote omitted). The doctrine of avoiding absurd results, discussed in Powell, supra, and Howell, supra, comes into play when considering the Kendalls’ interpretation of the policy.

Multi-vehicle owners could “play havoc with rate determinations” by the simple expedient of insuring one vehicle for high U/M coverage limits and insuring the remaining vehicles with the lowest possible U/M coverage. Although the premiums on each automobile are based on the type of use of that vehicle and coverage limits apply to each insured vehicle, under the Kendalls’ theory, the named insured and their spouses would always be entitled to the higher coverage. This would include any vehicle involved in the accident with the uninsured or underinsured motorist, and they would have zero incentive to have higher U/M coverage for the remaining vehicles. This result would be at least as absurd as the result rejected in Powell .

In their briefs, both the Kendalls and Nationwide give strict scrutiny to each of the three sentences in condition 3 regarding the payment of U/M benefits. Sentence one: “The insuring of more than one person or vehicle under this policy does not increase our uninsured motorist payment limits.” Sentence three: “In no event will any insured be entitled to more than the highest limit applicable to any one motor vehicle ⁵⁹¹ under this or any other policy issued by us.” Sentences one and three prohibit both intra-policy and inter-policy stacking but do not help resolve the issue presented. Sentence two: “Limits apply to each insured vehicle as stated in the Declarations.” The U/M coverage to be applied to the 1986 Pontiac is $20,000/$40,000. In regard to the 1986 Pontiac, the declarations sheet says that the “premium [of $11.80] is based on use of vehicle,” and the insuring agreement provides, in pertinent part, “For your payments of premiums in amounts we require and subject to all conditions of the policy, we agree to provide the coverages you have selected.” Reading these provisions in tandem, we conclude that the policy unambiguously limits U/M coverage for persons occupying the 1986 Pontiac, at the time they are injured by the negligence of an uninsured or underinsured motorist, to $20, 000/$40,000 coverage limits.

The obvious purpose of sentence two was to make sure that all persons who made U/M claims while occupying an insured vehicle would be restricted to the coverage provided for that vehicle. We find support for our holding in the case of Nationwide Insurance Company v. Hecker, 183 Ill.App.3d 13 , 131 Ill.Dec. 721 , 538 N.E.2d 1277 (1989). The Hecker case focused on an insurance policy, which, in all material respects, was identical to the one issued to the Kendalls. Gerald Hecker, a Nationwide insured, was driving a 1984 Chevrolet Cavalier when it was involved in an accident with an uninsured motorist.

Id., 131 Ill.Dec. at 721 , 538 N.E.2d at 1277 . The Cavalier had U/M coverage of $50,000 for each person and $100,000 for each occurrence, but a Corvette and a Celebrity, which were insured under the same policy, had $100,000/$300,000 U/M limits. Id., 131 Ill.Dec. at 722 , 538 N.E.2d at 1278 . The Heckers acknowledge that they could not stack their coverages but claimed they could select which coverage should be applied.

They (naturally) selected the U/M coverage for one of the vehicles with $100,000/$300,000 U/M limits, rather than the lower limits for the Cavalier. The Nationwide policy issued to the Heckers contained a clause that was identical to Clause 3 found in the Kendalls’ policy, and the counterpart to ⁵⁹² Clause 3 was the focus of the Court’s decision. The Hecker Court rejected the contention that the insured could select the highest coverage and held that the policy was unambiguous. 7 Id., 131 Ill.Dec. at 723 , 538 N.E.2d at 1279 . The Court stated: In the instant case, paragraph two[ 8 ] of the policy states that the “[ljimits apply to each insured vehicle as stated in the Declarations.” The declaration sheet provides that the ⁵⁹³ coverages and limits “apply to each insured vehicle as indicated” in the schedule of coverages.

The Celebrity and the Corvette each have coverage limits of 100/300, and each has a premium of $7. The Cavalier had coverage limits of 50/100 and a premium of $3.30. Reading paragraph two in conjunction with the declarations sheet, we conclude that the policy unambiguously limits coverage to the amount listed for the vehicle involved in the accident. Consequently, defendants were entitled to 50/100 coverage and not 100/300 coverage.

Since there are no issues of fact, plaintiff is entitled to summary judgment as a matter of law. (Emphasis added.) Shirley contends that sentence two of clause three has the following meaning: The specific amount of the coverage limit per insured vehicle is stated on the premium page, subject to other policy terms (namely, that UM coverage is personal to a “named insured,” but vehicle specific to “anyone else”).... As mentioned earlier, Shirley, as the “named insured,” contends that only she is entitled to “blending.” 9 Herbert argues: [T]he policy distinguishes between the coverage for the policyholder and the policyholder’s spouse, on the one hand, and “anyone else” on the other hand. The policy covers all damages for the policyholder and spouse which each is legally entitled to recover from the owner or the driver of the uninsured motor vehicle.

This is true whether the policyholder/spouse is occupying his or her own motor vehicle, someone else’s motor vehicle or is a pedestrian. Persons in the “anyone else” category only have coverage while occupying the policyholder’s car. As can be seen by a review of the portion of the policy already quoted, Nationwide’s policy distinguishes between the ⁵⁹⁴ policyholder first named in the Declaration page (Shirley), her spouse (Herbert), and relatives of the Kendalls living in their household on the one hand and “everyone else” on the other. The first group (Shirley et al.) can make an U/M claim for all sums they are legally entitled to recover for bodily injuries resulting from an accident “arising out of the ownership, maintenance or use of an uninsured motor vehicle.” The second group (“everybody else”) can make the same type of U/M claim but only if they are injured by the negligence of an uninsured motorist while they are occupying 1) one of the three vehicles mentioned in the Declarations sheet or 2) any other vehicle while it is being operated by Shirley or Herbert, so long as the vehicle the Kendalls are occupying is neither owned by the Kendalls (or a relative living in their household) or furnished for their regular use.

Therefore, the policy is not, as Shirley contends, “personal” to a named insured, but “vehicle specific” to “anyone else.” Moreover, it is not true, as Herbert contends, that a person in the “anyone else” category only has “coverage while occupying the policyholder’s car.” The Kendalls cite only one case in support of their contention that “blending” is permissible. That case is Branch v. O’Brien, 396 So.2d 1372 (La.Ct.App.), cert. denied, 400 So.2d 905 (La.1981). Unlike the case sub judice, Branch did not deal with the interpretation of a contractual provision in an insurance policy but dealt with the issue of whether a provision in the Louisiana Insurance Code that prohibited stacking changed the previous rule of law that policy clauses excluding coverage while an insured is occupying an automobile not listed in the policy are void. Id. at 1375-76.

In Branch , the plaintiff insured four cars with State Farm Insurance Company under four separate policies. Id. at 1374 . The first three cars carried U/M coverage of $10,000/$20,000, while the fourth car had a policy with $100,000/$300,000 U/M limits. Id.

Plaintiff was driving one of the cars with the lower limits when she was involved in an accident with an uninsured motorist. Id. All four policies had a U/M exclusion, which stated that the policy did not apply to “an insured while occupying an ⁵⁹⁵ automobile (other than an insured automobile) owned by the named insured.... ” Id. The Branch Court held that the exclusion was void as against Louisiana public policy and allowed the plaintiff to choose the policy with the highest U/M limits, even though she was not driving or occupying it when injured.

Id. at 1375-76 . Inasmuch as no one contends that any part of Nationwide’s policy is void as against public policy, Branch is inapposite. Furthermore, Branch’s precedential value is doubtful even in Louisiana. The trial court in Branch characterized U/M coverage as “personal” to the insured and held that, for purposes of ascertaining policy limits, it did not matter which vehicle the insured was occupying when the accident occurred.

Under Maryland law it does make a difference as to which insured vehicle an insured is occupying when injured by an uninsured motorist. See Powell, supra. See also Schuler v. Erie Ins. Exchange, 81 Md.App. 499, 507 , 568 A.2d 873 (dicta), cert. denied, 319 Md. 304 , 572 A.2d 183 (1990).

In Breaux v. Louisiana Farm Bureau Mutual Ins. Co., 413 So.2d 988, 993 (La.Ct.App.), cert. denied, 420 So.2d 453 (La.1982), the Court said: Within the factual context of a motor vehicle owned by the injured party and listed in only one liability insurance policy, we deem the reasoning of Branch to be unsound. Where there is more than one liability policy with UM coverage but only one such policy listing the involved vehicle, we conclude the 1977 amendment to the Act does make the coverage under that policy exclusive of the other coverage. We think the amendment clearly provides the policy or coverage on the vehicle in which the owner was insured is the only policy with usable UM coverage.

In effect, that policy becomes exclusive. We hold that the Nationwide policy is unambiguous as it concerns the coverage question here at issue 10 and, according ⁵⁹⁶ ly, that the trial court erred in granting summary judgment in favor of the Kendalls and against Nationwide. This case must be remanded for further proceedings in regard to another issue raised, but not decided, by the circuit court, viz: whether Nationwide breached its duty to offer its insureds the opportunity to contract for U/M coverage equal to the liability coverage on the 1986 Pontiac and, if so, whether that caused the Kendalls to select 20,000/40,000 U/M limits.

II

LIABILITY ISSUES Five issues, rephrased and reordered for clarity, are raised in this appeal by Hickey: 1. Did the trial court err in denying Hickey’s Motion for Judgment Notwithstanding the Verdict (jnov)? 2. Did the trial judge commit reversible error in admitting into evidence portions of Hickey’s hospital records dealing with Hickey’s use of marijuana and alcohol on the night of the accident? 3. Did the trial judge commit reversible error in admitting into evidence testimony of Dr. Yale Caplan concerning the deleterious effects on driving ability caused by a driver’s use of alcohol and/or marijuana? 4.

Did the trial judge commit reversible error in admitting into evidence circumstantial evidence of Hickey’s marijuana use? 5. Did the trial judge commit reversible error by allowing Hickey to be cross-examined about his consumption, on the day of the accident, of marijuana and alcohol? Herbert, on cross appeal, raises one issue: Was Shirley negligent as a matter of law? ⁵⁹⁷ A. Testimony at Trial Regarding the Happening of the Accident 11 Route 27 is a two-lane road with a maximum speed limit of 40 miles per hour. On April 26,1991 at 8:00 p.m., Hickey was drinking a beer as he drove his pickup truck, at 70 miles per hour, southbound on Route 27.

As Hickey approached, Shirley pulled out onto Route 27 with the intent of turning left and proceeding north. At the point where she emerged onto Route 27, Hickey’s truck was 431 feet to Shirley’s left. Although normal reaction time is .75 seconds, Hickey took about three seconds to react to the danger posed by the entry of Shirley’s vehicle onto Route 27. After three seconds, Hickey slammed on his brakes, skidded eighty feet, and struck the left front of Shirley’s car.

Hickey’s pickup, at the moment of impact, was moving at the rate of 56 miles per hour; Shirley’s vehicle at that point was partially blocking both the northbound and southbound lanes of Route 27. The force of the impact spun Shirley’s vehicle onto the shoulder of the northbound lane where it faced south when it came to rest. An expert testified at trial that, if Hickey had been going the speed limit at the point where Shirley entered onto Route 27, Shirley’s car would have travelled an additional seventy-nine feet and would have cleared the intersection prior to the time Hickey’s vehicle reached the point of impact. B. Hickey’s Alcohol and Drug Consumption When called as an adverse witness by Herbert, Hickey candidly admitted at trial that he drank “five beers, six beers” between 5:30 p.m. and 8:00 p.m. on the night of the accident.

Immediately after the accident, he walked to a nearby store where he purchased gum to conceal the odor of alcohol on his breath. Shortly thereafter, Hickey took a bag of marijuana out of his pocket and gave it to his cousin. ⁵⁹⁸ A storekeeper testified at trial that Hickey’s eyes were bloodshot and his breath smelled of alcohol immediately after the accident. An investigating police officer testified that he observed Hickey at the accident scene and he noticed that Hickey walked in a “swaying” manner and appeared to be intoxicated. Another police officer testified that, shortly after the accident, he inspected the cab of Hickey’s truck and smelled the odor of “burning” marijuana and found a “water bong,” which was “still kind of warm.” The bong was observed laying on its side, with the water having spilled out.

The officer testified that he was “certain” that the bong had been used for the purpose of smoking marijuana. C. Summary of the Suburban Hospital Records Hickey was admitted to Suburban Hospital on April 26, 1991 at approximately 8:30 p.m. An emergency-room physician’s initial impression (at 8:40 p.m.) was that Hickey had suffered a “blunt torso trauma.” Under the heading “History of Present Illness,” the physician noted that the patient was a 26 year-old male, positive for alcohol and marijuana, who had been involved in a motor vehicle accident with no loss of consciousness. Under the heading “Appearance,” the physician wrote: “No acute distress—obvious alcohol on breath— uncooperative and sarcastic.” Hickey was sent to the X-ray department so that he could be “evaluatefd] for fractures” of the neck, mid and low back, pelvis, hip, sternum, and both ankles.

The x-rays were all negative. At 9:00 p.m., Hickey complained of severe pain in his left ankle. Shortly thereafter, a nurse noted that Hickey was “reluctant to cooperate— smell of alcohol....” The hospital, at 9:14 p.m. and 9:15 p.m., drew Hickey’s blood in order to perform a total of twenty-seven tests. One of the tests ordered was a “stat alcohol test.” Hickey’s blood serum alcohol level at 9:15 p.m. was .15, according to the hospital records.

The hospital chart shows the results of all the aforementioned blood tests plus the results of many later blood tests but did not indicate when any of the tests were completed. All the test results appear on a ⁵⁹⁹ “Discharge Summary Sheet” that says, ambiguously, “run date 4/30/91—0810—For Date: 4/29/91.” About five and one-half hours after his hospital admission (at 2:00 a.m. on April 27), a nurse filled out an assessment sheet. Under the heading “Drug/Alcohol Use,” she wrote that Hickey had “last taken” marijuana “last night—4/26” and that he had “last taken” beer on “4/26.” On April 27, Hickey was referred for alcohol and drug counselling at the hospital. A counselor, on April 29, discussed with Hickey possible alcohol and drug treatment.

He was given information about the availability of free drug and alcohol treatment programs, which were provided by Montgomery County and by Suburban Hospital. According to the hospital records, this referral was to help the patient “with his alcohol and drug-related problems.” Hickey stayed in Suburban Hospital for three days. He was treated for “multiple trauma injuries” and a right 12 ankle strain. His hospital discharge summary included the following statement: SUMMARY OF HISTORY: Mr. Hickey is a 26-year-old white male involved in a motor vehicle accident as the driver.

He ended up hitting a car that pulled in front of him. He was under the influence of alcohol and had been smoking marijuana. However, he denied any loss of consciousness. (Emphasis added.) D. Testimony of Dr. Yale Caplan Dr. Yale Caplan, a forensic toxicologist, testified on behalf of Herbert.

Based on the Suburban Hospital records, Dr. Caplan testified that, at the time of the accident, Hickey’s ⁶⁰⁰ whole blood alcohol concentration was “.15 percent.” 13 To reach such a concentration, a person of Hickey’s weight and gender would, at a minimum, have had to have imbibed between “six and seven” twelve-ounce beers. This assumes that no alcohol had been metabolized. According to Dr. Caplan, an alcohol concentration of .15 percent would significantly and adversely affect a person’s coordination, gait, balance, speech, depth perception, and ability to think. Dr. Caplan was asked what effect smoking marijuana would have on a motor vehicle operator.

He responded: A Well, those effects are also as a central nervous system depressant and they are essentially similar [to the effect of alcohol consumption] although some are different. There’s more of a euphoria than there is with alcohol but insofar as the central nervous system effects, they are very similar to alcohol and it does many of the same things that alcohol does with regard to complex task performance, comprehension and decision making capability. In addition it causes an increased euphoria. It can have effects on heart rate and things like that as well.

Q [COUNSEL FOR SHIRLEY] Well, what then does the combination of alcohol and marijuana from a physiological functional standpoint do? A Well, in general they would be similar and if one were to have used both substances simultaneously you would have an additive, at least an additive effect and therefore whatever manifestations you would consider at any particular alcohol concentration, in this case we are talking about .15 percent alcohol which would represent a fairly significant marked state of intoxication with significant coordination ⁶⁰¹ difficulties, visual impairment and some of the things we mentioned earlier, and the use of the marijuana would enhance those. If there were sufficient amounts present it would add to that in the same direction and act