MEDICAL MUTUAL LIABILITY INS. SOCIETY OF MD. v. B. Dixon Evander & Associates, Inc.

MOTZ, Judge. The principal issues raised in this appeal involve claims of failure to exhaust administrative remedies, inconsistent jury verdicts, insufficient evidence of tortious conduct and improper awards of compensatory and punitive damages. There was no error with regard to most of these questions and so we affirm the Circuit Court for Baltimore City in ⁵⁵⁶ most respects. The punitive damage awards, however, must be vacated.

The size of those awards; the fact that they were based on a commercial dispute and behavior, which although malicious and wrongful, was not wanton or highly reprehensible; the failure of the trial court to explicate on the record its findings as to the propriety of those awards; and the novel legal question which may have led the lower court to believe that the new trial motion and remittitur request were untimely, require us to vacate them and remand this case for further proceedings consistent with this opinion. (i) As in other recent litigation instituted by appellees, B. Dixon Evander (“Mr. Evander”) and B. Dixon Evander & Associates, Inc. (“Evander”), this case was tried before a jury and “[m]uch was in dispute.” Alexander & Alexander v. Evander, 88 Md.App. 672 , 596 A.2d 687 (1991), cert. denied, 326 Md. 435 , 605 A.2d 137 (1992). Evander brought suit against appellants, Medical Mutual Liability Insurance Society of Maryland (“Medical Mutual”) and its chairman and chief executive officer, Raymond M. Yow. The evidence viewed in the light most favorable to Evander, the prevailing party, reveals the following facts.

Evander is a Maryland insurance agency, owned by Mr. Evander, that specializes in medical malpractice insurance and has been in business for many years. Evander is an independent insurance broker; it has no agreement with any insurance company to be its exclusive agent. Rather, Evander’s principals are physicians and hospitals for whom it obtains malpractice insurance from insurance companies. Beginning in 1986, Evander brokered insurance for client physicians with Medical Mutual Liability Insurance Society of Maryland (“Medical Mutual”). 1 During the next two ⁵⁵⁷ years, Evander became a significant broker of Medical Mutual policy holders, representing over 600 physicians carrying insurance with Medical Mutual, and earning commissions from Medical Mutual of over $250,000 in 1987 alone.

By 1988, Evander had become one of the most successful insurance brokers in Maryland and the largest individually owned malpractice insurance agency in the State. Medical Mutual enjoyed a virtual monopoly on the medical malpractice insurance market in Maryland from 1985 through 1988. By 1988, Medical Mutual underwrote insurance for over 90% of the physicians in Maryland. Its premiums escalated over the years and, in some specialties, ballooned 400% in three years.

Mr. Evander testified that Maryland doctors were disturbed by this development and many urged him to try to restore competition. He responded by soliciting PIE Mutual Insurance Company (“PIE”) to enter the Maryland market. During 1988, Evander informed Medical Mutual of its intention to bring PIE to Maryland and, as Medical Mutual officials conceded, they voiced no objection to this. In November 1988, PIE received its certificate of authority to operate in Maryland and Evander signed a formal written contract with PIE, naming it PIE’s sole Master Agent in Maryland.

As master agent for PIE, Evander had primary responsibility for marketing PIE medical malpractice insurance to Maryland physicians, collecting premiums on behalf of PIE, recruiting associate agents for PIE, all in direct competition with Medical Mutual. Because it was PIE’s master agent, Evander received more lucrative commissions from PIE than from other companies; for example, from PIE Evander received a 10% commission for business it produced directly, and 3% to 5% on premiums produced by ⁵⁵⁸ associate agents, as compared to a 2.5% commission from Medical Mutual. Even as PIE’s master agent, however, Evander had no obligation to recommend PIE to any doctor. Between November 1988 and May 1989, Evander and others aggressively promoted PIE and engaged in numerous activities designed to encourage physicians to switch to PIE, including advertisements, brochures, meetings, and letters.

For a number of the higher priced specialties such as surgery, obstetrics/gynecology and neurology, Evander believed PIE offered a better choice than Medical Mutual and so recommended to those doctors that they switch their coverage; Mr. Evander testified he advised other doctors to stay with Medical Mutual. There was no evidence that Mr. Evander recommended that a doctor switch coverage for any reason other than more attractive terms for the individual client. By May 1989, approximately 350 Maryland physicians, including 50 of Evander’s clients (this represented 9% of its doctor clients) moved from Medical Mutual to PIE. The yearly premiums paid to PIE by these doctors was close to $10,000,000; Evander earned commissions from PIE of $655,000 in 1989 and $662,000 in 1990.

By the spring of 1989, Medical Mutual officials were concerned about the impact of PIE and “upset” that Evander, the broker for approximately 600 doctors insured by Medical Mutual, was recommending a competing insurance company to some of its clients. Medical Mutual was particularly unhappy with a brochure Evander prepared comparing PIE and Medical Mutual, that Medical Mutual believed contained a number of material misrepresentations concerning its premiums and coverage. Medical Mutual, in the words of its appellate brief, “concluded that it was in the best interest of its physician policy holders and owners to end the broker relationship with Evander.” At trial, witnesses, including present and former Medical Mutual employees, testified that they were going to “shoot” Mr. Evander; that a Medical Mutual officer said that Evander “ought to just get out of the business,” and that Medical Mutual’s strategy in terminating Evander was to “send the ⁵⁵⁹ message to other brokers in the State that Medical Mutual was not going to look kindly upon representing more than one company — namely, Medical Mutual.” Further, there was testimony that after terminating Evander, a Medical Mutual employee told a former Evander employee that “[w]e hope Dixon Evander does sue us because Dixon Evander, he’s got some money. He’s got about this much money, but we have this much money and we’ll bury him in legal costs.

He would be very stupid to take us on.” On May 22, 1989, two of Medical Mutual’s officers made an unprecedented and unannounced personal visit to Mr. Evander to deliver three documents to him. The first was a letter to him, informing him of Medical Mutual’s decision not to accept further business from his agency. The second was a copy of a complaint Medical Mutual had filed that day with the Maryland Insurance Division seeking appropriate administrative remedies, including revocation of Evander’s license, for unfair trade practices in connection with alleged misstatements contained in the objected to brochure. The third was a copy of a letter (the “Dear Colleague Letter”) Medical Mutual had also sent that day to the 600 Medical Mutual physician policy holders brokered by Evander.

The entire Dear Colleague Letter, which was signed by appellee, Dr. Raymond M. Yow, Medical Mutual’s chairman, states: Dear Colleague: As one of the physicians who guide Medical Mutual, I have listened to members over the past months, and it has become apparent that a few brokers are no longer representing Medical Mutual in a way that many of you feel to be adequate. I regret that we will no longer accept any new physician business from your present broker effective this date and that we will no longer accept renewal physician business from your present broker as of August 25, 1989. Medical Mutual’s termination of its relationship with your broker will in no way affect your relationship with us. Your Medical Mutual policy will, of course, remain in force through its current expiration date.

We ⁵⁶⁰ will also process your renewal in accordance with our underwriting standards, as we do all others renewals. I very much hope that you will want to continue as a member of Medical Mutual. Please contact your broker for advice on renewing your Medical Mutual policy. Please be advised that you may at any time come to Medical Mutual directly, without using any broker.

Our own staff will help you with every aspect of your policy, including questions, quotes, applications, renewals, “tails,” special coverages or situations, and all other services normally handled by a broker. We want you to have the best possible service from our employees and from the brokers who sell our product. We will continue to listen to our members and do whatever we can to help. (emphasis in original.) 2 Dr. Yow testified at trial that he did not state in his letter that the true reason Evander was terminated was its heavy marketing of PIE because: I think if we said we did it, we wrote that letter because he was selling another product, it would sound like we are not able to fight the competition, if you will.

In other words, it’s not a good business practice to say, well, I don’t want to be a cry baby about it, so we didn’t mention that. At trial, this Dear Colleague Letter, and particularly, the statement that “a few brokers” were not “representing Medical Mutual in a way that many of you feel to be adequate,” dominated the case. Mr. Evander’s life before the Dear Colleague Letter was dramatically contrasted to his life after the Dear Colleague Letter. According to Mr. Evander, the Dear Colleague Letter ruined his life and destroyed his business.

He testified that he received many telephone calls from clients asking what he had done wrong ⁵⁶¹ to be terminated by Medical Mutual, that he met with many clients to discuss the Dear Colleague Letter, and that he lost many clients and much income because of it. Evander received numerous notices from doctor clients revoking its broker of record status between May 1989 and January 1990. The first arrived as early as May 25, only three days after the Dear Colleague Letter was disseminated; attached was a copy of the Dear Colleague Letter. By the end of 1989, Mr. Evander testified the agency had lost approximately 480 of the 600 physician accounts that it had at the end of 1988; as each cancelled, Evander had to return the unearned portion of the commission.

Mr. Evander testified he could not get appointments with new prospects because, in the tight-knit medical community, the “word” of some “inadequacy” problem had gotten around. Although Evander had placed 325 doctors with PIE in the six months between the time it received Insurance Division approval and the date of the Dear Colleague Letter, after the issuance of that letter, it was able to place only another 25 or 30 doctors with PIE. On July 25, 1984, the State Insurance Division, after investigating the assertedly offensive brochure, informed Medical Mutual’s general counsel that “a hearing is unwarranted since no violations of the Code were evidenced.” By letter dated August 23, 1989, Medical Mutual nevertheless insisted on a hearing and again called for the revocation of Evander’s license. By letter dated October 5, 1989, Evander’s counsel requested that Medical Mutual notify the physicians to whom it had sent the Dear Colleague Letter of the Insurance Division findings; Medical Mutual refused to do so.

After a two-day hearing, on February 27, 1990, the Insurance Division issued a twenty-page written opinion complete with detailed findings of fact in which it found that, although one of the comparisons in the brochure between PIE and Medical Mutual “could be better,” it did not constitute an intentional misrepresentation and that Evander did not violate “any section of the Maryland Insurance Code.” ⁵⁶² PIE terminated its master agent arrangement with Evander in April 1990. In Mr. Evander’s words, “they were saying, hey you know, you’re not producing anything for PIE ... They knew the situation, and they said, you know, you’re damaged goods now. We’re sorry but business is business or words to that effect.” An official with PIE confirmed that the Dear Colleague Letter and its effect on Evander were “one of the causes” of PIE’s termination of Evander.

Evander’s accountant testified as an expert for Evander that the Dear Colleague Letter had caused Evander $1,763,-000 in damages. This evidence was hotly contested. Another certified public accountant testified as an expert for Medical Mutual that Evander suffered no damages, no “lost earnings” because of the Dear Colleague Letter; “if anything,” Evander “made more money” following publication of the letter — there were “excess profits gained” after the letter was disseminated. Following a six-day trial, the circuit court submitted the case to the jury on two claims, defamation and tortious interference with business relationships.

The jury failed to reach a verdict on defamation, and a mistrial on that claim was declared. The jury found that Medical Mutual and Dr. Yow had tortiously interfered with Evander’s business relationships and awarded $1,725 million in compensatory damages and $5 million and $2 million in punitive damages against Medical Mutual and Dr. Yow, respectively. The circuit court certified the jury verdict as a final judgment and denied defendants’ motions for judgment notwithstanding the verdict, a new trial, and remittitur. On appeal, Medical Mutual and Dr. Yow (“appellants”) raise five issues which we have slightly reordered for ease of discussion: 1.

Can Evander maintain its suit in the circuit court without exhausting its administrative remedies? 2. Can Evander recover for tortious interference even though the jury failed to reach a verdict on def ⁵⁶³ amation and even though Evander’s termination was proper? 3. Can Evander maintain an action for defamation where the communication was privileged and not false? 4. Can the compensatory damage awards stand where there was no proof that Evander sustained actual damages and no proof of causation? 5.

Can the awards of punitive damages stand given that they do not comply with the due process standards articulated by this Court? (ii) Appellant’s first argument is that Evander’s complaint should have been dismissed “for lack of subject matter jurisdiction because” Evander “failed to exhaust [its] administrative remedies.” 3 The doctrine of exhaustion of administrative remedies only comes into play when a litigant attempts to invoke the original jurisdiction of a circuit court to adjudicate a claim based on a statutory violation for which the legislature has provided an administrative remedy. See, e.g., Moats v. City of Hagerstown, 324 Md. 519, 526-30 , 597 A.2d 972 (1991). Thus, appellants’ argument can succeed only if the present case is, at its core, a claim of statutory violation.

Appellants assert that it is. They argue that the present action is really an action for reinstatement as a broker pursuant to Art. 48A, § 243C, for restitution for financial injury pursuant to Art. 48A, § 55A(2), for retraction or correction of the Dear Colleague ⁵⁶⁴ Letter pursuant to Art. 48A, § 234B(c), and for requiring Medical Mutual to continue to insure physicians previously brokered by Evander pursuant to Art. 48A, §§ 234B(c) and 234(C). In support of their argument, appellants rely heavily on Magan v. Medical Mutual Liability Insurance Society of Maryland, 81 Md.App. 301 , 567 A.2d 503 (1989), where this Court did dismiss the case for failure to exhaust administrative remedies contained in the Insurance Code, Article 48A. There, after Medical Mutual refused to issue malpractice insurance to a doctor, the doctor filed a complaint with the Insurance Division pursuant to Art. 48A, § 234A.

Id. at 303-04, 567 A.2d 503 . While the appeal from the Insurance Division’s decision on that complaint was pending in the courts, the doctor filed a 27-count complaint in the Circuit Court for Baltimore City seeking compensatory and punitive damages. Id. at 305 , 307 n. 5, 567 A.2d 503 . Fourteen counts alleged “that Medical Mutual must insure all physicians licensed in Maryland and that the refusal to underwrite Magan’s professional liability insurance violated Md. Code Ann. Art. 48A, § 548,” and the remaining thirteen counts alleged “Medical Mutual violated a court order issued on appeal from an administrative proceeding for an alleged violation of § 234A.” Id. at 307 n. 5, 567 A.2d 503 .

The plaintiff, Dr. Magan, asserted that he did not need to exhaust the “comprehensive administrative structure” and “uniform method of appeal for an individual aggrieved by an insurer’s violation of the Maryland Insurance Code” because “his claim sounds in tort.” Id. at 307-08 , 567 A.2d 503 . We rejected that argument because “the factual predicate for his tort claims [was] founded on a statutory violation” which carried its own statutory remedy. Id. at 308 , 567 A.2d 503 . We recognized that a litigant can “supplement his statutory remedy” by pursuing a “recognized alternate remedy under common law principles.” Id. 308 , 567 A.2d 503 .

See White v. Prince George’s County, 282 Md. 641, 650-51 , 387 A.2d 260 (1978). Since there was “no common ⁵⁶⁵ law cause of action ... to recover damages for an insurer’s refusal to underwrite an insured,” however, dismissal for failure to exhaust his exclusive remedy, an administrative remedy, was proper. Magan, supra, 81 Md.App. at 308 , 567 A.2d 503 . Although, like Magan , the case at hand involves a suit against Medical Mutual in which compensatory and punitive damages were sought, it is dissimilar from Magan in every other important respect.

Indeed, the critical differences between Magan and the case at hand demonstrate why a different result is required in the case at hand. Here, the plaintiff, Evander, never filed a complaint with the Insurance Division against Medical Mutual or pursued any administrative remedy against the company. More significantly, the jury here considered a two-count action for independent intentional torts in which neither count was based on alleged violations of the Insurance Code. The “factual predicate” for Evander’s tort claims is not an alleged statutory violation but an assertion that appellants’ dissemination of the Dear Colleague Letter defamed Evander and tortiously interfered with its business relationships.

Article 48A provides no statutory remedy for defamation or tortious interference; accordingly, this is not a situation in which the exercise of regulatory power may afford Evander relief or affect the scope or character of judicial relief. See Travelers Indemnity Company v. Merling, 326 Md. 329, 333 , 605 A.2d 83 (1992) (insurance agent’s civil suit against insurer for tortious interference regarded as independent of his administrative challenge to insurer’s wrongful termination of him). 4 The issues presented in this civil ⁵⁶⁶ action “only tangentially or incidentally” concern matters that the Insurance Division was legislatively created to solve and “do not, in any meaningful way, call for or involve applications of its expertise.” Prince George’s County v. Blumberg, 288 Md. 275, 285 , 418 A.2d 1155 (1980), cert. denied, 449 U.S. 1083 , 101 S.Ct. 869 , 66 L.Ed.2d 808 (1981) (citing Md. Nat’l-Cap. P. & P. v. Wash. Nat’l Area, 282 Md. 588, 594-604 , 386 A.2d 1216 (1978)).

Cf. Young v. Hartford Acc. & Indem., 303 Md. 182, 200 , 492 A.2d 1270 (1985) (exclusive nature of workers’ compensation statute did not preclude claimant from seeking damages in tort for intentional infliction of emotional distress from insurance carrier). Thus, Evander did not fail to exhaust its administrative remedies; there are no administrative remedies for the wrongs it assertedly suffered. Compare Vogel v. Independence Fed. Savings Bank, 728 F.Supp. 1210, 1222 (D.Md. 1990) (claims “of common law conspiracy are not adjudicated by the Insurance Commissioner” and so there is no administrative remedy to exhaust).

(iii) Appellants’ next claim is that, “as a matter of law,” Evander could not recover for tortious interference because the “jury failed to find defamation.” This argument has two premises. First, since Medical Mutual was a competitor of Evander, in order to prove tortious interference, Evander must demonstrate an underlying wrongful act or improper means. Travelers Indemnity v. Merling, supra, 326 Md. at 343 , 605 A.2d 83 ; K & K Management, Inc. v. Lee, 316 Md. 137, 155 , 557 A.2d 965 (1989); Natural Design, Inc. v. Rouse Co., 302 Md. 47, 71 , 485 A.2d 663 (1984); Fowler v. Printers II, Inc., 89 Md.App. 448, 468 , 598 A.2d ⁵⁶⁷ 794 (1991), cert. denied, 325 Md. 619 , 602 A.2d 710 (1992). 5 Second, the only wrongful act or improper means alleged here was defamation, on which the jury reached no verdict. Both premises are correct.

From them, appellants conclude that there was no finding of a necessary predicate (defamation) for recovery on the tortious interference count and so the verdict on the tortious interference count must fail. Evander does not quarrel with either of the premises upon which appellants’ syllogism is constructed, but vehemently argues that the conclusion is unwarranted. If the jury had returned a verdict for appellants on defamation, this verdict would have, arguably, been inconsistent with the tortious interference verdict. This inconsistency might have resulted in defective verdicts requiring a holding that the tortious interference verdict could not stand.

Although there is some authority for such a conclusion, S & R v. Nails, 85 Md.App. 570, 590 , 584 A.2d 722 , cert. granted, 323 Md. 115 , 591 A.2d 506 (1991) (“irreconcilably defective verdicts,” “[w]here the answer to one of the questions in a special verdict form would require” a plaintiff’s verdict and “an answer to another would require’’ a defendant’s verdict, cannot stand (emphasis added)), this conclusion is by no means certain. The Court of Appeals has specifically directed that “[i]n reconciling a jury’s answers to specific interrogatories, we should assume that the jury was rational and consistent ... [o]ur quest should be for a view of the case which would make the jury’s findings consistent.” Edwards v. Gramling Engineering Cory., 322 Md. 535, 547-48 , 588 A.2d 793 , cert. denied, — U.S. ⁵⁶⁸ — , 112 S.Ct. 317 , 116 L.Ed.2d 259 (1991). See also Eagle-Picker Indus., Inc. v. Balbos, 84 Md.App. 10, 35 , 578 A.2d 228 (1990), aff'd in part rev’d in part, 326 Md. 179 , 604 A.2d 445 (1992) (“[inconsistent jury verdicts generally are not sufficient grounds for an appellate court to reverse a jury’s verdict”). 6 In any event, the jury here did not return a verdict for appellants on defamation. It failed to return any verdict on the defamation count.

A “jury’s inability to reach a verdict cannot be taken as a finding against” a party. Rivera v. La Porte, 896 F.2d 691, 693 (2d Cir.1990). Indeed, the only verdict that may be recognized is a verdict returned by a jury in open court. See Md. Rule 2-522(b) (“The verdict shall be returned in open court”); United States v. Chinchic, 655 F.2d 547, 548 (4th Cir.1981), cert. denied, 471 U.S. 1135 , 105 S.Ct. 2674 , 86 L.Ed.2d 693 (1985) (interpreting identical language in Fed. R.Crim.Proc. 31 and holding that a “valid verdict requires it be returned by the jury to the judge in open court”).

Since there was no verdict on the defamation count, there was no finding by the jury for the plaintiffs on the defamation count, but there also was no finding by the jury for the defendants on the defamation count. In similar circumstances, the Second Circuit recently concluded that there can be no conflict requiring appellate reversal between a verdict and a nonverdict. Rivera v. La Porte, supra, 896 F.2d 691, 694 . There, the jury found a police officer liable for malicious prosecution based on an arrest made without probable cause, but indicated that it could not unanimously agree on the companion false arrest ⁵⁶⁹ count.

Id. at 693 . Under New York law, a plaintiffs verdict on malicious prosecution is fatally inconsistent with a defendant’s verdict on false arrest. Adams v. New York Housing Authority, 24 A.D.2d 948 , 265 N.Y.S.2d 220, 221-22 (N.Y.1965) (the “jury having found that plaintiff was lawfully arrested, it should follow that there was probable cause for defendants to have preferred charges against plaintiff”). 7 The Second Circuit recognized this but concluded that “the jury’s failure to return” any verdict on the false arrest count “cannot be equated with the jury’s findings in favor of the defendant in Adams . ” Rivera, supra, 896 F.2d at 693 . The Rivera court reasoned that the absence of a verdict on the false arrest count “means only that for whatever reasons thought sufficient by the jurors, they declined to pursue the topic of probable cause a second time.” Id. at 694 .

The Court explained: Jurors may have innumerable reasons for not returning verdicts on some counts, including their view, entirely understandable in this case, that by returning verdicts in plaintiff’s favor ... and awarding damages, they had sufficiently discharged their fact-finding responsibilities ... If that was their view, they were correct. Id. In Rivera , there was no claim that the jury was improperly instructed. 896 F.2d at 692-93 .

Similarly, appellants here make no claim that the jury was improperly instructed as to the elements of defamation or as to the elements of tortious interference with business advantage, including the fact that: To recover on their claims for interference with respect to business advantage, plaintiffs must not only prove that ⁵⁷⁰ there was interference with existing or prospective business relationships, but they also must prove that the interference was improper. Interference is improper if it is done through violence, intimidation, defamation, injurious falsehoods or other fraud, violation of the criminal law and institution or threat of groundless civil suits or criminal prosecutions in bad faith. It is not improper to engage in competition for prospective gain so long as the means used are not in themselves improper. Competitive interference is not improper interference.

(emphasis added.) The jury was not instructed — and appellants sought no instruction — that it could not find liability for tortious interference unless it found liability for defamation. Thus, as in Rivera , no charge was “requested or given” that the jury “could not return a verdict for the plaintiff” on one count (here tortious interference) “unless it first returned a verdict in his favor” on the other count (here defamation). Rivera, supra, 896 F.2d at 693-94 (emphasis added). Hence, as in Rivera , the verdict here is not fatally inconsistent with the nonverdict.

Indeed, since like the defendant in Edwards v. Gramling Engineering Corp., supra, appellants “did not object to the wording of the questions submitted to the jury at trial,” like him, they could “not, at this late date, bemoan the imprecise language of the special verdict,” even if there had been, as there was not, a defendants’ verdict on the defamation count. 322 Md. at 550 , 588 A.2d 793 . See Rule 2-522(c) (“[a]s to an issue omitted without such demand, the court may make a finding or, if it fails to do so, the finding shall be deemed to have been made in accordance with the judgment entered”). (iv) Appellants assert that there was insufficient evidence that the Dear Colleague Letter was defamatory because, as a matter of law, neither actual malice (sometimes called “constitutional malice”) nor falsity was established. A false statement “is one that is not substantially correct,” ⁵⁷¹ Batson v. Shiflett, 325 Md. 684, 726 , 602 A.2d 1191 (1992); in order to establish actual malice, a plaintiff must establish clear and convincing evidence “that a statement was made ‘with knowledge that it was false or with reckless disregard of whether it was false or not.’ ” Id. at 728 , 602 A.2d 1191 (quoting New York Times v. Sullivan, 376 U.S. 254, 279-80 , 84 S.Ct. 710, 725-26 , 11 L.Ed.2d 686 (1964)).

An appellate court must conduct an independent de novo review of the evidence to determine if falsity and actual malice are clearly and convincingly established. See Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 510-11 , 104 S.Ct. 1949, 1965 , 80 L.Ed.2d 502 (1984); Batson, supra, 325 Md. at 722 , 602 A.2d 1191 . Our independent examination of the entire record leads us to conclude that there was sufficient evidence from which the jury could have determined there was clear and convincing proof that the Dear Colleague Letter was both false and written with actual malice. In that letter, Dr. Yow, President of Medical Mutual, speaking for Medical Mutual, told Evander’s physician clients: As one of the physicians who guide Medical Mutual, I have listened to members over the past months, and it has become apparent that a few brokers are no longer representing Medical Mutual in a way that many of you feel to be adequate.

I regret that we will no longer accept any new physician business from your present broker effective this date and that we will no longer accept renewal physician business from your present broker as of August 25, 1989. ****** We want you to have the best possible service from our employees and from the brokers who sell our product. We will continue to listen to our members and do whatever we can to help. (emphasis added.) The physicians receiving this letter could have concluded that: (1) Evander was not “representing Medical Mutual in ⁵⁷² a way many” physicians felt to be adequate; (2) Evander was not “adequate” as a broker; and (3) Medical Mutual was terminating Evander because “many” doctors had complained of his inadequacy. 8 Appellants claim that these three possible messages were true and point out that their witnesses testified at trial that “they believed the Dear Colleague Letter to be true.” They did so testify, but not only did Mr. Evander and his employees testify that the agency adequately represented physicians but, also, one or more Medical Mutual’s employees and officers testified that (1) they had “never heard any complaints” about Evander’s “service”; (2) they had no reason to believe that Evander was not “adequate” as a broker, i.e., adequately representing its doctor clients; (3) Medical Mutual’s wholly owned subsidiary continued to permit Evander, regardless of this stated “inadequate representation,” to broker malpractice insurance to dentists; and that (4) the reason that Medical Mutual terminated Evander was not because it was inadequately representing the company or the doctors, but was because Evander was “selling the competition” or making “unfair comparisons” between Medical Mutual and its competitor, PIE. Thus, as in Batson , the “jury reasonably could have found” the defamatory statement — here the Dear Colleague Letter — contained “sufficient misstatements of fact to be substantially incorrect.” Batson, 325 Md. at 727 , 602 A.2d 1191 .

As for actual malice, “ ‘subjective awareness of probable falsity’ constitutes actual malice.” Id. at 728 , 602 A.2d 1191 (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323 , 334-36 n. 6, 94 S.Ct. 2997 , 3004-05 n. 6, 41 L.Ed.2d 789 (1974)). Although a plaintiff will “rarely be successful in proving awareness of falsehood from the mouth of the ⁵⁷³ defendant himself,” id. [325 Md.] at 730, 602 A.2d 1191 (quoting Herbert v. Lando, 441 U.S. 153, 170 , 99 S.Ct. 1635, 1645 , 60 L.Ed.2d 115 (1979)), in this case there is such evidence. Dr. Yow, an individual defendant and chairman of the board and chief executive officer of the only other defendant, Medical Mutual, testified that he never heard any complaints about Evander’s service to physicians and that, “in all honesty,” he did not “know of” any doctor to whom Evander recommended PIE, who would have been better served by Medical Mutual. Yet, Dr. Yow acknowledged if he had received the Dear Colleague Letter he would have thought “there was a problem” with Evander.

Dr. Yow further testified that the real reason that Medical Mutual was not going to accept any more business from Evander was because it did not like what Evander “was doing with PIE,” and that this reason was not stated in the Dear Colleague Letter because it was “not a good business practice” — “it would sound like we are not able to fight the competition.” The jury could have concluded that these statements provided clear and convincing evidence that Dr. Yow and the other officers of Medical Mutual published the Dear Colleague Letter with “subjective awareness” of the “probable falsity” of some of the statements in it. In addition to these admissions, there was abundant circumstantial evidence of actual malice. In Batson , the Court of Appeals noted that the use of circumstantial evidence to prove actual malice is “explicitly permitted and encouraged.” 325 Md. at 730 , 602 A.2d 1191 . Here, that evidence included the talk by officers of Medical Mutual of “shooting” Mr. Evander, of “burying him in legal costs,” and “making an example” of him; the laborious, careful preparation of the Dear Colleague Letter that nevertheless failed to set forth the true reason for Evander’s termination; the unannounced and unprecedented personal delivery of the three documents to Evander; and the months long campaign to revoke Evander’s license even after the Insurance Division