UBS Financial Services, Inc. v. Thompson

HOTTEN, J. This case arises from a significant jury award for compensatory and punitive damages by a jury, sitting in the Circuit Court for Baltimore City, in favor of appellees, sisters Nancy Lee Katherine Thompson (“Kathy”) and Barbara Clements ⁵⁰⁶ (“Barbara”) 1 against appellants, UBS Financial Services, Inc., UBS Financial Services Insurance Agency, Inc., UBS Insurance Agency, Inc., Paine Webber, Inc., and UBS Paine Webber, Inc. (collectively, “UBS”) and Gordon Witherspoon (“Mr. Witherspoon”). Appellees alleged in their complaint that appellants’ tortious conduct denied them the full value of a life insurance policy purchased by appellees’ parents, Nancy (“Ms. Thompson”) and Albert Thompson (“Mr. Thompson” and, together, “the parents”). Appellants filed various post-trial motions challenging the jury’s award, all of which were denied by the circuit court. UBS filed a timely appeal and presents four questions for our review, 2 while Mr. Witherspoon appealed and presented six. 3 4We consolidate these questions into a single inquiry: ⁵⁰⁷ Did appellees suffer legally recoverable injuries as a result of UBS’ and/or Mr. Witherspoon’s conduct?

For the following reasons, we determine that (1) appellees did not establish a sufficient claim for conversion; (2) appellees did not establish a sufficient claim for constructive fraud; (3) the circuit court erred by excluding appellants from introducing certain evidence regarding the parents’ financial gifts to their children; (4) the circuit court erred by improperly instructing the jury on duty, and (5) the circuit court erred by entering a speculative and flawed jury award. We therefore reverse the judgments against appellants, and remand for a new trial on appellees’ claims for negligence, negligent supervision, negligent misrepresentation, and deceit. FACTUAL AND PROCEDURAL BACKGROUND This case stems from an insurance policy purchased by the parents on September 28, 1990. The policy was a “second to die” life insurance policy from The Manufacturers Life Insurance Company (“Manulife”).

It listed “the owner” as the beneficiary and listed the children, Kathy, Karen, Susan Witherspoon (“Susan”), Carol Lareuse (“Carol”), and Barbara as the owners. The premium schedule indicated that premiums were “payable at annual intervals to second death, or to age 99 of the younger of the surviving lives, as follows!.]” Under a section marked “PAYMENT OF PREMIUMS!,]” the policy explained that: ⁵⁰⁸ If a premium is not paid by the end of the grace period, your policy terminates, unless it has a value called a cash value. What happens then is explained in the “Automatic Premium Loan” and “Guaranteed Options” provisions. The “Surrender for Cash” provision describes the cash value.

The “GUARANTEED OPTIONS” section referenced above stated the following: If a premium is not paid and your policy has a cash value, you can chose a “guaranteed option” instead of resuming premium payments. The guaranteed options are (a) and (b) below. If you do not choose a guaranteed option before the end of the grace period (or such other time as may be required by the law of the state in which this policy was delivered), and had not asked for the automatic premium loan option, we will apply option (a). (a) Paid-up life insurance.

You can continue the policy as paid-up life insurance payable on the second death. We will use the cash value, less any policy debt, as a net single premium on the due date to compute the amount of insurance. (b) Surrender for Cash. You can surrender the policy for cash according to the “Surrender for Cash” provision.

The policy also contained a section entitled “AUTOMATIC PREMIUM LOAN” which stated the following: We automatically will grant a loan to pay all or part of an unpaid premium if: (a) the premium is still unpaid at the end of the grace period; and (b) you asked for this loan option in the application, or we receive your signed request for it before the end of the grace period; and (c) the loan value exceeds the policy debt. We will loan the whole premium if at the end of the premium period the policy debt will not exceed the loan value. Where required by the law of the state in which this ⁵⁰⁹ policy was delivered, we will advise you of the initial interest rate within the stipulated period of time. If loaning the whole premium would make the policy debt at the end of the premium period greater than the loan value, we will loan only a part of the premium.

The amount we loan will keep your policy in force from the due date of the premium until the policy debt equals the loan value. Then, if the balance of the premium is still unpaid, the policy will terminate. You can write to us and cancel your request for the automatic premium loan. This cancellation will apply from the date when we receive your notice.

Other pertinent provisions of the policy read as follows: CONTRACT Your whole contract is in the policy and the application. A copy of the application is attached to the policy and deemed a part of it. We will not be bound by any statement that is not in the application or the policy. Only our President or one of our Vice-Presidents can amend or modify the policy, and only in writing.

Statements by you or either of the lives insured are representations, not warranties, unless fraud is involved. We will not use any statement by you or either of the lives insured to deny a claim, unless it is written in the application. BASIS OF VALUES The table of values on page 3 shows the basic values and the amount of paid-up whole life participating insurance. The basic value at any time is equal to the then present value of the paid-up insurance, and is calculated by the standard nonforfeiture method.

The table assumes premiums are paid to the end of the policy year shown. It does not take into account any dividends, paid-up additions or policy debt. The table shows values for a number of consecutive anniversaries. For each of the values shown and beyond the last of ⁵¹⁰ those anniversaries we compute all values and benefits by the standard nonforfeiture method.

All these values and benefits are at least as much as those required by the State in which this policy is delivered. We have filed a detailed statement of our method of computing them with your State’s insurance department. On your request we will state values and benefits for dates not shown. For a specific date in a policy year, we will allow for the time elapsed in that year and the date to which premiums have been paid.

Basic values and net single premiums are based on the Commissioners 1980 Standard Ordinary Smoker or NonSmoker Mortality Table, without select factors. We assume interest at 6.25% per year in calculating basic values, paid-up values and paid-up additions; and that deaths occur at the end of the policy year of death. The policy was signed by the parents, as well as Susan, Kathy, Karen, Carol, and Barbara. The parents, in order to avoid estate taxes, constructed a complex process involving cash gifts to the children/owners that would subsequently be used to pay the premiums on the policy.

This process was managed by Mr. Witherspoon, Susan’s husband, an insurance broker and the parents’ financial advisor. Mr. Witherspoon arranged for the premiums to be paid out of the children’s bank accounts after a cash gift was deposited. 4 For many of the years that the premiums were not paid, Mr. Witherspoon arranged for the premium notices to be sent to an address “in care of’ him. It was never envisioned that the children would pay the premiums with their own funds, and they never did. The parents, through cash gifts to their children, paid premiums on the policy until 1996.

However, the premium due that year was not paid, and payments were also neglected in 1998, 1999, 2000, 2001, 2002, and 2003. During these years, Manulife borrowed approximately $900,000 against the policy ⁵¹¹ to cover the premiums. Appellees discovered that the policy had been devalued by these loans after Mr. Thompson’s death in 2005. They, along with some of their fellow siblings, placed the blame on Mr. Witherspoon, UBS, and other financial companies associated with the policy.

Appellees filed their original complaint with a demand for a jury trial on August 29, 2008. Appellees filed an amended complaint on October 1, 2008, alleging counts of negligent misrepresentation (Count One), deceit (Count Two), conversion (Count Three), negligence (Count Four), and constructive fraud (Count Six) against Mr. Witherspoon and negligence pursuant to a theory of respondeat superior (Count Nine), negligence (Count Ten), and deceit (Count Thirteen) against UBS. The following chart illustrates the relationship between the relevant parties in the instant case: [[Image here]] UBS filed a petition to compel arbitration and motion to stay all proceedings on November 26, 2008, arguing that the insurance policy at issue was part of an agreement subjecting the case to arbitration. It subsequently filed an answer to appellees’ amended complaint on December 15, 2008.

The circuit court conducted a hearing regarding UBS’ petition to compel arbitration on January 23, 2009. It entered an order ⁵¹² granting appellants’ motion and stayed the case that same day. Appellees appealed from that order to this Court. Appellants’ arguments on that appeal were rooted in the fact that the parents had signed a Master Account Agreement and an InsightOne Brokerage Account Agreement with UBS that contained arbitration clauses.

Neither appellees nor their other siblings were parties to this agreement. Therefore, in Thompson v. Witherspoon, 197 Md.App. 69 , 12 A.3d 685 (2011), we determined that the circuit court erred when it entered an order compelling arbitration. Following our vacating the circuit court’s order compelling arbitration, appellees filed a motion to lift the stay of proceedings on May 27, 2011. The circuit court granted that motion on July 19, 2011.

Mr. Witherspoon thereafter filed an answer to the amended complaint on March 3, 2011. UBS re-filed their answer on March 10, 2011. Appellees subsequently dismissed all claims against Manulife, pursuant to a settlement, on June 6, 2012. Discovery commenced, and UBS filed a motion for complete summary judgment on September 11, 2012.

Mr. Witherspoon also filed a motion for summary judgment on appellees’ claims for negligent misrepresentation, deceit, conversion, negligence and constructive fraud on September 12, 2012. Appellees filed a motion for partial summary judgment on September 12, 2012. Following a hearing on October 15, 2012, those motions were denied. 5 Following an eleven day jury trial, Mr. Witherspoon was found liable for negligence, negligent misrepresentation as to both Kathy and Barbara, but also found that he was not acting within the scope of his employment at UBS, thereby relieving UBS of liability under a respondeat superior theory. However, the jury concluded that UBS was negligent in its supervision of Mr. Witherspoon.

The jury also determined, by clear and convincing evidence, that Mr. Witherspoon “concealed a material fact that he had a duty to disclose” to Kathy and ⁵¹³ Barbara and that he engaged in constructive fraud. They also found him liable for conversion and determined that he acted with “actual malice.” The verdict sheet indicated the following concerning damages: 20. What do you find is the total reduction of value of the Policy? Answer: $1,482,899 21.

Of the amount set forth in your answer to 20, how much do you award to [Kathy]? Answer: $741,449 22. By how much, if any, should [Kathy]’s award be increased to account for taxes? Answer: $0 23.

Of the amount set forth in your answer to 20, how much do you award to [Barbara]? Answer: $741,449 24. By how much, if any, should [Barbara’s] award be increased to account for taxes? Answer: $0 Predicated on their finding that Mr. Witherspoon acted with actual malice, the jury also considered evidence on the issue of punitive damages.

After testimony from Mr. Witherspoon, the jury awarded $150,000 in punitive damages. Mr. Witherspoon moved for a judgment notwithstanding the verdict [“JNOV”], new trial or remittitur, to alter or amend judgment, to reduce award of punitive damages or remittitur or new trial on the punitive damages, and to stay enforcement of the judgment on December 6, 2012. UBS filed a motion for JNOV, new trial or remittitur and to alter or amend the judgment on December 20, 2012. All post-trial motions were denied on April 23, 2013.

Appellants thereafter noted a timely appeal. Additional facts will be discussed as necessary to resolve the issues. ⁵¹⁴ DISCUSSION I. Conversion We begin by examining appellees’ claim for conversion against Mr. Witherspoon, since this tort is fundamentally different from appellees’ remaining fraud and negligence claims. As these arguments were presented in motions for judgment pursuant to Md. Rule 2-519 6 and motions for JNOV pursuant to Md. Rule 2-532, 7 we review the circuit court’s evaluation of these arguments de novo. Mahler v. Johns Hopkins Hosp., Inc., 170 Md.App. 293, 317 , 907 A.2d 276 (2006). “Conversion is an intentional tort that requires an exertion of ownership or dominion over another’s personal property in denial of or inconsistent with the owner’s right to that property.” Nickens v. Mount Vernon Realty Group, ⁵¹⁵ LLC, 429 Md. 53, 77 , 54 A.3d 742 (2012) (citing Darcars Motors of Silver Spring, Inc. v. Borzym, 379 Md. 249, 261 , 841 A.2d 828 (2004)).

The element of ownership may be proved by evidence that the defendant “ ‘initially acquirfed] the property or ... retain[ed] it longer than the rightful possessor permits.’ ” Lasater v. Guttmann, 194 Md.App. 431, 446-47 , 5 A.3d 79 (2010) (quoting Darcars Motors, 379 Md. at 261-62 , 841 A.2d 828 ). Although money is usually not subject to an action for conversion, “if the monies alleged to have been converted are ‘specific segregated or identifiable funds[,]’ ” the action may lie. Lasater, 194 Md.App. at 447 , 5 A.3d 79 (quoting Allied Inv. Corp. v. Jasen, 354 Md. 547, 564 , 731 A.2d 957 (1999)).

Similarly, the common law rule that only tangible property could be the subject of a conversion claim was modified to include certain intangible rights. Jasen, 354 Md. at 560 , 731 A.2d 957 . However, the Court of Appeals has limited claims for conversion under this theory to situations where “[the] tangible documents evidenced [the] property interests and ... the documents were transferred improperly to” the defendant. Id. at 562 , 731 A.2d 957 .

The Jasen Court specified the following: We agree that the tort of conversion generally may extend to the type of intangible property rights that are merged or incorporated into a transferable document. We refuse, however, to extend the tort further, to cover completely intangible rights or as section 242(2) of the Restatement [ (Second) of Torts (1965) ] contemplates, to situations in which the relevant document itself has not been transferred. Id. at 562 , 731 A.2d 957 . Section 242 of the Restatement (Second) of Torts (1965) states: § 242.

Conversion of Documents and Intangible Rights (1) Where there is conversion of a document in which intangible rights are merged, the damages include the value of such rights. (2) One who effectively prevents the exercise of intangible rights of the kind customarily merged in a document ⁵¹⁶ is subject to a liability similar to that for conversion, even though the document is not itself converted. (emphasis added). During trial, evidence was introduced that Mr. Witherspoon arranged for policy premium notices to be sent to his address for several of the years that the premiums were not being paid.

Appellees presented expert testimony that this deviated from the standard of care expected of an insurance agent. Accordingly, appellees argued throughout trial that their “ownership” was converted by Mr. Witherspoon through his handling of the premium notices and his concealment of the fact that loans were being taken out against the value of the policy. In light of the holding in Jasen , we do not perceive how a jury could reasonably conclude that Mr. Witherspoon was liable for conversion. The Jasen Court explained that the tort of conversion extends to a wrongful exercise of control over “a document in which intangible rights are merged.” 354 Md. at 562 , 731 A.2d 957 .

An insurance policy falls into this category. However, the Jasen Court expressly declined to extend this line of reasoning to intangible rights “customarily” merged into a document when the document was not actually converted. Appellees’ theory of conversion is, in substance, a rearticulation of the theory of liability espoused by the Second Restatement and rejected by the Jasen Court. By failing to forward the notices to appellees and their siblings, Mr. Witherspoon may have interfered with their rights as policy owners.

However, he is not liable for conversion unless he exercised dominion over the policy itself, which appellees never alleged. Appellees were “owners” of the insurance policy to the extent that they were nominally paying the premiums through cash gifts from the parents. However, this ownership was in theory, not in reality. By appellees’ own admission, the parents were actually in full control of the policy.

It is not clear what “control” Mr. Witherspoon could take from the sisters. Beyond this limitation, appellees cannot claim that ⁵¹⁷ Mr. Witherspoon converted any specific funds, as there exists no agreed-upon, “identifiable” monies to be converted. Furthermore, there was no unauthorized transfer of a tangible document to allow conversion under this theory. Therefore, the circuit court erred by submitting the conversion claim to the jury.

II

Constructive Fraud Mr. Witherspoon argues that appellees’ constructive fraud claim also fails, as Mr. Witherspoon did not share a “confidential relationship” with appellees. For the following reasons, we agree. “Constructive fraud” is defined as a “breach of a legal or equitable duty which, irrespective of moral guilt of the fraud feasor, the law declares fraudulent because of its tendency to deceive others, to violate public or private confidence, or to injure public interests.” Canaj, Inc. v. Baker and Division Phase III, LLC, 391 Md. 374, 421-22 , 893 A.2d 1067 (2006) (quoting Md. Envtl. Trust v. Gaynor, 370 Md. 89, 98 , 803 A.2d 512 (2002)) (some quotation marks omitted) (emphasis omitted). It is a tort that is often applied in tax and lending cases where a “confidential relationship” exists.

See Ellerin v. Fairfax Sav. F.S.B., 337 Md. 216 , 652 A.2d 1117 (1995); Scheve v. McPherson, 44 Md.App. 398 , 408 A.2d 1071 (1979). A confidential relationship is one in which “ ‘two persons stand in such a relation to each other that one must necessarily repose trust and confidence in the good faith and integrity of the other.’ ” Upman v. Clarke, 359 Md. 32, 42 , 753 A.2d 4 (2000) (quoting Green v. Michael, 183 Md. 76, 84 , 36 A.2d 923 (1944)). Some relationships, such as the one between an attorney and a client and a trustee and a beneficiary, are presumed to be confidential.

Id. In other situations, a confidential relationship must be established by clear and convincing evidence. Shih Ping Li v. Tzu Lee, 210 Md.App. 73, 110 , 62 A.3d 212 (2013), aff'd, 437 Md. 47 , 85 A.3d 144 (2014). “ ‘[T]he mere existence of a familial relationship is not indica ⁵¹⁸ tive of a confidential relationship.’ ” Latty v. St. Joseph’s Soc. of Sacred Heart, Inc., 198 Md.App. 254, 266 , 17 A.3d 155 (2011) (quoting Orwick v. Moldawer, 150 Md.App. 528, 538-39 , 822 A.2d 506 (2003)). Here, appellants did not establish a sufficient case for constructive fraud.

As we will explain infra, Mr. Witherspoon initiated a duty towards appellees by taking it upon himself to receive the premium notices and coordinate payment of the premiums. However, this duty was limited in nature. Mr. Witherspoon was obligated to pay the premiums when he received the funds to do so and to notify appellees and their siblings when the premiums were unpaid. These duties are not fiduciary in nature, and we are not persuaded to expand the concept of fiduciary duty to provide appellees a remedy when a cause of action for negligence is available to them.

Any fiduciary duty owed by Mr. Witherspoon was to the parents and their respective estates. See Thompson, 197 Md.App. at 88-89 , 12 A.3d 685 (where we determined that appellees, “as putative heirs of the Thompsons, may potentially gain some benefit from the financial advice given by [Mr.] Witherspoon to their parents but such possibilities are too attenuated to be the basis for ... concluding that [appellees] are third party beneficiaries” of that relationship). Therefore, we determine that no reasonable jury could have found, by clear and convincing evidence, that Mr. Witherspoon committed constructive fraud.

III

Evidentiary Issues UBS and Mr. Witherspoon present separate evidentiary issues that they aver impacted the trial and prejudiced the jury. We will address both parties’ contentions. A. Appellees’ Cross-Examination of UBS’ Expert UBS avers that evidence elicited during the cross-examination of Mr. Witherspoon’s expert witness John Duval (“Mr. Duval”) that UBS generally did not supervise their ⁵¹⁹ brokers was a “prior bad act” in violation of Md. Rule 5-404(b). That rule is entitled “Character evidence not admissible to prove conduct; exceptions, other crimes.” and reads: (b) Other crimes, wrongs, or acts.

Evidence of other crimes, wrongs, or acts including delinquent acts as defined by Code, Courts Article, § 3-8A-01 is not admissible to prove the character of a person in order to show action in conformity therewith. Such evidence, however, may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, or absence of mistake or accident. Unfortunately for UBS, it failed to cite Md. Rule 5-404(b) in objecting to the evidence, and is therefore precluded from arguing it here. See Boyd v. State, 399 Md. 457 , 924 A.2d 1112 (2007).

B. Evidence on “Equalizing” Gifts Appellants also argue that they should have been allowed to present evidence that the parents sought to “equalize” gifts among the children. The circuit court issued a broad ruling excluding this evidence as irrelevant and unfairly prejudicial. For the following reasons, we determine that the circuit court erred in this pre-trial ruling and subsequent, related evidentiary rulings. Md. Rule 5-401 outlines the standard for relevance at trial, and states: “Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. “Generally, the [circuit] court has wide discretion when considering the relevancy of evidence.” In re Adriana T., 208 Md.App. 545, 568 , 56 A.3d 814 (2012) (citing State v. Simms, 420 Md. 705, 724 , 25 A.3d 144 (2011)).

Md. Rule 5-403 guides the circuit court’s discretion, reading: ⁵²⁰ Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. The circuit court ruled, pre-trial, that evidence of “equalization” of gifts among the children would be excluded: I, frankly, with respect to testimony and the exhibits regarding equalization, don’t see how there’s relevance there. I don’t agree with defense counsel that there’s any relevance in that. And frankly, to the extent that there is some modest degree of value in giving some sort of framework or context as to what Mr. Witherspoon was doing, the [c]ourt finds that the probative value is substantially outweighed by the risk of prejudice.

So the motion on that point with respect to evidence and testimony that there was an attempt for equalization, and what the parents wanted to be fair, and that Kathy Thompson was obsessed about it, and there were charts and figures and graphs, the [cjourt’s going to grant the motion to exclude that evidence based on the [appellees’] [m]otion in [l]imine. During specific evidentiary arguments, the circuit court admitted some evidence of the parents’ cash gifts to the children. However, it repeatedly indicated that it would not allow appellants to discuss “equalization.” Significantly, the circuit court redacted a memo that UBS offered into evidence indicating that the father sought to “equalize” each child. The crux of appellees’ claims against Mr. Witherspoon is that his personal interest in securing money from the parents for his family prompted Mr. Witherspoon to act carelessly, or even intentionally, by exerting control over the premium notices.

Thus, the evidence that the parents sought to provide the children with equal gifts was crucial for the defense. This intent to “equalize” tends to negate appellees’ claims that Mr. Witherspoon and his wife were treated differently from the other children and their spouses, or that Mr. Witherspoon was ⁵²¹ exploiting his position as the parents’ financial advisor. Furthermore, the chilling effect that the circuit court’s pre-trial ruling had on appellants’ ability to argue their defenses effectively cannot be overstated. Mr. Witherspoon, and by extension UBS, should have been able to place the parents’ cash gifts to Mr. Witherspoon’s wife in context.

Preventing Mr. Witherspoon from presenting evidence that placed his relationship with the parents in context was severely prejudicial, and the error permeated the circuit court’s evidentiary rulings. In our view, these rulings significantly affected all aspects of the jury’s verdicts regarding liability.

IV

Jury Instructions and Duty UBS argues that the circuit court abused its discretion in omitting its requested jury instructions. Many of these instructions related to the duty that Mr. Witherspoon, as an insurance producer, owed appellees. Both appellants argue that the circuit court erred in holding that Mr. Witherspoon owed a broad, legal duty to appellees. As both of these issues concern the circuit court’s handling of the concept of “duty,” we believe that these arguments are best addressed together.

UBS argues that the circuit court abused its discretion by failing to provide “basic” jury instructions concerning insurance policies, specifically Maryland Civil Pattern Jury Instructions [“MPJI-CV”] 14:1, 8 14:2, 9 14:4, 10 and 14:6. 11 It also ⁵²² contends that the circuit court should have instructed the jury regarding the duty that insurance agents and brokers owe to relevant parties, which is covered by the following instructions: • MPJI-CV 14:5, “INSURANCE AGENT AND BROKER-DEFINED”: An insurance agent is one who the insurance company authorizes to act for and bind it in matters relating to insurance. The agent’s authority to act for the insurance company may be expressly given or may be implied from the insurance company’s conduct. An insurance broker is one who obtains insurance for a person seeking insurance. A broker is considered to have been engaged by the person seeking insurance.

An insurance broker is to be distinguished from an insurance agent since the broker does not act for and cannot bind the insurance company. However, in a transaction, a person may be an insurance broker for some purposes and an insurance agent for other purposes. • MPJI-CV 14:7, “INSURANCE AGENT’S DUTY TO INSURED”: Although an insurance agent acts on behalf of the insurance company and not the insured, the agent owes the insured a duty of reasonable care if the agent undertakes ⁵²³ to act for the insured and the insured may rely on the agent to perform this duty. • MPJI-CV 14:9, “INSURANCE BROKER’S DUTY TO INSURED”: A broker owes the insured a duty to act with good faith, reasonable care, and skill. The insured may rely on the broker to perform this duty. The broker is responsible to the insured for any loss sustained by the insured as a result of the violation of this duty.

We review the circuit court’s decision regarding which jury instructions to employ for abuse of discretion. CSX Transp., Inc. v. Pitts, 430 Md. 431, 458 , 61 A.3d 767 (2013). “A party is entitled to an instruction that correctly states the law only if that law is applicable to some issue in the case, i.e., if there is testimony in the case which supports it[.]” Wilbur v. Suter, 126 Md.App. 518, 525 , 730 A.2d 693 (1999) (citing Kessler v. Equity Mgmt. Inc., 82 Md.App. 577, 593 , 572 A.2d 1144 (1990)). We conclude that the circuit court did not abuse its discretion by declining to give the above referenced instructions, as we agree with appellees that these instructions were not correct statements of the law.

While this State once distinguished between the terms “insurance agent” and “insurance broker,” the General Assembly abolished that distinction in 2001. Now, Maryland, unlike many other states, does not distinguish between these terms. Compare Md.Code (1995, 2011 Rep. Vol.), § l-101(u) of the Insurance Article [hereinafter “Ins.”] with, e.g., Essex Ins.

Co. v. Zota, 985 So.2d 1036, 1046 (Fla.2008) (“It is important to note that ‘insurance broker’ and ‘insurance agent’ are not synonymous terms.... ‘The distinction between an agent and a broker is important because acts of an agent are imputable to the insurer, and acts of a broker are imputable to the insured.’ ”) (quoting 3 Lee R. Russ & Thomas F. Segalla, Couch on Insurance § 45:1 (3d. ed.2007)) (emphasis omitted). Instead, Ins. § l-101(u) reads: (u) Insurance producer.—(1) “Insurance producer” means a person that, for compensation, sells, solicits, or negotiates ⁵²⁴ insurance contracts, including contracts for nonprofit health service plans, dental plan organizations, and health maintenance organizations, or the renewal or continuance of these insurance contracts for: (i) persons issuing the insurance contracts; or (ii) insureds or prospective insureds other than the insurance producer. (2) “Insurance producer” does not include: (i) an individual who performs clerical or similar office duties while employed by an insurance producer or insurer, including a clerical employee, other than a clerical employee of an insurer, who takes insurance information or receives premiums in the insurance producer’s office, if the employee’s compensation does not vary with the number of applications or amount of premiums;