Wegad v. Howard Street Jewelers, Inc.

CHASANOW, Judge. Howard Street Jewelers filed suit against its accountant, Gilbert Wegad, C.P.A., for professional malpractice based upon his failure to detect that the jewelry store’s cashier was embezzling funds. On February 20, 1990, the case ⁴¹² went to trial before a jury and the Honorable William N. Nickerson in the Circuit Court for Baltimore County. The case was submitted to the jurors on a special verdict sheet which required them to answer four questions: (1) Was Gilbert Wegad guilty of negligence in performing accounting services for Howard Street Jewelers?; (2) Was the lawsuit filed within the statute of limitations?; (3) Was Howard Street Jewelers, through any of its principals, guilty of contributory negligence?; and (4) If appropriate, what damages did Howard Street Jewelers suffer?

The jury answered “Yes” to the first three questions. Accordingly, because of Howard Street Jewelers’ contributory negligence, judgment was entered in Wegad’s favor. Howard Street Jewelers appealed the verdict to the Court of Special Appeals on the ground that Judge Nickerson erred in refusing to give a requested jury instruction on contributory negligence. The intermediate appellate court agreed that the trial judge’s failure to give the requested instruction was error and, therefore, reversed the jury verdict and remanded the case for a new trial.

Howard Street Jewelers v. Wegad, 87 Md.App. 351 , 589 A.2d 1285 (1991). We granted Wegad’s petition for writ of certiorari to review the judgment of the Court of Special Appeals. Before the last day of trial, Howard Street Jewelers submitted to Judge Nickerson two proposed jury instructions on the issue of contributory negligence. Howard Street Jewelers has abandoned its insistence on one of its instructions; consequently, we need not review it.

Howard Street Jewelers bases its appeal to this Court on the propriety of its other proposed instruction. The first paragraph of that instruction recited the general standard for contributory negligence, while the second paragraph set forth the following specific instruction: “The client can rely on the accountant’s knowledge and skill. It is not contributory negligence for a client to follow an accountant’s instructions, or rely on his advice, or to fail to consult with another accountant or to discover the source of a financial problem itself where the ⁴¹³ client has no reason to suspect his accountant’s advice and instructions are wrong.” The trial court declined to give the requested instruction. Instead, the court gave the jury the following general instruction on contributory negligence: “Now, the plaintiff cannot recover if his or her or its, in this case we are talking about a corporation, own negligence is the cause of the plaintiffs damage or injury.

Since the plaintiff in this case is a corporation, the issue of contributory negligence as it is called is to be considered in relation to the acts or omissions on the part of the corporation’s principals or agents. So, in this case the issue relates to the consideration of acts or omissions on the part of either Julius Levi, Lore Levi or Alvin Levi [the principals]. And negligence, as I instructed you a moment ago, is doing something that a person using ordinary care would not do or not doing something that a person using ordinary care would do. Ordinary care being that caution, attention or skill that a reasonable person would use under similar circumstances.

And so with respect to the issue of contributory negligence, the defendant has the burden of proving by a preponderance of the evidence, which I will explain later, that the plaintiffs negligence was a cause of the plaintiffs damage or loss. So that means that if you find from the evidence that one or more of the plaintiffs principals was guilty of negligence which was a direct cause of the plaintiffs loss or damage, then your verdict must be for the defendant. And that would be regardless of whether you find that the defendant was also negligent and regardless of whose negligence was greater.” Howard Street Jewelers contends, as it did below, that its requested instruction is an accurate statement of the law and should have been given because the instruction that the trial court actually gave did not fairly cover the reliance issue. The Court of Special Appeals aptly framed this contention by noting that Howard Street Jewelers “did not ⁴¹⁴ challenge the general contributory negligence instruction.

It challenged only the court’s refusal to tailor that general instruction so as to take account of a client’s reliance on advice given it by a professional, in this case, an accountant.” Howard Street Jewelers, 87 Md.App. at 360 , 589 A.2d at 1289 . Howard Street Jewelers’ challenge is implicitly based upon the principle that a “litigant is entitled to have his theory of the case presented to the jury____” Sergeant Co. v. Pickett, 285 Md. 186, 194 , 401 A.2d 651, 655 (1979) (quoting Levine v. Rendler, 272 Md. 1,13 , 320 A.2d 258, 265 (1974)). This “entitlement,” however, is conditioned upon two requirements: “(1) the [requested] instruction must correctly state the law, and (2) that law must be applicable in light of the evidence before the jury.” Id. Further, under Maryland Rule 2-520(c), the court “need not grant a requested instruction if the matter is fairly covered by instructions actually given.” See State Roads Comm’n v. Parker, 275 Md. 651, 688 , 344 A.2d 109, 129 (1975) (If the substance of the requested instruction is fully and fairly covered by the instruction given, there is “no requirement on [the court’s] part to grant any specific requested instruction submitted by [a party] — assuming arguendo — that such proffered instruction would have, with precision, submitted to the jury a correct proposition of law.”).

Consequently, to rule upon the propriety of denying a requested jury instruction, a reviewing court must determine whether the requested instruction was a correct exposition of the law, whether that law was applicable in light of the evidence before the jury, and finally whether the substance of the requested instruction was fairly covered by the instruction actually given. We first examine the substance of the requested instruction, i.e., the standard for contributory negligence which incorporates a client’s ability to rely on the advice of its accountant. Howard Street Jewelers’ requested instruction was patterned after language in Santoni v. Schaerf, 48 Md.App. 498 , 428 A.2d 94 (1981), and the Court of Special ⁴¹⁵ Appeals relied on Santoni for its conclusion that Howard Street Jewelers’ requested instruction was a correct exposition of the law. Santoni involved a medical malpractice action wherein a doctor at a Baltimore tuberculosis clinic prescribed a drug that caused his patient, Mario Santoni, to contract hepatitis and eventually die.

Santoni’s estate sued the doctor who then raised contributory negligence as a defense. The Court of Special Appeals in Santoni noted the disparity between the knowledge and skill of a doctor and that of a patient in relation to the risks of medication, and stated that “it is not contributory negligence for a patient to follow a doctor’s instructions or rely on his advice.” 1 Id. at 507 , 428 A.2d at 100 . That court then looked to see if there was legally sufficient evidence to permit the inference that Santoni either associated or should have associated his symptoms with the medication and then failed to report the adverse reactions. Id. at 509-11 , 428 A.2d at 101-02 .

The intermediate appellate court concluded that the evidence was insufficient and, therefore, contributory negligence was not an issue for the jury. Id. at 519 , 428 A.2d at 106 . This Court, in Moodie v. Santoni, 292 Md. 582, 591 , 441 A.2d 323 , 327 (1982), reversed that decision on appeal, holding that “there was evidence, if believed, from which ⁴¹⁶ the jury could infer that Santoni failed to heed instructions [to report symptoms to the clinic] and hence was guilty of contributory negligence.” Accordingly, this Court held that the question of contributory negligence was for the jury. Making no express comment as to whether Mr. Santoni was entitled to rely on his doctor’s advice, this Court looked to Mr. Santoni’s failure to act prudently upon other facts he knew or should have known.

Thus, the rationale of this Court’s decision in Moodie v. Santoni is that a patient’s failure to otherwise act to protect himself is not in every case justified by his reliance on his doctor’s knowledge and skill. 2 In the instant case, the Court of Special Appeals noted that Santoni v. Schaerf required “reasonable” or “justifiable” reliance, and held that Howard Street Jewelers, through its requested instruction, “sought to have the jury instructed that it could justifiably rely upon its accountant’s knowledge and skill and, further, that it is not contributory negligence to do so____” Howard Street Jewelers, 87 Md.App. at 861-62 , 589 A.2d at 1290 (emphasis added). It is not clear from the requested instruction that Howard Street Jewelers in fact sought to have the jury so instructed. ⁴¹⁷ The focus of the contributory negligence defense is whether the plaintiff took appropriate precautions to protect his own interests. Menish v. Polinger Company, 277 Md. 553, 557-58 , 356 A.2d 233, 235-36 (1976). To varying degrees and under diverse circumstances, accountants may be employed to protect against any number of potential risks.

In some instances, clients might hire an accountant to do an audit for the very purpose of detecting possible defalcations. In other cases, as in the one at hand, the accountant’s employment may be more limited and the accountant’s duties may not necessarily include searching for misappropriations. 3 The scope of the accountant’s undertaking has a bearing on how much a client is entitled to rely on the professional’s advice. The degree to which a client has a right to rely on this advice should be considered when deciding if that client exercised reasonable care. The client, however, should not be permitted an absolute and unqualified right to rely on the accountant’s advice and thereby be completely insulated from responsibility for his or her own shortcomings.

For example, we do not believe that an accountant’s negligent failure to report shortages completely insulates the client who consistently leaves the company’s cash unattended and fully accessible to all employees and customers. The fact finder should consider the client’s reliance on its accountant as an integral part of the determination of whether the client took reasonable action to protect its interests. That is quite a different prospect from requiring the fact finder to absolve the client of ⁴¹⁸ responsibility for its losses if it has relied upon its accountant. The principle that a client is contributorily negligent if it unreasonably relies on the advice of its accountant is an extension of that embodied in the Restatement (Second) of Torts, § 552A (1977).

Section 552A provides: “The recipient of a negligent misrepresentation is barred from recovery for pecuniary loss suffered in reliance upon it if he is negligent in so relying.” Comment a to Section 552A mandates that the plaintiff be held to the standard of care, knowledge, intelligence, and judgment of a reasonable person in relying on the negligent misrepresentation. As the first paragraph of the requested instruction correctly explained, “[t]o be held contributorily negligent, a person must actually have been aware or should have appreciated the risks involved and then failed to exercise reasonable and ordinary care for his own protection.” Thus, whether the plaintiff should have appreciated the risks or foreseen the potential harm to himself becomes a central question in the analysis. Menish, 277 Md. at 562 , 356 A.2d at 238 . Relating a client’s ability to rely on the advice of its accountant to this aspect of foreseeability, Howard Street Jewelers argues that “[bjecause the professional possesses specialized expertise, the client naturally relies on him____ The primary basis for the