Innocent Owner Not Deprived of Coverage Because of Negligence of Permissive Driver
Maryland still allows contributory negligence as a defense to a tort action thereby depriving recovery for damages incurred by a person contributarily negligent. Most states assess liability on a comparative negligence basis. In Maryland, until April 20, 2018 when an owner of a vehicle is injured because the permissive driver of the vehicle was negligent, the doctrine of imputed negligence prevented the innocent owner of the right to damages.
In Victoria Seaborne-Worsley v. Jeffrey Mintiens, No. 26, Court of Appeals of Maryland (April 20, 2018) the doctrine of imputed negligence was done away with in Maryland for auto accidents.
In the past, the doctrine functioned to ensure that individuals injured in automobile accidents would be able to obtain compensation from the party most likely to be financially responsible – the car’s owner. However, developments in the law and in insurance coverage make reliance on the fiction of owner control less compelling. Moreover, in situations where an owner-passenger is injured and innocent of any negligence, application of the doctrine, in conjunction with a defense of contributory negligence, can have the perverse effect of foreclosing compensation to an injured party who was not personally at fault. As a result, courts in many states have abrogated or limited the doctrine of imputed negligence.
This case grew out of an accident in a restaurant parking lot when Respondent Jeffrey Mintiens backed his truck out of a parking space and struck a car in which Petitioner Victoria Worsley (“Ms. Worsley”) was seated. Ms. Worsley’s husband had driven the couple to the restaurant and left the car and his wife stopped in a travel lane perpendicular to Mr. Mintiens’ parking space while he retrieved the couple’s take-out order from the restaurant.
Ms. Worsley sued Mr. Mintiens alleging that Mr. Mintiens was negligent and seeking various damages. At trial, Mr. Mintiens raised the defense of contributory negligence. The District Court concluded that Ms. Worsley’s husband had himself been negligent. It also concluded that his negligence should be imputed to Ms. Worsley under the imputed negligence doctrine because, though a passenger, she was the sole owner of the car at the time of the accident. Accordingly, the District Court entered a judgment in favor of Mr. Mintiens.
At the restaurant, there was a window facing the parking lot where customers could pick up take-out orders. Adjacent to this window were at least two handicapped parking spaces. Ms. Worsley’s husband stopped the car perpendicular to the handicapped parking spaces, placed it in park, got out of the car, and walked to the carry out window, leaving Ms. Worsley alone in the car. According to Ms. Worsley, she was supposed to take her husband’s place in the driver’s seat and park the car while he retrieved their food.
In the meantime, Mr. Mintiens had been at the restaurant since 5 p.m., during which time he met a friend and drank three beers. Shortly before 6:30 p.m., he obtained a take-out order for his family’s dinner and set out for the parking lot, where he had parked his truck opposite the handicapped spaces.
Ms. Worsley testified that she was about to unbuckle her seat belt to get out and move her car when she saw the truck backing towards her. She braced herself against the window with her right hand, also hoping to catch Mr. Mintiens’ attention. This was apparently to no avail. The back of Mr. Mintiens truck hit the back passenger-side door of Ms. Worsley’s car.
A little over nine months after the accident Ms. Worsley sued Mr. Mintiens alleging negligence and seeking compensation for her injuries. The District Court stated that it would likely find that Mr. Mintiens was negligent and liable, except that the defense of contributory negligence applied to relieve him of liability.
Because the negligence of Ms. Worsley’s husband was therefore imputed to her, Ms. Worsley was deemed to be contributorily negligent. Accordingly, the court entered judgment in favor of Mr. Mintiens.
In this case, the District Court found that Ms. Worsley’s claim was barred by the defense of contributory negligence. It did so without making any finding as to whether Ms. Worsley herself was negligent. Instead, the trial court found that her husband was negligent in his operation of the car and imputed that negligence to Ms. Worsley because she asserted that she was the sole owner of that car.
Assuming for the sake of argument that Ms. Worsley’s husband was negligent in how he parked the car, the question is thus whether the doctrine of imputed negligence applies here to defeat Ms. Worsley’s claim on the basis of contributory negligence.
The Doctrine of Imputed Negligence
Under the classic formulation of the doctrine of imputed negligence, when the owner of a vehicle is a passenger in that vehicle and allows another person to drive, any negligence of the operator of the vehicle may be attributed to the owner.
The doctrine of imputed negligence is not based on any negligence of the owner-passenger. Rather, it is a form of vicarious liability. It is a form of direct negligence and is not a theory of vicarious liability.
Where the car owner (Ms. Worsley) is a passenger in that car while a permissive driver (her husband) is negligent in parking or operating the car, and where there is no showing that she was asleep or otherwise incapable of exercising control, her husband’s negligence is attributed to her. If that negligence was a proximate cause of an accident that injured her, the doctrine of imputed negligence, under the “both ways” theory, deems her to be contributorily negligent and defeats a negligence claim by her against a third party such as Mr. Mintiens.
The Fiction of Owner Control
The fiction underlying the “controversial doctrine of imputed negligence” is divorced from reality according to Slutter v. Homer, 244 Md. at 139-40; Nationwide Mut. Ins. Co. v. Stroh, 314 Md. 176, 179-80 (1988). In Slutter, the Court observed that the doctrine “has been criticized as unrealistic and fictitious. The criticism rests on the practical consideration that, while back-seat driving is generally an annoyance, and sometimes a danger, it is almost never a physical fact.”
While an owner-passenger may have the right to control the vehicle when present as a passenger, the owner’s ability to control the vehicle is quite another thing. Indeed, an owner-passenger’s attempt to take control of a car, especially while the car is moving, is both inadvisable and likely ineffective in preventing the driver from driving negligently.
The primary policy aim undergirding the doctrine of imputed negligence was to locate a source for compensating an innocent victim for another’s negligence.
When dealing with the doctrine of imputed negligence, Maryland appellate courts have recognized that its premise – owner control – is entirely fictional in the context of automobile torts, noted that certain applications of the doctrine lead to results at odds with its original purpose, and have circumscribed its reach by creating an exception (does not apply to a co-owner) and enlarging the breadth of that exception (need not be on the title to be a co-owner).
Summary and Application to this Case
Because the courts below based their decisions on application of the doctrine of imputed negligence to hold that Ms. Worsley was contributorily negligent, the appellate court concluded it must vacate the judgment in this case.
There may be occasions when the doctrine still serves its original purpose of spreading risk and compensating an innocent injured party. Nor, in an era in which it is anticipated that many motor vehicles will soon operate autonomously without human drivers, can the court anticipate the felt necessities of the future.
The doctrine of imputed negligence does not apply to deem an owner-passenger of a motor vehicle contributorily negligent based on the negligence of a permissive driver of the owner-passenger’s vehicle and bar the owner-passenger from recovering compensation from a negligent third party.
It is good to see, in the 21st Century, that Maryland Courts have moved to join the 20th Century. Imputed negligence has lost its purpose many years ago, especially with regard to the operation of an automobile and deserved the quick, painless and effective death of the doctrine of imputed negligence by this decision. It’s about time.
© 2018 – Barry Zalma
This article, and all of the blog posts on this site, digest and summarize cases published by courts of the various states and the United States. The court decisions have been modified from the actual language of the court decisions, were condensed for ease of reading, and convey the opinions of the author regarding each case.
Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 50 years in the insurance business. He is available at http://www.zalma.com and firstname.lastname@example.org.
Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.
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