Austria Kponve v. Allstate Insurance Company, No. 91, September Term, 2015.
Opinion by Harrell, J.

INSURANCE – BURDEN OF PROOF – REDUCTION OF JUDGMENT

Pursuant to Allstate Ins. Co. v. Miller, 315 Md. 182, 553 A.2d 1268 (1989), when a
judgment for tort liability is entered in favor of an insured/injured victim, any subsequent
recovery by the victim against her uninsured/underinsured insurer may be adjusted
typically by agreement between the insured and her insurer or by a contract action to
conform the recovery to the amount of uninsured/underinsured coverage under the policy,
less any money paid by the underinsured tortfeasor to the victim. In this case, where the
Petitioner’s uninsured/underinsured insurer (Allstate) intervened in its insured’s tort
action against the tortfeasor, from which the judgment in favor of the insured and against
Allstate was entered after the insured and tortfeasor settled the insured’s claim for the
tortfeasor’s policy limit, the insurer did not have the burden of proving its policy limits in
the tort action because: (1) the insurer had not been sued by its insured in a contract
action (as contemplated by Miller as a vehicle to achieve the adjustment); (2) the subject
of the policy limit had been discussed in the tort action (but the amount of coverage was
not put on the record); and, (3) the amount of coverage was not in dispute on the record
by the insured in the tort action. The disposition of the case by the Court of Special
Appeals placed the matter on remand on a proper Miller track for resolution between
insured and insurer.
Circuit Court for Montgomery County
Case No. 361484V

Argued: May 10, 2016

                                             IN THE COURT OF APPEALS
                                                  OF MARYLAND

                                                             No. 91

                                               SEPTEMBER TERM, 2015



                                                   AUSTRIA KPONVE


                                                               v.

                                         ALLSTATE INSURANCE COMPANY



                                            Barbera, C.J.,
                                            Greene,
                                            Adkins,
                                            McDonald,
                                            Watts,
                                            Harrell, Glenn T., Jr. (Retired, Specially
                                                                         Assigned),
                                            Battaglia, Lynne A. (Retired, Specially
                                                                         Assigned),

                                                                      JJ.


                                                   Opinion by Harrell, J.


                                      Filed: June 22, 2016
         With somewhat greater frequency than Halley’s Comet becomes observable to the

naked eye from Earth,1 this Court will adopt, in whole or in part (and without substantive

change), an opinion of the Court of Special Appeals because we agree with its resolution

of the matter and cannot improve often in any material way upon its analysis.2 The

opinion of the Court of Special Appeals in the present case, Allstate Ins. Co. v. Kponve,

225 Md. App. 370, 124 A.3d 1147 (2015), is such a nonpareil.3 Its explication and

application of the relevant law to the questions presented to it is spot-on. The denouement

of the opinion represents an elegant balance of justice and law.

         Because the questions presented to this Court and the intermediate appellate court

differ slightly, we elaborate briefly on that point alone. We granted Austria Kponve’s

Petition for a Writ of Certiorari in this case to consider the sole question of whether

Allstate Ins. Co. v. Miller, 315 Md. 182, 553 A.2d 1268 (1989) remains good law in

Maryland, in light of the Court of Special Appeals’s opinion in the present case. The

parties disagree, of course, on the correct response to this query and, thus, we make clear




         1
             Halley’s Comet comes close enough to Earth to be visible about every 75-76
years.

        See, e.g., TIG Ins. Co. v. Monongahela Power Co., 437 Md. 372, 86 A.3d 1245
         2

(2014); Sturdivant v. Maryland Dep’t of Health & Mental Hygiene, 436 Md. 584, 84
A.3d 83 (2014); Sherrard v. Hull, 296 Md. 189, 460 A.2d 601 (1983); State v. Bartlett,
267 Md. 530, 298 A.2d 16 (1973).
         3
        This is not a reference to the flat, round candies with white sugar sprinkles that
many of us purchased at movie theater concession stands in our youth.
our answer that Allstate Ins. Co. v. Miller, remains sound law. The Court of Special

Appeals, in answering a different question put to it by the parties4, concluded that:

       Allstate was never sued in contract and therefore we are dealing with a tort
       case, pure and simple and not, as in Miller, with what was “functionally . . .
       a tort case.” In a tort case, regardless as to whether policy limits are
       disputed, the amount of uninsured motorist coverage is irrelevant—those
       limits would only have relevance if it was necessary to bring a breach of
       contract action against Allstate. There is no language in Miller that
       supports [Kponve’s] position or bolsters the (implied) position of the trial
       judge in this case. Instead, the Miller case makes clear, that Allstate did not
       have the burden of proof as to contract damages in a tort case such as this.

Kponve, 225 Md. App. at 387-88, 124 A.3d at 1157-58. We do not perceive that the

Court of Special Appeals disregarded or diminished, as Petitioner suggests, the vitality of

the holding and reasoning in Miller. Rather, recognizing that the present case proceeded

entirely as a tort action, and not a contract action, the judgment of the Court of Special

Appeals, through its sound reasoning, placed, upon remand, this case on the correct

Miller path.

                                          JUDGMENT OF THE COURT OF
                                          SPECIAL APPEALS AFFIRMED. COSTS
                                          TO BE PAID BY PETITIONER.




       4
          The question presented to the Court of Special Appeals by Allstate asked
whether it was erroneous for the Circuit Court for Montgomery County to deny Allstate’s
Post Trial Motion to Reduce the Judgment to conform to its uninsured/underinsured
policy limit, which motion was filed by Allstate (an intervenor in the tort action) in the
tort case brought by its insured against the potentially underinsured tortfeasor.


                                             2
