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Darcars Motors of Silver Spring

1/30/2003

pproval in Davis v. Gordon, 183 Md. 129, 133, 36 A.2d 699 (1944); Owens-Illinois v. Zenobia, 325 Md. 420, 455, 601 A.2d 633 (1992); Ellerin v. Fairfax Savings, 337 Md. 216, 227, 652 A.2d 1117 (1995)).


What has come to be the standard definition of actual malice in Maryland was that articulated by Judge Digges in Drug Fair v. Smith, 263 Md. 341, 352, 283 A.2d 392 (1971):


Actual or express malice may be characterized as the performance of an unlawful act, intentionally or wantonly, without legal justification or excuse but with an evil or rancorous motive influenced by hate; the purpose being to deliberately and wilfully injure the plaintiff. See also Schaefer v. Miller, 322 Md. 297, 300, 587 A.2d 491 (1991); Henderson v. Maryland National Bank, 278 Md. 514, 519, 366 A.2d 1 (1976); Siegman v. Equitable Trust Co., 267 Md. 309, 314, 297 A.2d 758 (1972); Battista v. Savings Bank of Baltimore, 67 Md. App. 257, 274, 507 A.2d 203 (1986).


In Ellerin v. Fairfax Savings, 337 Md. 216, 228, 652 A.2d 1117 (1995), the Court of Appeals added the observation that, "with regard to most types of tort actions, Maryland law has limited the availability of punitive damages to situations in which the defendant's conduct is characterized by knowing and deliberate wrongdoing."


The Difference Between "Implied Malice" As a Rejected Standard and Implying "Malice" As a Legitimate Evidentiary Modality


The very necessity of modifying the noun "malice" with the adjective "actual" strongly suggests that there is or recently has been a definitional problem in describing the predicate for a punitive damages award. Over the twenty year period from Smith v. Gray Concrete Pipe Co., 267 Md. 149, 297 A.2d 721 (1972) through Owens-Illinois v. Zenobia, 325 Md. 420, 601 A.2d 633 (1992), Maryland was plagued with two different forms of malice that could, under varying circumstances, support a punitive damages award. To distinguish the two, we necessarily resorted to modifiers. The traditional malice that we have described above, which was Maryland's exclusive form of malice prior to 1972 and which is Maryland's exclusive form of malice today, we labeled "actual malice." The other, or "non-actual" malice, emanating from the Smith v. Gray Concrete Pipe Co. case, we called "implied malice."


As Montgomery Ward v. Wilson, 339 Md. 701, 728 n.5, 664 A.2d 916 (1995) explained, "implied malice" was defined as "gross negligence involving wanton or reckless disregard" of the rights of others. Scott v. Jenkins, 345 Md. 21, 29 n.3, 690 A.2d 1000 (1997), further defined it as "non-intentional conduct so reckless or wanton as to be 'grossly negligent.'" "Implied malice" did not require a "wilful or intentional injury" but "contemplate conduct which of an extraordinary or outrageous character." Id. at 30. During that twenty year period, a number of Maryland cases employed, at least for non-intentional torts, that alternative standard of malice. H. & R. Block v. Testerman, 275 Md. 36, 338 A.2d 48 (1975); Wedeman v. City Chevrolet, 278 Md. 524, 366 A.2d 7 (1976); Nast v. Lockett, 312 Md. 343, 539 A.2d 1113 (1988).


After much criticism of "implied malice" as an alternative substantive standard for awarding punitive damages, the imminent demise of that alternative and lesser standard was foretold by the concurring opinion of Judges Eldridge, Cole, and Chasanow in Schaefer v. Miller, 322 Md. 297, 312-32, 587 A.2d 491 (1991). The actual death knell for "implied malice" as a substantive standard finally sounded in Owens-Illinois v. Zenobia, 325 Md. at 450-60, in 1992, at least so far as non-intentional torts were concerned. Adams v. Coates, 331 Md. 1, 13, 626 A.2d 36 (1993), administere

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