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Chapman v. Kamara12/2/1997
nce in that case. Additionally, the trial attorney submitted an affidavit stating that he had represented several other defendants in the case and that he only entered an appearance on behalf of Devers through that attorney's own admitted "inadvertence, mistake and a marked degree of carelessness." The trial court denied the motion, finding sufficient evidence to infer that Devers had in fact known about the proceedings against him during their eighteen month pendency and had thereby ratified the actions of counsel. Specifically, documents filed by defense counsel contained information that would have had to have originated from Devers, other non-trial counsel for Devers had worked very closely with defense counsel, and nobody, including Devers himself, had stated under oath that Devers was unaware of the suit during the preceding eighteen months. The Fourth Circuit affirmed under the clearly erroneous standard, specifically pointing to the close interactions between Devers and several persons involved in the trial and the absence of any sworn statement from Devers himself.
Guided by these precedents and based on the facts of the instant case, we find that the circuit court did not commit clear error when it found that the appellants had failed to produce the clear and convincing evidence necessary to overcome the presumption that the appearance on their behalf was authorized. With regard to Renee Cole, she has submitted sworn deposition testimony that she never authorized the appearance, that she never heard of or had any communications with the attorney prior to the day of the suit or for the fourteen months following, and that she was unaware that she was a party to any suit or even that the suit existed. She also plausibly maintains to have been quite ill at the time of the suit. Her testimony is entirely unrebutted, as WMATA has consistently declined to take any position regarding her motion to vacate.
Even giving full credit to her testimony, however, we must affirm. She testified that the van in which her stepson died was titled in her name and insured under a policy with GEICO. Her counsel has vociferously maintained in arguments to this Court and the circuit court that the counsel who appeared on her behalf in the friendly suit was employed by GEICO. To say the least, it is highly improbable that GEICO would have undertaken the expense of supplying legal counsel for an insured in a matter covered by that insured's policy in the absence of a clause, commonly found in automobile insurance policies, obliging such representation. To the contrary, the circumstances strongly imply that the policy contained the standard clauses obligating GEICO to defend Renee Cole in case of litigation and/or empowering GEICO to settle claims against her within the policy limits. Renee Cole did not make the policy a part of the record, neither did she submit any statement, sworn or otherwise, by the attorney appearing on her behalf to corroborate her claim that the representation was unauthorized.
We have the benefit of many precedents construing under different circumstances these clauses providing for legal representation. For example, it is settled that, where a party insured under an automobile insurance policy complains that the trial attorney provided by the insurer represented potentially conflicting interests, " he customary clause ... requiring the insured to permit the insurer's lawyer to defend claims insured against is consent in advance by the insured to dual representation." Fidelity and Cas. Co. of New York v. McConnaughy, 228 Md. 1, 10, 179 A.2d 117 (1962). See also Allstate Ins. Co. v. Campbell, 334 Md. 381, 395, 639 A.2d 652 (1994) ("Under the terms of most [automobile] liability in
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