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Chapman v. Kamara12/2/1997
surance policies, the insured agrees to permit the insurer to choose counsel to defend the insured against claims by third parties."). Not only do these customary clauses charge the insurer with the duty to defend, but the Court of Appeals has held that such clauses also give the insurer the right to negotiate and settle reasonable claims on behalf of the insured, at least within policy limits. Sharrow v. State Farm Mut. Auto. Ins. Co., 306 Md. 754, 766, 511 A.2d 492 (1986). As long as no actual conflict of interest develops, the insured must cooperate with the insurer in defending the claim, and the insured has no right to demand that the insurer provide her with independent counsel. Roussos v. Allstate Ins. Co., 104 Md. App. 80, 86-88, 655 A.2d 40 (1995). From these further-reaching rulings we interpolate the narrower principle that such clauses can also authorize, at least impliedly, an initial appearance on behalf of the insured in a court of law. We acknowledge that it is rare for a court to infer the existence of any particular contractual agreement where the contract is not a part of the record, but where (1) the moving party must overcome a strong presumption, (2) the circumstances give rise to a strong inference that an admittedly existing contract proves the presumption, and (3) the moving party is the only party in possession of the contract, it is fair to charge the moving party with producing that contract to disprove the presumption. Under all the circumstances of the instant case, there was no clear error in the lower court's ruling that Renee Cole's sole sworn statement failed to overcome by clear and convincing evidence the presumption that the appearance by counsel on her behalf was authorized.
The same reasoning applies equally well to the Estate's assertion that the appearance by the GEICO-supplied lawyer on its behalf was unauthorized, but we need not rely on this basis alone in order to affirm the lower court. The Estate's future personal representative, Reverend Cole, was a party to the same suit, was present in the courthouse on the day of the suit, and entered an appearance through another attorney. He thus was a willing participant in the very same suit in which the Estate's current personal representative, Cheryl Chapman, now claims that an appearance on the Estate's behalf was unauthorized. Not only did Reverend Cole have the benefit of being represented in the suit by counsel, he also had the advice of attorney Chapman in matters regarding the van accident from the very day of the accident throughout his entire eighteen-month term as personal representative. The Estate argues that Reverend Cole could not have authorized the suit because, according to his deposition statement, he did not know that the court proceedings on that day involved the bringing of a lawsuit or that the Estate would be a party in any such suit. Nevertheless, he is charged with the knowledge of his attorneys in this matter, and he is bound by their acts on his behalf. Thomas v. Hopkins, 209 Md. 321, 326-27, 121 A.2d 192 (1956). In light of these facts, we find no clear error in the finding that the Estate failed to overcome the presumption that the appearance on its behalf was authorized.
The Estate argues that it was impossible for it to have authorized the appearance of Mr. Ford in the instant suit because no personal administrator was appointed until nine months following the judgment. Personal administrators, however, do possess the power to act on behalf of an estate even before they are appointed. Section 6-105(a) of the Estates and Trusts Article of the Maryland Code reads: "The duties and powers of a personal representative commence upon the issuance of his letters, but when done in good fai
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