Before Terry, Glickman and Washington, Associate Judges.
The opinion of the court was delivered by: Glickman, Associate Judge
Appeal from the Superior Court of the District of Columbia
(Hon. Stephen F. Eilperin, Trial Judge)
In her lawsuit against Allstate Insurance Company to recover under the uninsured motorist provisions of a motor vehicle insurance policy, Althea Curtis bore the burden of proving that the tortfeasor who injured her was uninsured. To shoulder that burden, Curtis produced letters in which four insurance companies, apparently selected at random, purportedly disclaimed coverage of the tortfeasor. The letters were not authenticated or shown to be admissible under any exception to the rule against hearsay. Over Allstate's objections, however, the trial judge ruled that the letters were business records. The judge then told the jury about the letters and instructed the jury that it could consider the letters as evidence since he took "judicial notice" of them. The letters themselves were not introduced in evidence. The jury returned a verdict in favor of Curtis. We hold that Allstate is entitled to a new trial, because the letters were inadmissible hearsay and the trial judge erred in instructing the jury about them.
Althea Curtis was injured when a moped collided with an automobile in which she was a passenger. Alleging that the moped driver was at fault but was uninsured, Curtis sued Allstate under the uninsured motorist provisions of a policy that Allstate had issued to the driver of the automobile.
Curtis was unable to locate or produce the moped driver for trial. To prove that the absent moped driver was uninsured, Curtis proffered letters that her counsel had obtained from four insurance companies. Curtis's counsel explained to the trial judge that he had received these letters after his office wrote to "various insurance companies that we assumed he may have insurance with in the area." Counsel offered the letters as evidence that the four companies in question had no record of any insurance policy in the moped driver's name. Addressing the trial judge, Curtis's counsel summarized the contents of the letters as follows:
[COUNSEL]: This is . . . a letter from MAIF indicating that MAIF has no record of issuing a policy in this case.
This is one from Erie Insurance which indicates that they're unable to identify whether or not this person has a policy with them. There's no information that they have.
This one . . . is from GEICO that it could not find a policyholder for GEICO with any of the three addresses that we provided; and this one is from Nationwide . . . saying that they're unable to assist us concerning any policy that may exist with this particular individual.
Over the objections of Allstate, the trial judge ruled on the basis of counsel's representations that the letters were admissible in evidence under the business records exception to the rule against hearsay. Curtis did not, however, proceed to offer the letters in evidence. Nor did she call a witness to testify about the letters. Instead, for reasons that are not clear, the trial judge decided to take "judicial notice" of the letters. Over Allstate's objections, the judge informed the jury of the letters at the close of the plaintiff's case and instructed the jury to consider them as evidence:
THE COURT: I'll also inform the jury that with respect to the issue about the uninsured motorist, . . . counsel for the plaintiff wrote Nationwide Insurance Company, GEICO, Erie Insurance Group and the Maryland Automobile Insurance Fund, asking them to search their records to see if they had any insurance coverage for [the moped driver] the ...