Workers’ Compensation: Subsequent, Intervening Injuries Do Not Necessarily Bar a Claim for Worsening Condition

Electrical GeneralCorp. et al. v. Michael L. Labonte, No. 69, September Term 2016 (decided July 27, 2016)

The Court of Appeals has put to rest a dispute on the ramifications of a subsequent,, unrelated event in a workers’ compensation case.  In Electrical General Corp. et al. v. Michael L. Labonte, the Court of Appeals issued an opinion finding a subsequent, intervening, and unrelated event does not necessarily preclude the employer’s liability for workers’ compensation benefits. 

The facts arose out of a work-related injury in 2004 in which Mr. Labonte injured his back in a work-related injury.  On December 31, 2006, he was involved in an altercation with a police officer after a traffic stop, which aggravated his back injury.  He filed issues for treatment in early 2007 after further medical treatment was denied by the carrier.  The Maryland Workers’ Compensation Commission (“Commission”) denied the additional treatment in March of 2007.  There was no appeal.

In October of 2007, Mr. Labonte filed for permanency and the commission found he had a disability of 30% to his back, of which 10% was due to pre-existing and subsequent events.  Again, there was no appeal.

In 2012, the claimant filed a Petition to Reopen for a worsening of condition.  The Commission denied his claim because the prior award in March of 2007 found the subsequent injury broke the causal nexus between his need for treatment and the original injury.  The claimant appealed and won in Circuit Court and the Court of Special Appeals.  The Court of Appeals heard the case for a final decision on the matter. 

The Court of Appeals found the existence of a prior finding of a subsequent intervening event does not preclude the Commission from awarding additional permanent partial disability benefits for a worsening of an employee’s condition.  The issue of whether there is a worsening of condition attributable solely to the work injury is a factual matter for the Commission to determine in each individual case.  

- Alicyn Campbell 

DC Moves to Comparative Negligence for Pedestrians and Bikers

Until recently, the District of Columbia has long recognized the doctrine of contributory negligence as a complete defense in a negligence action.  Under contributory negligence, if a plaintiff is involved in an accident and even 1% at fault for what happened, the plaintiff is precluded from recovery.  Currently, the District of Columbia and only four states use the contributory negligence standard: Alabama, Maryland, North Carolina, and Virginia. Other states have employed one version or another of comparative negligence, which compares the fault of the parties and allocates responsibility to pay damages according to percentage of fault.

As of November 26, 2016, the District of Columbia enacted The Motor Vehicle Collision Recovery Act of 2016, carving out a specific exception to the District's legal negligence standard in automobile accidents involving a motor vehicle and pedestrians, bicyclists, or other non-motorized users (like Segways and skateboards).  The law enables a plaintiff pedestrian or bicyclist to recover if they are negligent, as long as they are found to be 50% or less at fault in an accident with a motor vehicle.   Specifically, the Act states as follows:

(a)  The negligence of a pedestrian, bicyclist, or other non-motorized user of a public highway involved in a collision with a motor vehicle shall not bar the plaintiff’s recovery in any civil action unless the plaintiff’s negligence is:

(1)  A proximate cause of the plaintiff’s injury; and

(2)  Greater than the aggregated total amount of negligence of all the defendants that proximately caused the plaintiff’s injury.

Motor Vehicle Collision Recovery Act of 2016, 2015 Bill Text DC B. 4

In effect, the new law introduces “modified” comparative negligence in cases involving accidents between motorized vehicles and pedestrians or bicyclists.  By illustration, if a jury finds that an injured bicyclist was 25% negligent in an accident, the bicyclist would recover 75% of the verdict.  If the bicyclist were found to be 75% at fault, however, the bicyclist would be found to be contributory negligent and would recover nothing.  This law thus changes the way contributory negligence can be used, confining its applicability to situations where a plaintiff’s negligence is greater than the aggregated total amount of negligence of the defendant(s). 

Notably, the bill expressly preserves the doctrine of “last clear chance,” allowing a contributory negligent plaintiff to still recover if the defendant was in a position to observe the peril of the plaintiff and had the opportunity to avoid the harm.  The Act also does not affect the doctrine of joint and several liability. 

When dealing with an accident involving a pedestrian or bicyclist, the application of negligence is uniquely fact and situation specific. It may be that comparative negligence was promulgated as a result of the District’s urban environment and because pedestrians and cyclists, taken together, represent the most vulnerable users of our roadways.  In contrast, Maryland has long maintained the doctrine of contributory negligence over instituting a comparative negligence standard, despite being brought forth before the Maryland General Assembly on numerous occasions within the past several years.  Only time will tell what effect this law will have on the courts, litigation, insurance costs, and costs to individuals and businesses within the District.

- Patrick Flores 

The Court of Special Appeals Holds Settlement via E-Mail Enforceable in Ward v. Lassiter

Julie Ward v. Marjorie L.Lassiter, No. 1823, 2017 Md. App. LEXIS 46 (Md.App. January 13, 2017)  

On January 13, 2017, the Maryland Court of Special Appeals filed an unreported decision in Julie Ward v. Marjorie L. Lassiter upholding the Circuit Court for Anne Arundel County’s grant of Defendant’s Motion to Enforce Settlement Agreement against Plaintiff.

This case arises from a settlement agreement reached via e-mail stemming from a June 21, 2010 auto accident.  A three-day jury trial was set to begin on March 12, 2015 but as trial approached, and after some settlement negotiations, Plaintiff’s Counsel sent an e-mail confirming that his client would accept $7,000, if offered.  Defense Counsel responded simply with “[w]e are settled at $ 7,000.00.”  The case was removed from the trial docket but issues arose when Plaintiff’s Counsel e-mailed a proposed settlement agreement which Defense Counsel declined in favor of her own settlement agreement.  Ultimately, Plaintiff refused to sign any release or settlement agreement sent by Defense Counsel due to language that indemnified the Defendant from claims any third party could bring against her in connection with the injuries the Plaintiff suffered in the accident at issue.

In response, Defendant filed a Motion to Enforce Settlement which the circuit court granted after a hearing.  Plaintiff appealed the decision.  The dispute before the appellate court was whether the e-mails exchanged between the parties formed an enforceable settlement agreement and what exact terms did the agreement encompass.  Or as the Court of Special Appeals puts it “[t]he question, then, is what an agreement to settle an auto accident case involves, and thus, what terms the parties can be understood to have agreed to when they agreed to settle for $7,000.”

A settlement agreement is a contract which the parties enter into “for the settlement of a previously existing claim by a substituted performance,” Consol. Constr. Servs., Inc. v. Simpson, 372 Md. 434, 465 (2002) (citation omitted), and “settlement agreements are governed by ordinary principles of contract law.” Nationwide Mut. Ins. Co. v. Voland, 103 Md. App. 225, 231 (1995).  The Court found that the e-mails between the two attorneys demonstrated a “classic offer-and-acceptance exchange.”  The court further found that, even though there was no mention of releases, a release is typically needed to settle pending litigation.  The Plaintiff did not dispute that a release was needed but rather, the dispute was over the indemnification of the Defendant against third party claims that could be asserted against her.  Counsel for Plaintiff had included indemnification language in his release drafts.

The Court simply states “[t]he point of a settlement is to end the litigation and the uncertainty about the outcome.”  The Circuit Court’s grant of the Motion to Enforce the Settlement was upheld since the dispute over indemnification was a matter of math, not principle.  Additionally, the Plaintiff’s agreement to settle the case in exchange for a payment of $7,000 necessarily included agreement to release the Defendant and to indemnify the Defendant from claims any third party could bring against her in connection with the injuries the Plaintiff suffered in the accident at issue

The reliance of e-mails by attorneys and adjusters has become all too common.  Before you send out that quick “we’re settled” e-mail, it might be a good idea to know what you’re agreeing to when you click send.

- Brennan Walter 

Maryland Court of Special Appeals Upholds Decision Holding Prince George's County Liable for the Actions of an Off-Duty Police Officer

Prince George’s County v. Morales, 230 Md. App. 699, 149 A.3d 741 (2016)

In October 2010, the Omega Psi Phi fraternity at the University of Maryland at College Park held a Halloween party at an off-campus house. As with so many Halloween parties unfortunately, it ended with a physical altercation and a lawsuit.

The fraternity hired Prince George’s County Police Officer Dominique Richardson to provide security at the party. Officer Richardson was assigned to “light duty” at the time due to his recent knee surgery, thus he violated a policy that prevented officers on light duty from performing extra work. An altercation occurred at the Halloween Party in which Officer Richardson admitted that he punched and restrained the aggressive Plaintiff and party-goer Steven Morales.

Plaintiff filed a civil suit against Officer Richardson and Prince George’s County alleging battery, excessive force and vicarious liability. The jury found that the County was liable for the actions Officer Richardson under the theory of respondeat superior, and awarded the Plaintiff $121,141.

The Maryland Court of Special Appeals affirmed the judgment against the County despite the County’s argument on appeal that Officer Richardson was acting outside of the scope of his employment due to his light duty restrictions. The Court disagreed with the County, and based its opinion on Prince George’s County’s “Extra-Duty Policy,” which permits an off-duty officer to take police action when circumstances warrant.  The Court stated that the crowd at the party became “agitated” and Morales became “aggressive,” which permits a police officer to intervene under the “Extra-Duty Policy.” The Court also noted that Officer Richardson was wearing his PGPD badge next to a marked a police cruiser, making Officer Richardson identifiable as a police officer. Evidently, the Court was not concerned with the fact that any other party-goer could have been dressed as a police officer on the night of a Halloween party.

The Court found that the “Extra-Duty Policy” coupled specifically with Plaintiff’s aggression, created sufficient evidence for a jury to find that Officer Richardson was operating within the scope of his duties as the circumstances warranted police action. Thus, the County was found vicariously liable for the actions of Officer Richardson and the judgment was affirmed in favor of the Plaintiff. 

- Bryce Ziskind 

RSRM Welcomes Two New Associates

Rollins, Smalkin, Richards & Mackie, LLC is pleased to announce the addition of two new associates to our team.

Brennan Walter is a 2012 graduate of the University of Baltimore School of Law, and a 2009 graduate of Hampden-Sydney College.  While in law school, Mr. Walter was the Vice Justice of his school’s Phi Alpha Delta chapter.  He also spent time clerking for the Baltimore City State’s Attorney’s Office and he served as a Rule 16 Assistant State’s Attorney in Harford County.

Before joining RSRM, Mr. Walter was a trial attorney for a general litigation firm, and he had the opportunity to try a number of District and Circuit Court cases involving both criminal and civil issues.  Mr. Walter's areas of focus include insurance defense and premises liability, and he has experience both defending and prosecuting personal injury claims throughout the State of Maryland.     

Tara McDowell graduated from the University of Baltimore in 2005.  She attended the University of New Mexico for her undergraduate education before obtaining a master's degree in Sociology from the University of Toledo in 2002.  

Ms. McDowell is an experienced litigator and trial attorney.  Prior to joining RSRM, she spent ten years working as in-house counsel for two national insurance carriers where she had the opportunity to gain significant courtroom experience.  Her areas of focus are insurance defense, insurance coverage matters, personal injury, and premises liability.  

Changes to the Federal Rules Seek to Speed Up the Pre-Trial Process and Encourage Attorney Cooperation

Recent amendments to the Federal Rules of Civil Procedure, which took effect at the end of 2015[1], are designed to promote the swift and inexpensive resolution of cases by promoting cooperation between the Court and practitioners. The scope of the Federal Rules was expanded in Rule 1 to require parties, as well as Courts to construe, administer and employ the Rules “to secure the just, speedy, and inexpensive determination of every action and proceeding.” Given the steadily increasing cost of litigation, these appear to be welcome changes.  

A number of the rule changes focus on limiting the length of time a case may spend languishing in the pre-trial process.  Rule 4(m) has shortened the time by which a moving party must serve a summons and complaint from the previous 120-day limit to 90 days. Similarly, Rule 16 reduces the time to enter scheduling orders to the earlier of 90 days after a defendant has been served or 60 days after a defendant has entered an appearance. The Rule previously allowed the court to issue a scheduling order up to 120 days after a defendant had been served or 90 days after a defendant had entered an appearance. Additionally, scheduling orders may now direct parties to request a conference with the Court prior to filing discovery motions.[2]  Rule 16(b)(1) encourages interaction between the parties and judges through “direct simultaneous communication.” Speaking at the University of Baltimore School of Law, U.S. District Judge John G. Kroll of the Southern District of New York recently explained that early and active judicial case management is key to accelerating the pace of litigation, stating “this is meant to be a cooperative and collaborative process.”[3]

The Rules of discovery have also been amended in an effort to streamline the discovery process and tamper down litigation costs. Rule 26(b)(1) replaces the former “reasonably calculated to lead to the discovery of admissible evidence” standard with “any non-privileged matter that is relevant to any party’s claims or defense and proportional to the needs of the case.” In an effort to provide litigants with additional time to locate responsive documents for production, changes to Rule 26(d)(2) and Rule 34(b)(2)(A) now allow an early requests for production to be served prior to the Rule 26(f) conference. The changes allow 30 days after the first Rule 26(f) conference to respond, instead of the usual 30 days after service of the requests.

Under the new Rules, litigants are also no longer allowed to make boilerplate objections to discovery requests. In addition to prohibiting boilerplate objections, Rule 34 now requires that objections “state with specificity the grounds for objecting” and “whether any responsive materials are being withheld.” By way of example, the Committee notes that a litigant may object that a request is overbroad, for instance, but “should state the scope that is not overbroad.” The Rule also includes a new provision requiring that the production be completed “no later than the time for inspection specified  in the request or another reasonable time specified in the response.” The newly added language limits the ability of litigants to engaged in unlimited rolling productions which serve to extend discovery and slow down the judicial process.

The recent changes to the Rules share the common focus of encouraging cooperation between the parties and the judiciary during the pre-trial process and, especially, when completing discovery. Judges hope that this will encourage attorneys to think twice before employing obstructionist tactics during the discovery and pre-trial process and teach lawyers, young and old alike, that the best way to practice is with a collaborative attitude.[4]  The new discovery rules, in particular, encourage openness by requiring more specific objections and discourage “hiding the ball” by requiring litigants to acknowledge whether responsive materials are being withheld. As litigants gain experience with the new Rules, a streamlined, less expensive and more congenial federal judicial process should result to the benefit of all involved.  

We anticipate that state rule making bodies, including Maryland and D.C., will follow these rule changes closely, as they often use the Federal Rules of Civil Procedure as a model for their own procedural rules.  The attorneys at RSRM will therefore be monitoring these rule changes and changing their practice accordingly.      

- Emily Spiering 

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[1] The amendments apply to newly filed cases, as well as pending cases “insofar as just and practicable.” Supreme Court of the United States, Amendments to the Federal Rules of Civil Procedure, available at http://www.supremecourt.gov/orders/courtorders/frcv15(update)_1823.pdf.

[2] Fed. Rule., Civ. Pro. 16(b)(3).

[3] “Rule changes push for cooperation in federal civil litigation” Heather Coburn, The Daily Record. September 23, 2016, available at http://thedailyrecord.com/2016/09/23/federal-rules-amendments-practice/.

[4] Id.

Congratulations to RSRM's Super Lawyers!

RSRM congratulates Jim Andersen, Rod Barnes, and Paul Donoghue for being named Super Lawyers for 2017, and Tara Barnes and Jessica Butkera for being named Rising Stars.  

For more information on Super Lawyers selection process and criteria, please visit the Super Lawyers web site here.