Tuesday, March 12, 2024

RSRM Welcomes Associate Milton Warren!

Milton P. Warren is a 2000 graduate of the University of Maryland Francis King Carey School of Law.  While attending law school, Mr. warren completed the Access to Bail and Justice clinical law program providing access to pre-trial release and legal representation to indigent clients in Baltimore City pursuant to Maryland Rule 16 as a student-attorney.  Mr. Warren also spent time interning at the States Attorney office located in Northumberland County, Virginia. 

Immediately after graduating law school, Mr. Warren began working at a local Baltimore County law firm gaining experience in general practice civil litigation where he prosecuted auto torts, premises liability, estate probate and alternative dispute resolution cases. 

Mr. Warren became a solo practitioner in 2003, building his private law firm as a general practitioner in addition to handling referral cases from other law firms in the State of Maryland and, recently, in North Carolina. 

Outside of the office, Mr. Warren enjoys playing tennis, cooking, spending time with his wife Julie and family in Harford County, Maryland. 

For Hearing Loss Claims, the Last Injurious Exposure Rule does not Apply to Insurers

For Hearing Loss Claims, the Last Injurious Exposure Rule does not Apply to Insurers

Pennsylvania Manufacturers Association v. William Cree, et. al.

Claimant William Cree filed a claim with the Workers’ Compensation Commission for binaural hearing loss with a date of disablement of August 31, 2018, noting Prince George’s County as the Employer. 

Prince George’s County impleaded Cree’s prior employers, The Town of Riverdale and the City of Laurel, which they claimed also contributed to Claimant’s hearing loss.  The City of Laurel impleaded Pennsylvania Manufacturers Association (“PMA”), which insured the City during the first half of Claimant’s employment with the City of Laurel.

The Workers’ Compensation Commission held a hearing to determine liability for Claimant’s hearing loss.  At that hearing, PMA argued that it would not be considered the last insurer chronologically of the City, and therefore should be relieved of any liability pursuant to the last injurious exposure rule.  Subsequently, the Commission issued an Order finding that the last injurious exposure rule did not apply to Claimant’s claim, and therefore also finding that all three of Claimant’s employers were liable for Claimant’s hearing loss, as was the insurer, PMA.

PMA initiated an on-the-record appeal in the Circuit Court for Prince George’s County.  The Circuit Court for Prince George’s County affirmed the Commission’s decision.  PMA then initiated an appeal to the Appellate Court of Maryland.  The Appellate Court of Maryland also affirmed the Commission’s decision.

In coming to their decision, The Appellate Court of Maryland looked at the history of the law, and the legislative intent for such laws.  They noted that while the last injurious exposure rule applies to employers and insurers for occupational diseases, it clearly does not apply to employers in hearing loss cases.  The question, then, was whether the last injurious exposure rule applies to insurers of employers in hearing loss cases.

PMA put forth two arguments at The Appellate Court of Maryland: (1) the statutes that deal with hearing loss (Labor and Employment §9-651 and §9-652) do not use the term “insurer” and therefore these provisions do not apply to insurers – only employers; and (2) the statute that deals with the last injurious exposure rule (Labor and Employment §9-502) has two separate paragraphs -  one applying to employer, and one applying to insurers - therefore the last injurious exposure rule applies independently to insurers, even when it does not apply to the employers that they insure. 

The Appellate Court of Maryland was not convinced by either of these arguments.  Instead, noting that there was no indication in the available legislative history that the General Assembly believed that a claim for occupational hearing loss would be subject to the last injurious exposure rule.  Further, the last injurious exposure rule directly contradicts the method for determining liability for a claimant’s hearing loss, and accordingly to Yox v. Tru-Rol Co., 380 Md. 326 (2004), a general provision governing occupational diseases is not controlling when it is inconsistent with the approach that the General Assembly has specified for claims of occupational hearing loss.

- Ashley Bond, Associate

Monday, February 12, 2024

RSRM Welcomes Associate Audreina Blanding!





Audreina J. Blanding graduated summa cum laude from the University of Baltimore School of Law in 2023 and graduated from the University of North Carolina, Chapel Hill in 2016 with a B.A. in Economics.  While attending law school, Audreina clerked for the Office of the Maryland Attorney General, Court and Judicial Affairs Division, as well as served as the 2022-23 Linda Kennedy Economic Justice Fellow with the Homeless Persons Representation Project ("HPRP"). 

Ms. Blanding was also a competing member of the National Trial Competition Team and helped her team place 2nd at the 2022 Buffalo-Niagara Trial Competition.  During her final semester of law school, Audreina had the unique opportunity to prepare a comprehensive assessment of North Korea's human rights obligations on behalf of the United Nations - a paper for which she was awarded 1st Place in the 2023 Center for International and Comparative Law Essay Competition. 

Upon graduation, Ms. Blanding was inducted into the Heuisler Honor Society for graduating within the top 10% of her class.  Immediately following law school, Audreina briefly served as the judicial law clerk for the Honorable Shirley M. Watts of the Maryland Supreme Court.  Outside of the office, Ms. Blanding enjoys traveling, cooking, and trying new restaurants.  

Thursday, January 25, 2024

 The Appellate Court of Maryland affirms dismissal of wrongful death suit holding that the Worker's Compensation Act is the exclusive remedy for non-dependent tort actions. 

Summer Ledford v. Jenway Contracting, Inc.

Appellate Court of Maryland, filed. November 30, 2023 (Wright, J.)

        In Ledford v. Jenway Contracting, the Appellate Court of Maryland considered whether the Worker’s Compensation Act barred a non-dependent from bringing a wrongful death tort action against the decedent’s employer. Ultimately, the Appellate Court held that the Act barred the non-dependent’s tort action and affirmed the Circuit Court’s dismissal of the wrongful death suit.

        The case arose from the appellant’s late father’s tragic death that occurred while he was working for the Appellee. It was undisputed that the father’s death “arose out of and in the course of his employment.” The Appellant, the decedent’s forty-seven-year-old daughter, had no right to benefits under the Worker’s Compensation Act as she was not a dependent of her late father. She filed a wrongful death negligence action against the appellee-employer in the Circuit Court for Baltimore County. The employer thereafter moved to dismiss the action, contending that the Appellant had no viable tort action against the employer because the Worker’s Compensation Act provided the “exclusive” remedy for damages stemming from her decedent-father’s work-related injury.  The Circuit Court agreed and dismissed the Appellant’s action for failure to state a claim.

        On Appeal, the Appellate Court of Maryland traced the history of the Worker’s Compensation Act, enacted in 1914. Prior to the Worker’s Compensation Act, the worker could sue the employer for negligence and the employer could likewise assert defenses such as contributory negligence and assumption of the risk.  The Act’s passage reflected a “compromise between employees’ rights to pursue common law and other statutory damages for their injuries, and the burden to employers of having to provide workers’ compensation benefits.” See Hauch v. Connor, 295 Md. 120, 127 (1983)). Under the Act, the employer is required to pay, regardless of fault. In exchange, the employer is shielded from common law liability as the Act is the exclusive remedy for injured employees and their dependents, also referred to as the “exclusivity provision.” There are two exceptions to the exclusivity provision: 1) where an employer fails to provide compensation in accordance with the Act and 2) where an employer deliberately injures or kills a covered employee. Neither exception applied to the circumstances before the Ledford court.

        While acknowledging that neither Maryland appellate court has encountered the precise issue (whether the exclusivity provision applies to a non-dependent), the Ledford court recognized that Maryland’s appellate courts have considered “whether a wrongful death plaintiff is permitted to bring a wrongful death claim when a covered employee is killed in the course of his or her employment.” The court cited two examples, Koche v. Cox and Austin v. Thrifty Diversified, Inc., both standing for the proposition that, where an injury arises out of or in the course of employment, the sole remedy is the Worker’s Compensation Act. Applying these cases and the language of the Act to the Appellant’s circumstances, the court concluded that the appellee-employer’s liability was “exclusively within the worker’s compensation act” and further reasoned that when a covered employee is injured or killed in the course of his or her employment, the employer’s liability and any recovery resulting from that liability is exclusive to the Act, regardless of whether an otherwise proper wrongful death plaintiff is entitled to benefits under the Act.” (emphasis added).

-Joseph Kavanaugh, Associate

Tuesday, January 9, 2024

RSRM Welcomes Law Clerk Sean Delaney!

Sean is a current 2L at the University of Baltimore School of Law. There he is a staff editor of the University of Baltimore Law Review. His prior legal experience includes an internship with the U.S. Army JAG office at Fort Detrick. He also has experience serving as a legal writing fellow and law scholar for Civil Procedure II and Property. Sean is a 2022 graduate of the University of Maryland, where he majored in Information Science and Criminal Justice.

Welcome to the Team!

Monday, January 8, 2024

Congratulations to RSRM's 2024 Maryland Super Lawyers

 Congratulations to the five RSRM attorneys who were selected to Maryland's 2024 Super Lawyers!

Managing Partner James Andersen was selected as a 2024 Super Lawyer in the area of Personal Injury. Mr. Andersen has 30 years of litigation experience and has served as the Firm’s Managing Partner since 2014. He handles a variety of litigation matters including transportation, products liability, premises liability, construction litigation, and insurance coverage and defense. He has been selected as a Maryland Super Lawyer consistently since 2017.
Partner Paul Donoghue was selected as a 2024 Super Lawyer in Workers’ Compensation. Mr. Donoghue has served as a Partner at RSRM since 1998 and handles workers’ compensation and general litigation/liability matters. He has been selected as a Maryland Super Lawyer in 2013, 2014, 2015, 2016, 2017, 2018, 2020, 2021, 2022, and 2023.
Partner Tara Barnes was selected as a 2024 Super Lawyer in Civil Defense Litigation. Ms. Barnes has served as a Partner at RSRM since 2016 and works on premises liability, products liability, construction litigation, and insurance coverage and defense matters. She has been selected as a Maryland Rising Star Attorney from 2015 through 2018, and a Maryland Super Lawyer in 2023 and 2024.
Partner Benjamin Beasley was selected as a 2024 Rising Star in Civil Defense Litigation. Mr. Beasley has served as a Partner at RSRM since 2022 and works on premises liability, products liability, and insurance coverage and defense matters. He has been named as a Maryland Rising Star Attorney consistently since 2022.
Associate Ashley Bond was selected as a 2024 Rising Star in Civil Defense Litigation. Mrs. Bond will be an eighth-year associate in 2024 and works on insurance coverage and defense, construction litigation, appellate cases, and workers’ compensation matters. She has been named as a Maryland Rising Star Attorney consistently since 2021.
Each year, approximately five percent (5%) of Maryland attorneys are selected as "Super Lawyers" and two-and-a-half percent (2.5%) are selected as "Rising Stars.”



Friday, August 18, 2023

The Supreme Court of Maryland holds that an umbrella policy clause excluding claims against named insureds by members of the same household is enforceable.

 Pedro Steven Buarque de Macedo, et al. v. The Automobile Insurance Company of Hartford, Connecticut 480 Md. 200 (2022)

This case arose from a catastrophic motor vehicle accident involving Michael Buarque de Macedo, his wife Alessandra, and their three children. The Buarque de Macedo family was driving home from a high school play when their vehicle was struck by a vehicle driving 115 mph. Only one child survived but sustained permanent injuries.

Michael and Alessandra Buarque, de Macedo had an automotive liability policy, with a coverage limit of $500,000 and an umbrella policy, with a coverage limit of 2 million dollars. After the accident, the surviving child, the personal representative of the estates of Alessandra and the deceased child (“the Buarque de Macedos”) made policy limit demands on both policies. While the insurer for the automobile liability policy paid the policy limits of $500,000, the Automobile Insurance Company of Hartford, Connecticut (“AIC”), the insurer for the umbrella policy, denied coverage for the accident. AIC denied coverage because of an exclusion in the policy which stated it does not apply to “bodily injury or personal injury to any person who is related by blood, marriage, or adoption to an insured and who is a resident of the household of that person.”

This appeal came before the Court after the Appellate Court of Maryland upheld the Circuit Court of Montgomery County’s ruling on a motion for summary judgment, where the circuit court found that the household exclusion provision in the umbrella policy was enforceable. On appeal to the Supreme Court of Maryland, the central issue centered on the Court’s interpretation of Md. Courts and Judicial Proceedings Code Ann. § 5-806(b) which states:

The right of action by a parent or the estate of a parent against a child of the parent, or by a child or the estate of a child against a parent of the child, for wrongful death, personal injury, or property damage arising out of the operation of a motor vehicle, as defined in Title 11 of the Transportation Article, may not be restricted by the doctrine of parent-child immunity or by any insurance policy provisions, up to the limits of motor vehicle liability coverage or uninsured motor vehicle coverage.

(Emphasis added). The Buarque de Macedo family argued that the plain language of § 5-806(b) renders the umbrella policy’s household exclusion void with respect to the surviving child, because the umbrella policy included excess motor vehicle liability coverage. Additionally, in Maryland, a provision in an insurance policy is unenforceable if it conflicts with Maryland public policy. AIC argued that § 5-806(b), when read with relevant provisions in the Insurance Article, makes it clear that the General assembly intended for § 5-806(b) to be limited to the mandatory primary layer auto coverage.

            The Supreme Court of Maryland held that § 5-806(b) cannot be read in a vacuum and must be read in conjunction with the relevant provisions in Title 19 of the Insurance Article. The Court found that§ 5-806(b) referenced motor vehicle liability coverage or uninsured motor vehicle coverage which strongly signaled to the Court the General Assembly’s intent for § 5-806(b) to apply only to the required primary liability coverage, and not to optional excess coverage provided by an umbrella policy. The Court noted that the only reference to an umbrella policy in Title 19 of the Insurance Article provides that an umbrella policy may include the uninsured motorist coverage outlined in that section. The Court also reaffirmed that an umbrella policy is not motor vehicle liability insurance within the meaning of the relevant provisions of Title 19 of the Insurance Article. Accordingly, the Court affirmed the judgment of the Appellate Court of Maryland.


Fernando D. Kirkman, Associate