Thursday, August 25, 2011

To Catch an Evader of Service

           Occasionally in litigation, it is necessary to serve either a summons or a subpoena upon an individual who has an interest in not being served with the papers. A “summons” is a notice to a defendant to appear and defend the suit, whereas a “subpoena” is an order to a person to appear as a witness in a case. In the case of a summons, the Maryland Rules anticipate the situation wherein the target of service is attempting to evade service.

           Without service of the Writ of Summons and Complaint, the plaintiff’s claim will go nowhere until the case is dismissed for failure to prosecute. To avoid that consequence, a plaintiff who is having difficulty serving a defendant may ask the Court to enter an Order permitting “alternative service.”

           A recent referral to RSR&M from the Maryland Volunteer Lawyer Service involved a situation where a landlord lived and worked outside of Maryland. RSR&M was asked to represent that landlord’s tenant and suit was filed. The landlord then refused to accept certified letters sent to her. Pursuant to the Rules relating to service, a motion was filed with the Court seeking permission to serve the Defendant by alternative means. Normally, an individual can be served by personal delivery of the relevant documents, or by leaving the suit the papers at the defendant’s dwelling with a resident of suitable age and discretion. The Court may permit alternative service, however, if it is convinced that the plaintiff has, without success, made a good faith effort at effecting service under the normal process.

           In our case, the attorneys at RSR&M prepared a Motion to Permit Alternative Service and proposed Order of Court permitting service by (a) leaving the papers at the rental property, (b) giving a copy to a person of suitable age and discretion, and (c) mailing a copy of the Writ of Summons and Complaint by ordinary mail to the out-of-state landlord. Upon review of the motion, the Court granted it and issued an Order to permit alternative service upon the Defendant. When the steps outlined in the Order had been accomplished, an Affidavit of Service was filed with the Court.

           Despite having taken these meticulous steps to effectuate service, on the day assigned for trial, the case was not on the docket. The reason given by the Clerk was that no Affidavit of Service had been filed. In accord with our standard office practice, we had obtained a date-stamped copy of the Affidavit of Service when it was filed. Thus, prompted by our date-stamped copy, the Clerk resurrected the case folder from the depths of the courthouse for further processing.

           The teaching points are basic: (1) There is more than one way to serve an evading Defendant, and (2) get date-stamped copies of every pleading filed. As of today’s date, no final judgment has been rendered in this matter as the parties await the new trial date.

Article contributed by Patrick Cullen

Challenging Economic Damages

           In virtually every personal injury case, the current trend of rising costs of healthcare is illustrated by the economic, or “special,” damages sought by plaintiffs. More often than not, the vast majority of these medical costs stem from physical therapy or chiropractic treatments. In many cases, especially at the District Court level, defense attorneys must decide whether the expense of an independent medical evaluation (“IME”) or peer-review of the plaintiff's medical records is worth incurring in order to challenge medical fees and costs. Challenging such fees is necessary, however, when they seem excessive or unreasonable, either in scope, duration or cost per visit, even in the most minor cases. Judges in Circuit and District Courts throughout Maryland are aware of these current trends in medical treatment, especially by certain providers known to dramatically over-inflate their fees, and are receptive to arguments regarding excessive or unreasonable medical costs, even without the aid of an IME or peer-review report.

           Recently, in the District Court of Baltimore County, Associate Derrick Dye argued that the Plaintiff’s alleged “specials” of over $5,000.00 were excessive and unreasonable, as the Plaintiff only received 11 physical therapy treatments.  Although the liability of the Defendant was stipulated, Mr. Dye argued that the fees charged of over $400.00 for each physical therapy visit, and the 11 visits themselves, were excessive and unreasonable for a very minor “fender-bender” in a shopping center parking lot that resulted in no property damage to either vehicle.  Although the Plaintiff’s pre-trial settlement demand was $23,500.00, a Baltimore County Judge awarded the Plaintiff only $1,500.00 in “specials,” which was less than 1/3 of the physical therapy bill.

           The reasonableness of the medical fees and costs and the necessity of the treatment in a given case can almost always be evaluated by conducting a “common sense” assessment at its outset.  Competent defense counsel must always keep in mind that, regardless of the amount for which a plaintiff sues, if the medical fees and costs seem excessive and unreasonable, they probably are!

Article contributed by James Buck

Monday, August 1, 2011

Court of Special Appeals Affirms Circuit Court's Decision to Allow a Contributory Negligence Jury Instruction

In Malik v. Tommy’s Auto Serv., Inc., No: 2204 (Md. Ct. Spec. App. 2011), the Court of Special Appeals addressed the issue of a jury instruction as it related to contributory negligence.  In this case, the Plaintiff, Sajid A. Malik, was involved in a motor vehicle accident with Charles Payne, a tow truck driver employed by Tommy’s Auto Services.  The accident occurred at the intersection of Washington Boulevard and Cemetery Lane in Prince George’s County, Maryland. 

Malik, traveling northbound on Washington Boulevard, approached the intersection and merged into the center turning lane with the intention of making a left hand turn.  Upon entering the center lane, Malik testified that he came to a complete stop while waiting for the southbound traffic to clear.  Meanwhile, Payne exited from a parking lot across from Cemetery Lane on the northbound side of Washington Boulevard.  Malik testified that he saw Payne exit the parking lot and watched as traffic in the northbound lanes stopped to let Payne cross into the center turn lane.  Payne’s intention was to turn left and travel south on Washington Boulevard.  The parties’ stories differ as to what happened next, but as Payne proceeded forward he struck the front passenger side of Malik’s vehicle.

As a result of the accident, Malik experienced increasing amounts pain and was ultimately diagnosed with a herniated disk.  Malik then brought a negligence action against Payne and the tow truck company, Tommy’s Auto Services.  At the close of evidence, the Plaintiff moved for judgment, relying on the Boulevard Rule.  The motion was denied and the case was sent to the jury.  The jury found Malik contributorily negligent and judgment was entered in favor of Payne and the tow truck company.

            The first issue on appeal was the trial court’s refusal to read a jury instruction requested by the Plaintiff.  Malik requested that the court instruct the jury that a driver “is conclusively presumed to have seen such surrounding circumstances as he would have seen had he properly exercised his faculty of vision.”  In upholding the trial court’s decision the Court of Special Appeals explained that a request need not be granted if the matter is fairly covered by instructions actually given.  Here, the Court of Special Appeals concluded that the instruction actually given - that a driver is negligent if he or she does not use reasonable care, that is the caution, attention, or skill of a reasonable person in similar circumstances - fairly covered Malik’s requested instruction. Furthermore, even if the denial of Malik’s instruction was error, the error was harmless.
The Plaintiff also argued that the trial court erred in denying his motion for judgment on the issue of liability.  Mailk claimed that Payne was negligent under the Boulevard Rule and, further, that the jury should not have been instructed on contributory negligence because there was no evidence to support such a finding.  The Boulevard Rule provides that the driver of a vehicle approaching a highway from a smaller road or entrance must stop and yield the right of way to all vehicles in the highway.  However, as the Court of Special Appeals explained, the rule is not absolute.  If it can be shown that the favored driver “could have avoided the accident if he had been operating lawfully and with due care, then the negligence of the favored driver should be an issue for the jury.”
In upholding the trial court’s decision, the Court of Special Appeals found that there was evidence sufficient to support a finding that Mailk was contributorily negligent.  First, Payne testified that after he entered the center turning lane and before turning, he looked twice to his left and right and did not see any other vehicles in the center lane.  Further, Payne testified that when he hit Malik’s vehicle, Malik had already proceeded to make his left turn, rebuking Malik’s claim that he was stationary at the time of the accident.  There was evidentiary support for Payne’s account of what happened in the photographs of both vehicles that were introduced at trial.  The damage to the vehicles as demonstrated by the photos, suggested that Malik was moving toward Payne when the two collided.  In addition, Malik testified that he saw Payne exit the parking lot and drive across the northbound lanes.  All of this evidence tended to suggest that Malik could have avoided the accident.

            Ultimately, the Court of Special Appeals found that the evidence was legally sufficient to support a finding that Malik was contributorily negligent and, as a result, the trial court did not err in denying Malik’s motion for judgment on the issue of liability.  Further, the trial court was proper in instructing the jury on contributory negligence.

Article contributed by James Buck