Congratulations to Partner, Ashley Bond, on recent win in the Circuit Court for Baltimore City!

Partner Ashley Bond recently represented an individual in the Circuit Court for Baltimore City who was accused of negligence for failing to stop for a red light and causing a five-car pileup.  Mrs. Bond’s client was sued by two plaintiffs who claimed that they were injured in the motor vehicle accident. Mrs. Bond’s client admitted that he caused the motor vehicle accident, therefore the only issue for the jury to decide at trial was what money, if any, plaintiffs should be awarded for their injuries.  Throughout trial, Mrs. Bond engaged in vigorous cross-examinations of both plaintiffs and their doctors, pointing out various inconsistencies in their testimony and highlighting plaintiffs’ pre-existing medical conditions.  Mrs. Bond also produced surveillance footage of one of the plaintiffs engaging in activities that the plaintiff previously claimed she could not do.  At the conclusion of trial, plaintiffs collectively asked the jury to award them close to $700,000 for medical bills, lost wages, and noneconomic damages.  Instead, the jury found that the first plaintiff was not injured in the motor vehicle accident and therefore awarded him $0.  As for the second plaintiff, the jury declined to award her any money for lost wages, but did award her medical bills and just $10,000 in noneconomic damages. This award for the second Plaintiff was over $500,000 less than what she requested at trial.  

Congratulations to Partner Ashley Bond on her success at trial!

Supreme Court of Maryland Holds That Financial Advisor Exposed to Mold Cannot Recover Compensation for an Occupational Disease under Md. Code Ann., Labor & Employment § 9-502

In the Matter of Morgan Stanley and Co. Inc., et al.  No. 1554, September Term, 2022.  Filed: May 30, 2024.  Opinion by Graeff, J.

Henry Gundlach was employed as a financial advisor at Morgan Stanley since 2008.  During Mr. Gundlach’s period of employment with Morgan Stanley, his office was located in two places, i.e., what he testified/described as one located in Building ‘B’ (for 6.5 to 7 years) and Building ‘A’ (for an additional 3.5 years).  In 2012, Mr. Gundlach began to suffer respiratory  problems and a persistent cough.  Mr. Gundlach saw his physician that ordered x-rays in April 2014, which revealed “pulmonary infiltrates.”  Mr. Gundlach followed up with a pulmonologist who researched the cause of Mr. Gundlach’s respiratory problems/persistent cough.  The pulmonologist eventually suggested that exposure to mold might be the cause and a search of the claimant’s office confirmed the presence of mold.

On May 29, 2019, Mr. Gundlach filed two claims with the Worker's Compensation Commission; the first alleging he sustained an occupational disease and a second claim alleging he sustained an accidental injury arguing that he was exposed to mold in his workplace and consequently developed pneumonitis (inflammation of the lungs).  After a hearing, the Commission’s order found in favor of claimant ruling that Mr. Gundlach had sustained an occupational disease of pneumonitis arising out of and in the course of employment.[1]  The employer/insurer appealed to the Circuit Court for Anne Arundel County on the issue of whether Mr. Gundlach’s condition was related to his employment as a ‘financial advisor’ for Morgan Stanley.

At trial in the Circuit Court, counsel for the employer argued, inter alia, that ‘pneumonitis is not consistent with exposure that is attributable to his [Mr. Gundlach] type of employment as a financial advisor.  At trial, Mr. Gundlach testified that “as a financial advisor, the office was the base of operations.  It is where you are supervised."  Additionally, he testified that his office was where his desk, records and phone were located, and a lot of his job was spent conversing with clients on the telephone.  However, when Mr. Gundlach was asked “whether there was anything about his job, itself, the duties of a financial advisor, a senior vice president, a portfolio manager, that would cause him to have pneumonitis?”  Mr. Gundlach answered “no”.  At the close of all the evidence, the employer/insurer moved for judgment arguing that as a matter of law, Mr. Gundlach had not sustained an occupational disease that was compensable under the Maryland Workers Compensation Act, specifically 9-502(d)(1)(ii).  The jury found in favor of the claimant Mr. Gundlach.  The employer/insurer appealed to the Court of Special Appeals which reversed the ruling of the Circuit Court reasoning in agreement with the employer/insurer that “occupational diseases are very specifically limited and circumscribed.  They are a creature completely of statute. Compensation for an occupational disease is subject to LE §9-502(d), which is a limitation on liability, and an occupational disease that causes disability is compensable only if it is due to the nature of the employment or if manifestations of the disease are consistent with exposure to an agent attributable to the type of employment.”  Basically, there was nothing about Mr. Gundlach’s job as a financial advisor that was linked to biologic, chemical or physical agent, or, in this example, mold, even if his office as a financial advisor tested positive for the presence of mold.  "If there was mold in this specific job (office space), that has nothing to do with Mr. Gundlach’s type of employment."

The Appellate Court discussed examples of employees that suffered a disease that is due to the nature of an employment in which hazards of the occupational disease exist, i.e., degenerative meniscal tears qualified as an occupational disease as a matter of law because the occupation of a paramedic requires frequent kneeling and stress in the knee, and these hazards led to the development of degenerative knee conditions (Black and Decker Corp. V. Humbert, 189 Md. App. 171, 191 (2009).  Shoulder impingement syndrome was a compensable occupational disease because repeated overhead arm motions are a hazard inherent in the occupation of an electrician (see Davis v. Dyncorp, 336 Md. 226, 237 (1994).  Mental disease alleged to be the result of harassment from fellow employees was not an occupational disease because harassment by fellow employees is not a hazard within the nature of the employment of a computer data operator (see Lettering Unlimited v. Guy, 321 Md. 305, 308-12 (1990).

The Appellate Court of Maryland reversed the Circuit Court holding that in order to obtain compensation for an occupational disease in a worker’s compensation case under Md. Code Ann., Labor & Employment §9-502(d)(1)(ii), the employee must prove exposure to a biological, chemical or physical agent that is a distinctive feature of the type of work performed, as opposed to  a specific condition at the employee’s particular workplace … exposure must be a recognized risk of employment, it is not enough that the ailment is caused by the specific place in which the claimant happens to work. (see Dando v. Binghamton Bd. Of Educ., 490 N.Y.S.2d 360, 361 (N.Y. App. Div.1985).

- Milton Warren, Of Counsel

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[1] The Commission also issued an Order finding that Mr. Gundlach did not sustain an accidental injury arising out of his employment on the second claim.

Supreme Court of Maryland Approves New Program to Expand Voir Dire Process in Maryland Courts.

Earlier this month, the Supreme Court of Maryland approved the recommendation of the Maryland Judiciary's Standing Committee on Rules of Practice and Procedure (the “Rules Committee”) to adopt a provisional program that will allow attorneys to utilize more strategic tactics during jury selection and assemble jury panels in a way that, previously, Maryland courts have not allowed.

Currently, the vast majority of state courts, as well as all federal courts, make it mandatory for trial judges to ask voir dire questions proposed by parties if the questions will lead to “the intelligent exercise of peremptory challenges.” Under this approach, parties are allowed to ask probing questions during the voir dire process to help the parties make a more informed decision about whether to strike a prospective juror.

Maryland, by contrast, has employed a “limited” voir dire process which provides the parties with limited information about the potential jurors and relies heavily on prospective jurors’ ability to assess their own biases. As the Supreme Court of Maryland has explained, in Maryland, “‘the sole purpose of voir dire is to ensure a fair and impartial jury by determining the existence of cause for disqualification, and not as in many other states, to include the intelligent exercise of peremptory challenges.’”  Collins v. State, 452 Md. 614, 622, 158 A.3d 553, 558 (2017) (citations and internal quotation marks omitted).  Unless a proposed voir dire question is directed at a specific cause for juror disqualification—meaning, the question is “reasonably likely” to uncover either prospective juror's (1) failure to meet minimum statutory qualifications (e.g., age, felony convictions, etc.) or (2) inability to be impartial—then a trial judge in Maryland is not required to ask the proposed question during voir dire. Kazadi v. State, 467 Md. 1, 44-45, 223 A.3d 554 (2020) (cleaned up); Pearson v. State, 437 Md. 350, 357, 86 A.3d 1232, 1235-36 (2014) (cleaned up). Put another way, trial judges in Maryland are routinely allowed to reject proposed voir dire questions when such questions are designed to probe and “fish” for information that will help the parties develop a basis to disqualify a juror.

The newly approved pilot program follows the majority approach to voir dire and will allow parties to “use the examination of a prospective juror to obtain information that may provide guidance for the informed exercise of peremptory challenges” in both civil and criminal cases. Although the Rules Committee has recommended that trial judges will still retain “supervision and control” of the voir dire process, the program will allow attorneys to propose broader voir dire questions that, historically, have been rejected by Maryland courts—questions designed to probe for information that may ultimately aid in the informed “exercise of peremptory challenges” of potential jurors. Pearson, 437 Md. at 357, 86 A.3d at 1235-36.

This pilot program comes shortly after the 2024 Maryland General Assembly raised concerns about Maryland's voir dire process, nearly taking control of the issue after the Senate voted to codify changes to the voir dire process. On April 11, 2024, following the state legislature's attempt to modify the voir dire process, Chief Justice Fader requested that the Rules Committee—the body that was specially created to help Maryland's highest Court in the exercise of its rulemaking authority—expeditiously explore and recommend changes to the voir dire rules. Consequently, the Rules Committee held meetings in May and June 2024, allowing comment from advocates in favor of the majority approach to voir dire and those in favor of Maryland's “limited” voir dire.  Ultimately, in June 2024, the Rules Committee voted to expand the voir dire process on an experimental basis, and, in September 2024, the Supreme Court of Maryland approved the committee's recommendation.

Currently, the Rules Committee has not published the full scope or parameters of the pilot program. However, according to Chief Justice Fader, the program will cover a “representative sample of circuit courts across the state” and is expected to last until the end of 2025. Only time will tell whether or not the program will be adopted on a permanent basis and/or applied statewide, bringing Maryland into alignment with the vast majority of other states, as well as the federal courts.

 - Audreina Blanding, Associate

Link to Article: https://thedailyrecord.com/2024/09/13/md-supreme-court-approves-pilot-to-expand-lawyers-role-in-voir-dire/

 

Link to June 2024 Rules Committee Meeting: https://www.mdcourts.gov/sites/default/files/import/rules/agenda/agenda.pdf

 

2024 Maryland General Assembly Bills

·         Senate Bill 827 (Policy Note): https://mgaleg.maryland.gov/2024RS/fnotes/bil_0007/sb0827.pdf

·         House Bill 1079 (Policy Note): https://mgaleg.maryland.gov/2024RS/fnotes/bil_0009/hb1079.pdf

 

Other Articles

·         https://www.msba.org/site/site/content/News-and-Publications/News/General-News/Maryland-Rules-Committee-Recommends-Jury-Examination-Expansion.aspx#:~:text=Following%20Chief%20Justice%20Fader's%20April,discuss%20additional%20methods%20of%20identifying

The Appellate Court of Maryland Holds That an Anti-assignment Clause Can Void the Attempted Assignment of an Insurance Claim.

In re Featherfall Restoration, LLC., 261 Md. App. 105 (2024)

This matter is about an insurance policy dispute between Travelers and two (2) insurance policy holders G.K. and K.K. (the Insured). The insurance policy had a provision expressly stating that “[a]ssignment of this policy will not be valid unless we [Travelers] give our written consent.” On May 20, 2020, the Insured notified Travelers of purported wind and hail damage to their home’s roof that they believed occurred on June 2, 2019. On May 20, 2020, prior to filing a claim, the Insured hired Featherfall Restoration, LLC (“Featherfall”) to repair the roof. On June 2, 2020, Travelers sent a claim representative to inspect and evaluate the damages. On June 19, 2020, Travelers sent a letter to the Insured notifying them of the denial of the claim, because the Travelers representative identified signs of wear to the roof shingles but did not find wind or hail damage on the roof or other exterior portions of the house. On that same day, Featherfall emailed Travelers an assignment of claims document and a legal opinion that the assignment was lawful despite the anti-assignment provision drafted by Featherfall’s legal counsel. Featherfall tried to discuss the denial with Travelers representatives, but they declined to discuss the denial and took the position that the anti-assignment clause meant  Featherfall had no interest in the claim.

Featherfall filed an administrative complaint against Travelers with the Maryland Insurance Administration (“MIA”). Featherfall argued that it had the same rights under the policy as the insured including the right to discuss the denial of the claim. Travelers again took the position that the anti-assignment clause was valid, enforceable, and consistent with Maryland insurance law. MIA found that Travelers was only obligated to pay and adjust claims in accordance with Maryland laws and the policy. Further, the MIA found that Travelers actions were not arbitrary and capricious, lacking in good faith, or in violation of the insurance article. On judicial review, the Circuit Court for Baltimore City affirmed MIA’s decision and denied Featherfall’s request for a declaratory judgment.

        On appeal Featherfall argued that the anti-assignment clause only applied to the entire policy, not a claim; and that Maryland allows post-loss assignments because they are the same as any chosen action. Travelers argued that the plain language in the contract invalidated the assignment, and if the Court found that it was legal to assign the claim without prior approval it would make the contract toothless.

        The Appellate Court of Maryland held that the anti-assignment clause provision was enforceable and did not run afoul of Maryland insurance law. First, the Court found that in the most recent cases considered by the Maryland Supreme Court it found that anti-assignment clauses were valid even if it was a post-loss assignment. For comparison, the Court also noted that the Maryland General Assembly added provisions in the Insurance Article that expressly require health insurers to recognize all assignments but did not create a similar provision for property insurance companies. Additionally, the Court found that Travelers’ interpretation was correct and reading the contract to allow for any assignment as long as it was not the whole policy, would make the clause meaningless, which violates Maryland law that forbids courts from interpreting a clause in contracts in such a way that it is rendered meaningless.  Finally, the Court found that Featherfall did not have standing to bring a MIA claim in this matter, because if the assignment was void, than any interest and rights that flowed from that assignment, including the right to a MIA hearing, were not valid.

Fernando D. Kirkman, Esquire (Associate)

Congratulations to Ashley Bond on her promotion to Partner at RSRM!

Ashley Bond joined RSRM as an Associate in 2017.  She graduated from the University of Baltimore School of Law in 2016, where she was a competing member of her school's National Trial Competition Team, placing as a regional semi-finalist, as well as serving as a Rule 16 attorney in the Bronfein Family Law Clinic. 

After law school, Mrs. Bond was a trial attorney at a criminal defense firm representing clients in both the district and circuit courts of Maryland before joining RSRM.  She has been named a Maryland Rising Star Attorney consistently since 2021 focusing on insurance coverage and defense, construction litigation, appellate cases, and workers' compensation. 

Mrs. Bond  has litigated hundreds of matters throughout Maryland District and Circuit Courts, as well as matters in the District of Columbia and the United States District Court for the District of Maryland.  We are proud of her success and to have her as a partner at RSRM. 

Congratulations Ashley!

 

Appellate Court of Maryland Holds that Appeals of IN § 27-1001 Claims to the OAH do not Preclude CJP § 3-1701 Claims and that Tortfeasors can be Liable for Subsequent Negligent Actions of Medical Providers.

Tami Browne v. State Farm Mutual Automobile Insurance Co., No. 1825, Sept. Term, 2021.

            Tami Browne was injured in an automobile accident where the at-fault driver fled the scene. Browne reported low back, hip, and neck pain and received non-surgical treatment. Subsequently, after continuing pain, Browne underwent an MRI which revealed a Tarlov cyst near her spine and a protruding disc. Browne underwent a surgical procedure to remove the cyst and later complained of worsening symptoms due to the surgery. Browne filed a claim with her insurer, State Farm, who refused to provide coverage for Browne’s subsequent treatment as there was no documentation connecting the cyst surgery to the accident. The parties were unable to settle the claim; therefore, Browne filed a breach of contract action against State Farm in the Circuit Court for Montgomery County. While the breach of contract case was pending, she filed an administrative complaint against State Farm for failure to act in good faith under Insurance Article (“IN”) § 27-1001 and Courts and Judicial Proceedings (“CJP”) § 3-1701.

The Maryland Insurance Administration (MIA) determined that State Farm did not owe Browne the entire $50,000 within her policy limits, and that State Farm had not failed to act in good faith. Browne subsequently appealed the decision to the Office of Administrative Hearings (OAH), which affirmed the previous MIA decision. Browne then amended her breach of contract action to include the statutory lack of good faith claim under CJP § 3-1701. Both parties then moved for summary judgment, where the circuit court ultimately granted summary judgment in favor of State Farm, determining that the OAH decision collaterally estopped Browne from litigating a civil action that involved the same issues at question in the OAH decision. The court then denied Browne’s motion as moot.

Writing for the Appellate Court of Maryland, formally known as the Maryland Court of Special Appeals, Judge Adkins first determined that a CJP § 3-1701 action is not a direct appeal of the OAH decisions as it is an independent civil claim. Although a civil action authorized by CJP § 3-1701 is reviewed de novo of MIA decisions, courts have repeatedly stated that this cause of action is not an appeal. Thompson v. State Farm Mut. Auto. Ins. Co., 196 Md. App. 235, 238 (2010). The court did not agree with State Farm’s assertion that collateral estoppel must apply to the circuit court action as it is a separate judicial proceeding on issues presented before the OAH.  The court looked at the requirements for a CJP § 3-1701 action including receiving a final decision under IN § 27-1001. To receive a final decision under IN § 27-1001, one must either: (1) not appeal to OAH within 30 days of a MIA decision or (2) appeal to OAH and wait for a final decision. CJP § 3-1701 does not distinguish between either of these final decisions, therefore the statute allows a cause of action under CJP § 3-1701 regardless of which path the insured takes.

The Appellate Court of Maryland then examined whether the circuit court abused its discretion in denying Browne’s motion for summary judgment. State Farm argued that Browne’s subsequent surgical treatment was negligent and, thus, a superseding cause. Browne argued that the automobile collision was the cause of her injuries, and the surgery should be included as it was an attempt to treat her original injuries. The court ultimately reversed the denial of Browne’s motion for summary judgment and provided guidance to the circuit court through § 457 of the Restatement (Second) of Torts, and Maryland case law requiring medical bills to be fair, reasonable, and necessary.

The subsequent negligence doctrine, as defined in Section 457, explains that negligent actors are subject to liability for any additional harm resulting from third parties’ normal efforts to tender aid regardless of if the acts are done properly or negligently. Per the comments to Section 457, if a person’s actions cause harm requiring medical intervention, the negligent actor remains liable for harm resulting from the medical services. The purpose for this rule is that the original tortfeasor should be held responsible for the inherent risks in treatment of injuries. The key question in subsequent negligent medical treatment cases is whether the original tortfeasor should have foreseen the general harm, not the specific manifestation of that harm.

The Appellate Court of Maryland looked to other jurisdictions for guidance to determine the extent of fair, reasonable, and necessary medical treatment, and bills. The court ruled that plaintiffs must first have proper foundation to introduce medical bills as evidence of damages. This is usually done by expert testimony discussing the bills’ fairness, reasonableness, and necessity. Once the evidence is admitted, the necessity of medical treatment is a question of fact for a jury. The jury can determine that the plaintiff was feigning injury, the treatment was for an ailment unrelated to the original tort, or the treatment goes beyond what is required by the injury.

On remand, the Appellate Court of Maryland provided some additional guidance to the circuit court. The burden is on the defendant to assert and provide evidence of subsequent negligent medical treatment. As such, the defendant must show that the subsequent negligence was so extraordinary or unusual that it is a superseding cause alleviating the defendant’s liability. Ultimately, the court identified five (5) instances where subsequent negligent treatment could be beyond the scope of the original tortfeasor’s liability: (1) extraordinary misconduct by medical professionals, (2) intentional torts committed by medical professionals against the victim, (3) a victim’s elected treatment of an ailment known to be unrelated to the injuries caused by the negligent actor, (4) treatment by a medical professional the victim was negligent in selecting, and (5) aggravation of the injury due to the victim’s negligence in carrying out the treatment of their injures.

- Sean Delaney, Law Clerk

Ship Owners Seek cap on Non-economic Damages in Federal Court for Claims relating to the Francis Scott Key Bridge Collapse.

        On March 26, 2024, shortly before 1:30 am, the M/V Dali, a containership with a length of 299.92 meters, lost power while traveling at eight (8) knots, causing the ship to strike Baltimore's Key Bridge, causing the 47-year-old structure to collapse into the Patapsco River.  The bridge's collapse has resulted in the complete closure of the Port of Baltimore, one of the nation's busiest ports.  As a result of the collision or "casualty", two (2) construction workers lost their lives, four (4) are missing but presumed dead, and two (2) suffered unknown injuries but survived. 

       The ship's owners want a cap on their exposure.  Grace Ocean Private Limited and Synergy Marine PTE, ltd., as Manager of the M/V Dali, have filed a Petition for Exoneration from or Limitation of Liability in the United States District Court of Maryland, Northern Division, seeking "exoneration from liability for any and all losses or damages arising out of the casualty and from any claims for damages that have been or may be filed."  Petitioners further "claim the benefits of limitation of liability provided by 46 U.S.C. § 30501, et seq." (aka "Limitation Act").  Basically, the ship's owners are asking the Court to cap their potential exposure at $43,670,000.00 (value of ship, aka 'sound value' of $90,000,000.00) plus its pending freight ($1,170,000.00) minus the repair and salvage costs ($28,000,000.00 and $19,500,000.00 respectively). 

      The M/V Dali owners will likely prevail in their request.  The Limitation Act states:

Except as provided in section 30524 in this title, (a) the liability of the owner of a vessel for any claim, debt or liability described in subsection (b) shall not exceed the value of the vessel and pending freight.  If the vessel has more than one owner, the proportionate share of the liability of any one owner shall not exceed that owner's proportionate interest in the vessel and pending freight.

46 U.S.C. § 30523.  Maryland's cap on non-economic damages, for an occurrence date in 2023, limits the amount of pain and suffering damages for injuries and wrongful death lawsuits at $935,000.00 if the victim survived and $1,402,000.00 if the victim died and there are two (2) or more wrongful death beneficiaries (Limitation of Non-Economic Damages, Courts & Judicial Proceedings Articles 3-2A-09, Md. Ann. Code).  A "survival action" cap is likewise, $935,000.00. This can be added to the aforementioned wrongful death claim cap to a combined total of $2,375,000.00

        The Port of Baltimore has suspended all maritime traffic until further notice.  The Port, our Port, handled 37 million tons of cargo in 2021 and is in the top 20 ports in the U.S., according to the Bureau of Transportation Statistics.  Container cargo trucks are still taking cargo in the port, but there are no maritime vessel imports or exports.  Truckers are especially hard, Maryland plated truckers that is, i.e., in order to transport container cargo out of the Port of Baltimore, a driver and his truck must have "apportioned plates" in order to leave the state of Maryland and deliver said cargo to other states. Unfortunately, many Port of Baltimore container haulers have Maryland plates only.  Consequently, these drivers cannot simply relocate to other ports, i.e., Port of Wilmington, Port of New York and New Jersey, and/or the Port of Virginia. 

        For automobile shipments, the Port of Baltimore was the nation's busiest,  handling 847,158 vehicles in 2023.  These vehicles, including the revenue generated by the handling of this particular type of cargo, is being diverted to other ports.  It remains to be seen whether this business and/or revenue will ever return to the Port of Baltimore and the Marylanders who work there. 

- Milton Warren, Associate