Monday, February 12, 2024
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.
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.
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
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
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.
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Monday, January 8, 2024
Congratulations to the five RSRM attorneys who were selected to Maryland's 2024 Super Lawyers!
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.
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
(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.
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
Friday, August 11, 2023
Regan Leavitt graduated magna cum laude from the University of Baltimore School of Law in 2022 and graduated from the University of Michigan in 2019. While attending law school, Ms. Leavitt served as a staff editor for the University of Baltimore Law Review and interned with the Honorable Matthew J. Fader, Chief Judge of the Appellate Court of Maryland. Ms. Leavitt also clerked for a mid-sized firm in Baltimore in which she supported attorneys in personal injury, medical malpractice and premises liability matters.
Following law school, Ms. Leavitt clerked for the Honorable John J. Nagle III in the Circuit Court for Baltimore County.
Outside of the office, Ms. Leavitt enjoys watching and playing
sports, traveling, spending time with friends and family, and playing with her
golden retriever, Goose.
Thursday, July 13, 2023
A plaintiff injured while performing professional rescue work may be barred from recovery under most circumstances.
Professional Rescuer Doctrine, otherwise known as the Fireman’s Rule, generally
precludes recovery in tort for those whose business it is to save lives and
prevent injury to persons and property. It states that those engaged in rescue
work as part of their employment may not, as a matter of law, recover for
injuries sustained by them on the job, from those whose negligence was the
proximate cause of the injuries. Gillespie v. Washington, 395 A.2d 18,
20 (D.C. 1978).
the professional rescuer doctrine, the professional rescuer is held to have
assumed the risks attending his work. "Those dangers which are inherent in
professional rescue activity, and therefore foreseeable, are willingly
submitted to by the professional rescuer when he accepts the position and the
remuneration inextricably connected therewith." Id.; see also Young v.
Sherwin-Williams Co., 569 A.2d 1173 (D.C. 1990) (“The rationale underlying
the rule is that professional rescuers, such as police or firefighters, have
assumed the risks inherent in the profession for which they are compensated by
the public”); Flowers v. Sting Security, Inc., 62 Md. App. 116, 123 n.1
(1985) (“Although called ‘the fireman's rule,’ the rule is without exception
applied to policemen as fully as it is to firemen. The rule is applied to bar
certain tort causes of action by firemen and policemen injured during the
course of their hazardous occupations.”).
District of Columbia Court of Appeals (“COA”) has addressed the scope and
applicability of the Professional Rescuer Doctrine in at least four reported
cases: Gillespie v. Washington, 395 A.2d 18, 20 (D.C. 1978); Young v.
Sherwin-Williams Co., 569 A.2d 1173 (D.C. 1990); Lee v. Luigi, 696
A.2d 1371, 1373-74 (D.C. 1997); Melton v. Crane Rental Co., 742 A.2d 875
Gillespie v. Washington, 395 A.2d 18, 20 (D.C. 1978), the Plaintiff was
a member of the Metropolitan Police Department's Harbor Patrol who was
responding to the scene of a capsized boat. In attempting to upright the boat
and free any remaining passengers, the Plaintiff injured his back. Plaintiff
subsequently sued the Estate of the boat’s operator (who died in the accident).
The COA stated that the proper test for determining whether the doctrine
applies to bar recovery by a professional rescuer is "whether the hazard
ultimately responsible for causing the injuries is inherently within the ambit
of those dangers which are unique to and generally associated with the
particular rescue activity.” In Gillespie, the COA held that “[s]ince
[Plaintiff’s] injuries were sustained in the regular course of his professional
rescue responsibilities, [Plaintiff’s] may not recover in this case as a matter
Young v. Sherwin-Williams Co., 569 A.2d 1173
(D.C. 1990), a plaintiff firefighter sought to recover for permanent
injuries sustained after catching a man who fell off a bridge. The firefighter
argued that the professional rescuer doctrine does not apply to his case
because, when injured, he was acting outside the scope of his firefighting
duties. He based this argument on his testimony that at the time of the
accident, the plaintiff was a "pumper driver," whose primary duty was
to drive a piece of apparatus called the pumper and to connect the hoses to the
hydrant and to supply the necessary water to extinguish a fire. There was also
testimony that a firefighter is not expected to catch, either bare-handed or
with a net, a grown man falling from a height of fifty feet. The firefighter
essentially argued that the court should inquire into whether the particular
rescue operation at issue came within the firefighter's specific duties in the
COA rejected the firefighter’s argument that rescue work was outside the scope
of his duties as a pumper driver. In explaining its reasoning, the Court stated
firefighter’s] injury was caused by [rescue victim’s] fall, a risk that, far
from being hidden, was the focus of all eyes on the scene. Nor can it be said
that someone hanging from a high place in life-threatening danger is a type of
hazard unknown to firefighters in the course of their work. Finally, trying to
save [the rescue victim’s] life was not some sort of extracurricular activity
for [the firefighter].”
Lee v. Luigi, 696 A.2d 1371, 1373-74 (D.C. 1997), the plaintiff police
officer responded to an activated burglar alarm at a restaurant and filed suit
against the restaurant when he fell down some stairs and was injured. The
restaurant filed a motion for summary judgment and the lower court granted the
motion, holding that the claim was barred by the professional rescuer doctrine.
On appeal, the policeman argued that his claim was not barred because the
restaurant's negligence, which caused his injuries, was independent of his
police work. The COA affirmed the summary judgment, holding that the risk
involved was inherent and incidental to the policeman's work, and therefore,
his claim was barred by the professional rescuer doctrine. Further, the court
held that there was no extremely dangerous and concealed condition known to the
restaurant. The court noted that police should have reasonably expected that
property owners use portions of their premises to store items and that they may
not keep them clear for those not expected ordinarily to enter those areas.
addressing the scope of Plaintiff’s rescue activity, the COA stated:
was performing his police responsibilities when he entered [Defendant’s]
premises to look for burglars or signs of burglary. The investigation
necessitated that he look in various areas of the restaurant, as he did. That
he had completed his examination of the door at the top of the stairs before he
fell does not show that his police business on the premises was at an end, as
he contends. To perform the investigation, he not only had to ascend the
stairs, but descend them as well. Nor does the fact that other officers arrived
on the scene change the purpose of [Plaintiff]’s presence in [Defendant’s]
premises at the time that he fell. [Plaintiff] seeks to draw too narrowly the
scope of the work incident to the performance of his "rescue"
Plaintiff argued that his
police responsibilities, and thus his rescue activity, were at an end by the
time of his injury (when he descended stairs of restaurant while investigating
burglary). The COA rejected this argument and held that, in light of case
precedent, the Plaintiff was still within the ambit of his police activities.
This case is helpful in
the sense that the doctrine was applied to a situation where the “professional rescuer”
was not engaged in “rescue activity” in the traditional sense. Rather, the test
the hazard ultimately responsible for causing the injury is inherently within
the ambit of those dangers which are unique to and generally associated with the
particular rescue activity.
The Plaintiff in Luigi,
Inc. actually argued that “he was not engaged in rescue activity at the
time he was injured” and that “he had completed his professional duties when he
fell as a result of [the restaurant owner’s] maintenance of a dangerous
condition on the stairway. However, the COA (in applying the above test) found
that the dangerous condition on the stairway was a foreseeable risk of the
officer’s “rescue activity” of searching the premises for a burglar. See id.
at 1375 (“While the doctrine may not preclude recovery for hidden or unknown
hazardous conditions, foreseeable risks are within the parameters of the
professional's work, and such risks will not support a claim for recovery.”).
most recent D.C. case to address the doctrine is Melton v. Crane Rental Co.,
742 A.2d 875 (D.C. 1999). In Melton, an EMT was transporting a pregnant
woman to the hospital via ambulance when he was permanently injured after a
truck crane struck the ambulance. The COA held for the first time that the
doctrine did not apply to bar the professional rescuer’s recovery because the
injury (i.e., 3rd party traffic accident while on the way to the
hospital) was not a risk associated with the reason for the rescuer’s presence
at the scene. It appears that the COA recognized an independent tort exception
to the general doctrine. The COA stated:
EMT's regularly ride in emergency vehicles as part of their employment
obligations, the fact that the emergency vehicle might become involved in a
traffic accident is not a risk associated with the reason for the rescuer's
presence at the scene.
The COA went on to state that the only activities the professional rescuer’s doctrine immunizes from liability are “those negligent acts that occasioned [the professional rescuer’s] presence at the scene.” Furthermore, application of the doctrine requires some nexus between (1) the rescue, (2) the specific rescue activity, and (3) the negligent act causing injury. Id. at 13.
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