Thursday, June 30, 2022

Congratulations to Partner Rod Barnes on his Recent Win!

A 70-year-old grandmother from Florida was in Maryland Christmas shopping with her granddaughters two days before Christmas at a local shopping mall.  While still shopping with her granddaughters, the store closed for the night.  As the grandmother and her granddaughters were leaving the store, she claimed that the steel overhead security gate suddenly and without warning dropped from the ceiling six feet overhead and struck her on the crown of her head.  The Grandmother filed suit against the mall and the retail store claiming that the gate was defective and dangerous to store patrons.  She claimed to have suffered a traumatic brain injury which left her with cognitive deficits and persistent headaches.  She also claimed to have suffered cervical spine injuries which required her to receive numerous nerve block injections and ultimately a cervical spine fusion.  Plaintiff claimed medical expenses in excess of $169,000.00 and pain and suffering in excess of $900,000.00.

At trial, Mr. Barnes successfully argued that the Plaintiff’s medical expert was unqualified to testify about the fairness and reasonableness of the Plaintiff’s medical bills, all of which were from out-of-state healthcare providers.  The Court agreed that the Plaintiff’s expert who was a local Maryland physician did not demonstrate sufficient familiarity or knowledge about the billing practices in Florida or Texas to enable him to testify about their reasonableness.  Thus, all the Plaintiff’s medical bills were excluded from evidence. The Plaintiff then proceeded with a reptilian theory of damages.

Mr. Barnes carefully cross-examined the septuagenarian about her extensive medical problems that pre-existed the alleged Mall incident.  He also highlighted her varying accounts of how the incident happened that she shared with her dozens of healthcare providers – including that she accidentally walked into the gate as it was partially lowered at closing time.  Plaintiff called 5 additional witnesses, all of whom were family members.  None of her witnesses saw the alleged incident so there was minimal cross-examination.

During his closing argument, Mr. Barnes highlighted the fact that the Plaintiff never called an expert witness who testified that there was a problem with the security gate.  Plaintiff didn’t describe the gate, didn’t introduce a picture of the gate, didn’t explain how the gate worked, didn’t identify what part of the gate failed, and had no evidence that this type of incident ever occurred before the subject incident, or in the 5 years since.

The Jury deliberated for 3 hours before returning a unanimous defense verdict.

Congratulations to Mr. Barnes on this outcome!

Tuesday, June 21, 2022

Congratulations to Partner Benjamin Beasley on his recent trial win in the Circuit Court for Baltimore City!

Mr. Beasley represented an individual who made a left turn on a yellow arrow turn signal and collided with an oncoming motorist’s vehicle that had a green light.  Relying on provisions in the Transportation Article and applicable case law, Mr. Beasley argued that his client was not negligent as his client had the right to clear her passage across the intersection.  The court agreed, finding Mr. Beasley’s client was not negligent and entering judgment in Mr. Beasley’s client’s favor.


Congratulation to Mr. Beasley on this outcome!

The Workers’ Compensation Commission gained Authority to Order a Complete Reimbursement of all Independent Medical Examination No-Show Fees.


    COMAR was recently amended to allow the Maryland Workers’ Compensation Commission (“WCC”) to order claimants to pay reasonable expenses and costs actually incurred with missed independent medical examinations (“IME”). .  The prior regulation only permitted the Commission to award employer/insurers reimbursements up to $125.00 per missed IME.  This is now a huge victory for employer/insurers, as the cost of missed IMEs were often far greater than $125.00.  

    Initially, we hoped that with the ability to award larger sums for reimbursement of IME no-show fees, employers/insurers would suffer fewer financial losses, and claimants would be deterred from missing IME appointments.  

    Unfortunately, since the passing of this revised regulation, the WCC has still often declined to award full reimbursement of IME no-show fees.  Rather, the Commission relied on a trusted doctor to survey various medical practitioners throughout Maryland and to calculate an average no-show fee.  According to this doctor, the average no-show fee in Maryland was approximately $350.00.  Since this determination, the trend from the Commission is to award no more than $350.00 per missed appointment.  Unfortunately, this amount is significantly less than many of the invoices received for IME no-show fees. 

    Still, it is important to file issues for reimbursement of IME no-show fees, in order to ensure claimants understand the financial implications of missing medical appointments.  In order to successfully prevail on issues for reimbursement of IME no-show fees, it is imperative that the employer/insurer’s attorney receive the following documents:

        1.  The letter sent to claimant and their attorney advising them of the independent medical                                        examination appointment.

        2.  The invoice from the independent medical examination provider with the no-show fee.

        3.  The check issued by the employer/insurer for the costs of the no-show fee.

    It is vital that the letter sent to claimant and their attorney is sent to the correct addresses.  For extra security, the letter should also be emailed to claimant’s attorney with a request for a read receipt.  If claimant can prove that they did not receive notice of the IME, the employer/insurer is unlikely to receive reimbursement.  Similarly, it is important that IMEs are scheduled well in advance, and that notice of the IME is provided to claimant as soon as possible, in order to allow time for the claimant to make any necessary arrangements to attend the appointment.  

    If you have any questions on how to pursue issues for reimbursement of IME no-show fees, do not hesitate to contact RSRM’s Workers’ Compensation Department, consisting of Partner Paul Donoghue, Partner Alicyn Campbell, and Associate Ashley Bond.

                -- Ashley Bond, Associate

Monday, June 6, 2022

Maryland Court Echoes Jurisdictions Across the Country, Over the Interpretation of Business Interruption Coverage, as it relates to Covid-19.

GPL Enterprise, LLC v. Certain Underwriters at Lloyd’s, et al., No. 302, Sept. Term 2021. Opinion by Arthur, J.

    In a recently reported opinion issued by the Court of Special Appeals of Maryland, a three-judge panel concluded that a commercial property insurance policy designed to cover “direct physical loss or damage to” property does not apply to the lost revenue of a restaurant, which was forced to shut its doors during the pandemic.

    The underlying dispute, in this case, arose from an insurance claim made by GPL Enterprise, LLC (hereinafter "GPL"), which operates a restaurant called The Anchor Bar. Two weeks after Governor Larry Hogan issued an emergency order closing all Maryland restaurants and bars, GPL filed a claim with their insurance company. GPL's claim sought coverage for direct physical harm, loss, or damage to their premises, which they claim resulted from Covid -19 and Governor Hogan’s emergency order. The insurance carrier denied GPL’s claim, presumably citing an absence of “direct physical loss of or damage to” the property itself, as a pre-condition for coverage.

    As a result, GPL filed a two-count complaint in the Circuit Court for Frederick County alleging breach of contract and requesting the Court declare the parties’ rights under the policy. The insurance providers prevailed on a motion to dismiss at a hearing on April 27th. GPL appealed that decision.

    The policy in question is a commercial property insurance policy. The primary purpose of which is to protect the property that the insured uses in its business “against direct physical loss or damage as a result of fire, vandalism, meteor strike, etc.” In addition, the policy included business interruption coverage for the loss of income and additional expenses incurred from the direct loss or damage. The meaning of “direct physical loss of or damage to” property is the central issue in this case. As the court sought to answer, whether the Governor’s order or the Covid-19 virus resulted in direct physical loss of or damage to GPL’s property.

    No Maryland appellate court had decided this issue. However, numerous other courts around the country had ruled on similar issues, which the Court of Special Appeals deemed virtually identical to GPL’s claim. The Court of Special Appeals cited numerous cases that determined that language, which is practically identical to that of GPL’s insurance policy, was unambiguous. The Court pointed to the inclusion of the term “physical” as a clear indicator that some form of a material alteration to the property must be present for the insurance claim to be viable.

    The Court noted that, unlike a fire or meteor strike, the Governor’s order had no tangible or physical impact on GPL’s restaurant or the property inside it. As a result, the pre-condition that GPL show a  “direct physical loss of or damage to” the business, which was needed in order to obtain business-interruption coverage, had not been satisfied. This opinion shows how courts in Maryland have fallen in line with other jurisdictions across the country as insurance providers and businesses attempt to establish new boundaries in the wake of COVID-19.

            -- Scott Mitchell, Law Clerk

Tuesday, May 31, 2022

RSRM Welcomes Associate Bryan Cleary!


Bryan Cleary earned his J.D. from the University of Baltimore School of Law in May 2021. Before that, he graduated from Moravian University in 2018 with a major in Political Science. While attending law school, Mr. Cleary served as a staff editor for the University of Baltimore Law Forum and was a Maryland Rule 19 Student Attorney in the Saul Ewing Civil Advocacy Clinic. Mr. Cleary also spent time interning with the Honorable Debra L. Boardman of the United States District Court for the District of Maryland. 
Prior to and during his undergraduate education, Mr. Cleary worked as an operations supervisor for UPS for four years, where he was responsible for managing numerous employees and various areas of the building. 

Immediately after graduating from law school, Mr. Cleary clerked for the Honorable Timothy J. McCrone in the Circuit Court for Howard County.
Outside of the office, Bryan enjoys watching and playing sports, spending time with friends and family, traveling, reading, and playing with his German Sheppard, Stella.

Maryland Court of Appeals Upholds its Tolling of the Statute of Limitations Due to the COVID-19 Court Closures


Murphy v. Liberty Mut. Ins. Co., 2022 Md. Lexis 166 (Filed April 22, 202) (opinion by McDonald, J.)

        In a recently published opinion by the Court of Appeals, Maryland’s highest court held that former Chief Judge Barbera acted within her authority when she issued an administrative order on April 24, 2020,  tolling the statute of limitations in civil matters due to the COVID-19 emergency court closures.

        The underlying commercial dispute in Murphy originally arose in Maryland’s Federal District Court. The parties in the federal suit disputed the timeliness of certain claims and whether the Federal District Court possessed diversity jurisdiction over the claims. As the resolution of these questions depended on the validity of Judge Barbera’s administrative order, the Federal District Court “certified” the question of the order’s validity to Maryland’s Court of Appeals.

        In upholding the administrative order’s validity, the Court of Appeals looked to the Chief Judge’s authority under the Maryland Constitution, the Maryland Code, and the Maryland Rules. The Murphy Court first referenced Art. IV. § 18 of the State Constitution, which confers both administrative and rulemaking authority on the Chief Judge, particularly as that authority pertains to the “practice and procedure” of the courts. The opinion also noted the General Assembly’s acknowledgment that the rulemaking power of the Court of Appeals, “shall be liberally construed.” Md. Code Ann. Cts. & Jud. Proc. § 1-201(a).

        While recognizing that the statute of limitations is a “product of legislation,” the Murphy Court reasoned that it falls to the courts to “interpret and administer” the deadlines imposed by the statute of limitations. Ceccone v. Carroll Home Services, LLC, 454 Md. 680, 691, (2017); Md. Rule 1-203 (computation of time). To illustrate this point, the court observed that questions as to when an action accrues and triggers the statute of limitations are often left to judicial determination, citing Cain v. Midland Funding, LLC, 475 Md. 4, 38 (2021), Poffenberger v. Risser, 290 Md. 631, 634-38 (1981), and Hahn v. Claybrook, 130 Md. 179 (1917). The Murphy Court reasoned that, as with any other enactments of the legislature, courts must ascertain and carry out the legislative purpose behind the statute of limitations.

        In examining the various responsibilities of Maryland’s branches of government during the Pandemic, the court looked to Maryland Rule 16-1003(a)(7), which, during an emergency, allows the Chief Judge to: “suspend, toll, extend, or otherwise grant relief from time deadlines, requirements, or expirations otherwise imposed by applicable statutes,”

        Against this backdrop, the Murphy opinion recounted the various administrative orders issued in response to the COVID-19 Pandemic and found “ample and explicit authority under Article IV of the State Constitution and the Maryland Rules” for the Chief Judge to issue the administrative tolling order.

        The remaining issue was whether the order “overreached the authority of the Judiciary” under Articles 8 (separation of powers) and 9 (prohibition against suspension of laws). Regarding separation of powers, the court looked to examples of shared authority between the branches to highlight that the powers of the three branches are often intertwined. For example, the General Assembly has a role in the election and appointments to positions in the Executive Branch while the General Assembly may entrust “legislative-type powers” to Executive Branch agencies charged with administering certain situates. Despite some shared authority, branches run afoul of Article 8 when they “usurp” the powers of another branch. In upholding the validity of the order, the court held that the order was not an expression of a judicial policy preference but rather fell under the court’s “practice and procedure” functions under the Maryland Constitution.

        Finally, the court considered where the order violated Article 9’s prohibition against the suspension of laws. Interestingly, despite being part of the Maryland Declaration of Rights since 1776, the provision had not yet been interpreted by the Court of Appeals. Article 9 provides, "[t]hat no power of suspending Laws or the execution of Laws, unless by, or derived from the Legislature, ought to be exercised, or allowed." The court noted that Murphy Enterprises, the party arguing the violation of Article 9, failed to articulate why the court’s order violated the article and, even if the order constituted a “suspension” of laws, doing so was under the court’s core constitutional powers was in coordination with the other branches of government.  

        While there may be some remaining questions as to how long the statute may be tolled when applied to a particular case, the Murphy opinion left no doubt that the Court of Appeals had the authority to issue the COVID-19 tolling orders. 

                -- Joseph Kavanaugh, Associate

Governor Hogan Announces Several Appointments to Maryland’s Trial and Appellate Courts

In February, Governor Hogan announced several judicial appointments to the Maryland Court of Appeals, Court of Special Appeals, and trial courts in Baltimore City and Washington County. 
Judge Angela M. Eaves was appointed to the Maryland Court of Appeals to succeed Judge Robert N. McDonald. Before her appointment to the Court of Appeals, Judge Eaves served as the Administrative Judge for Harford County Circuit Court. Judge Eaves' legal career included work at both the Maryland Attorney General's Office and the Maryland Legal Aid Bureau. Judge Eaves also served as an assistant city attorney for the City of Dallas. Judge Eaves earned her bachelor's, master's, and J.D. from the University of Texas. 
Judge Matthew J. Fader was appointed to the Maryland Court of Appeals to succeed Judge Joseph M. Getty. Judge Fader was the chief judge of the Maryland Court of Special Appeals prior to his appointment to the Court of Appeals. Before taking the bench, Judge Fader worked for the U.S. Department of Justice, the Maryland Attorney General's Office, and was a partner at the international law firm, K&L Gates, LLP. Judge Fader received his B.A. from the University of Virginia and his J.D. from Yale Law School. 
Judge Anne K. Albright was appointed to succeed Judge Fader on the Maryland Court of Special Appeals. Judge Albright was a member of the Circuit Court bench in Montgomery County at the time of her appointment to the Court of Special Appeals. Previously, Judge Albright worked for the Maryland Public Defender's Office and the law firm Albright & Rhodes. She obtained her A.B. from Dartmouth College and her J.D. from Georgetown University Law Center.  
Judge E. Gregory Wells was appointed to serve as the chief judge of the Maryland Court of Special Appeals. Judge Wells had been a member of the Court of Special Appeals since 2019, before which he sat in Calvert County Circuit Court. Judge Wells previously worked in the Attorney General's Office's Criminal Appeals Division and served as the State's Attorney for Calvert County. Judge Wells earned his B.A. from the College of William & Mary and his J.D. from the University of Virginia. 
Judge Joseph S. Michael was appointed to the Circuit Court for Washington County. Judge Michael was the deputy state's attorney for Washington County and had previously maintained a part-time civil practice. Judge Michael obtained his B.A. from the University of Maryland and his J.D. from Washington & Lee University School of Law. 
Judge Tameika M. Lunn-Exinor was appointed to the District Court of Maryland for Baltimore City. Judge Lunn-Exinor was an administrative law judge at the Office of Administrative Hearings at the time of her appointment. Before becoming an administrative law judge, Judge Lunn-Exinor practiced civil litigation at firms in Baltimore and Washington, D.C. She received her B.A. from Johns Hopkins University and her J.D. from George Washington University School of Law
Judge Lydie Essama Glynn was appointed to the District Court of Maryland for Baltimore City. Judge Glynn was the chief solicitor in the litigation and appeals division at the Baltimore City Solicitor's Office. Her legal career also included work for the Attorney General's Office and other positions at the City Solicitor's Office. Judge Glynn obtained her B.A. from the University of Pennsylvania and her J.D. from the University of Virginia.
Judge Ana De la Hoz Hernandez was appointed to the District Court of Maryland for Baltimore City. Judge Hernandez worked for the Maryland Public Defender's Office, most recently in the Baltimore City felony trial division. Prior to becoming a lawyer, Judge Hernandez taught special education courses in Miami-Dade County, Florida. Judge Hernandez received her A.A. from Florida International University, her B.A. from the University of Florida, and her J.D. from the University of Miami School of Law.
Judge Theresa Morse was appointed to the District Court of Maryland for Baltimore City. Before her appointment, Judge Morse worked for the Attorney General's Office's Organized Crime Unit and both the Anne Arundel County State's Attorney's Office and the Baltimore City State's Attorney's Office. Judge Morse earned her B.A. from Boston College and her J.D. from the University of Maryland, Francis King Carey School of Law. 
Rollins, Smalkin, Richards and Mackie would like to extend their congratulations to all of the new Maryland judicial appointments.