Friday, September 30, 2022

Maryland Court of Appeals Prevents an Injured Firefighter from Double Dipping

Spevak v. Montgomery Cnty., 2022 Md. LEXIS 323.

        Recently, the Maryland Court of Appeals issued an unreported opinion that clarified the standard necessary to apply the offset provision contained in Md. Code Ann., Lab. & Empl. § 9-610.  The offset provision was designed to preclude duplicative recovery for the same injury, essentially preventing double-dipping into the same pot of comparable benefits.  This provision does not however hinder a claimant from receiving workers’ compensation benefits that are owed.  Instead, it is a means of regulating the terms of compensation for injury.

        The case before the Court of Appeals involved a firefighter who, after serving nearly three decades, went into retirement due to a service-related back injury.  Upon his retirement, Mr. Spevak began collecting $1,859.07 per week in service-connected total disability retirement benefits.  Nine years into retirement, Mr. Spevak suffered hearing loss related to his employment from exposure to loud noises, such as fire engines, sirens, and alarms.  Due to this hearing loss, Mr. Spevak filed an additional workers’ compensation claim to which the County objected.  The County argued that Mr. Spevak’s compensation for his hearing loss should be offset because he was already receiving service-connected total disability retirement benefits due to his back injury, which compensated him for wage loss. The County further noted that a failure to apply the offset would result in duplicative recovery for the same loss and Mr. Spevak would collect more than the maximum compensation available. Such compensation would be contrary to the legislative intent and workers’ compensation law.  Mr. Spevak countered arguing that prior case law identifies a “same injury” test, and if applied, compensation for hearing loss should not be offset because the back injury arose nine years prior to the occupational hearing loss. If the “same injury” test would not be satisfied, then Mr. Spevak’s compensation would not be subject to any offset.  

        The sole issue, in this case, was whether Mr. Spevak’s benefits were “similar benefits” under LE § 9-610. To address this question, the Court looked to the plain language of LE § 9-610(a) and prior case law and concluded that the “same injury” standard is the proper test to identify whether benefits are subject to an offset under LE § 9-610. The Court ultimately held for the County, stating that the benefits Mr. Spevak was receiving for his back injury fully compensate him for all injuries related to his service as a firefighter. Other service-connected benefits would therefore be duplicative under the workers’ compensation system.

        Following this case, it becomes apparent that in the event an individual suffers more than one occupational injury, benefits may be “similar” and subject to the offset even if injuries develop on different body parts and/or there is a significant gap of time from which the injuries developed. The focus and application of the provision appear to fall on the type of benefit received, rather than the type of injuries suffered.

                -- Faith Zellman, Law Clerk


Friday, September 23, 2022

Maryland’s Intermediate Appellate Court Expands Scope of Personal Safety Exception


David P. Bogert, et al. v. Thomas A. Thompson, Jr., et al., No. 1171, Sept. Term, 2021.

    Under most circumstances, a plaintiff cannot recover for pain and suffering when the damage caused by a defendant’s negligence is limited to property only. A person seeking to recover for emotional pain in tort usually must also show an accompanying bodily injury. However, in a recent case Maryland’s Court of Special Appeals (“COSA”) expanded the scope of one exception to this general rule.

    At issue in Bogert v. Thompson was the application of the personal safety exception. Under this rule, there may be recovery when the defendant’s negligence causes property damage that results in emotional injuries that are due to the plaintiff’s reasonable fear for the safety of himself or for the members of his family.

    The facts of the case are as follows: On September 22, 2019, during the early morning hours Thomas A. Thompson, Jr. crashed his truck into the house where David P. Bogert and his family resided. Mr. Thompson was driving under the influence of alcohol, lost control of his truck, and crashed it through the Bogerts’ garage. Directly above the garage were the bedrooms of Mr. Bogert’s minor children. At the time, everyone was asleep but were immediately awakened by the sound of the truck’s impact. The noise caused Mr. Bogert to experience a flashback to an incident in 2005 while he was serving in Iraq. As a result, Mr. Bogert immediately believed his house was under attack and he rushed to his children’s bedrooms.

    Counsel for the Defendant, Mr. Thompson, moved for summary judgment and argued that, since the only damage caused by the Defendant was to the Bogerts’ property (which occurred while the Bogerts were sleeping), there could be no recovery for emotional injuries. To support this position, the defense distinguished the current case with the facts of Bowman v. Williams, 164 Md. 397 (1933), which allowed the plaintiff to recover for mental injuries after he witnessed a truck collide into the side of his house nearby his children’s bedroom. In Bowman, the plaintiff actually witnessed the negligent damage to his property while in the current case the Bogerts did not. The circuit court agreed that Bowman was distinguishable and granted summary judgment.

    On appeal, counsel for the Bogerts argued that the personal safety exception was applicable because Mr. Bogert was placed in reasonable fear for the safety of his children due to Mr. Thompson’s negligence, and this fear caused Mr. Bogert to incur measurable emotional injuries. In response, counsel for the Defendant argued that the cases applying the personal safety exception all involve situations where the plaintiff witnessed the accident giving rise to their mental injury. As such, observing the act of negligence is necessary before the exception will apply.

    In rejecting this contention, the COSA stated that a tortious act damaging a plaintiff’s property and causes what sounds like a loud explosion would likely cause a plaintiff to be just as afraid for his safety and the safety of his family if he hears the explosion, but does not see what caused it, as a plaintiff who sees the cause by witnessing the negligent act unfold. Therefore, when applying the personal safety exception the plaintiff need not witness the accident so long as (1) he was aware of it immediately after the accident occurred, and (2) that awareness caused the plaintiff to reasonably fear for his own safety or the safety of his family members.

             -- John Thompson, Associate


Monday, August 15, 2022

RSRM Congratulates its Attorneys on their Maryland State Bar Association Appointments!


Tara Barnes, Partner – MSBA Judicial Appointments                                                                         Committee Co-Chair

John Thompson, Associate – MSBA Young Lawyers Section Council                                                            Wellness Committee Co-Chair

Ashley Bond, Associate – MSBA Young Lawyers Section                                                                        Council Wellness Committee Co-Chair

Logan Hayes, Associate - MSBA Young Lawyers Section Council                                                         Harford / Cecil Circuit Representative

The Court of Special Appeals Clarifies Subrogation Rights of Carriers Under the Maryland Workers’ Compensation Act

Conley v. Trumbull Ins. Co., No. 0081-2021 (Md. Ct. Spec. App. Jul. 18, 2022)

    In a recent unreported opinion by the Court of Special Appeals, a three-judge panel confirmed that the Appellee did not waive their subrogation interest by failing to expressly reserve that right in the final settlement agreement between the parties. This case stemmed from an on-the-job injury that occurred due to the negligence of a third-party tortfeasor. Following the injury, the Appellant retained an attorney and filed a workers’ compensation claim against Appellee, the employer’s workers’ compensation carrier. Additionally, Appellants filed a “third-party claim” against the tortfeasor, an employee of a national bottling company. Appellants and Appellee reached an “Agreement of Final Compromise and Settlement” which concluded Appellants’ claim against Appellee. Appellants' claim against the Third Party was subsequently settled. 

    Appellee then sought reimbursement from Appellants’ third party settlement under Appellee’s right of subrogation under the Maryland Workers’ Compensation Act (“MWCA”). However, Appellants refused to provide the proceeds of the third party settlement because they believed Appellee waived its right to subrogation by failing to preserve that right in the final settlement agreement between the parties. In turn, Appellee filed a complaint against Appellants in an attempt to enforce Appellee’s subrogation right under the statute. On July 17, 2020, the Circuit Court of Baltimore County granted summary judgment in favor of Appellee, finding as a matter of law that Appellee’s statutory lien under the MWCA, survived the full and final settlement agreement. Appellants filed a notice of appeal. 

    The main question on appeal was did the Circuit Court err in granting summary judgment of Appellee’s statutory subrogation claim against Appellant, where Appellee did not expressly reserve their statutory subrogation interest in the full and final settlement agreement between the parties? Appellants believed that Appellee had waived their right to the third party proceeds by failing to reserve their statutory right under the details of the full and final settlement. Appellee argued that their silence concerning their subrogation rights did not amount to a waiver of their statutory lien on any of Appellants’ recoveries from the third-party tortfeasor. Since the decision to grant summary judgment is purely legal, the case was reviewed de novo

    No case law in Maryland had determined whether an employer/insurer’s subrogation right may be extinguished by failing to reserve that interest in a settlement agreement. However, after analyzing the MWCA’s amended history, along with general provisions, this indicated to the court that before October 1, 2018, an employer/insurer’s subrogation interest was not waivable by agreement. The court held that at the time of this claim, an employer’s subrogation interest was not waivable by agreement under Md. Code Ann., Lab & Empl. §9-104. As a result, Appellee did not waive its subrogation interest by failing to expressly reserve it in the final settlement agreement between the parties. This decision clarified workers’ compensation carrier’s subrogation rights against claimants in the state of Maryland. 

            -- Scott Mitchell, Law Clerk

Friday, July 29, 2022

Cosa Makes Clear That “Definite Proof” In WCC Hernia Claims Refer To The Quality Of Evidence And Not A Heightened Standard Of Proof

    The Court of Special Appeals (“COSA”) recently issued a reported opinion discussing the “definite proof” requirement found in Section 9-504 of the Maryland Labor and Employment Article. Section 9-504 of the Maryland Labor and Employment Article requires an employer to provide compensation to a covered employee for a hernia arising in the course of employment if the employee provides “definite proof” that satisfies the Workers’ Compensation Commission (“WCC”) that: (1) the hernia did not exist before or as a result of injury or strain a preexisting hernia has become so aggravated, incarcerated, or strangulated that an immediate operation is needed, and (2) notwithstanding any other provision of the title about notice, the injury is reported to the employer within forty-five (45) days of the occurrence.

    This case arose in September 2019 when a UPS employee sustained a hernia injury while working in the course of his employment. The employee notified UPS of the injury the following day, and over the following months, the employee met with doctors and eventually had surgery to repair the hernia in November 2019. In February 2020, a hearing was held before the WCC, after which the WCC found the employee sustained an accidental injury arising out of the course of employment, the disability of the employee’s hernia is the result of the accident injury, and the employee was temporarily totally disabled from September 2019 to January 2020. As a result, UPS and its insurer had to pay causally related medical expenses and weekly pay. UPS and the insurer subsequently appealed the WCC decision to the Circuit Court for Howard County, where an “on-the-record” hearing was held in August 2020. The circuit court affirmed the WCC decision. UPS and insurer thereafter appealed to the Court of Special Appeals, where they argued, among other things, that the WCC and circuit court erred in applying a preponderance of the evidence standard to the “definite proof” requirement in § 9-504.

    COSA began its analysis with the plain language of the statute. Finding that the statute does not expressly or implicitly equate “definite proof” with any standard of proof, it reasoned that if the Maryland Legislature had wanted a heightened standard, it would have done so expressly. COSA then proceeded into Maryland case law on the issue and found that the Court of Appeals never made reference to any new or stricter standard, but rather its analyses in the cases focused on the lack of certainty in the proof provided. Last, COSA looked to neighboring jurisdictions with similar statutes and found that, similar to Maryland, these jurisdiction’s case law never equated “definite proof” to a higher standard of proof. Based on its entire review, COSA held that the language of the statute is clear and that the term “definite proof” refers to the quality of evidence and does not constitute a standard of proof.

    While this case makes clear there is no heightened standard similar to that of a clear and convincing standard, it should put practitioners on notice of the need to have clear and credible evidence that can sufficiently satisfy Section 9-504’s requirements.

                    --Bryan P. Cleary, Associate

Monday, July 25, 2022

Congratulations to Associate Logan Hayes on her recent trial win in the District Court for Prince George’s County!

Ms. Hayes successfully defended an aquarium tank company in a product liability case. Plaintiff alleged that his 500-gallon aquarium tank had developed a leak due to a product defect, resulting in damage to his home. At trial, after Plaintiff rested his case, Ms. Hayes moved for judgment in favor of her client. Using applicable case law and relevant statutes, she argued that Plaintiff failed to prove his claims of breach of implied warranty of merchantability, breach of implied warranty for fitness for a particular purpose, and negligence. The court agreed, finding that Plaintiff had not met his burden in proving any of his claims, and entered a judgment in Ms. Hayes’ client’s favor.

Congratulations to Ms. Hayes on this outcome!

Monday, July 11, 2022

The Supreme Court’s Prescription for the United States: Implications of Ruan v. United States

         Amongst the recent release of controversial opinions, the Supreme Court issued an opinion that opioid “pill mill” doctors cannot be convicted under the Controlled Substances Act (“CSA”) without a finding of subjective mens rea. The CSA makes it unlawful for any person “knowingly or intentionally…to manufacture, distribute, or dispense…a controlled substance.” Registered doctors, however, a permitted to dispense controlled substances via prescription, so long as the prescription is “issued for a legitimate medical purpose…acting in the usual course of his/her professional practice.”

        Petitioners Dr. Xiulu Ruan and Dr. Shakeel Kahn were both individually indicted and convicted of violating 21 U.S.C. § 841, also known as the CSA. Dr. Ruan was accused of improperly issuing more than 300,000 prescriptions for controlled substances over a four-year period, being a top prescriber in the nation for a type of fentanyl, and linking his prescribing practices to his own financial interests. On the other hand, Dr. Kahn was accused of selling controlled substances in exchange for cash without performing any physical or legitimate exam. While both physicians appear to have violated the CSA, the Supreme Court was tasked with reviewing the physician’s state of mind in their unlawful prescribing practices.

        The government argued heavily for an objective mens rea standard, stating that the statute’s “knowingly or intentionally” language contains an implicit “objectively reasonable good-faith effort” or “object honest-effort standard.” The Court rejected this argument and held that in order to convict a doctor for violating § 841, the government must prove beyond a reasonable doubt that the defendant knew that they were acting in an unauthorized manner or intended to do so. Had the Court sided with the government, a defendant’s criminal liability would turn on the mental state of a hypothetical “reasonable” doctor, rather than on the mental state of the actual defendant.

        With this decision, pill mill doctors are not off the hook, but rather, charged physicians face higher scrutiny from jurors when brought to court. Considering the lengthy sentences that follow a violation of the CSA, the clarification of the appropriate standard is critical to the proper prosecution of such violations and administration of justice. However, the objective hypothetical of a “reasonable” person makes frequent appearances in criminal law. In cases where a defendant is charged with involuntary manslaughter, negligent homicide, or assault, the defendant’s criminal liability rests heavily on an objective standard that the Supreme Court has now taken a step away from. The Supreme Court’s decision may influence how defense attorneys argue their client’s mens rea in crimes where reasonableness is the standard. If these newly founded arguments succeed, the stability of criminal definitions and statutory elements may be in jeopardy. While all nine justices considered the policy reasons behind implementing a subjective mens rea standard, their limited focus to CSA violations may prove disruptive to the entire criminal legal field.  

-- Faith Zellman, Law Clerk