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.

Michael and 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 coverage.

(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.

            The 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

RSRM Welcomes Associate Regan Leavitt!

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.

Application of the Fireman’s Rule Under D.C. Law

     A plaintiff injured while performing professional rescue work may be barred from recovery under most circumstances.

The 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).

Under 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.”).

The 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 (D.C. 1999).

In 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 of law.”

In 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 company.

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 that:

“[the 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].”

In 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.

In addressing the scope of Plaintiff’s rescue activity, the COA stated:

[Plaintiff] 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" activity.

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 is:

whether 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.”).

The 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., 3^rd 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:

Although 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.

 -John Thompson, Associate

Check back in to RSRM’s blog to stay apprised of the latest legal developments in the Washington, D.C. & Maryland area!

Appellate Court of Maryland Holds Whether PA Common Law Marriage is Valid to Maintain a Wrongful Death Claim is a Matter for the Jury to Decide

Thomas Zadnik v. Richard F. Ambinder, M.D., et al., No. 803, Sept. Term, 2022.

            Between October 2010 and April 2013, Margaret Conway began seeing Dr. Richard Ambinder for colon cancer treatment. In 2017, Conway passed away. Subsequently, her partner, Thomas Zadnik, filed a wrongful death complaint for medical negligence in the Circuit Court for Baltimore City against Ambinder and Johns Hopkins Hospital. In Maryland, such action may only be brought by the decedent’s spouse, child, or parent. The Circuit Court granted Ambinder’s motion to dismiss, and held that Zadnik did not have standing to bring forth the suit since Zadnik was not married to Conway.

Zadnik appealed this decision to the Appellate Court of Maryland, claiming he and Conway entered a valid common law marriage in Pennsylvania, in 1998 when Pennsylvania still recognized common law marriages. A common law marriage is a legal marriage between two people who have not obtained a marriage license or had the marriage solemnized by a ceremony. The Circuit Court found that Conway and Zadnik had not sufficiently established a common law marriage through clear and convincing evidence, because no one witnessed their wedding and they failed to publicly hold themselves out as married.

Writing for the Appellate Court, Judge Donald Beachley first acknowledged the doctrine of comity, noting that Maryland has never recognized common law marriage, but that Maryland must do so if it is recognized in another state. Judge Beachley then looked to Pennsylvania law to determine how parties may establish a rebuttable presumption of marriage through, inter alia, constant cohabitation, since both parties cannot be present to testify about the marriage’s existence. Under Pennsylvania law one spouse is allowed to testify to a common law marriage.  As such, Judge Beachley deems the question of valid marriage as a dispute reserved for a jury, and as a genuine dispute of material fact.

The Court also considered the Dead Man’s Statute, CJP § 9-116, which does not allow a surviving spouse to testify on behalf of a statement made by their deceased spouse. The Court concluded that if a jury found a valid marriage, then the Dead Man’s Statute could not bar Zadnik’s claim. In finding this, Judge Beachley affirmed the inapplicability of the Dead Man’s Statute to this wrongful death suit, as a wrongful death suit is meant to create a benefit for the surviving spouse, not to recover for the decedent’s loss or injury. Thus, a formerly legal style of Pennsylvania marriage never procedurally recognized in Maryland could result in damages against a Maryland defendant.

After delineating these parameters around a common law marriage involving a wrongful death suit, the Appellate Court of Maryland remanded this case to the Circuit Court for further proceedings. Once the jury decides on the validity of the marriage, the ramifications will ring prescient for medical malpractice cases in Maryland, as Washington D.C. and pre-2005 Pennsylvania recognize common law marriages, both of whom have residents often litigating in Maryland courts.

Ali Mahdi, Summer Associate 

RSRM Welcomes Summer Associates Patricia Ziff and Ali Mahdi!

         Patricia is a rising 3L at the University of Baltimore School of Law.  There she is an Associate Editor of the University of Baltimore Law Forum and member of the Honor Board.  Her prior legal experience includes working at the Office of Legal Counsel for Baltimore City Schools and an internship with the Honorable Lori Simpson of the U.S. Bankruptcy Court for the District of Maryland. Prior to law school, Patricia had a career as a high school English and art history teacher. She holds degrees in art history, English, and education from the University of Maryland and the Notre Dame of Maryland University.

        Ali is a rising 3L at the University of Baltimore School of Law. There he is the Editor-in-Chief of the University of Baltimore Law Forum. His prior legal experience includes internships with the U.S. Department of Justice and the Delaware Superior Court. Ali is a 2019 graduate of the University of Delaware, where he majored in Economics and Political Science, minored in Sustainable Infrastructure, and concentrated in Global Politics.

        Welcome to the Team!

Appellate Court of Maryland applies equitable contribution principles to preserve non-settling insurers potential right to contribution against settling insurers.

 

Selective Way Insurance Company  v. Fireman’s Fund Insurance Company, et. al.

            On February 2, 2023, the Appellate Court of Maryland issued its opinion in Selective Way Insurance Company v. Fireman’s Fund Insurance Company, et. al. The opinion primarily analyzed the doctrine of equitable contribution, particularly as it pertains to liability insurers with a mutual obligation to the same insured.

            The original dispute arose from a Baltimore County apartment complex construction project gone awry. In 2006, a subsequent purchaser of the complex sued the general contractor, “Questar.” Questar was insured with Nationwide and was an additional insured on various liability policies held by Questar’s subcontractors. Nationwide defended Questar in the underlying suit while also requesting defense and indemnification from the subcontractors’ insurers.  The underlying suit against Questar was settled in 2009, however, not before Questar incurred approximately one million dollars in attorneys’ fees and other costs.

            Nationwide brought a declaratory judgment action in Baltimore County Circuit Court against the various subcontractors and their insurers alleging that they breached a contractual duty to defend Questar in the underlying construction suit.  Nationwide eventually reached settlement agreements with all but one of the other insurers: Selective Way. The settlement agreements included substantially the same provisions requiring the settling insurers to waive claims for contribution or indemnity against the other insurers. In 2017, Nationwide’s case against Selective Way (the sole non-settling insurer) proceeded to a jury trial after which the jury determined that Nationwide proved damages in the amount of: $994,719.54.

            In March of 2020, Selective Way filed an action in Baltimore County Circuit Court seeking contribution, restitution, and subrogation from the various settling insurers. In June of 2021, the Circuit Court disposed of Selective Way’s claims by dismissing and/or granting summary judgement in favor of the defendant-insurers. The court ruled that Selective Way failed to assert a cross claim against the settling insurers in the action by Nationwide. Upon settlement with Nationwide, the court reasoned that there was no longer a “common liability” between Selective Way and the settling insurers and, absent a common liability, there was no right of contribution.

            On Appeal, the Appellate Court of Maryland overturned the ruling against Selective Way on the contribution claims. The Appellate Court took issue with the trial court’s reliance on Selective Way’s failure to assert cross claims against the other insurers in the action by Nationwide, noting that cross claims are not mandatory and need not be brought in an original action.  Additionally, the Appellate Court analyzed authority from other states to determine that insurer who pays “more than its fair share” may have a right of contribution from another insurer that was obligated to cover the same loss. The Appellate Court referenced Maryland Cas. Co. v. W.R. Grace & Co., 218 F.3d 204, 210 (2d Cir. 2000) for the proposition that “a settlement agreement that absolves an insurer of its contractual obligations to the insured does not extinguish the rights of other insurers to receive equitable contribution from the settling insurer.” The Appellate Court ultimately remanded the case back to the Circuit Court for further action, particularly on the viability of Selective Way’s contribution claim against the settling insurers. 

 

 Joseph Kavanagh, Associate

 

Appellate Court of Maryland Affirms Summary Judgment Denying Negligence Claim Stemming from Gun Violence in the Workplace

On September 20, 2018, Snochia Moseley opened fire on several employees at a Rite Aid Distribution Center in Aberdeen, Maryland, killing three and wounding three more. Prior to her deadly attack, Moseley was employed by Abacus Corporation and assigned to temporarily work in Rite Aid’s warehouse facility. The injured employees, known as “The Mitchells,” were employed by Capstone Logistics who contracted with Rite Aid to unload trucks at the facility.

The Mitchells filed suit against both Abacus Corporation and Rite Aid, alleging that they suffered damages proximately caused by the companies’ negligent failure to provide adequate security at the facility and negligent hiring and supervision of Moseley. Rite Aid argued that the Mitchells’ tort claims were barred because they were temporary employees under Rite Aid’s control and thus, Rite Aid was entitled to workers’ compensation immunity under Section 9-509 of the Maryland Workers’ Compensation Act. Baltimore County Circuit Court granted summary judgment in favor of Abacus and Rite Aid, finding that the Mitchells failed to present evidence that would establish Abacus was negligent in hiring Moseley or that Rite Aid should have foreseen the shooting such that adequate security would have been provided. Additionally, the circuit court found that the Mitchells were temporary employees of Rite Aid, meaning Rite Aid was immunized from their tort claims.

The Mitchells appealed to the Appellate Court of Maryland, which has since issued an opinion affirming the circuit court’s judgment in part, and reversing the issue of Rite Aid’s immunity.  Earlier this month, the appellate court affirmed the circuit court’s granting of Rite Aid’s motion for summary judgment, finding that Rite Aid was not liable for the mass shooting. The court reasoned that the Mitchells did not show that the mass shooting could have been foreseen or that inadequate security was provided. There was no evidence offered that would indicate Moseley posed a threat of violence or that any events preceding the shooting would give rise to such a violent attack.

 However, the appellate court found that the circuit court erred in finding that the Mitchells were temporary employees of Rite Aid. In determining who the Mitchells were employed by, the court considered which company had the power to select and hire the employee, the payment of wages, the power to discharge, the power to control the employee’s conduct, and whether the work was part of the regular business of the employer. Control of the employees was the most persuasive factor, and because the drug store chain did not directly supervise the Mitchells and the contracting company Capstone was solely responsible for its own employees, the Mitchells were not employees of Rite Aid. Although the Mitchells will not be receiving settlements from Rite Aid, they will receive workers’ compensation benefits through their employer Capstone.

This opinion serves two purposes, one for employers and one for employees. The court made clear that this opinion was not to suggest that mass shootings are unforeseeable as a matter of law such that employers may escape liability. However, it sheds light on the standard of care surrounding a business owner’s duty to protect invitees from gun violence. As for employees, this case will resolve any confusion amongst employment, particularly when companies are subcontracting with each other or third-parties are intertwined.

 

Faith Zellman, Law Clerk