New Judicial Appointments in Maryland

Gov. Martin O'Malley recently made several judicial appointments in Maryland.

Robert N. McDonald, chief counsel for opinions and advice to the Attorney General's office, was appointed to the Court of Appeals, Maryland's highest court.

Judge Stuart R. Berger from the Circuit Court for Baltimore City, will be appointed to the Maryland Court of Special Appeals.  He is filling a vacancy created by Judge Ellen Hollander, who has been appointed to the United States District Court.

Circuit Court appointments are as follows:

Judge Jeannie Hong has been elevated from the Baltimore City District Court bench to the Circuit Court for Baltimore City.

Michael W. Reed - Baltimore City

Judge Nancy Purpura has been elevated from the Baltimore County District Court bench to the Circuit Court for Baltimore County.

Justin King - Baltimore County

Jane Murray - Cecil County

William R. Nicklas, Jr.- Frederick County

Melba Elizabeth Bowen - Harford County.

Master William Tucker - Howard County

David W. Densford - St. Mary's County

Anne K. Albright - Montgomery County

Gary E. Blair - Montgomery County

Judges Krystal Aves, Daneeka Cotton and Hassan El-Amin have been elevated from the Prince George's County District Court bench to the Circuit Court for Prince George's County.

Paul Davey - Prince George's County

District Court appointments are:

Frank Kratovil - District Court for Queen Anne's County

Three Attorneys from RSRM featured in "Super Lawyers"

     Three attorneys from RSRM have been selected for inclusion in the "Super Lawyers" 2012 issue, which is available now.  

     James P. O'Meara, the Firm's managing partner, was selected as a Super Lawyer in the area of civil litigation defense.  Associate, Andrew Nichols was selected as a rising star in the area of general litigation.  Additionally, associate James Buck was selected as a rising star in the area of personal injury defense.  

     Super Lawyers selects attorneys using a rigorous, multiphase process. Peer nominations and evaluations are combined with third party research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis.  Approximately five percent (5%) of nominees are selected as "Super Lawyers" and approximately two-and-a-half percent (2.5%) of nominees are selected as "Rising Stars."  

Total Number of Accident Lawsuits filed in Maryland by County

This information was obtained from Miller & Zois, LLC's blog (and re-posted with their permission - thanks!).  No surprises in which venues generate the most lawsuits, although the drop in suits from Baltimore County (966) to the next closest, Montgomery County (531) is interesting.

http://www.marylandaccidentlawyerblog.com/2011/11/how_many_motor_tort_lawsuits_a.html

Nipping Subrogation Suits in the Bud with a Motion to Compel Arbitration

            Occasionally, the attorneys of RSRM are called upon to defend a subrogation suit that is brought by an insurance carrier and its insured in an attempt to recover money paid by that carrier to its insured pursuant to the applicable policy of insurance between the two.  Often, the suit also attempts to collect any out-of-pocket expenses incurred by the insured that were not covered by the insurance policy, usually the insured’s deductible. 

With little exception, the sums paid by the insurance carrier to its insured in a given subrogation suit are based upon property damage only, as is the deductible paid by the insured pursuant to the policy.  Because of this, it is often possible to file a Motion to Compel Arbitration with the court, which will result in the case being dismissed in order to allow for that arbitration. 

Maryland Ins. Code Ann. § 19-514 requires that “authorized insurers that issue, sell or deliver motor vehicle liability or physical damage insurance policies in the State shall arbitrate and settle all motor vehicle physical damage claims between the authorized insurers in accordance with an automobile subrogation program sponsored by the intercompany arbitration organization chosen by the authorized insurer that requests arbitration.”  (Emphasis added).  What this means, from a practical perspective, is that if both the plaintiff insurance carrier and the carrier for the defendant are signatories to an Inter-Company Arbitration Agreement, and the basis of the claim is property damage only, then the two carriers must submit the matter to binding arbitration.  In Maryland, many insurance carriers are signatories to such an Agreement, which is maintained and administered by Arbitration Forums, Inc. 

When the attorneys of RSRM first receive a new subrogation suit assignment from a given carrier, the first step taken is to ascertain whether the suit is based on a recovery of damages stemming from property damage only.  If it is, the next step taken is to determine whether the carriers involved are signatories to an Inter-Company Arbitration Agreement.  If they are, the next step is to file a Motion to Compel Arbitration along with the typical Answer to the Complaint.  Although a hearing may be scheduled by the court, the ultimate result will almost always be the dismissal of the case before it barely gets off the ground.

Over the past year, the attorneys are RSRM have employed this tactic with great success, at both the District and Circuit Court levels.  A number of reasons exist to warrant forcing a case out of court and into binding inter-company arbitration, not the least of which is the fact that arbitration is a much faster, simpler and less expensive way to resolve the dispute.  The “human” element is also a significant factor.  It is almost always in the insured’s best interests to have the matter arbitrated, which will obviate the need for the insured to participate in the litigation process, which can often be a lengthy, time consuming and  frustrating process.  For example, in lieu of live testimony by the insured, a recorded statement can be submitted.  In place of the discovery responses and document production typical to a given litigation, an adjuster’s claims file and investigative materials can be submitted.

Ultimately, in claims involving property damage only, it is almost always preferable to submit the matter to binding arbitration than to resolve the matter through litigation.  A significant amount of time and expense, including legal fees, can be saved by the carrier, and the insured will certainly appreciate not being “dragged into court.”

Article contributed by James Buck

Another Successful RSRM Crab Feast In the Books!

            Recently, the annual RSRM Crab Feast was hosted by Managing Partner, James P. O'Meara, at his home in Carroll County, Maryland.  In typical fashion, the late season crabs were delicious, as were the various edibles that made their way off the grill (for the few, and unidentified, non-crab-eaters).

           A good time was had by all, and several photos are posted below.  Many thanks to Mr. O'Meara and his family for hosting the feast again this year, and to the firm for sponsoring the event.

Putting up with the photographer

Ignoring the photographer

Associate Andy Nichols and Mary Buck discuss the "best practices" method of crab picking

Partner Jim Andersen and wife, Amy

A pile of tasty crabs, book-ended by 'Boh

Managing Partner Pat O'Meara mans the grill, assisted by wife, Marianne, daughter Megan, and Partner Paul Donoghue.

Article and photos contributed by James Buck

RSRM Announces New Partner

            Dennis Whelley, who has been with RSRM for over two years as an Associate, became a partner, effective on October 1, 2011. Prior to joining RSRM, Mr. Whelley spent 16 years litigating various types of liability cases, followed by 16 years of multi-million dollar litigation management work with USF&G and its successors, The St. Paul and Travelers.

            Mr. Whelley heads RSRM’s toxic tort litigation department. In addition to toxic tort cases, Mr. Whelley also handles products liability and general negligence cases.

A Double-Rear-End Collision Isn't As Bad As It Sounds

            Recently, Associate James Buck took an otherwise hopeless situation and intentionally placed it in the hands of a Baltimore City jury, and with good result.  The facts of the case are relatively simple.  The Plaintiff was the lead car, the Co-Defendant was the next in line, and the RSRM client was last in the chain.  The Plaintiff sued both Defendants, and chose the Circuit Court for Baltimore City as the venue, despite the fact that all of the "players" lived in Anne Arundel County, and the accident occurred within a stone's throw of the county-city line.  This tactical decision by the Plaintiff was most likely made based on the City's long history of large jury awards.

            The Plaintiff filed a complaint for $250,000.00, and alleged that one or both of the Co-Defendants caused his vehicle to strike the Plaintiff's in the rear, which resulted in serious and permanent injury.  What the Plaintiff failed to take into consideration was the fact that the "impact" resulted in NO property damage to any of the vehicles involved, that the injuries allegedly sustained were quite obviously, if at all, from a previous accidental injury, and that the Plaintiff's own medical records were literally fraught with inconsistencies.  On the stand, under cross-examination, the Plaintiff fell victim to his own medical records, and the jury was quickly turned against him.

            Closing argument was only needed for the highlighting of these inaccuracies and inconsistencies, and the case was left for the jury.  Despite an excellent effort on the part of Plaintiff's counsel throughout the case, and certainly in closing argument, the jury nonetheless deliberated for 22 minutes before returning an outright defense verdict as to both Defendants.

            At the end of the day, although not one, but two, parties caused their vehicles to impact the rear of the Plaintiff's vehicle, that fact alone was not enough to turn the jury in favor of the Plaintiff under scrutinizing cross-examination, which revealed a significant number of inconsistencies in the Plaintiff's own testimony and records and, perhaps more significantly, revealed the rather disagreeable personality of the Plaintiff, himself, on the stand, before a jury.

Article contributed by Thomas Neary

Lack of Signature Does Not Void Uninsured Motorist Waiver

             In Swartzbaugh v. Encompass Insurance Co. of Am., the Maryland Court of Special Appeals affirmed the judgment of the trial court that the waiver of uninsured motorist benefits was valid, even though the person who signed the waiver was not the person listed first on the policy.  In affirming, the Court of Special Appeals concluded that the waiver was not necessarily void simply because Kenneth Swartzbaugh (“Mr. Swartzbaugh”) was listed first on the policy and Lynne Swartzbaugh (“Mrs. Swartzbaugh”), listed second, was the actual signatory to the waiver.

            The case arose from a motor vehicle accident that occurred on March 8, 2008 in which Kelly Swartzbaugh (“Kelly”) was injured as a passenger in a vehicle driven by Steven Hedrick (“Hedrick”).  Hedrick accepted liability for the accident and his carrier tendered the policy limits to Kelly.  However, Hedrick’s policy had bodily injury liability limits of $50,000 per person.  Kelly and her parents, Mr. and Mrs. Swartzbaugh, claimed that the $50,000 was “woefully inadequate” to compensate Kelly for the losses and damages she suffered as a result of the accident.

            As a result, Kelly requested underinsured motorist coverage from her parent’s plan, provided by Encompass Insurance Company of America (“Encompass”).  Kelly and her parents asserted that the plan included uninsured motorist coverage for Kelly as a resident relative of the named insureds.  Encompass denied coverage, arguing that Mrs. Swartzbaugh signed a waiver of uninsured motorist benefits.  Kelly then brought a declaratory judgment action against Encompass, requesting uninsured motorist benefits claiming that the waiver signed by Mrs. Swartzbaugh was invalid.

           

            Mr. and Mrs. Swartzbaugh’s insurance policy had bodily injury liability limits of $250,000 for each person and $500,000 for each accident and uninsured motorist limits of $20,000 for each person and $40,000 for each accident.  However, pursuant to MD. CODE ANN., INS. § 19-510, Encompass offered, and the Swartzbaughs had the option to accept, uninsured motorist coverage in the same amount as liability coverage.  The Swartzbaughs rejected the higher coverage and agreed to the lesser amount.

            The issue arose from the manner in which the Swartzbaughs declined the higher amount of uninsured motorist coverage.  § 19-510 provides that the “first name insured shall make an affirmative written waiver” if the insured chooses to elect the lower amount of uninsured motorist coverage.  Here, Mr. Swartzbaugh was listed first on the insurance policy, but it was Mrs. Swartzbaugh who actually signed the waiver.

            The Swartzbaughs contended that the waiver was invalid because Encompass failed to require the “first” named insured, Mr. Swartzbaugh, to sign the waiver as required by § 19-510.  Because of this, it was their view that Encompass should have provided uninsured motorist coverage to Kelly in an amount equal to liability coverage.  Encompass responded that “first name insured” was not defined in the Insurance Code or in the insurance policy at issue.  Encompass argued, therefore, that general contract principles enabled the parties to designate one of the named insureds as the “first named insured” and the parties permissibly identified Mrs. Swartzbaugh as the “first named insured.”

            The Court of Special Appeals reviewed the legislative history of § 19-510 but found no definition of “first named insured.”  The Court of Special Appeals also looked to other jurisdictions for assistance but found that only one other state, Pennsylvania, utilized the term “first named insured.”  With no guidance from the legislative history or other jurisdictions, the Court of Special Appeals then looked to the purpose of the legislation.

            In affirming the waiver, the Court of Special Appeals held that the term “first named insured” under § 19-510 means the person designated as such in the insurance policy or in a document executed as a part of insurance policy or renewal of such policy.  In essence, the court interpreted § 19-510 as directing the parties to designate the “first named insured” of the insurance policy.  By signing the waiver, Mrs. Swartzbaugh represented in writing that she was the “first named insured” and in effect, designated herself as the “first named insured” for purposes of waiving uninsured motorist benefits.


Article Contributed by Andrew Nichols

The Rebuttable Presumption of Agency in Suits Against the Non-Driver Owner of a Vehicle Involved in a Car Accident

            It is often the case that the driver of a vehicle involved in a car accident is not the owner of that vehicle.  This scenario frequently arises in one of three forms: 1) the driver of the vehicle is using that vehicle with the permission of the owner, for the driver’s personal use; 2) the driver of the vehicle is using the vehicle in furtherance of the owner’s needs, creating an agent/servant/employee relationship between the two, and; 3) the driver of the vehicle is using the vehicle without the owner’s permission.  More often than not, a law suit arising out of an automobile accident involving the use of a vehicle owned by one person and driven by another will result in both the owner and the driver being named as defendants.

            No matter which factual scenario exists in a given automobile accident, the law in Maryland is uniform with regard to the prima facie liability of the owner of the vehicle and the burden of proof necessary to establish that liability.  Generally, proof of ownership of a vehicle raises a rebuttable presumption that the driver of that vehicle was the agent, servant or employee of the owner.  This means that the owner can be held to be vicariously liable for the plaintiff’s injuries unless the owner produces evidence that the driver was not an agent of the owner.  See generally, Penn. R. R. Co. v. Lord, 159 Md. 518, 151 A. 400 (1930). 

In other words, if the plaintiff alleges in the complaint that the defendant driver was operating a vehicle owned by the defendant owner as an agent, servant or employee, the plaintiff has made out a prima facie case that the owner is vicariously liable for the negligence of the driver, and the burden of going forward on the evidence then shifts to the owner to rebut that presumption.  If the owner fails to produce evidence that the driver was not acting within the scope of an agency relationship, then the owner can be held to be jointly and severally liable with the driver. 

With regard to the three common scenarios listed above, each can be illustrated with a similar fact pattern.  Assume that John is driving a vehicle owned by Jane and negligently causes a car accident with another vehicle owned and operated by Mary, who was not at fault in any way.  Mary sues John and Jane for damages and injuries arising out of that automobile accident, alleging that John was driving the vehicle as the agent, servant and/or employee of Jane.

Pattern 1:  John is Jane’s friend, and borrowed Jane’s car with her permission to use for a few days while his car was in the shop getting repaired.  John was using Jane’s car for his use only, and was not furthering any of Jane’s needs or acting on her directions.  In this case, Jane would need to rebut the resumption of agency by introducing evidence, either during discovery or at trial, that John was not using the car at her direction, and was not her employee or agent.  If she does this, the burden of proof then shifts back to Mary to introduce evidence that John was Jane’s agent.  If Mary fails to meet that burden her claim against Jane fails as a matter of law.

Pattern 2:  John is Jane’s friend, and borrowed Jane’s car with her permission to run an errand at the store.  Since John is going to the store, Jane asks John to pick up a number of items there as well and return them to her when he brings the car back.  In this case, John is now the agent of Jane, and is operating her vehicle in furtherance of Jane’s instructions and needs.  Because of this, Jane can be held to be vicariously liable to Mary, even though Jane was not in the car, because her agent, John, negligently caused Mary’s injuries.  Now, the fact patter can be modified in any number of ways to get Jane “off the hook.”  For example, if Jane specifically told John that he was to go to the store, and come right back without making any detours or running any errands, then she specifically limited the scope of the agency relationship.  If John decides to go to the bar, gets drunk, and then decides to run several errands all over town, he has exceeded the scope of the authority given him by Jane.  Jane could then introduce evidence of all of this to sever the agency relationship and avoid vicarious liability.

Pattern 3:  John is Jane’s old boyfriend, whom Jane has recently kicked out of the house because she was fed up with his dangerous drinking and driving habits, and because John (from Boston) blamed Jane (from Baltimore) for the fact that the Baltimore Orioles kept the Boston Red Sox out of the postseason by beating them again and again in September 2011.  Unfortunately, John knew where Jane kept her car keys, took Jane’s car without her permission, and subsequently caused a car accident with Mary.  In this case, Mary has made out a prima facie case, and permissive use and agency must be rebutted.  Jane must introduce evidence that John took the keys without her knowledge or permission, and that he was not in any way acting as the agent, servant or employee of Jane.  As before, if Jane does this the burden shifts back to Mary to prove otherwise, and if she fails to meet that burden, her claim against Jane fails as a matter of law.

From a practical perspective, it is essential for any attorney to conduct an initial investigation to ascertain whether any agency relationship exists between the defendant owner and defendant driver.  If that investigation reveals that no agency relationship existed, the next step must be to establish this during the discovery period.  If, for example, written discovery is exchanged and depositions are taken, a Motion for Summary Judgment can be filed that would result in the court ruling that Jane was not liable as a matter of law.  Because the burden of proving that no agency relationship existed between the owner and driver requires the introduction of evidence rebutting that presumption, a Motion to Dismiss the owner filed at the outset of the case will either be denied or the ruling reserved for the day of trial.

Article contributed by James Buck

Subsequent Repairs Held Inadmissible to Prove the Defendant’s Negligence

            In Consolidated Waste Industries, Inc. v. Standard Equipment Co., 418 Md. 397, 15 A.3d 298 (2011), the Court of Appeals held that a trial court did not abuse its discretion in granting a “Motion in Limine to Exclude Evidence of Subsequent Repairs,” when a plaintiff sought to admit evidence of subsequent successful repairs to a John Deere hauler to demonstrate that the initial repair company had, in fact, negligently repaired the hauler.

            In Consolidated, Consolidated Waste Industries, Inc. (“Consolidated”) filed an action against Standard Equipment Co. (“Standard”) seeking to recover the cost for Standard’s allegedly negligent repairs on a John Deere 744J Loader (“hauler”). At trial, Consolidated attempted to introduce evidence of subsequent repairs to the hauler. The Circuit Court for Prince George’s County held that evidence of these repairs was inadmissible, and, subsequently, the Court of Appeals affirmed.

            In June of 2007, Consolidated purchased the new Waster Hauler for $424,647.00 from Standard Equipment. From February of 2007 to April of 2008, Consolidated experienced problems in the steering and operation of the hauler and repeatedly employed Standard for repairs. Consolidated sent the hauler to Standard for repairs in February 2007, December 2007 and January 2008, totaling nine (9) months of repairs. Standard diagnosed the hauler with hydraulic system contamination. In December of 2008, Consolidated filed suit against Standard for breach of contract, negligence and unjust enrichment.

            In 2009, Consolidated continued experiencing steering problems with the hauler and brought the hauler to Carter Machinery (“Carter”), which flushed and cleaned the entire hydraulic system. Since Carter’s repairs, the hauler has been functioning properly.

            At trial in the Circuit Court for Prince George’s County, Consolidated argued negligence on the ground that the hauler required repeated and costly repairs as a result of Standard’s failure to properly perform maintenance.  In support of this claim, Consolidated sought to introduce evidence of the subsequent repairs performed by Carter, which ultimately fixed the steering and operation problems. On the day prior to trial in 2010, defense counsel for Standard filed a “Motion in Limine to Exclude Evidence of Subsequent Repairs.” The next day, the trial court granted the motion to exclude evidence of subsequent repairs.

            On appeal, the Court of Appeals considered, among other issues, whether the probative value of the subsequent repairs was substantially outweighed by the danger of unfair prejudice. First, the Court of Appeals found that the subsequent repairs were probative of the proper maintenance, flushing the hydraulic system, which should have been performed by Standard. However, the court held that the prejudice outweighed the probative value because of the danger that a jury might find Standard negligent simply because the hauler required additional subsequent repairs, even though Standard’s last repair was April 2008 and Carter did not perform repairs until December 2009. Finding such, the Court of Appeals upheld the trial court’s ruling.

Article contributed by Andrew Nichols

RSRM Associate Commissioned as JAG Officer

            Andy Nichols, an associate with RSRM, was recently commissioned as a JAG Captain in the Maryland Defense Force (MDDF).  MDDF has "the primary mission of providing competent and supplemental professional, technical, and military support to the Maryland Army National Guard, the Maryland Air National Guard."  As a a JAG officer, Mr. Nichols will be tasked with providing legal support to Maryland's men and women in uniform.  

            "I'm just happy to be able to assist our National Guardsmen and women in any capacity I'm asked to."  Said Mr. Nichols.  

To Catch an Evader of Service

           Occasionally in litigation, it is necessary to serve either a summons or a subpoena upon an individual who has an interest in not being served with the papers. A “summons” is a notice to a defendant to appear and defend the suit, whereas a “subpoena” is an order to a person to appear as a witness in a case. In the case of a summons, the Maryland Rules anticipate the situation wherein the target of service is attempting to evade service.

           Without service of the Writ of Summons and Complaint, the plaintiff’s claim will go nowhere until the case is dismissed for failure to prosecute. To avoid that consequence, a plaintiff who is having difficulty serving a defendant may ask the Court to enter an Order permitting “alternative service.”

           A recent referral to RSR&M from the Maryland Volunteer Lawyer Service involved a situation where a landlord lived and worked outside of Maryland. RSR&M was asked to represent that landlord’s tenant and suit was filed. The landlord then refused to accept certified letters sent to her. Pursuant to the Rules relating to service, a motion was filed with the Court seeking permission to serve the Defendant by alternative means. Normally, an individual can be served by personal delivery of the relevant documents, or by leaving the suit the papers at the defendant’s dwelling with a resident of suitable age and discretion. The Court may permit alternative service, however, if it is convinced that the plaintiff has, without success, made a good faith effort at effecting service under the normal process.

           In our case, the attorneys at RSR&M prepared a Motion to Permit Alternative Service and proposed Order of Court permitting service by (a) leaving the papers at the rental property, (b) giving a copy to a person of suitable age and discretion, and (c) mailing a copy of the Writ of Summons and Complaint by ordinary mail to the out-of-state landlord. Upon review of the motion, the Court granted it and issued an Order to permit alternative service upon the Defendant. When the steps outlined in the Order had been accomplished, an Affidavit of Service was filed with the Court.

           Despite having taken these meticulous steps to effectuate service, on the day assigned for trial, the case was not on the docket. The reason given by the Clerk was that no Affidavit of Service had been filed. In accord with our standard office practice, we had obtained a date-stamped copy of the Affidavit of Service when it was filed. Thus, prompted by our date-stamped copy, the Clerk resurrected the case folder from the depths of the courthouse for further processing.

           The teaching points are basic: (1) There is more than one way to serve an evading Defendant, and (2) get date-stamped copies of every pleading filed. As of today’s date, no final judgment has been rendered in this matter as the parties await the new trial date.

Article contributed by Patrick Cullen

Challenging Economic Damages

           In virtually every personal injury case, the current trend of rising costs of healthcare is illustrated by the economic, or “special,” damages sought by plaintiffs. More often than not, the vast majority of these medical costs stem from physical therapy or chiropractic treatments. In many cases, especially at the District Court level, defense attorneys must decide whether the expense of an independent medical evaluation (“IME”) or peer-review of the plaintiff's medical records is worth incurring in order to challenge medical fees and costs. Challenging such fees is necessary, however, when they seem excessive or unreasonable, either in scope, duration or cost per visit, even in the most minor cases. Judges in Circuit and District Courts throughout Maryland are aware of these current trends in medical treatment, especially by certain providers known to dramatically over-inflate their fees, and are receptive to arguments regarding excessive or unreasonable medical costs, even without the aid of an IME or peer-review report.

           Recently, in the District Court of Baltimore County, Associate Derrick Dye argued that the Plaintiff’s alleged “specials” of over $5,000.00 were excessive and unreasonable, as the Plaintiff only received 11 physical therapy treatments.  Although the liability of the Defendant was stipulated, Mr. Dye argued that the fees charged of over $400.00 for each physical therapy visit, and the 11 visits themselves, were excessive and unreasonable for a very minor “fender-bender” in a shopping center parking lot that resulted in no property damage to either vehicle.  Although the Plaintiff’s pre-trial settlement demand was $23,500.00, a Baltimore County Judge awarded the Plaintiff only $1,500.00 in “specials,” which was less than 1/3 of the physical therapy bill.

           The reasonableness of the medical fees and costs and the necessity of the treatment in a given case can almost always be evaluated by conducting a “common sense” assessment at its outset.  Competent defense counsel must always keep in mind that, regardless of the amount for which a plaintiff sues, if the medical fees and costs seem excessive and unreasonable, they probably are!

Article contributed by James Buck

Court of Special Appeals Affirms Circuit Court's Decision to Allow a Contributory Negligence Jury Instruction

In Malik v. Tommy’s Auto Serv., Inc., No: 2204 (Md. Ct. Spec. App. 2011), the Court of Special Appeals addressed the issue of a jury instruction as it related to contributory negligence.  In this case, the Plaintiff, Sajid A. Malik, was involved in a motor vehicle accident with Charles Payne, a tow truck driver employed by Tommy’s Auto Services.  The accident occurred at the intersection of Washington Boulevard and Cemetery Lane in Prince George’s County, Maryland. 

Malik, traveling northbound on Washington Boulevard, approached the intersection and merged into the center turning lane with the intention of making a left hand turn.  Upon entering the center lane, Malik testified that he came to a complete stop while waiting for the southbound traffic to clear.  Meanwhile, Payne exited from a parking lot across from Cemetery Lane on the northbound side of Washington Boulevard.  Malik testified that he saw Payne exit the parking lot and watched as traffic in the northbound lanes stopped to let Payne cross into the center turn lane.  Payne’s intention was to turn left and travel south on Washington Boulevard.  The parties’ stories differ as to what happened next, but as Payne proceeded forward he struck the front passenger side of Malik’s vehicle.

As a result of the accident, Malik experienced increasing amounts pain and was ultimately diagnosed with a herniated disk.  Malik then brought a negligence action against Payne and the tow truck company, Tommy’s Auto Services.  At the close of evidence, the Plaintiff moved for judgment, relying on the Boulevard Rule.  The motion was denied and the case was sent to the jury.  The jury found Malik contributorily negligent and judgment was entered in favor of Payne and the tow truck company.

            The first issue on appeal was the trial court’s refusal to read a jury instruction requested by the Plaintiff.  Malik requested that the court instruct the jury that a driver “is conclusively presumed to have seen such surrounding circumstances as he would have seen had he properly exercised his faculty of vision.”  In upholding the trial court’s decision the Court of Special Appeals explained that a request need not be granted if the matter is fairly covered by instructions actually given.  Here, the Court of Special Appeals concluded that the instruction actually given - that a driver is negligent if he or she does not use reasonable care, that is the caution, attention, or skill of a reasonable person in similar circumstances - fairly covered Malik’s requested instruction. Furthermore, even if the denial of Malik’s instruction was error, the error was harmless.

           

The Plaintiff also argued that the trial court erred in denying his motion for judgment on the issue of liability.  Mailk claimed that Payne was negligent under the Boulevard Rule and, further, that the jury should not have been instructed on contributory negligence because there was no evidence to support such a finding.  The Boulevard Rule provides that the driver of a vehicle approaching a highway from a smaller road or entrance must stop and yield the right of way to all vehicles in the highway.  However, as the Court of Special Appeals explained, the rule is not absolute.  If it can be shown that the favored driver “could have avoided the accident if he had been operating lawfully and with due care, then the negligence of the favored driver should be an issue for the jury.”

           

In upholding the trial court’s decision, the Court of Special Appeals found that there was evidence sufficient to support a finding that Mailk was contributorily negligent.  First, Payne testified that after he entered the center turning lane and before turning, he looked twice to his left and right and did not see any other vehicles in the center lane.  Further, Payne testified that when he hit Malik’s vehicle, Malik had already proceeded to make his left turn, rebuking Malik’s claim that he was stationary at the time of the accident.  There was evidentiary support for Payne’s account of what happened in the photographs of both vehicles that were introduced at trial.  The damage to the vehicles as demonstrated by the photos, suggested that Malik was moving toward Payne when the two collided.  In addition, Malik testified that he saw Payne exit the parking lot and drive across the northbound lanes.  All of this evidence tended to suggest that Malik could have avoided the accident.

            Ultimately, the Court of Special Appeals found that the evidence was legally sufficient to support a finding that Malik was contributorily negligent and, as a result, the trial court did not err in denying Malik’s motion for judgment on the issue of liability.  Further, the trial court was proper in instructing the jury on contributory negligence.

Article contributed by James Buck

Legislation Creates New Obligations for Insurance Companies to Disclose Policy Limits

New legislation is set to take effect October 1, 2011, which will directly affect tort claims concerning motor vehicle accidents.  The new legislation will allow a claimant, after filing a written tort claim, to obtain from the insurer documentation of the applicable limits of coverage in any insurance agreement under which the insurer may be liable to either satisfy all of part of the claim or indemnify or reimburse for payments made to satisfy the claim.

Before obtaining such documentation, however, the claimant must provide in writing several items to the insurer:

(1) The date of the vehicle accident;

(2) The name and last known address of the alleged tortfeasor;

(3) A copy of the vehicle accident report, if available;

(4) The insurer’s claim number, if available;

(5) The claimant’s health care bills and documentation of the claimant’s loss of income, if any,                                     resulting from the vehicle accident; and

(6) The records of health care treatment for the claimant’s injuries caused by the vehicle accident.

Furthermore, if the amount of health care bills and loss of income is at least $12,500, the insurer must disclose in writing the applicable limits of coverage in each written agreement under which the insurer may be liable.

There are separate and distinct requirements in the case of claims made by the estate of an individual or a beneficiary of the individual resulting from the death of the individual in a vehicle accident.  Under these types of claims the documentation may be obtained if the claimant provides in writing to the insurer:

(1) The date of the motor vehicle accident;

(2) The name and last known address of the alleged tortfeasor;

(3) A copy of the vehicle accident report, if available;

(4) The insurer’s claim number, if available;

(5) A copy of the decedent’s death certificate issued in the State or another jurisdiction;

(6) A copy of the letters of administration issued to appoint the personal representative of the decedent’s estate in the State or a substantially similar document issued by another jurisdiction;

(7) The name of each beneficiary of the decedent, if available;

(8) The relationship to the decedent of each known beneficiary of the decedent;

(9) The amount of economic damages, if any, claimed by each known beneficiary of the decedent, including any amount claimed based on future loss of earnings of the decedent;

(10) The health care bills for health care treatment, if any, of the decedent resulting from the vehicle accident;

(11) The records of health care treatment for injuries to the decedent caused by the vehicle accident; and

(12) Documentation of the decedent’s past loss of income, if any, resulting from the vehicle accident.

             Under either type of claim, the insurer has thirty days after the date of the request to provide in writing the documentation, regardless of whether or not the insurer contests the applicability of coverage to a claim.

The legislation also states that an insurer, its employees, or its agents may not be civilly or criminally liable for the disclosure of such documentation.  Further, documentation disclosed under this section will not constitute an admission or waiver and will not be admissible as evidence at trial.

The legislation, passed as House Bill 921 and Senate Bill 599, will be added to Title 10 of the Courts and Judicial Proceedings Article, as Sections 10-1101 – 10-1105 of “Subtitle 11. Pre-litigation Discovery.”

Article contributed by Andy Nichols

District of Columbia Raises the Threshold for a Complaint to Survive a Motion to Dismiss

The District of Columbia will now require, in order to avoid dismissal, that a complaint must provide amble and well-pleaded factual content, from which, the court can draw a reasonable inference of the defendant’s liability for the misconduct alleged.

In Mazza v. Housecraft, L.L.C., 18 A.3d 786, (D.C. 2011), the Court of Appeals for the District of Columbia adopted the two-prong heightened pleading standard articulated in Bell Atlantic v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). On appeal, the Court of Appeals affirmed the trial court’s dismissal of Anthony Mazza’s (“Mazza”) complaint on res judicata grounds, and further held that the pleading requirements articulated in Twombly and Iqbal now apply in the District of Columbia.

In 2004, Anthony Mazza entered into a home improvement contract with Housecraft L.L.C. (“Housecraft”) for the purpose of renovating Mazza’s property. When Mazza failed to pay the final invoice, as stipulated in the contract, Housecraft filed a mechanic’s lien against the property. The trial court entered judgment in favor of Housecraft. Mazza failed to satisfy the judgment, and subsequently, the Clerk of the Superior Court issued a writ to enforce the mechanic’s lien on Mazza’s property.

On May 15, 2009, Mazza filed a complaint challenging the enforcement of the mechanic’s lien. Mazza challenged the validity of the home improvement contract and the resulting mechanic’s lien on the ground that Mazza himself had not signed that contract; instead, Mazza’s wife had signed. Housecraft filed a motion to dismiss Mazza’s complaint on res judicata grounds, because, in previous litigation, the court had found a home improvement contract existed as between Mazza and Housecraft. The trial court agreed with Housecraft, and granted the motion to dismiss. Mazza filed a notice of appeal. In a de novo review, the Court of Appeals for the District of Columbia affirmed the trial court’s decision to grant the dismissal, and, for the first time, considered whether to adopt the heightened pleading standards articulated in Twombly and Iqbal.

In Twombly, the Supreme Court held that a complaint must allege “enough facts to state a claim to relief that is plausible on its face.”  The Court in Iqbal elaborated on Twombly, requiring that pleadings, subject to this standard, demand “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” In Iqbal, the Supreme Court developed a two-prong test for determining whether a civil complaint is sufficient to survive a motion to dismiss for failure to state a claim; specifically, “(1) whether the complaint includes well-pleaded factual allegations as an initial matter, and (2) whether such allegations plausibly give rise to an entitlement for relief.”  By adopting the Twombly and Iqbal standards, the District of Columbia will now require that Plaintiffs provide well-pleaded facts and allegations in the Complaint to avoid a motion to dismiss. 

Article contributed by Andy Nichols

Compliance with Appellate Rules – The Heit v. Stansbury Decision

           Inevitably, a litigator will be involved in a matter that is appealed to the Maryland Court of Special Appeals.  Unless that litigator specializes in appellate practice, he or she probably only has a vague familiarity with the appellate rules codified in Chapter Eight of the Maryland Rules of Civil Procedure.  Recently, the Court of Special Appeals rendered an opinion that confirms that trial attorneys in Maryland must become intimately familiar with the appellate rules or run the risk of jeopardizing their client’s case.

           In Heit v. Stansbury, 2011 WL 2135086 (2011), the Court of Special Appeals held that the appellant husband in a divorce action could not file a reply brief more than twenty days after the appellee wife had filed her brief.  Maryland Rule 8-502(a)(3) provides that an “appellant may file a reply brief within 20 days after the filing of the appellee’s brief, but in any event not later than ten days before the date of scheduled oral argument.”  The appellant husband had filed a reply brief more than five months after his wife had filed her brief, but more than ten days before the scheduled hearing.  As such, he argued that he was in compliance with the requirements of Rule 8-502(a)(3).

           The Court disagreed, holding that the word “may” reflected the fact that a reply brief was optional and did not qualify the time by which the reply brief must be filed.  Utilizing standard rules of construction, the Court held that appellant’s interpretation of the Rule would render superfluous the phrase “within 20 days after the filing of appellee’s brief” and that it would “not read a statute or rule so as to write out language that is not superfluous.”  Therefore, the Court of Special Appeals struck the appellant’s reply brief.

           There are many deadlines contained in the appellate rules and some of them are triggered by other events during the appellate process.  It is highly important that a litigator become familiar with the pertinent dates and deadlines of the appellate process and refresh his or her recollection when involved in an appeal.  Although, on rare occasion, the appellate courts have exercised discretion not to penalize a party on appeal for a minor violation of the rules, where filing deadlines are concerned, this discretion is rarely exercised.  Interestingly, the Court of Special Appeals signaled in Heit that it might have exercised its discretion, had it been requested to accept the late filed reply brief, noting that such a request had not been made.

           The Heit decision merely reemphasizes the fact that attorneys must know what they are doing when they handle an appeal and that this requires close scrutiny of and adherence to the appellate rules.  Deadlines should be ascertained upon the filing of an appeal, and the requirements for the content, style and form of briefs should be reviewed to assure compliance with those rules.  An attorney does not want to be in a position where he or she is asking an appellate court to exercise its discretion to permit the filing of a brief, or to overlook a violation of the requirements for content, style or form of a brief, as the favorable exercise of discretion may not be forthcoming.

Article Contributed by James Andersen

RSRM Welcomes New Associate Scott Massengill!

           The RSRM family is once again pleased to announce the addition of new Associate, Scott Massengill.  Scott is a 1998 graduate of the University Of Maryland School Of Law.  His practice includes general civil litigation with an emphasis on construction litigation and alternative dispute resolution, including representation of owners, general contractors, subcontractors and homeowners.  In addition, Scott has experience handling insurance defense, workers’ compensation, products liability, toxic tort, employment, and contractual matters.

           Prior to joining the firm, Scott was counsel in the workers’ compensation department of Semmes, Bowen & Semmes, in Baltimore, Maryland.  Scott also worked as an Associate with Harrison Law Group in Towson, Maryland, where his practice encompassed the full range of construction litigation and business representation services, and as an associate with Whitney & Bogris, LLP in Towson, Maryland, where he maintained a complex civil litigation practice including products liability, toxic tort and medical/pharmaceutical matters.

           Scott is a member of the Maryland State Bar Association and is admitted to practice in Maryland and the District of Columbia Bar and is actively involved with local construction trade organizations, including the Associated Builders and Contractors, Inc. and the Associated General Contractors of America.

           Outside of the office, Scott enjoys spending time with his wife and two sons, participating in a number of recreational sports leagues, and spending time outdoors enjoying all that Maryland has to offer.

RSRM Welcomes New Associate Derrick Dye!

           The RSRM family is pleased to announce the recent addition of its newest Associate, Derrick Dye.  Derrick is a 2006 graduate of the University of Baltimore School of Law. His practice includes general civil litigation, with an emphasis on insurance defense, general negligence, insurance subrogation and professional negligence matters.

           Prior to joining the firm, Derrick served as a law clerk to the Honorable W. Newton Jackson, III, in the Circuit Court for Wicomico County. He also worked as an Associate at Cowdrey Thompson, P.C. in Easton, Maryland, handling professional liability and general civil litigation matters, and at Semmes, Bowen & Semmes, P.C. in Baltimore, Maryland, handling workers' compensation and insurance subrogation matters.

           Derrick is admitted to the Maryland Bar and the U.S. District Court, District of Maryland.  He is a member of the American Bar Association, the Maryland State Bar Association, Inc., and the Baltimore City Bar Association.

           Outside of the office, Derrick enjoys reading, playing golf (he’s a 5 handicap!), watching sports, and spending time with his yellow Labrador retriever, Sandie.

Court of Special Appeals Broadens WCC's Jurisdiction

The Court of Special Appeals of Maryland (“COSA”) appears to have broadened the jurisdiction of the Workers' Compensation Commission (“Commission”) in cases that are pending on appeal. 

In Sanchez v. Potomac Abatement, Inc., No. 504 September Term, 2010 (Filed April 27, 2010), the COSA ruled, in effect, that Labor & Employment Article Section 9-736(b)(1), which states that the "Commission has continuing powers and jurisdiction over each claim under this title," trumps Labor & Employment Article Section 9-742, which expressly identifies those issues over which the Commission "retains jurisdiction pending an appeal" (medical treatment and temporary total disability benefits provided the WCC granted TT benefits in the order on appeal and the insurer terminated the benefits pending adjudication or resolution of the appeal).

In Sanchez, the Commission issued an award of compensation for permanent partial disability in August, 2006. Sanchez appealed to the Circuit Court for Baltimore County.  In July, 2008, Sanchez filed issues for additional benefits during the pendency of the appeal.  The Workers' Compensation Commission agreed with the employer/insurer's position that the Commission did not have jurisdiction pursuant to Labor & Employment Article Section 9-742.  Sanchez appealed that order, also to the Circuit Court for Baltimore County, which agreed with the Commission that Section 9-742 limited the WCC's jurisdiction because of the appeal from the August, 2006 award.  Sanchez then appealed to the Court of Special Appeals.

The COSA reasoned that Section 9-742 "was never truly an exclusive jurisdiction statute" and that it never "modified or controlled" Section 9-736.  The Court muddies the waters in writing that "our work is not done by simply concluding that 9-742 does not deprive the Commission of jurisdiction while a previous award is on appeal, and that the agency retains jurisdiction if the new claim is properly authorized under 9-736(b).  It is this Court's duty to harmonize the two related provisions.  At least two possibilities occur to us: 1) retained jurisdiction is mandatory under 9-742, but discretionary under 9-736(b); and 2) jurisdiction is retained under 9-736(b) only if the matter is independent and distinct from the issues on appeal, while such a condition is not imposed on jurisdiction retained under 9-742."  

The Court of Appeals may yet weigh in on this issue, and the Commission may have some discretion even post-Sanchez as it wrestles with a potentially heavier caseload.  Commissioners have indicated that the application of Sanchez will be handled on a case-by-case basis.  

Article contributed by Paul Donoghue

Associate Dee Drummond Honored at the Pentagon, Receives MacArthur Leadership Award

           On May 19, 2011, RSRM Associate Irvin DeAndrei (Dee) Drummond was awarded the 2010 General Douglas MacArthur Leadership Award at the Pentagon.  This award recognizes company grade officers who demonstrate the ideals for which General MacArthur stood - duty, honor, country.  The award promotes and sustains effective junior officer leadership in the Army.  Dee was one of only seven reserve officers nationwide to be recognized. 

           It goes without saying that we are extremely proud of Dee and this impressive accomplishment.  For more information about the MacArthur award and its recipients, click here: http://www.armyg1.army.mil/macarthur/default.asp

“Duty, Honor, Country - those three hallowed words reverently dictate what you ought to be, what you can be, what you will be. They are your rallying point to build courage when courage seems to fail, to regain faith when there seems to be little cause for faith, to create hope when hope becomes forlorn.”
                    

                                                      -General MacArthur’s Thayer Award Speech:  Duty, Honor, Country (1962).

Baltimore County Jury Returns Favorable Verdict for Defendant

           On May 3-4, 2011, RSRM Associate, Andrew Nichols, tried a jury trial in the Circuit Court for Baltimore County.  The Defendant had previously filed a Motion to Dismiss, or in the Alternative, Motion for Partial Summary Judgment.  The defense argued that the Plaintiffs’ cause of action for alleged intentional conduct was not a recognized cause of action in Maryland.  The Court reserved argument on the Motion until the first day of trial and, after hearing arguments, granted the Defendant’s Motion.  The defense stipulated to liability and filed a Motion in Limine with the Court to limit the scope of Plaintiffs’ witnesses’ testimony.  The Court granted this Motion as well and the trial proceeded forward on damages only. 

           In his closing arguments to the jury, Plaintiffs’ counsel requested $250,000.00 and $75,000.00 respectively for each Plaintiff.  After nearly two hours of deliberation, the jury returned a verdict, awarding each Plaintiff $5,000.00.

Insurance Carriers Can Disclaim Coverage Where Notice of Claim Isn't Timely and Resulting Prejudice Can Be Shown

Sherwood Brands, Inc. et al. v. Great American Ins. Co.

Court of Appeals of Maryland

September Term, 2010
Filed February 24, 2011

           Recently, the Maryland Court of Appeals issued an opinion in the case of Sherwood Brands, Inc. et al. v. Great American Ins. Co., holding that Md. Ins. Code Ann. § 19-110 applies to “claims-made-and-reported” policies, where the claim giving rise to the insurance coverage occurs during the insurance policy period, but the insured fails to give timely notice of the claim pursuant to the notice provision of the policy.  Under such conditions, pursuant to § 19-110, the insurance policy notice provision is treated as a covenant, where the failure to abide by that covenant constitutes a breach, and the disclaiming insurer must then prove prejudice. 

           In Sherwood, Great American Insurance Company (“Great American”) denied two claims against Sherwood Brands, Inc. (“Sherwood”), which occurred during the insurance coverage period but were not reported to Great American until more than 90 days after the termination of the policy.  Sherwood’s insurance policy with Great American required it to inform Great American of any claims against it within 90 days of the termination of the policy. 

           The Court of Appeals found that the Great American policy at issue here was a “claims-made-and-reported” policy rather than a pure “claims-made” policy.  The Court explained the difference between the two, stating that under a claims-made policy, a claim must be made against the insured during the policy period, but need only be reported to the insurer “promptly,” or “as soon as practicable,” and not necessarily during the policy period.  By contrast, a claims-made-and-reported policy requires that the claim must not only be made against the insured during the policy period, but reported to the insurer during the policy period.  If the claim is not made and reported accordingly, the insurer may deny coverage if it can show it suffered prejudice from the late notice.

           In Sherwood’s case, the insurance policy was a claims-made-and-reported policy, and the Court found that the record on appeal was devoid of the required showing that Great American suffered any prejudice from the late notice.  The trial court’s judgment was vacated and the case was remanded for further proceedings.

Article Contributed by James Buck

Welcome to the RSRM Blog!

In an effort to better communicate with our clients and colleagues regarding the ever changing and complex world of Insurance Defense litigation, Rollins, Smalkin, Richards & Mackie, L.L.C. is launching this blog, which will be updated as events dictate.

Of course, we invite anyone to visit our webpage, which can be found at www.rsrm.com.  Ultimately, our intent is to merge the blog and the website together into a streamlined interface for all to use.

We are excited to be adding this new element to the RSRM portfolio and hope it serves you well.  We look forward to sharing our blog with you, and invite any constructive comments you may have.