RSRM Associate Participates in Civics and Law Program at a Local Baltimore City High School

On December 19, 2013 RSRM Associate Tara A. Barnes participated in a Civics and Law program at Patterson High School in Baltimore City, Maryland.  The program was sponsored by the Maryland State Bar Assocation and the Bar Association of Baltimore City.

Legal professionals including the Honorable JoAnn Ellinghaus Jones, Carroll County District Court, Honorable Pamila J. Brown, Howard County District Court and several practicing attorneys in various fields presented lessons, activities and discussion on topics including Rights and Responsibilities, Free Speech and School Speech, Power and Empowerment and Law in a Cyber Age.

Tara Barnes, Judge Ellinghause Jones and Assistant State's Attorney Sidney Butcher presented a program on Law and Justice.  This program enabled students to examine the nature and function of law in American society, explore the ideals of justice, due process, burden of proof, and the many factors that influence judging and sentencing in criminal cases.

The legal professionals also participated in a panel discussion where they discussed their roles and responsibilities, and provided helpful advice to students interested in pursuing a career in law.

The Civics and Law program was  a huge success and exposed High School students to many important aspects of law.  Local media, including WBAL was present and included a segment on this program.

http://www.wbaltv.com/page/search/htv-bal/news/maryland/education/Students-learn-law-from-experts/-/9379316/23571156/-/m03shd/-/index.html

RSRM Associate Tara A. Barnes Successfully Challenges Third Party Defendant’s Motion to Dismiss for Lack of Personal Jurisdiction

In Fitzgerald v. Wal-Mart Stores East, LP, et.al., the United States District Court for the District of Maryland held that it could properly exercise personal jurisdiction over an out-of-state third-party defendant who maintained a business address, a registered agent, and economic activities within the “100-mile bulge” of the district court.  Accordingly, the court denied the third-party’s motion to dismiss for lack of personal jurisdiction.

The case arose from a slip-and-fall that occurred in a Wal-Mart parking lot in Alexandria, Virginia.  At the time of the alleged incident, Wal-Mart had contracted with USM, Inc. to perform general maintenance for the Alexandria Walmart.  USM., Inc. had sub-contracted its snow removal to MCHI, Inc. d/b/a Snow Patrol (“Snow Patrol”).  RSRM Associate Tara A. Barnes represents both USM, Inc. and Wal-Mart in suit.

The Plaintiff filed suit in Prince George’s County, Maryland against Wal-Mart and USM, Inc. (collectively, “the Defendants”).  After the Defendants removed the case to the United States District Court of Maryland on the basis of diversity jurisdiction, USM, Inc. impleaded Snow Patrol as a third-party defendant pursuant to Federal Rule of Civil Procedure (“Rule”) 14.  Snow Patrol thereafter filed a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction. 

In their motion, Snow Patrol argued that the federal court, applying the Maryland state long arm statute, could not properly assert personal jurisdiction because Snow Patrol had no ties to Maryland.  USM, Inc., represented by Tara Barnes, opposed Snow Patrol’s motion, arguing that Rule 4(k)(1)(B) expressly provided jurisdiction over those parties who were impleaded by Rule 14 and served within the “100-mile” bulge of the federal court.

The United States District Court of Maryland agreed with USM, Inc., finding that Snow Patrol established the requisite sufficient minimum contacts within the bulge area to satisfy due process.  The court pointed to the fact that Snow Patrol’s business was in Fairfax, Virginia, its registered agent was located in Broad Run, Virginia, and that the location of the accident where Snow Patrol was doing business was located in Alexandria, Virginia; all of these locations were within a 100-mile radius of the federal courthouses in Baltimore and Greenbelt.  Accordingly, Snow Patrol’s motion was denied.

The decision of the United States District Court of Maryland in this case reflects its commitment to apply Rule 4(k)(1)(B) in a manner that does not limit the court’s reach of personal jurisdiction.  So long as this rule is applied accordingly, this will assure that claims against out-of-state third-party defendants in federal courts can be maintained without fear of the third-party defendant being dismissed for personal jurisdiction.

Subject Matter Jurisdiction Questioned by the U.S. District Court for the District of Maryland

In Larson v. Abbot Laboratories, et. al., Judge Hollander of the United States District Court for the District of Maryland remanded the case to the Circuit Court of Baltimore City.  The court’s decision was predicated on the fact that the case lacked subject matter jurisdiction despite the defendants’ arguments that federal question jurisdiction and diversity jurisdiction existed.

The controversy arose in January 2010 when Kraig Larson (“Mr. Larson”) was prescribed HUMIRA despite the fact that he was HIV positive, a fact that was known by his doctors.  Three months later, Mr. Larson became critically ill, suffered permanent brain damage, and now requires 24-hour living assistance.

In October 2011, Karen Larson (“Ms. Larson”), acting as guardian for her brother, filed suit for negligence, malpractice, and lack of informed consent in the Circuit Court of Baltimore City against her brother’s doctors and health care providers (collectively “the Medical Defendants”).  In November 2012, the parties filed a joint stipulation without dismissal.  Ms. Larson subsequently refiled the suit in January 2013 against the Medical Defendants, and added HUMIRA’s manufacturer, Abbot Laboratories, Inc. (“Abbot”), and the agency that marketed HUMIRA, Harrison & Star (“H&S”).  In her claims against Abbot and H&S (collectively, the “Pharmaceutical Defendants”), Ms. Larson alleged strict liability failure to warn, negligent failure to warn, breach of implied warranties, common law misrepresentation, and violations of Maryland's Consumer Protection Act.  Thereafter, Abbot filed a Notice of Removal to the United States District Court of Maryland, claiming that subject matter jurisdiction existed on the basis of federal question jurisdiction and diversity jurisdiction.

The court first evaluated whether federal question jurisdiction existed.  The court noted that federal jurisdiction over state claims may exist when a federal issue is necessarily raised, actually disputed, substantial, and capable of resolution in federal court without disrupting federal-state balance.  The Pharmaceutical Defendants claimed that determining whether its labels were inadequate raised a substantial federal issue because clinical testing and drug labeling are heavily regulated by federal law.  To the contrary, Mr. Larson opined that her complaint did not allege any violations of federal law, or require proof of any federal element. 

The court agreed with Ms. Larson, finding that the complaint did not raise any question regarding compliance with federal regulations, challenge any federal regulations, allege that the Pharmaceutical Defendants’ clinical testing was contrary to federal law, or allege that the information disseminated by the Pharmaceutical Defendants violated federal drug labeling requirements.  The court further stated that, even if Ms. Larson’s claims necessarily raised an issue of federal law, the Pharmaceutical Defendants could not show that the issue was actually disputed.  As such, the court held that federal question jurisdiction did not exist for purposes of satisfying federal subject matter jurisdiction.

The court then analyzed whether subject matter jurisdiction could be satisfied on the basis of diversity of citizenship, which requires complete diversity between the plaintiff and each defendant.  Although diversity existed between Ms. Larson and the Pharmaceutical Defendants, Ms. Larson and most of the Medical Defendants were Maryland residents.  The Pharmaceutical Defendants argued, therefore, that they were fraudulently misjoined (i.e. that Ms. Larson filed meritorious claims against defendants for the sole purpose of defeating diversity and removal).  The court stated that fraudulent misjoinder was inapplicable to this case because the original suit was against the non-diverse Medical Defendants, and that joining the diverse Pharmaceutical Defendants could not be seen as an attempt to avoid a federal forum when it actually created that possibility in the first place.  The court also denied the Pharmaceutical Defendants’ request to sever the Medical Defendants, finding that all parties had been properly joined and that doing so would undermine the purpose of the liberal joinder rules.  The court, therefore, found that diversity of citizenship did not exist.

After finding the no basis for the Pharmaceutical Defendants to assert subject matter jurisdiction, the court, accordingly, remanded the case to the Circuit Court for Baltimore City.

  

Four RSRM attorneys featured in Maryland "Super Lawyers"

          Four attorneys from RSRM have been selected for inclusion in the Maryland "Super Lawyers" 2014 issue, which is available now.

          James O'Meara, the Firm's Managing Partner, was selected as a Super Lawyer in the area of civil litigation defense for the third consecutive year. Partner, Paul Donoghue, was selected as a Super Lawyer in the area of workers' compensation defense for the second consecutive year. Partner, Andrew Nichols, was selected as a Rising Star in the area of general litigation for the third consecutive year. Additionally, Associate  Derrick Dye was selected as a Rising Star in the area of personal injury defense for the second consecutive year. 

          Super Lawyers selects attorneys using a rigorous, multi-phase 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."

The Collateral Source Doctrine Does Not Apply to Medical Bills in Excess of Payments Made by Medicare and Medicaid

Judge Cordero of the Superior Court of the District of Columbia, in Jadine Acker v. Specialty Hospital of Washington-Hadley, LLC, No. 2018, granted Defendant Specialty Hospital of Washington-Hadley, LLC.’s Motion In Limine.  The Defendant’s Motion in Limine successfully sought to exclude evidence of medical bills not covered by Medicare and/or Medicaid payments. 

The Plaintiff, Jadine Acker, a Medicare and Medicaid recipient, allegedly fractured her hip when she fell from her hospital bed while in the care of Defendant.  Following this incident, Plaintiff sued for medical malpractice.  Medicare and Medicaid paid for $191,734.39 of the total $581,662.09 in resulting medical bills.

The Defendant argued that the amount of medical bills not paid by Medicare and/or Medicaid were not owed to Plaintiff, and, therefore, evidence of those bills should not be permitted because it would result in the Plaintiff receiving a “windfall.”  The Plaintiff contended that the Defendant’s argument violated the collateral source doctrine.  The collateral source doctrine if applicable would prevent the Defendant from being able to reduce its liability by any amounts received by the Plaintiff from a source collateral to or independent from the Defendant, such as Medicare and/or Medicaid. 

In his July 19, 2013 Order, Judge Codero determined that here “the application of the collateral source rule would . . . result in a double payment by the alleged tortfeasor.”  Judge Codero noted that the reduced payments were made as part of a contractual relationship under which the Defendant was obligated to accept from Medicare and Medicaid set rates for its services and write-off any excess.   

The Court concluded that the collateral source rule did not apply, and, therefore, only evidence of “amounts actually paid by Medicare/Medicaid” were admissible, thus any amounts in excess of the amount paid by Medicare/Medicaid cannot be introduced as evidence at the trial set for April 7, 2014.  

Mary Ellen Barbera - New Chief Judge of the Court of Appeals

In July 2013, Governor Martin O’Mally appointed Mary Ellen Barbera as chief judge of the Court of Appeals.  Chief Judge Barbera succeeded Robert M. Bell who, on July 6, 2013, reached the state constitution’s mandatory retirement age of 70. 

In the first few months of her new position, Chief Judge Barbera has visited the state’s circuit and district courts.  She states that outdated courthouses serve as a major obstacle to the judiciary’s “overreaching mission, the fair administration of justice.”  Among her duties as chief judge is the oversight of the judiciary’s operating budget, which is currently $468.2 million.  The judiciary is preparing its funding requests for the next fiscal year and Chief Judge Barbera notes that the capital budget requests will include funding for courthouse improvements.

The Maryland Constitution calls for opinions to be issued 90-days after the appeal is heard.  However, the turnaround has averaged anywhere from 5.4 months in 1996 to a high of 243 days in fiscal year 2011, and, recently, the court has issued several opinions in cases heard three or more years ago.  Critics speculate that the reason the Court of Appeals does not include on its decisions the date the appeal was argued is due to embarrassment for the excessive amount of time the Court takes to issue opinions.  Chief Judge Barbera acknowledges that criticism and plans to have the Court include the argument date in the opinion.  In addition, the Court of Appeals will begin issuing its decisions in the same term the case is argued.  Including the date the case was argued in the Court’s opinion and issuing opinions in the same term that the case was argued are both practices employed by the United States Supreme Court.

Court of Special Appeals Decides Whether the Good Samaritan Act Applies to Commercial Ambulance Company

In the matter of TransCare Maryland, Inc. v. Bryson Murray, et. al., one of the issues that the Maryland Court of Special Appeals decided was whether the Good Samaritan Act applied to a commercial ambulance company, relieving the company of liability for the alleged negligence of an employee during the scope of his employment. 

Sovereign immunity is available to public agencies and employees to protect them from liability should something go awry within the scope of their duties.  In Maryland, the Good Samaritan Act grants immunity to specified individuals and entities from liability for negligence that occurs in connection with medical care rendered without fee at the scene of an emergency or while in transit to a medical facility.  In TransCare, minor Bryson Murray was seen at Easton Memorial Hospital for congestion and breathing difficulty. Easton Memorial intubated Murray and sought to have him transferred to the University of Maryland Medical System (“UMMS”) pediatric intensive care unit.  PHI Air Medical was responsible for transporting Murray via helicopter from Easton Memorial to UMMS.   The flight team included an UMMS intensive care unit nurse, a PHI flight paramedic, a PHI flight nurse and Chris Barbour, a paramedic employed by Trans Care. 

During the helicopter ride, Murray’s blood oxygen level and heart rate began to drop allegedly due to the endotracheal tube becoming dislodged and blocking his airway.  The helicopter was landed at an airport so that necessary apparatus from the helicopter could be retrieved to reintubate him.  Once Murray was reintubated, the flight to UMMS was completed.

Murray’s mother, Karen Murray, filed suit against TransCare under the theory of respondeat superior alleging that Barbour “failed to provide the requisite standard of care” because Bryson Murray suffered hypoxic brain injury.  She further alleged that the minor became blind, deaf and mentally disabled as a result of Barbour’s acts and omissions during the transport.    Trans Care filed a Motion for Summary Judgment arguing that the Good Samaritan Act and Fire and Rescue Act provided it immunity.  The Circuit Court initially denied the motion, but then granted summary judgment under TransCare’s motion for reconsideration.  The Court held that TransCare was immune under the Fire and Rescue Act and Good Samaritan Act. 

Karen Murray appealed.  The Court of Special Appeals reversed the summary judgment, finding that the neither of the statutes applied to a “private, for-profit ambulance company.” TransCare petitioned the Maryland Court of Appeals and certiorari was granted. 

The Court of Appeals noted that TransCare is a commercial ambulance company. When deciding this case, the Court looked to the legislative history of the Good Samaritan Act to determine whether commercial ambulance companies were protected by the Act.  The Act initially applied to physicians who provided free medical assistance at the scene of an accident.  The statute was amended to include volunteer emergency personnel.  The Court noted that it was clear that the statute did not apply to members or employees of for-profit organizations.  The Act was amended in 1976 to include members of any State, county, municipal or volunteer fire department, ambulance and rescue squad.  There was no indication in the statutory history that the protection extended to commercial ambulance companies. 

The Court of Appeals affirmed the holding of the Court of Special Appeals, holding that TransCare did not have immunity under the Good Samaritan Act. The Court held that although TransCare’s employee may be immune under the Act, TransCare may still be held liable under the theory that a principal (employer) must establish an independent basis in order to receive the benefit of immunity shield that the agent (employee) enjoys.

Article Contributed by Danielle Williamson 

RSRM Associate Tara Barnes Receives 2013 Leading Women Award

RSRM Associate, Tara A. Barnes, was recognized by the Maryland Daily Record as a recipient of the 2013 Leading Women Award.  This award honors women 40 years old or younger for their professional accomplishments, community involvement and commitment to inspiring change.

“The Daily Record’s 2013 Leading Women Award winners are inspiring change throughout Maryland,” said Suzanne Fischer-Huettner, publisher of The Daily Record. “In addition, they are working to balance home, work, children, education and community commitments. These ‘Leading Women’ are our next generation of leaders, and I applaud them for all they do and all they will do in the years to come.”

The awards celebration will be held on December 5, 2013 at the Hyatt Regency Inner Harbor in Baltimore, Maryland.   Winners will also be profiled in a magazine that will be inserted in the December 6^th issue of the Daily Record.  

Fourth Circuit Holds Insurers Have No Duty to Act in Good Faith Toward Underinsured Motorist Claimants

In Hoang Do v. Liberty Insurance Corporation, the Fourth Circuit Court of Appeals affirmed the district court’s dismissal of Hoang Do’s complaint for failure to state a claim.  In doing so, the Court of Appeals, in a per curiam opinion, held that Do’s complaint against Liberty Insurance Corporation (“Liberty”) failed to state a plausible claim for a bad faith action because Liberty had no duty to act in good faith toward Do with regard to his uninsured motorist claim.

The case arose following an automobile accident between Do and Gerson Arias, who was allegedly at fault and underinsured.  Do filed an uninsured motorist claim with Liberty, Arias’ automotive insurance provider.  During the months Do waited for Liberty to respond to the claim, Do settled with and signed a release of rights with Arias and his insurer.  It was also during this time that the statute of limitations passed for Do to bring any tort claims arising from the accident.  Liberty ultimately rejected Do’s underinsured motorist claim, prompting Do to file suit against Liberty claiming that its delay and rejection of Do’s claim was done against the interests of its insured and in bad faith.

The United States District Court for the Eastern District of Virginia dismissed the complaint for failure to state a claim for two reasons.  First, because Do had not secured a judgment against Arias, the court held that Do could not then state a claim against Liberty under the uninsured motorist provision.  Second, the court further held that Liberty had no duty to act in good faith toward Do regarding the claim because Liberty was Do’s adversary.  On appeal, Do presented only the second holding for review.

The Fourth Circuit Court of Appeals first recognized that, under Virginia law, an adversarial relationship is assumed between an insurer and an insured when an insured files an uninsured motorist claim with its insurer.  Under these circumstances, the insurer has no duty to furnish its insured with information.  Applied to the instant case, the court concluded that Liberty was not obligated to inform Do that uninsured motorist coverage required the existence of a judgment against its underinsured motorist.  Liberty was also under no obligation to inform Do that his settlement and release of rights with Arias and his Arias’ insurer could serve as the predicate of Liberty’s denial of uninsured motorist coverage.

Having concluded that Liberty had no duty to act in good faith toward Do concerning his underinsured motorist claim, the Court of Appeals affirmed the district court dismissal of Do’s complaint for failure to state a claim.

RSRM Partner, Andy Nichols, Featured as a Presenter at Workers' Compensation Seminar

RSRM partner,  Andy Nichols, was recently featured as a presenter at a continuing legal education seminar.  The seminar, “A Practical Guide to Workers’ Compensation” was held in downtown Baltimore, and was attended by attorneys and insurance professionals. 

Mr. Nichols presented on the topic of the interplay between third-party complaints and workers’ compensations claims, from the perspective of the employer and insurer and the third-party defendant and carrier.

Twenty Year Statute of Repose Held Applicable for Defendants Who Did Not Have a Possessory Interest in Real Property and for Injuries Caused After Asbestos Installation

In Burns v. Bechtel Corp., 212 Md.App. 237, the Court of Special Appeals of Maryland held that the section 5-108 of the Courts and Judicial Proceedings Article (“Statute of Repose”) applies only to defendants who are in actual possession or control of real property when an alleged injury occurs.  The court further held that the exception to repose in subsection (d)(2)(ii) of the Statute of Repose is inapplicable for asbestos-related injuries caused after the installation, affixation, or installation of asbestos products

The case arose when Jean and Robert Burns sued Bechtel Corp. (“Bechtel”) in the Baltimore City Circuit Court on November 5, 2009.  Burns’ complaint alleged that during the 37 years that Mr. Burns worked for PEPCO, Bechtel was employed by PEPCO as a general contractor and given “absolute control” over power station construction projects that included asbestos insulation in the designs.   Mr. Burns further alleged that he was exposed to the asbestos insulation, causing his August 2009 mesothelioma diagnosis.

The Circuit Court granted Bechtel’s motion for summary judgment on the grounds that Burns’ claims were barred by the Statute of Repose providing repose for defendants against certain claims from the defective and unsafe condition of an improvement to real property.  On appeal, Burns raised two issues.

Burns first argued that Bechtel was excluded from repose because Bechtel retained complete and absolute possession over all aspects of the job sites in question, and was, therefore, in actual possession and control of the construction properties.  The Court of Special Appeals refuted this contention for two reasons.  First, subsection (d)(2)(i) of the Statute of Repose implies that a proprietary interest is required to impute liability.  Burns’ allegation that Bechtel merely controlled the project, and not the premises, was insufficient to demonstrate a possessory or proprietary interest in the properties.  The court further noted that the language of subsection (d)(2)(i) of the Statute of Repose mirrors the language of the common law principle of strict premises liability for abnormally dangerous activities.  Because common law strict premises liability extends only to owners and occupiers of land, the court reasoned that the General Assembly did not intend to extend liability.  The court, therefore, held that this exception to the Statute of Repose’s did not apply to Bechtel.

Burns’ also argued that the asbestos materials installed by Bechtel were not “improvements” contemplated by subsection (a) of the Statute of Repose.  The Court of Special Appeals found this argument unpersuasive because of the enactment of subsection (d)(2)(ii) of the Statute of Repose.  As the court explained, subsection (a) of the Statute of Repose provides a general shield from liability for death or personal injury that occurs more than twenty years after the defective and unsafe improvement to real property.  Subsection (d)(2)(ii) was later added by the legislature to provide an exception to remove this shield of liability for personal injury or death caused by exposure to asbestos dust or fibers shed prior to or during “the affixation, application, or installation of the asbestos or the product that contains asbestos to an improvement to real property.”  Because Burns’ alleged injury did not occur prior to or during the affixation, application, or installation of the asbestos products, this exception was inapplicable to Bechtel.  The court, therefore, concluded that the protections of subsection
(a) of the Statute of Repose applied to Bechtel.

Because Burns’ complaint was filed beyond the twenty-year statute of repose, the Court of Special Appeals found that the claims were time-barred.  The trial court’s award of summary judgment in favor of Bechtel was, accordingly, affirmed.

RSRM Welcomes New Associate; Catherine A.B. Simanski

RSRM is excited to announce the addition of Catherine Simanski as an Associate.

Ms. Simanski's practice includes insurance defense, premises liability, personal injury and general negligence. She is a 2012 graduate of the University of Baltimore School of Law. Immediately upon graduating law school, Ms. Simanski clerked for the Honorable Robert E. Cahill, Jr., in the Circuit Court for Baltimore County. As a student at the University of Baltimore School of Law, Ms. Simanski spent time interning with the Honorable Ronald A. Karasic, in the District Court of Maryland, Baltimore City, and the Honorable Lynne A. Battaglia, in the Court of Appeals of Maryland, as well as serving as the Articles Editor for the University of Baltimore Law Forum. Additionally, Ms. Simanski served as a law clerk with the firm Schlachman, Belsky & Weiner, P.A., in Baltimore.

Ms. Simanski is a member of the American Bar Association, the Maryland Bar Association, the Baltimore City Bar Association, and the Baltimore County Bar Association.

Outside the office, Ms. Simanski enjoys reading, cooking, and traveling. 

Recent Presidential Nominations to the U.S. District Court for the District of Maryland

On September 25, 2013, President Barack Obama nominated two attorneys, Theodore David Chuang and George Jarrod Hazel, to serve as judges in the U.S. District Court for the District of Maryland. If the United States Senate confirms their nomination, Chuang and Hazel will succeed retiring judges Alexander Williams Jr. and Roger W. Titus.  Williams and Titus currently serve on the bench in Greenbelt.  Williams took senior status on May 8, 2013 and, at the beginning of the year, Titus announced that he will begin senior status in January 2014.          

Chuang graduated from Harvard Law School in 1994.  He began his legal career as a law clerk on the United States Circuit Court of Appeals for the Honorable Dorothy W. Nelson.  From 1995 to 1998, Chuang was a trial attorney in the Civil Rights Division of the United States Justice Department.  He then served as Assistant United States Attorney in the District of Massachusetts from 1998 to 2004.   For three years, from 2004 to 2007, Chuang worked at Wilmer Cutler Pickering Hale and Door LLP.   From 2007 to 2009, Chuang was the Chief Investigative Counsel for the U.S. House Committee on Oversight and Government Reform.  In 2009, Chuang was the Chief Investigative Counsel for the U.S. House Committee on Energy and Commerce.   Since 2009, Chuang has served as Deputy General Counsel of the United States Department of Homeland Security. 

Hazel graduated from Georgetown University Law Center in 1999.  From 1999 to 2004 Hazel was a litigator at Weil, Gotshal & Manges LLP.  From 2005 to 2008 Hazel served as an Assistant United States Attorney in the District of Columbia.  From 2008 to 2010 Hazel served as an Assistant United States Attorney in the District of Maryland.  Since 2011, Hazel has served as the Chief Deputy State’s Attorney for Baltimore City. 

New Laws in Maryland Effective October 1, 2013

Approximately 692 new laws will become effective in Maryland beginning on October 1, 2013.  Some of the notable changes are aimed at reducing the number of accidents involving distracted driving, reducing injuries resulting from unrestrained occupants, and those addressing gun laws and cyber-bullying.   

Maryland’s cell phone use ban now makes it is a primary offense for drivers to use hand-held cellphones while driving, including both talking and texting.  This new law expands the previous ban on hand-held cellphones while driving as police will now be able to stop a driver solely for using a cell phone – no other offense is needed.   Fines for first-time violators will be $75, $125 for a second violation, and $175 for a third or subsequent violation.

Maryland’s Seat Belt Law has increased fines for seat belt violations from $25 to $50 per unbelted passenger.  This means all passengers must wear seat belts.  As a result of this law, the vehicle operator will receive a separate ticket for each unbelted passenger under the age of 16.  This is also a primary offense as tickets can be issued for drivers and front seat passengers even if no other violation is observed to warrant a stop.

The mandatory use of child safety seats now applies to all children under the age of 8, with the exception of children who are 4 feet 9 inches or taller.  This change removes the previous weight exemption of children weighing more than 65 pounds.

There are also significant changes to the gun laws in Maryland, as the 2013 Firearm Safety Act goes into effect.  If you wish to purchase a handgun in Maryland, you will have to submit fingerprints, obtain a handgun qualification license and take a gun safety and proficiency course.  Handgun magazines are now limited to ten rounds, and the sale of 45 different types of assault weapons are now banned.

An additional new law to note includes Gracie’s Law, a misdemeanor offense which now makes it a criminal offense to use an interactive computer service, like Twitter or Facebook to cause “serious emotional distress on a minor”, or to cause a minor to fear for his or her physical safety or life.  This law is named after a 15 year old Woodbine, Maryland teen who committed suicide in 2012 after being bullied on Twitter.  If found guilty of this crime, an offender can face up to a year in prison and a $500 fine.  

Article contributed by Tara A. Barnes

Court of Special Appeals Provides Finality on the Issue of Credits During a Workers' Compensation Appeal

Andrew J. Swedo, Jr. v. W.R. Grace & Co., et al., Sept. Term, 2011 No. 998, (decided 5/1/13).

In May, 2013 the Court of Special Appeals finally laid to rest the issue of credits when a case is appealed and an award of permanent partial disability is either increased or decreased.

The facts of the case were not in dispute.  Mr. Swedo injured himself while at work and was ordered an award amounting to $234.00 per week for 200 weeks; a total of $46,800. He appealed the Order and the Circuit Court awarded him an increased disability amounting to 333 weeks to be paid at the higher rate of $525, a total of $174,825.

At the time of the Circuit Court decision, 148 weeks of the award or $34,642 had been paid by the employer to the injured worker.  The issue then was how the credit for the monies already paid to the injured worker would be calculated.  The employer argued for the “weeks credit” which would mean that only 185 weeks at $525 would be paid, an amount totaling $97,125.  The injured worker argued the “dollar credit” theory should be applied which would equal $140,193.

Two cases decided prior to the enactment of LE §9-633 in 2001 were on point, but the court had to determine if the new law should be interpreted to mean weeks or dollar credit.  The law reads in part  “[i] f an award of permanent partial disability compensation is reversed or modified by a court on appeal, the payment of any new compensation awarded shall be:  (1) subject to a credit for compensation previously awarded...”

In the two prior cases, one court found the Act was essentially for the benefit of the injured worker so whichever way benefited the injured worker the most was how the credit would be applied, Wright v. Philip Electronics North American Corporation, 348 Md. 209 (1997).  In the second case, the court ruled the credit should be consistent no matter if the new award was an increase or a decrease in permanency.  That court decided the “weeks credit” should be applied to determine the amount of the credit, Ametek v O’Connor, 126, Md. App. 109 (1999). 

The court in Swedo found LE §9-633 was unambiguous in using the term “compensation” and therefore ruled that any credits would be calculated using the “dollar credit” theory.  The total amount of the new award less the amount of money already paid, would be the amount the injured worker is due.  The court, in the Swedo case, felt if the case were modified or reversed through the appeals process, it would mean the commission erred and that the exact dollar amount of the new award was due to the injured worker, no matter how long it took to get to the final decision.  This decision is not applicable to a reopening of a prior award due to a worsening of condition.  

Article contributed by Alicyn Campbell 

Judge Rules in Favor of the Defendant in Strict Liability Case

On September 16, 2013, a Baltimore City District Court judge held that the Defendant was not strictly liable for water emanating from his roof and onto his neighbor’s property.  RSRM Associate Danielle Williamson represented Defendant homeowner who purchased a Baltimore City rowhome in 2005.  Several years later, construction began next to the Defendant’s home.  The construction included adding a third floor onto the neighboring home.  Defendant began to experience water intrusion as a result of the construction, and the damages associated therewith were subsequently rectified by the then owner of the neighboring home.  

In 2010, construction ceased and the neighboring home was purchased by another owner.  Approximately one month later, the new owner began to complain to Defendant that water was originating from his roof and causing damage throughout her home.  It was eventually discovered that during construction, the gutter system was rerouted on the Defendant’s roof by the general contractors of the neighboring home, resulting in the water flowing in another direction.  Neither Defendant nor any servant of Defendant made any changes to Defendant’s roof.  

Plaintiff neighbor filed suit against Defendant for trespass and nuisance because of the water allegedly flowing into her home.  Plaintiff’s counsel argued at the time of the trial that since the water was originating from Defendant’s roof, Defendant was strictly liable for any damage to Plaintiff’s home under nuisance.  Nuisance is any unreasonable conduct which causes real, substantial, and unreasonable damage to, or interference with, another person’s ordinary use and enjoyment of his or her property.  Experts for both parties testified that construction had taken place on the Plaintiff’s home and agreed that water was emanating from Defendant’s roof.  Ms. Williamson argued that but for the construction that took place on Plaintiff’s home, water would have flowed on Defendant’s roof without issue.  Defendant did not make any changes to his roof, therefore he did not interfere with the use and enjoyment of the Plaintiff’s property.  As the judge heard testimony from both parties and their respective experts, she agreed with Ms. Williamson's arguments that Defendant had not engaged in any unreasonable conduct (or any conduct for that matter) that interfered with the Plaintiff’s use of her property.  The water intrusion issue took place due to the construction that had previously taken place on Plaintiff’s property and Defendant was not strictly liable.  

Judgment was entered in favor of the Defendant.  

Court of Appeals Holds There is No Duty to Warn of Second Hand Exposure to Asbestos Prior to Adoption of OSHA Regulations in 1972

In Georgia-Pacific Corp. v. Farrar, CA No. 102 Sept. Term 2012, the Court of Appeals held that asbestos companies cannot be held liable for illnesses suffered by family members who were not directly exposed to asbestos but who came into contact with asbestos fibers as the result of others bringing the fibers into the home prior to the adoption of OSHA Regulations in 1972.  

Jocelyn Farrar, who, in 2008, developed mesothlioma, a cancer linked to inhaling asbestos fibers, brought this action.  Ms. Farrar lived in her grandparents’ home, where she was exposed to asbestos fibers in 1968 and 1969 while laundering her grandfather’s, John Hentgen’s, clothing. Mr. Hentgen worked in a building where Georgia-Pacific drywall cement was being applied.  The drywall, which at the time contained asbestos, was applied and sanded producing dust.  Although Mr. Hentgen did not work directly with the drywall, he worked in the same vicinity insulating pipes, and his work clothes would become saturated with the asbestos-containing material from the drywall.  When Mr. Hentgen brought his work clothes home Ms. Farrar would shake out the asbestos fibers prior to laundering the clothing to prevent the dust from clogging the washing machine. 

Following her diagnosis with mesothlioma, Ms. Farrar filed suit in Baltimore City Circuit Court against more than 30 defendants, including Georgia-Pacific.  A jury awarded Ms. Farrar $20 million, including $5 million against Georgia Pacific.  The Court of Special Appeals subsequently affirmed the award against Georgia-Pacific.  Georgia-Pacific appealed arguing that there was no relationship between it and Ms. Farrar, that Ms. Farrar had never used the product, nor was she ever an employee of Georgia-Pacific or a bystander, and, therefore Georgia-Pacific had no duty to identify and warn Ms. Farrar. 

The Court of Appeals reviewed relevant case law in assessing what the duty owed to individuals like Ms. Farrar whose exposure to asbestos occurred in the home and not as an employee or bystander as well as various articles regarding research that had been conducted at the time on exposure to asbestos.  The Court of Appeals noted that it was not until June 1972 that OSHA adopted regulations addressing the problem of tracking asbestos dust on clothing brought inside the home, and, as such, none of those regulations were in force at the time of Ms. Farrar’s exposure.  Further, the Court of Appeals noted that even if in 1968-69 Georgia-Pacific should have foreseen that individuals like Ms. Farrar could be harmed, “there was no practical way that any warning given by it to any of the suggested intermediaries would or could have avoided that danger.” 

Thus the Court of Appeals found that the Court of Special Appeals erred in its determination that Georgia-Pacific owed a duty to Ms. Farrar in 1968-69, and therefore, the judgment of the Circuit Court and Court of Special Appeals was reversed.  

Court of Appeals finds Administrative Judge Exceeded His Authority

In St. Joseph Medical Center, Inc., et al. v. Turnbull, Misc. No. 21, filed on June 24, 2013, the Court of Appeals of Maryland granted a writ of mandamus or prohibition.  Although such action is rarely taken, the Court of Appeals found it necessary to do so here because Judge John G. Turnbull II, an Administrative Judge, exceeded the scope of his authority when he reviewed and vacated the trial judge’s Orders to bifurcate the issues at trial. 

Under Maryland Rule 2-503(b) claims or issues in a trial may be bifurcated for “convenience or to avoid prejudice.”  In the present case, the Court of Appeals held that the trial judge, Baltimore County Circuit Court Judge Nancy M. Purpura, acted within the scope of her authority when she bifurcated or separated claims in two cases pending before the Circuit Court for Baltimore County, Weinberg v. Midei, et al. and Sullivan, et al. v. St. Joseph Medical Center, Inc., et al.  Both Weinberg and Sullivan contain allegations that the cardiac stents received during cardiac catheterization procedures performed by Dr. Midei at St. Joseph Medical Center were medically unnecessary.  Dr. Midei and St. Joseph Medical Center sought to bifurcate the trials.  These motions to bifurcate the medical malpractice issue from the other counts were granted by Judge Purpura.  However, Administrative Judge Turnbull vacated Judge Purpura’s decision.

The Court of Appeals Judge Clayton Greene Jr., wrote in the court’s opinion that “Judge Turnbull’s actions threatened the integrity of the judicial system, the authority of trial judges to preside over cases before them, and the public’s trust in the courts.”  Judge Greene also wrote that “[a]uthority over the ‘internal management’ of the court is not the equivalent of the authority over any judicial decision that affects case flow.”  Ultimately the Court of Appeals vacated the two Orders issued by Judge Turnbull, relating to the bifurcation of Weinberg and Sullivan.  In so doing, the Court of Appeals sought to “restore these cases to the status quo just prior to the actions taken by Judge Turnbull.”  

The United States Court of Appeals for the Fourth Circuit Applies Contra Proferentum in Construing Contract Ambiguity

In Johnson v. Am. United Life Ins. Co., the United States Court of Appeals for the Fourth Circuit, applying the rule of contra proferentum (interpretation against the draftsman) reversed the United States District Court for the Middle District of North Carolina, at Greensboro, in its decision to deny Accidental Death and Dismemberment (AD&D) benefits to the widow of an insured. 

This case arises out of a single vehicle crash that claimed the life of Richard Johnson (“Mr. Johnson”).  Mr. Johnson, sustained fatal injury when he drove a vehicle owned by his employer while intoxicated, and was ejected from that vehicle.

Prior to his death, Mr. Johnson had participated in an employee welfare benefit plan and received life insurance and AD&D benefits through group policies issued by the American United Life Insurance Company (“American United”).  Following Mr. Johnson’s death, his wife Angela Johnson (“Mrs. Johnson”) received insurance benefits.  However, American United refused to pay any of the AD&D benefits.  Seeking to recover these AD&D benefits, Mrs. Johnson filed this action under the Employee Retirement Income Security Act (“ERISA”).  See 29 U.S.C. § 1132(a)(1)(B).  The district court affirmed American United’s denial of benefits concluding that Mr. Johnson’s death was the result of drunk-driving, and, was therefore, “anticipated and expected,” and, thus, not accidental, such that it was not covered by the AD&D policy.

American United argued that when an ERISA plan does not define “accident” or “accidental” with sufficient clarity, circuit precedent requires the use of the analysis used in Eckelberry v. ReliaStar Life Insurance Company.  See 469 F.3d 340, 343-346 (4th Cir. 2006).  Although the Court of Appeals acknowledged some factual similarities between the case at hand and Eckelberry, it rejected American United’s argument on grounds that Eckelberry did not establish “a per se rule that drunk driving injuries or fatalities can never be accidental.”  Further, the Court of Appeals noted that unlike the policy presently before it, the policy in Eckelberry defined “accident” in terms of foreseeability.  Finally, here, unlike in Eckelberry, the review is de novo and therefore, the decision is “not limited to considering only the reasonableness of the decision and reasoning of the claims administrator.”  Thus, the Court of Appeals was not bound to follow Eckelberry in defining “accident.”  The Court of Appeals went on to consider how the lower court used state law in defining “accident.” 

The Court of Appeals, although acknowledging that drunk driving “is reckless, irresponsible conduct that produces tragic consequences,” focused its decision on contract law and considered the language of the policy itself.  The Court of Appeals began by evaluating the plain language of the disputed provision.  The provisions of American United’s AD&D policy provided that American United would pay benefits "[i]f a Person has an accident while insured under the policy which results in a [covered] loss."  Although the policy defined “accidental death” as "death due to an accident, directly and independently of all other causes," the term "accident” was not defined.  When considering the meaning of “accidental,” within the context of Mr. Johnson’s policy, the Court of Appeals determined that there was an ambiguity.  Thus, the court applied the rule of contra proferentum and construed “the terms strictly in favor of the insured."  Wegner v. Standard Ins. Co., 129 F.3d 814, 818 (5^th Cir. 1997).  

Given that the insurance policy at issue expressly enumerated its limitations on the payment of AD&D benefits, and did not include drunk driving in this list, included benefits for anyone who died while wearing a seatbelt but expressly excluded drunk drivers who died while wearing a seat belt, the ambiguous nature of the term “accident” since it is reasonably subject to multiple definitions, and the lack of definition of “accident” within the policy itself, the Court of Appeals applied contra preforentum and construed the policy in favor of the insured.  Ultimately the Court of Appeals concluded that a reasonable plan participant would have expected that a death, resulting from drunk driving, would be covered as an “accident” under the AD&D benefits.  Thus, the Court of Appeals reversed the lower court and remanded the case to award benefits to Mrs. Johnson.  

Governor O'Malley appoints four new judges

Governor Martin O'Malley has appointed four new judges to the District Court of Maryland for Baltimore City.

The new judges are Nicole Klein, a former administrative law judge with the Office of Administrative Hearings; Martin Dorsey, a former public defender in Baltimore City; Mark Scurti, who was in private practice, specializing in bankruptcy and consumer protection law and Kevin Wilson, a former Assistant State's Attorney in Baltimore City.

For more information, follow this link: http://www.governor.maryland.gov/blog/?p=9046

Maryland Court of Appeals Declines to Impose Dram Shop Liability on Bar or Tavern Owners

In a 4-3 decision, the Maryland Court of Appeals recently declined to impose dram shop liability on the part of a bar or tavern owner.  The Court held that, absent a showing of a special relationship between the injured party or tortious actor and the bar, there is no duty owed by the bar to prevent harm inflicted by an intoxicated patron while not on the premises of the bar or tavern.

In this particular case, Michael Eaton was served and consumed approximately seventeen beers and three liquor drinks at Dogfish Head Alehouse.  The bar staff eventually refused to serve any more alcohol to Eaton, and offered to call him a cab.  Eaton refused cab service, opting, to drive from the bar instead.  While driving from the bar that evening, Eaton collided with a vehicle occupied by Plaintiffs, resulting in serious injuries to two parents and a child, and the death of another child.

After the Circuit Court for Montgomery County granted summary judgment for Dogfish Head Alehouse, but prior to consideration by the Court of Special Appeals, the Court of Appeals granted Plaintiff’s petition for certiorari to consider whether to adopt dram shop liability as a matter of Maryland law.

The Court of Appeals addressed the merits of Plaintiff’s appeal, focusing primarily on whether Dogfish Head had a duty to protect the Warrs from injury by an inebriated patron.  When determining liability for torts caused by third persons, the court stated that liability only exists when the entity sued had some control over the third party by virtue of some special relationship.  Similarly, without the existence of a special relationship between, or control over the third party, there can be no duty to a tortiously-injured person.  Because Warr did not assert the existence of a special relationship between Dogfish Head and themselves, the court concluded that they were owed no duty.

Plaintiff also argued that Dogfish Head owed a duty to refuse intoxicated persons due to the existence of a criminal statute containing similar language and intent.  For support, Warr cited numerous extra jurisdictional cases where state courts applied civil liability on the basis of an existing, similar criminal statute.  The court conceded that civil liability may be assigned on the basis of a criminal statute, but that this requires that the plaintiff show that the specific statute or ordinance be designed to protect a class of persons, which includes the plaintiff.  As the court pointed out, the criminal statute relied upon by Warr was designed for the “protection, health, welfare, and safety of the people” of Maryland.  Because this statute applied to the public in general, no special relationship or class was formed.  As such, no statutory civil duty existed.

In conclusion, the majority noted that the decision to impose civil liability to bar owners due to injuries caused by their intoxicated patrons involves significant public policy considerations that are better suited for the legislature.

In the future, the Maryland legislature may impose dramshop liability on bars and taverns in Maryland. For now, however, the highest court in Maryland has, again, said that bars and taverns are (typically) not liable for injuries caused off-premises by intoxicated customers.

Article Contributed by Derrick Dye 

            

Jury Returns Defense Verdict in Rear-end Collision Case

After one hour of deliberation, a Baltimore City jury returned a defense verdict in a case in which the Plaintiff alleged the Defendant rear-ended his vehicle.

The case, tried by RSRM partner, Andy Nichols, involved allegations that the Defendant negligently struck the rear of the Plaintiff's vehicle, allegedly causing injuries to the Plaintiff.  During the course of cross-examination, the defense was able to highlight several inconsistencies in the Plaintiff's trial testimony, contrasted with his deposition testimony and various documents.  Furthermore, the defense was able to impeach the Plaintiff's contention that he had not been involved in any subsequent accidents or suffered any subsequent injuries, by introducing a copy of a Complaint stemming from a motor vehicle accident that occurred approximately seven months after the rear-end collision.  By attacking the Plaintiff's credibility, the defense was successful in persuading the jury that the Plaintiff's testimony and evidence were insufficient to meet Plaintiff's burden of proof.

Clarification of the term "Unoccupied" in Insurance Disputes

In Khoshmukhamedov, et. al. v. State Farm Fire and Casualty Company, Izatullo Khoshmukhamedov and Zoulfia Issaeva (“Plaintiffs”) filed an action against State Farm Fire and Casualty Company (“State Farm”) because State Farm refused to pay Plaintiffs under their homeowner’s insurance policy for losses sustained when water pipes burst and flooded the Plaintiffs’ home while Plaintiffs were out of the country.  This action presents the issue of whether or not Plaintiffs’ home was “unoccupied” when the water damage occurred, such that, State Farm was not obligated under the homeowner’s insurance policy to cover the loss. 

In 2006 Plaintiffs moved into a home in Potomac, Maryland.  Plaintiffs insured their home with State Farm.  In October 2008 Plaintiffs left their Potomac home intending to return in February 2009.  Because Plaintiffs intended to return they left many personal items including a furnished home and car in the garage.  Prior to leaving, Plaintiffs made arrangements with their friend and translator, Mikhail Immerman (“Immerman”), and their neighbor, Khushi Kalotra, to monitor and care for their Potomac home.  In addition, before leaving Plaintiffs had their cable, television and telephone services turned off and Plaintiff Khosmukhamedov instructed Immerman to have the electricity disconnected by the power company.  Immerman informed Plaintiff Khosmukhamedov that the electricity had successfully been disconnected.  Plaintiff Khosmukhamedov believed that because the pump that supplied water to the Potomac home ran on electricity, once the electricity had been turned off water would not flow through the pipes in the home.  However, the water pump continued to receive electricity throughout the winter, and, at some point prior to February 6, 2009, the water pipes in the home froze and burst. 

Immerman acting as the Plaintiffs’ representative contacted State Farm.  State Farm denied Plaintiffs’ claim on grounds that the home was “vacant/unoccupied” at the time of damage, and, as such, the damage was not a covered loss. 

Plaintiffs challenged State Farm’s denial of coverage on grounds that the word “unoccupied” is ambiguous, and, therefore, should be construed against State Farm.  However, the United States District Court for the District of Maryland rejected this argument.   In support the District Court cited two Court of Appeals of Maryland cases, Agricultural Insurance Co. of Watertown, N.Y. v. Hamilton, 33 A. 429 (1895) and Norris v. Connecticut Fire Insurance Co. of Hartford, 80 A. 960, 961 (1911).  These cases, both containing “vacant or unoccupied” language, ruled that the meaning of the word “unoccupied” in an insurance contract is not ambiguous.  Thus, according to the District Court, “under Maryland law there can only be one interpretation of the word ‘unoccupied’ as written into an insurance contract.”  The District Court went on to do a factual comparison of the facts in the case before it to the facts in Hamilton and Norris.  This comparison included a discussion of how an individual’s “intent to return” is not relevant in determining whether or not a home is unoccupied and further how leaving behind a substantial amount of personal property does not render a home occupied.

            Ultimately the Court concluded that in light of Plaintiffs’ extended absence from the home, the utilities being shut off, the infrequent visits to the home and lack of overnight stays, there was no genuine dispute of material fact with respect to whether or not the home was occupied when the home sustained water damage as a result of burst pipes, and, as such, the Court granted Summary Judgment in favor of State Farm.  

Maryland’s Highest Court Declines to Abrogate Contributory Negligence, Punts to Legislature

       Maryland is one of only five (5) states in the union that still adheres to the doctrine of pure contributory negligence, meaning that if a plaintiff contributes to his or her own injuries in any way, even just one percent (1%), that plaintiff is barred from any recovery.  This has been so since the doctrine’s adoption by the Court of Appeals in the 1847 case of Irwin v. Sprigg, 6 Gill 200 (Md. 1847).  The other states are Virginia, Alabama, North Carolina and the District of Columbia (technically not a state).  Most states practice some form of comparative negligence, where a plaintiff’s award is reduced proportionally by the amount of his or her own contributory negligence, which is therefore not an outright bar to recovery.

After a thirty-year period of virtual silence on the issue, the Court of Appeals, Maryland’s highest court, recently issued an opinion in the case of Coleman v. Soccer Ass'n of Columbia, 2013 Md. LEXIS 460 (Md. July 9, 2013), which reexamines the doctrine of contributory negligence.  A copy of that opinion can be found at the following web address: http://www.mdcourts.gov/appellate/coa/2013/9a12.pdf.  In a 5-2 decision, the Court declined to judicially abrogate the common law doctrine of contributory negligence, reflecting a desire to leave fundamental policy changes to the legislature.  Writing for the Court, Judge Eldrige summarized this desire in his opening paragraph, stating:

Thirty years ago, in Harrison v. Montgomery County Bd. of Educ., 295 Md. 442, 444, 456 A.2d 894 (1983), this Court issued a writ of certiorari to decide “whether the common law doctrine of contributory negligence should be judicially abrogated in Maryland and the doctrine of comparative negligence adopted in its place as the rule governing trial of negligence actions in this State.” In a comprehensive opinion by then Chief Judge Robert C. Murphy, the Court in Harrison, 295 Md. at 463, 456 A.2d at 905, declined to abandon the doctrine of contributory negligence in favor of comparative negligence, pointing out that such change “involves fundamental and basic public policy considerations properly to be addressed by the legislature.”

The petitioner in the case at bar presents the same issue that was presented in Harrison, namely whether this Court should change the common law and abrogate the defense of contributory negligence in certain types of tort actions. After reviewing the issue again, we shall arrive at the same conclusion that the Court reached in Harrison.

The case arose when James Kyle Coleman, a 20-year-old volunteer assistant soccer coach, was leading a practice of youth soccer players who were participating in the Soccer Association of Columbia (the “Association”).  At one point during the practice, Coleman leapt up and grabbed the crossbar of a goal, which, unfortunately, was unanchored.  Coleman fell backwards and pulled the crossbar down on him, suffering severe injuries to his face. 

Coleman sued the Association for negligence in the Circuit Court for Howard County, Maryland.  The Association asserted contributory negligence as a defense.  Despite Coleman’s proffer of comparative negligence instructions, the court instructed the jury on contributory negligence.  The jury found the Association to be negligent and that their negligence was a proximate cause of Coleman’s injuries; however, the jury also found that Coleman was also negligent and that his negligence contributed to his injuries, barring his claims as a matter of law.  Coleman appealed. 

Before oral argument could be heard in the Court of Special Appeals, Maryland’s intermediate appellate court, the Court of Appeals, Maryland’s highest court, granted certiorari to consider the sole issue Coleman raised on appeal, namely, whether contributory negligence should remain the common law standard governing negligence cases in Maryland.

In the majority opinion, the Court of Appeals reexamined its decision in Harrison v. Montgomery County Board of Education, which reaffirmed the Court’s adherence to the contributory negligence standard thirty (30) years before Coleman was considered.  The Harrison court recognized its ability to change unsound and unsuitable common law rules, but expressed reluctance to change a rule that would be contrary to public policy.  The Harrison court’s decision not to abrogate the contributory negligence standard was attributed to its recognition that the Maryland General Assembly had considered, but failed to enact, over twenty (20) bills that would have altered the standard.

Turning to the interim between Harrison and Coleman, the Court of Appeals acknowledged its power to revise common law doctrine, but also noted the Maryland General Assembly’s continued failure to pass legislation that would alter or abolish contributory negligence.  Although the court recognized that contributory negligence is widely criticized and has been largely abandoned by other jurisdictions, the court considered the inaction by the state legislature to be very strong evidence of public policy in support of retaining the contributory negligence standard.  As such, the Court of Appeals declined to abrogate Maryland’s 165-year-old common law contributory negligence standard.

Judge Greene authored a concurring opinion joined by Judges Battaglia, McDonald, and Raker.  Judge Greene’s concurrence admitted that a system of comparative negligence would be more equitable to the determination of liability, but that implementation of such a system would be inappropriate by the court and better suited for the Maryland General Assembly.

In a dissent written by Judge Harrell and joined by Chief Judge Bell, the doctrine of contributory negligence was likened to an extinct dinosaur, stating:  

Paleontologists and geologists inform us that Earth's Cretaceous period (including in what is present day Maryland) ended approximately 65 million years ago with an asteroid striking Earth (the Cretaceous-Paleogene Extinction Event), wiping-out, in a relatively short period of geologic time, most plant and animal species, including dinosaurs. As to the last premise, they are wrong. A dinosaur roams yet the landscape of Maryland (and Virginia, Alabama, North Carolina and the District of Columbia), feeding on the claims of persons injured by the negligence of another, but who contributed proximately in some way to the occasion of his or her injuries, however slight their culpability. The name of that dinosaur is the doctrine of contributory negligence. With the force of a modern asteroid strike, this Court should render, in the present case, this dinosaur extinct. It chooses not to do so. Accordingly, I dissent.

My dissent does not take the form of a tit-for-tat trading of thrusts and parries with the Majority opinion. Rather, I write for a future majority of this Court, which, I have no doubt, will relegate the fossilized doctrine of contributory negligence to a judicial tar pit at some point.

               The dissent argued that the Court of Appeals is not so bound by common law precedent as to prevent the judicial abrogation of common law rules that are widely disfavored, despite long-term legislative inaction on an issue with important policy considerations.  The dissent further advocated for the prospective application of a pure comparative fault system, in which damages are apportioned among the parties by the percentage that each party contributed to the injury.

            Although the debate over this issue continues, the Coleman opinion makes it very clear that the appellate courts of Maryland will not be picking a side in that fight, leaving that to the Maryland legislature.

Article Contributed by James A. Buck

Maryland May Require Mandatory Continuing Legal Education

Maryland is one of only five states that does not have a continuing legal education (CLE) requirement.  However, this may soon change.  In 2010, the Professionalism Commission, now called the Maryland Professionalism Center Inc., created by the Court of Appeals and headed by the Judge Lynne A. Battaglia, submitted its proposal for CLE.  That proposal was set to take effect on January 1, 2011; however, the Court of Appeals has not yet approved it.  Judge Battaglia would like Chief Judge Robert M. Bell’s successor to “be part of the decision.”  Chief Judge Bell retired on July 6, 2013, his 70^th birthday, in compliance with the mandatory retirement age for judges in Maryland.

            The issue of mandatory CLE has been debated since the mid-1970s, but has yet to succeed.  Mandatory CLE has both supporters and opposition.  The Maryland Professionalism Center, proposes that attorneys licensed in Maryland should complete a minimum of 10 CLE hours every year.  Attorney Paul Mark Sandler of Shapiro Sher Guinot & Sandler, speaking in support of mandatory CLE stated that CLE “is not a burden.”  Both Glenn M. Grossman, bar counsel for the Maryland Attorney Grievance Commission and Prince George’s County Circuit Court Judge Julia B. Weatherly support CLE.  However, the Maryland State Bar Association (MSBA) opposes mandatory CLE.  Attorney Peter Makuski of Goozman, Bernstein & Markuski, speaking on behalf of the MSBA cited to the lack of evidence that mandatory CLE will result in fewer attorney grievances and the added expense to attorneys, particularly new attorneys, of paying for mandatory CLE. 

            Only time will tell whether Maryland will join the majority of the states in requiring CLE. 

Supreme Court Rules on Authority of Arbitrators

On June 10, 2013, in a unanimous decision, the United States Supreme Court in Oxford Health Plans LLC v. Sutter, held that as long as an arbitrator is arguably construing the contract, a determination by that arbitrator that the parties to an arbitration agreement intended to authorize class-wide arbitration survives judicial review under section 10(a)(4) of the Federal Arbitration Act (FAA). 

            This case arises out of a dispute over a contract entered into between John Sutter, a pediatrician, and Oxford Health Plans (Oxford), a health insurance company.  Pursuant to that contract Sutter was to provide medical care to individuals within Oxford’s network, and, in turn, Oxford was to pay Sutter for those services at prescribed rates.  The contract included a clause requiring arbitration of claims and prohibiting any “civil action concerning any dispute.”   The contract was silent as to whether class-wide arbitration was permitted. 

In 2002, Sutter filed a complaint against Oxford in New Jersey Superior Court on behalf of himself and a proposed class of other physicians who had similar contracts with Oxford alleging that Oxford was in breach of its provider agreements with class members in regard to payment of claims, Sutter also alleged other violations of state law.  In reliance on the arbitration clause in the contract, Oxford moved to compel arbitration.  The parties agreed to allow the arbitrator to determine whether the agreement allowed for class arbitration.  In 2003, the arbitrator determined that the parties' agreement authorized class action arbitration.   In 2005, Oxford filed a motion in federal court to vacate the arbitrator’s determination.  The District Court denied Oxford’s motion.   In 2007, the Court of Appeals for the Third Circuit affirmed.  

In 2010, the Supreme Court, in Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., held that “a party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so.”  When Oxford requested that the arbitrator reconsider its determination in light of the Supreme Court’s decision in Stolt-Nielsen, the arbitrator issued a new opinion.  In that opinion, the arbitrator found that Stolt-Nielsen had no effect because the agreement at issue here between Sutter and Oxford authorized class arbitration and unlike in Stolt-Nielsen the parties here were disputing the meaning of their contract and, thus, his role as arbitrator was to construe the arbitration clause “in the ordinary way to glean the parties’ intent.”  In so doing, the arbitrator  “found that the arbitration clause unambiguously evinced an intention to allow class arbitration.”

Oxford then returned to federal court, the District Court again denied its motion, and the Court of Appeals for the Third Circuit again affirmed.  The Supreme Court granted certiorari to address the circuit split over whether section 10(a)(4) of the FAA allows a court to vacate an arbitration award.  Ultimately, the Supreme Court affirmed the Court of Appeals.  Under the Supreme Court’s holding in this case, when contract disputes arise between parties that have a contract with an arbitration agreement, an arbitrator, not the court, will interpret and decide the intent of that agreement. 

            Also, on June 10, 2013, the Supreme Court granted certiorari in BG Group PLC v. Republic of Argentina.  This case arises out of an arbitration award obtained by the BG Group PLC, a British investment company, against Argentina, stemming from Argentina’s 2001 economic crises.  An arbitrator with the United Nations Commission on International Trade Law issued the award in BG Group’s favor and the United States Court of Appeals for the District of Columbia Circuit vacated the $185 million award obtained by BG Group PLC.  The decision was vacated on grounds that as a precondition of arbitration, BG Group PLC and Argentina were required to have aggrieved investors first bring a claim in a court in which the investment was made 18 months before initiating arbitration.  The Supreme Court will be addressing whether in disputes such as this, involving multi-staged dispute resolution processes, if a court or an arbitrator should determine when the pre-conditions of arbitration are satisfied.