RSRM Partner invited to join Claims and Litigation Management Alliance

Rollins, Smalkin, Richard & Mackie, L.L.C. is pleased to announce that, Mr. Andrew Nichols, a partner in the Firm, has been invited to join the prestigious Claims and Litigation Management Alliance.  The CLM is a nonpartisan alliance comprised of thousands of insurance companies, corporations, Corporate Counsel, Litigation and Risk Managers, claims professionals and attorneys.  Through education and collaboration the organization’s goals are to create a common interest in the representation by firms of companies, and to promote and further the highest standards of litigation management in pursuit of client defense.  Selected attorneys and law firms are extended membership by invitation only based on nominations from CLM Fellows.

Fourth Circuit Considers When Forum Non Conveniens is Appropriate

              On May 1, 2013, the Fourth Circuit reversed and remanded the Maryland District Court’s grant of Summary Judgment in favor of Defendant, Marriott International, in a federal action asserting wrongful death and survivorship claims brought by the widow and children of Albert DiFederico, who was a civilian contractor for the State Department killed in a terrorist attack while working in Pakistan.  Albert Federico was killed on September 20, 2008, when an individual driving a dump truck filled with over one thousand pounds of explosives entered the driveway of the Marriot Islamabad Hotel and tried to drive through the security gate barrier.  The explosives malfunctioned but seven minutes later a second explosion in the rear of the truck claimed the lives of over fifty people and injured over two-hundred-and-fifty others.  

                The wrongful death action brought by Albert Difederico’s widow, Mary DiFederico and there three sons in June, 2011, alleged vicarious liability and that Marriott failed to adequately secure its hotel in Pakistan by (1) failing to notify and/or evacuate guests after the first explosion; (2) failing to take proper measures in putting out the fire at the security gate; (3) failing to train and accurately supervise its security employees; (4) failing to provide adequate fire-safety devices; (5) failing to implement additional security measures that were necessary in light of the threat in Pakistan; and (6) breaching the standard of care owed to its hotel guests with respect to their safety. 

              The Maryland District Court granted Summary Judgment in favor of Marriott on grounds of forum non conveniens, determining that Mary DiFederico and her sons made a “tactical decision” by filing suit after Pakistan’s one-year statute of limitations for claims by executors, administrators, or representatives had expired.  The district court determined that Pakistan was an adequate forum for adjudicating this matter and upon weighing the public and private factors found that these factors favored dismissal. 

              On appeal, the Fourth Circuit addressed whether the district court erred when it dismissed the claim on the basis of forum non conveniens.  The Fourth Circuit, citing to Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981) found that the district court’s dismissal constituted an abuse of discretion.  When an appellate court considers whether dismissal for forum non conveniens is appropriate, there must be an alternative forum available for the plaintiff, that forum must be adequate, and that forum most be convenient when weighing the public and private interests.  Jiali Tang v. Synutra Int’l, Inc., 656 F.3d 242, 248 (4th Cir. 2011).  The burden in establishing the availability, adequacy, and convenience of the alternative forum rests on the Defendant.  Galustian v. Peter, 591 F.3d 724, 731 (4th Cir. 2010).  The Fourth Circuit found that the district court’s statements with regards to the DiFederico’s decision not to file suit in Pakistan were conclusory and that the district court failed to inquire into whether dismissal in a Pakistani court would in fact be automatic. 

              The Fourth Circuit emphasized that deference was due to the DiFedericos with respect to their choice of forum.  The Fourth Circuit considered the district court’s balancing of public and private factors and empathized with the Difredericos with respect to the fear and emotional trauma the family would experience in bringing suit in Pakistan and the overall expense of bringing suit in a foreign country.

            The Fourth Circuit ultimately found that the Maryland District Court erred in its determination that it would be unduly burdensome for a Maryland court to apply foreign law and that it would be unfair for Marriott, an American-based company with over three thousand hotels and resorts in sixty-seven different countries.  In light of this, the Fourth Circuit reversed and remanded the lower court. 

What's In a Name?

              On May 2, 2013, the Court of Special Appeals of Maryland filed a reported opinion in Davis, et vir. v. Martinez, et al., No. 2605 (September Term 2011). This opinion intends to reiterate the majority holding of Farley v. Allstate Ins. Co., 355 Md. 34 (1999), and to clarify when a jury is allowed to hear that an insurance company is a named party to a case.

            Generally, a party, their representatives, and their attorneys cannot mention “insurance” during a personal injury trial, as it is grounds for a possible mistrial if the jury hears such statements. The reasoning behind this rule is that once a jury knows that there is an insurance policy to pay a possible judgment, a jury is influenced to rule in favor of a plaintiff and/or award more monetary damages against the insurance company than the jury would against an individual or a company.

            The Davis v. Martinez opinion holds that a jury can not only hear the name of the insurance company when they are a named party to the case, whether as UM, UIM, breach of contract, or any other action, but the jury is ENTITLED to hear each party’s name, absent limited exceptions. Unless an insurance company can show an invasion of privacy, social stigma or a threat of physical harm, then the insurance company must be identified to the jury. These limited exceptions are nearly impossible to prove

            In deciding this case, the Court of Special Appeals expressly rejected the notion that the possibility of “adverse economic consequences” should limit naming an insurance company as a party to the case. So, what’s in a name? In Maryland, if you are an insurance company that is a named party to a suit, it now means a jury will hear who you are, which attorney is representing you, and what expert(s) you have hired to assist in the defense of your case. 

          

Article Contributed by Derrick Dye

Court of Appeals Holds that The Good Samaritan Act and Fire Rescue Act Do Not Extend to Commercial Ambulance Companies

             In a recent decision, the Court of Appeals clarified that immunities in the Good Samaritan Act and the Fire and Rescue Act do not extend to commercial ambulance companies. The case involved a minor, Bryson Murray, who was taken to Easton Memorial Hospital suffering from congestion and troubled breathing. Because Easton Memorial Hospital did not have the equipment to handle the child, hospital officials decided to transfer him to the University of Maryland Medical System (UMMS) in Baltimore. UMMS arranged for Phi Air Medical to carry out the transport by helicopter.

While in the helicopter, Bryson’s heart rate and oxygen blood level began to drop because his airway allegedly became blocked by the endotracheal tube. The transport team searched for a pediatric mask to deliver oxygen to the child, but could not locate it. The pilot was forced to land the helicopter at the Bay Bridge Airport to locate the mask. By the time the transportation team was able to reintubate Bryson, he had suffered hypoxic brain injury, and as a result, is blind, deaf, and mentally disabled. Bryson, by his mother, Karen Murray, filed a complaint against TransCare alleging medical malpractice. The complaint argued that the company was vicariously liable under the principle of respondeat superior for the acts and omissions of a paramedic transport team member employed by TransCare. TransCare moved for summary judgment. The Circuit Court granted the motion, concluding that TransCare was immune under the Good Samaritan Act and the Fire and Rescue Act. The Murrays appealed and the Court of Special Appeals reversed, holding that neither statute applied to a private, for-profit ambulance company. TransCare petitioned the Court of Appeals for certiorari, which was granted.

The Good Samaritan Act provides immunity to a broad class of rescuers and medical providers for any act or omission in giving assistance or medical care provided without fee or other compensation, unless grossly negligent, (1) at the scene of an emergency, (2) in transit to a medical facility, or (3) through communications with personnel providing emergency assistance. TransCare argued that it had the same immunities under the Act pursuant to CJ 5-603(b)(3) as a “volunteer fire department or ambulance and rescue squad whose members have immunity.” The Court addressed whether the language of CJ 5-603(b)(3) intended “volunteer” to modify just “fire department” or both “fire department” and “ambulance and rescue squad.” The Court concluded, under the plain text of the statute, the legislative history, and the applicable case law, that “volunteer” did modify “ambulance and rescue squad.” Therefore, TransCare, a private commercial ambulance company, was not intended to be provided immunity under the Act. The Court also dismissed TransCare’s argument that if its negligent employee was immune under the Act, that TransCare could not be liable.

The Fire and Rescue Act provides broad immunity from civil liability to members of fire and rescue companies and to the companies themselves for any act or omission performed in the course of their duties, unless the act or omission is willful or grossly negligent. The Court held that the Fire and Rescue Act was only intended to protect fire and rescue departments, but unlike the Good Samaritan Act was not limited to “volunteers.” The court appreciated that a commercial ambulance company may qualify as a “rescue company” in particular circumstances. The court ruled, however, that TransCare had not demonstrated that it functioned as a “rescue company” that has the broad immunity from liability provided by the Fire and Rescue Act.

Accordingly, the Court of Appeals affirmed the Court of Special Appeals decision that TransCare was not entitled to summary judgment on the basis of either statutory immunity.

Evidence of Wage Loss After a Proper Discharge is Admissible

In Washington Metropolitan Area Transit v. Robert Washington, the Court of Special Appeals found a proper discharge for lying under oath to obtain Worker’s Compensation benefits, did not bar subsequent testimony about loss of wages after termination from employment.

Mr. Robert Washington (“Washington”) appealed a decision of the Maryland Workers’ Compensation Commission (“Commission”) which issued an award of 22% disability and industrial loss of use of his body as a result of an injury to his back.  The appeal was heard in the Circuit Court for Prince George’s County, where the jury found Washington sustained a 64% disability and industrial loss of use of his body as a result of the accident arising out of and in the course of his employment.  The employer, Washington Metropolitan Area Transit Authority (“WMATA”) appealed the decision to the Court of Special Appeals of Maryland arguing the circuit court erred in allowing evidence of past and present lost wages and income.

During the initial appeal to the Circuit Court for Prince George’s County, WMATA unsuccessfully moved to exclude all evidence Washington intended to present on his past and present loss of income from WMATA as well as any evidence of his past and current income from his limousine company, Tilly’s. WMATA argued that evidence of any wage differential was irrelevant because the wage loss was not the result of the accidental injury, but instead due to his discharge of employment for making fraudulent statements under oath in order to obtain benefits.  WMATA also argued that the evidence was prejudicial and the jury may decide to punish WMATA as a result of discharging Washington. 

At the Circuit Court trial, Washington’s attorney relied heavily on the fact that his income from Tilly’s was approximately one quarter of his salary from WMATA and strongly suggested this was evidence Washington had a 75% disability and loss of use of his body.  He used this argument in both his opening and closing statements and presented evidence of the disparity of the wages before the accident compared to his current income from Tilly’s. 

At the hearing before the Court of Special Appeals, WMATA argued the evidence of wages, past and current, was irrelevant and had unfairly prejudiced the jury.  The test used to determine the degree of disability is whether a claimant’s injuries allow him to return to and adequately perform his prior job with the employer, and whether the workplace injury caused a reduction of wages.  Getson v. WM Bancorp, 346 Md. 48,62 (1997). 

While the issues have been resolved in other states with regard to temporary total disability (“TTD”), Maryland has not directly addressed these issues with regard to a permanency award.  WMATA argued that many states, albeit, the minority of states, have found that an employee who is fired for misconduct has voluntarily removed himself from the workforce and is not entitled to lost wages.  The Court of Special Appeals of Maryland does not agree with this argument and has held in the past that TTD was based on the diminished earning capacity and not actual loss of wages.  In fact, neither a voluntary retirement (Victor v Proctor & Gamble Mfg. Co. 318 Md. 624 (1990)) nor an incarceration after the injury (Bowen v. Smith, 342 Md. 449 (1996)) prevented the claimant from receiving TTD benefits.  In both cases, the court found it was the injury which caused the claimant to become disabled, not the retirement or incarceration. 

The Court of Special Appeals found it was no great leap to conclude from these cases that an employee’s termination would not automatically bar benefits if the claimant’s evidence demonstrated that his or her disability caused the subsequent inability to find work.  While the court did not want to condone such conduct as lying under oath as Washington had done at the TTD hearing before the Commission, the court noted that the General Assembly has barred compensation only for an employee who is convicted of knowingly affecting or attempting to affect the payment of workers’ compensation by means of a fraudulent representation.  Lab. & Empl. § 9-1106. 

Additionally, the court pointed to the requested and obtained a special verdict on the issue of whether the percentage of disability and incidental loss was the result of the loss of Washington’s job with WMATA.  The jury answered the question in the negative.

WMATA was successful on its second issue which was whether or not the Circuit Court erred in allowing testimony of the income Washington derived from Tilly’s.  Most of the income Tilly’s made was used to purchase additional limousines rather than to pay Washington.  The court agreed that evidence of the minimal business profits of Tilly’s should have been excluded.  The general rule is that profits derived from a business are not to be considered as earnings and cannot be accepted as a measure of loss of earning power unless they are almost entirely the direct result of the claimant’s personal management and endeavors.  This was not the case for Washington as he owned five limousines and clearly profits were not a result of his personal endeavors alone.  Given Washington’s persistence in suggesting his only income from Tilly’s was about one quarter of his wages at WMATA suggesting a 75% Loss of Use, the court believes the jury was prejudiced by this information. 

The Court of Special Appeals remanded the case back to Circuit Court due to its error in not granting, in part, WMATA’s motion in limine to exclude evidence on Washington’s private business income. 

Article Contributed by Alicyn C. Campbell