Monday, September 30, 2013

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 

Monday, September 23, 2013

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.  

Tuesday, September 10, 2013

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.  

Tuesday, September 3, 2013

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.”