Tuesday, November 26, 2013

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  She states that outdated courthouses serve as a major obstacle to the judiciary’s “overreaching mission, the fair administration of justice.”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.

Wednesday, November 20, 2013

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 

Friday, November 8, 2013

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 6th issue of the Daily Record.  

Tuesday, November 5, 2013

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.