Tuesday, September 22, 2015

Offer of Judgment

An often underutilized strategic tool is the offer of judgment, which is available in many jurisdictions.  An offer of judgment can be very helpful in facilitating a settlement by giving a plaintiff a reason to reconsider a settlement offer, and it can also be used to recoup litigation costs. 

Essentially, with proper notice, prior to trial, a party defending against a claim may serve upon the plaintiff an offer to allow judgment to be taken against the defending party, usually for a set monetary amount. If, within a certain number of days after the service of the offer of judgment, the plaintiff serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance with the court and the Clerk of the court will enter judgment accordingly. Alternatively, if an offer of judgment is not accepted and the judgment obtained by the plaintiff is not higher than the offer of judgment, the plaintiff can be ordered by the court to pay the “costs” incurred by the defendant after the offer of judgment was made.

Different jurisdictions have various definitions of “costs.”  It may or may not include attorneys’ fees, but usually will include litigations costs (e.g., expert witness fees)As you can imagine, the timing of an offer of judgment is a crucial part of the strategy.  It is best utilized early, often after the close of discovery but before trial preparation begins. 

This tool is available in Maryland only in healthcare malpractice claims; however, it is available in all civil actions in the District of Columbia.

RSRM Associate Attorney Jessica Butkera was recently successful in utilizing an offer of judgment in a civil case in the Superior Court for the District of Columbia.  In this case, Plaintiff failed to accept the $15,000.00 offer made by the Defense.  Ultimately, after a three-day jury trial, the Plaintiff was awarded only a $13,000.00 verdict after her attorney requested a judgment of $100,000.00. Ms. Butkera currently has a Motion for Costs pending before the Court.  These costs include her expert witness fees, which is often a large expense in taking a case to trial.  

For more information on the use of an offer of judgment and the procedure for collecting costs in Superior Court for the District of Columbia, feel free to contact any of RSRM’s attorneys, who regularly handle matters in Washington D.C. Also, be on the lookout for a more detailed article from Ms. Butkera on this very useful procedural tool in our next Newsletter.  

-- Contributed by Partner Andrew T. Nichols

Wednesday, September 9, 2015

Workers’ Compensation: Independent Contractor or Covered Employee?

More and more frequently we are seeing companies use outside contractors to complete certain aspects of their work.  We have certainly seen this in the construction industry for years; however, the move is permeating other business areas, like delivery.  The subjective belief of the parties is not a determinative factor in the Maryland Workers’ Compensation Commission (“WCC”) decision as to whether the injured person is a covered employee and eligible for workers’ compensation (“WC”) benefits.  In other words, even if the claimant testifies or believes he is an independent contractor, it will have no bearing on the legal decision.

The commission looks to certain criteria, developed from the common law standard for determining the master servant relationship.  They are: (1) the power to hire and fire; (2) the payment of wages; (3) the power to discharge; (4) the power to control the conduct of the worker; and (5) whether the work is part of the regular business of the employer.  The decisive test in determining whether there is an employer/employee relationship versus that of an independent contractor (“IC”) is whether the employer has the right to control and direct the employee in the performance of the work and in the manner in which that work is to be done Mackall v. Zayre Corp., 293 Md. 221, 443 A.2d 98 (1982). 

For the most part, items (1)-(3) are easy enough to determine. The control factor is really what the commission will be focusing on at a hearing.  The worker is considered an IC if he or she performs the work according to his or her own means and methods, free from control of his or her employer in all details connected with the performance of the work except as to its product or result.  Considering (5), whether the work is part of the regular business of the employer, is helpful in determining the control factor.  For instance, if the alleged employer is in the business of delivery, chances are that a commissioner will determine that an alleged IC, who is “contracted” to do delivery, is likely under the control of the alleged employer.  While the company may not direct the driving route of the driver, if the driver is told to deliver the package in a certain manner he is under the company’s control.  For instance, the company requires the driver to where certain clothes, have present certain credentials to the recipient of the delivery, or have a GPS system in the vehicle.  

Alternatively, if a delivery company engages someone to prepare a webpage or set up an e-mail system for them, it is likely that the company is not directing or controlling the work and the claimant will be considered an independent contractor. 

Additionally, consider the implications of a finding of an IC relationship.  The main purpose of WC is to shield an employer from negligence from its employees. Would a finding that the injured party is not an employee open the company up to a negligence action?  If the case is in the proper posture, settlement of the contested case may be a great option.  

Contributed by Alicyn C. Campbell

Tuesday, September 1, 2015

RSRM Bids a Fond Farewell to Retiring Legal Assistant Shirley MacDermott

It is with both sadness and great fondness that everyone at RSRM extends warmest wishes to legal assistant Shirley MacDermott for a happy retirement!  After over twenty years with RSRM, today marked Shirley's last day with the firm.  

A celebratory luncheon was held in Shirley's honor to recognize her many contributions over the years.  Without  a doubt, Shirley's dedication, friendliness and willingness to help out wherever and whenever needed made RSRM a better place to work.  

Shirley, though we will miss you, we wish you a happy and relaxing retirement!