Monday, August 15, 2016

Is Injuring Yourself When Avoiding a Collision with Your Child a Compensable Workers’ Compensation Injury?

Prince George’s County v. Melvin Proctor, 2016 Md. App. LEXIS 74 (Md. Ct. Spec. App. July 26, 2016)

An issue that often presents itself in workers’ compensation cases in Maryland and throughout the country is whether an injured employee was actually working at the time of injury, and therefore entitled to workers’ compensation benefits.  The issue of whether an injury “arose out of or in the course of employment” was presented in a recent case, Prince George’s County v. Melvin Proctor, 2016 Md. App. LEXIS 74 (Md. Ct. Spec. App. July 26, 2016), which involved an injury scenario that is all too familiar to readers with highly mobile toddlers. 

On his day off, Detective Melvin Proctor, a Prince George’s County police detective, was leaving his home when his precocious 2-year-old walked in front of him.  In order to avoid knocking the unfortunate young man off the porch, Proctor jumped out of the way, injuring his knee and ankle in the process. At the time of the incident, Det. Proctor was off, and coming to the end of a 10-day vacation.  Based on these facts alone, it seems abundantly clear that Proctor’s injury did not occur in the course of his employment.  However, Proctor relied on the significant gray area in the law to argue his entitlement to workers’ compensation benefits based on these facts, leading legal minds considering the issue to disagree on the case’s outcome. 

Proctor argued that he was on a “special errand” incident to his employment when the injury occurred.  Specifically, Proctor had dropped his police cruiser off for repairs before his vacation, and he was on his way to pick it up when the incident occurred.  Proctor argued that picking up his cruiser was a special errand related to employment because his role on the robbery suppression squad required him to work outside of normal work hours and to respond to emergency situations with his cruiser.  Proctor further asserted that his errand was a work requirement because he and his fellow officers had been told that when repairs were done, they needed to pick up their cruisers “in a timely manner” because spots on the repair lot were limited. 
Prince George’s County (the “County”) disputed that an accident injury in the course of employment had occurred, and filed issues with the Maryland Workers’ Compensation Commission (“WCC”).  The WCC found in the County’s favor, and the case was appealed to the Circuit Court for Prince George’s County where the Circuit Court reversed, relying on the positional risk test (see below).  Ultimately, the case was appealed to the Maryland Court of Special Appeals, which entertained three different theories on whether the injuries Proctor sustained while avoiding a collision with his two-year-old could be considered employment-related and thus compensable.     

First, the Proctor Court examined whether Proctor’s injury arose out of and in the course of employment.  The Court found that it did not, since Detective Proctor had not yet embarked on the journey to retrieve his police cruiser and was not under any directive to retrieve the cruiser on the date of the injury. 

Second, the Court considered whether the “going and coming rule” applied to the facts to the case.  The so-called going and coming rule holds that the commute to and from work is not a work related activity in most cases, but this general rule is riddled with exceptions.  However, the Court did not apply any of these exceptions to Detective Proctor because he had not even embarked on his work-related journey at the time he sustained his injuries. 

Finally, the court considered the “positional risk test”, which holds that an injury may be compensable if a condition or obligation of employment actually places the employee in the position to be injured or at the location of injury.  This test is most often applied in cases involving travelling employees, such as where a travelling employee is staying in a hotel because of work and is injured when slipping in a hotel bathroom.  Mulready v. Univ. Research Corp., 360 Md. 51, 58-59, 756 A.2d 575, 579 (2000).  In those cases, the Court considers whether an injury would have occurred “but for” the conditions and obligations of employment. The Proctor Court, disagreeing with the Prince George’s County Circuit Court’s judicial review, failed to find any reasonable argument that “but for” the need to retrieve his police cruiser, Proctor would not have been at his home on his day off, stepping through the front door and avoiding knocking his 2-year-old off his porch. 

Based on its rejection of the foregoing theories, the Court of Special Appeals reversed the decision of the Prince George’s County Circuit Court and affirmed the decision of the WCC.   However, Detective Proctor has not given up yet, and has indicated his intention to appeal the matter to the highest court in Maryland, the Court of Appeals.  The attorneys at RSRM will continue to track this case and hope that Detective Proctor will be more careful leaving his home in the future.  

Friday, August 5, 2016

Hired Driver’s Lack of Liability Insurance May “Sound” like Admissible Evidence in a Suit for Negligent Hiring, but the Court of Appeals Disagrees in Perry v. Asphalt & Concrete Servs., 447 Md. 31, 133 A.3d 1143 (2015)

It is easy to analogize a negligence action and causation analysis to playing a vinyl record. When you begin to play the record you hear a beautiful tune. The song continues through verses and chorus until, suddenly, the record skips ever so briefly. After the skip, the record continues to play, and, ultimately, ends. At the end, you think to yourself how lovely the song sounded, oftentimes forgetting that brief skip. How can you dwell on that when, for the most part, everything sounded so cohesive? That beautiful song is analogous to the story often presented by a plaintiff at the trial of a terrible incident that resulted in grievous injuries, and the culpable ignorance of a defendant that should have known better. It all sounds wonderful until you take a closer look at that “skip”:  namely, whether the facts that a defendant knew or should have known actually have bearing on the cause of plaintiff’s injuries or simply “sound good.”  In the case of Perry the Court of Appeals concluded that although a hired driver's lack of liability insurance certainly sounds good in a negligent hiring case, it has no true bearing on the issue.    

In Perry v. Asphalt & Concrete Servs., 447 Md. 31, 133 A.3d 1143 (2015), the underlying facts are as follows: Moran Perry (“Perry”) was a pedestrian crossing an intersection in Frederick, Maryland when he was struck by a dump truck. The dump truck was operated by William Johnson (“Johnson”), and owned by a company called Higher Power Trucking L.L.C. (“Higher Power”). Asphalt Concrete Services, Inc. (“ACS”) hired Johnson and Higher Power to haul asphalt and stone to an ACS job site. While investigating the case, the responding officer discovered that neither Johnson nor Higher Power had liability insurance covering the dump truck at the time of the incident due to a lapse in payment on the policy.

Perry filed suit against Higher Power, Johnson and ACS in the Circuit Court for Prince George’s County. Prior to trial, ACS filed a motion in limine seeking to exclude evidence that the truck was uninsured at the time of the accident pursuant to Maryland Rule 5-411, which states that liability insurance coverage, or lack thereof, is generally inadmissible evidence because of its inherent prejudice. The trial court reserved on the issue, and permitted admission of evidence of the lack of insurance, over objection from counsel for ACS.  

The jury ultimately found that ACS was negligent in its hiring of Johnson, and that Johnson was negligent in the operation of his vehicle in the incident that resulted in Perry’s injuries. ACS filed a Motion for Judgment Not Withstanding the Verdict and for a New Trial based on part on the admission of the insurance-related evidence, but it was denied by the trial court. Subsequently, ACS appealed to the Court of Special Appeals of Maryland, which reversed the judgment and held that because there was no causal link between Johnson’s failure to maintain insurance coverage and the accident, evidence that he lacked insurance at the time of the accident was irrelevant to negligent hiring, and it should not have been admitted.  Asphalt Concrete Servs., Inc. v. Perry, 221 Md. App. 235, 108 A.3d 558 (2015).

Perry appealed to the Court of Appeals, which affirmed the intermediate court's ruling. In doing so, the Court first examined the relevance of Johnson’s liability insurance coverage on whether ACS breached its duty to check Johnson’s background when it hired him, and particularly its failure to observe its own policy of requesting proof of liability insurance. The Court found that evidence of lack of insurance was relevant on this issue because, in part, this evidence went to Johnson's competence as a hired driver.  However, the Court did not consider this to be the deciding factor in determining the relevance of the insurance-related evidence on Perry's negligent hiring action.  

The Court of Appeals found that the deciding factor was absence of a link between evidence of lack of insurance and proximate cause, and, specifically, whether ACS's failure to confirm Johnson's insurance coverage was the actually cause of Perry’s injury. Agreeing with the intermediate appellate court, the Perry Court found that ACS’s failure to comply with its policy to hire only those drivers who prove they are insured was not the cause of Perry’s injury, and therefore irrelevant to the negligent hiring claim. The Court contrasted the factual scenario in Perry to one in which a hired driver had a history of driving while intoxicated and then strikes a pedestrian while drunk, stating that because the driving history involved the very instrumentality that caused the accident, evidence of it would be appropriate and admissible. Here, however, the Court found that “[j]ust as it would be illogical to assert that [Johnson’s] driving was prudent on a particular occasion because he had liability insurance coverage…one cannot conclude the converse that [Johnson was] a poor driver because insurance coverage had lapsed due to missed payments.” Id. at 57, 133 A.3d at 1159.  

Much like the record playing a beautiful song, Perry’s case sounded unassailable to his attorney: a company that failed to follow its own rules hired a driver that did not have insurance and that driver that struck a pedestrian with a very large truck.  However, the Perry Court found that you cannot ignore that “skip” in the song when assessing whether evidence is truly relevant and admissible.