Congratulations to RSRM’s 2022 Maryland Super Lawyers!

Congratulations to the five RSRM attorneys who were selected to Maryland’s 2022 Super Lawyers!

Managing Partner James Andersen was selected as a 2022 Super Lawyer in the area of Personal Injury.  Mr. Andersen has 30 years of litigation experience and has served as the Firm’s Managing Partner since 2014.  He handles a variety of litigation matters including transportation, products liability, premises liability, construction litigation, and insurance coverage and defense.  He has been selected to the Maryland Super Lawyers list in 2017, 2018, 2019, 2020, 2021, and 2022. 

Partner Paul Donoghue was selected as a 2022 Super Lawyer in Workers’ Compensation.  Mr. Donoghue has served as a Partner at RSRM since 1998 and handles workers’ compensation and general litigation/liability matters.  He has been selected as a Maryland Super Lawyer in 2013, 2014, 2015, 2016, 2017, 2018, 2020, 2021, and 2022.

Associate Rima Kikani was selected as a 2022 Rising Star in the area of Civil Defense Litigation. Ms. Kikani will be an eighth-year associate in 2022 and works on premises liability, products liability, and insurance coverage and defense matters.  She has been named as a Maryland Rising Star Attorney in 2019, 2020, 2021, and 2022.

Associate Ashley Bond was selected as a 2022 Rising Star in the area of Civil Defense Litigation, Workers' Compensation, and Personal Injury.  Ms. Bond will be a sixth-year associate in 2022 and works on workers’ compensation, insurance coverage and defense, and family law matters.  She has been named as a Maryland Rising Star Attorney in 2021, and 2022.

Associate Benjamin Beasley was selected as a 2022 Rising Star in the area of Civil Defense Litigation, and Personal Injury.  Mr. Beasley will be an eighth-year associate in 2022 and works on premises liability, products liability, and insurance coverage and defense matters.  His 2022 recognition is Mr. Beasley’s first time being selected as a Maryland Rising Star Attorney.  

Each year, approximately five percent (5%) of Maryland attorneys are selected as "Super Lawyers" and two-and-a-half percent (2.5%) are selected as "Rising Stars.”

Fourth Circuit Analyzes Settlement Language and Parties Intent in Contract Dispute.

 East Coast Repair & Fabrication, LLC v. U.S., 16 F.4^th 87 (2021).

    Recently the United States Court of Appeals for the Fourth Circuit issued an opinion analyzing language in a settlement agreement to determine if the agreement allowed for any additional claims to be made by East Coast Repair and Fabrication (Appellees).

    The Court ultimately held that the agreement did not allow for any additional claims to be made and affirmed the ruling of the United States District Court for the Eastern District of Virginia, at Norfolk. The decision dismissed the claim of East Coast Repair and Fabrication, LLC by granting summary judgement under Fed. R. Civ. P. 56(a).

    This case arose from a dispute between East Coast Repair and the United States over contracts for the repair of three United States Navy ships. The parties signed a settlement agreement that precluded East Coast from seeking any additional claims under this matter, yet East Coast still filed this suit to seek $437,000 in damages in which it claims the Government withheld from payment under one of the contracts.

    The three ships and contracts in which this case entails are the Tempest, Hurricane, and Thunderbolt. This case stems from the Hurricane contract, but a brief history must be noted regarding the Tempest contract. In 2013, the U.S. Navy claimed $474,600 in liquidated damages under the Tempest contract due to a later delivery. At the time, the Navy had already paid all but $1,000 for the work on the Tempest, so it withheld a $473,600 set-off from payment to East Coast under the Hurricane ship contract.

    Appellees claimed that the Navy caused the delay and requested additional compensation for work on the Tempest as well as the liquidated damages. In 2014, the request was denied and East Coast filed suit in the Federal District Court under the Tempest contract. It claimed that the $473,600 setoff in which was withheld was assessed on the Tempest, not the Hurricane. Both parties then settled the Tempest suit in 2017. In the settlement agreement, each party released the other from liability in broad, but not identical terms. The Appellees then filed suit now claiming the $473,600 as breach to the Hurricane contract. The parties both filed motions for Summary Judgment, the Court granted the respondent’s motion on the grounds of Res Judicata.

    The Court analyzed the wording of the settlement agreement and states that if a claim is resolved in a settlement agreement, we then look to the intent of the parties.  The Court found that the Appellees released the U.S. from liability for any and all claims arising out of or in any way relating to the Tempest and that in the suit regarding the Tempest, the Appellees stated the $473,600 setoff as being damages assessed on the Tempest. The Appellees were unable to offer any evidence showing that the parties’ intent to intentionally omit a release of a claim for the setoff in drafting the two releases; the absence of any reservation in the settlement agreement thus bars the ship repair companies’ claims that these damages were outside of the scope of the settlement.

-Kari Gallagher, Law Clerk.

Congratulations to Associate Brandon James on his Recent Win!

Congratulations to Associate Brandon James on his recent win! Mr. James successfully defended an insurance company in a case involving uninsured motorist benefits. Plaintiff initially alleged Co-Defendant was liable for Plaintiff's injuries. After exchanging discovery and learning of Co-Defendant's version of events, Plaintiff amended their Complaint, adding Mr. James' client to the lawsuit. Co-Defendant claimed that a "phantom" vehicle struck his vehicle, causing it to collide with the Plaintiff's vehicle. Thus, Plaintiff claimed that Mr. James' client breached their contract for uninsured motorist benefits. 

At trial, after Plaintiff rested their case, Mr. James moved for judgment in favor of his client, arguing that even in the light most favorable to the Plaintiff, Plaintiff failed to prove the existence of a "phantom" vehicle. After lengthy argument on the matter, the Court agreed with Mr. James, and granted judgment in favor of his client. Congratulations Mr. James! 

Claimants’ Ability to Obtain a Permanent Partial Disability Award Affected by Prior Total Disability Retirement

Patrick Spevak v. Montgomery County, Maryland, No. 893, September Term 2020. Opinion by Beachley, J.

    Recently, the Court of Special Appeals held that when an employee who is subject to the provisions of Md. Code Ann., Lab. & Empl. § 9-610(a)(1) receives a service-connected total disability retirement from his or her employer, the LE § 9-610 offset applies to any permanent total or permanent partial workers’ compensation benefits the employee is awarded for injuries or diseases related to that same employment.

    The Claimant in that case, Patrick Spevak, was employed as a firefighter for Montgomery County.  While employed, he sustained a back injury.  This caused him to retire after being granted a service-connected total disability retirement.  Since his retirement, he received service-connected total disability retirement benefits amounting to approximately 70% of his income. 

    Subsequently, Claimant’s hearing deteriorated, causing him to file a workers’ compensation claim for his occupational hearing loss.  After a hearing on the matter, the Workers’ Compensation Commission found Claimant to have a 21% permanent partial disability due to his hearing loss.  The Commission, however, also found that those benefits were completely offset under LE § 9-610(a), due to his prior service-connected total disability award which exceeded the permanent partial disability benefits awarded by the Commission. 

    Claimant appealed the matter to the Circuit Court for Montgomery County.  Both parties moved for summary judgment, and, after a hearing, the Circuit Court found in favor of Montgomery County.  Claimant appealed the matter again, this time to the Court of Special Appeals.

    Md. Code Ann., LE § 9-610(a)(1) provides that if a statute, charter, ordinance, resolution, regulation, or policy, provides a benefit to a covered employee of a governmental unit or a quasi-public corporation that is subject to this title under LE § 9-201(2) of this title, payment of the benefit by the employers satisfies, to the extent of the payment, the liability of the employer and Subsequent Injury Fund for payment of similar benefits under this title. 

    Claimant argued that in order for the two types of benefits to be considered “similar”, they must result from the same injury.  Montgomery County argued that the two types of benefits were “similar” because they both resulted from work-related injuries.  Montgomery County further argued that it made no difference whether Claimant had one or multiple work-related conditions, as the 70% payment from the service-connected total disability encompassed all work-related injuries. 

    The Court of Special Appeals, in making their decision, determined that a service-connected total disability retirement and a permanent total disability award under workers’ compensation law arising from the same employment are “similar benefits” under LE § 9-610, as the benefits paid under the service-connected disability retirement and a workers’ compensation permanent total disability award are the same whether the total disability is traceable to one body part or multiple body parts.  Furthermore, because the service-connected total disability retirement was intended to compensate an employee for any and all work-related injuries, the allowance of a permanent partial disability award would act as a double recovery.  Thus, Claimant’s permanent partial disability benefits are subject to the offset.

    This case highlights the importance of looking for other work-related benefits which may be used to offset any Awards issued by the Maryland Workers’ Compensation Commission.  Keep in mind that this only applies when claimant is employed by a governmental entity or quasi-public corporation. 

-Ashley M. Bond, Associate Attorney

Courts are still figuring out how COVID-19 fits into the legal scheme in Maryland

 Estate of Madden v. Southwest Airlines, Co., Civil Action No. 1:21-cv-00672-SAG, 2021 U.S. Dist. LEXIS 117266 (D. Md. June 23, 2021)             

With the world still being in the throes of a global pandemic, the question has now turned to how courts are deciding cases that have been impacted by COVID-19. Recently, the United States District Court for Maryland decided that it would not make employers liable for alleged negligence because of a lack of safe COVID protocols.

In this case, the plaintiff, Ms. Madden, was a flight attendant for Southwest and was required to attend mandatory in-person training to remain compliant with the Federal Aviation Administration requirements. The training involved groups of at least ten flight attendants at a time and Ms. Madden was required to attend her training in Baltimore Washington International Airport at the height of COVID. Ms. Madden alleges that Southwest failed to implement reasonable health protocols to prevent the spread of COVID, and as a result of Southwest’s negligence, Ms. Madden was exposed to COVID and passed it on to her husband who also contracted COVID and passed away.

For there to be a negligence claim in Maryland, the plaintiff must successfully allege four elements: (1) a duty was owed by the defendant to the injured individual; (2) there was a breach to that duty; (3) there was an actual injury; and (4) that the injury was a direct result of the breach. The Court in its decision considered the first element of whether Southwest owed a duty to Plaintiff’s husband.

The Court also noted that there is a general rule in Maryland that there is no special duty owed for the actions of a third party. Even though there are exceptions to this rule, the Court held that none of the exceptions apply to this case. Therefore, the Court continued to determine whether or not there was a duty owed to the Plaintiff’s husband by the Plaintiff’s employer.

Ultimately the Court held that there was no duty owed to the Plaintiff’s husband even though the Court determined that the facts of the case indicated satisfied more factors in favor of there being a duty owed by Southwest to Mr. Madden. This is because the Court determined that there is no concrete evidence indicating that Southwest’s training was the reason why Mr. and Ms. Madden contracted COVID. There were too many other factors to consider, and the Plaintiff’s assurance is not enough to convince the Court that Southwest’s training was the sole reason Ms. Madden contracted COVID.

Therefore, despite it being foreseeable that the failure to implement health and safety protocols could lead to the exposure of COVID to employees and their families, the Court could not hold that Southwest owed a duty to its employees’ family members. It will be interesting to see if and how this will change as Courts delve into COVID and its impacts.

-Jocelyn Wang, Law Clerk

           

Congratulations to Associate Towanda Luckett on her Recent Win!

 

Congratulations to Associate Towanda Luckett on her Recent Win! Ms. Luckett represented a client in a motor vehicle tort in which the Plaintiff claimed personal injuries and property damage as a result of her client’s alleged negligence in a side swipe collision. The Plaintiff argued that he was traveling on a roadway in a residential district, had his right turn signal on and was making a right turn when his vehicle was struck on the front passenger side by Ms. Luckett’s client, who was passing in the right lane. During Ms. Luckett’s cross examination, Plaintiff testified that he was traveling in the left lane, closest to the double yellow lines when he attempted to make the right-hand turn. Based upon the client’s testimony that Plaintiff’s vehicle was stopped in the roadway, positioned to make a left turn, without a turn signal, and the photographic evidence presented, the Court ruled in favor of the Defense. The Court found that Ms. Luckett’s client had the right of way, was permitted to pass the Plaintiff’s vehicle on the right and did not contribute to the collision, rather that Plaintiff unlawfully and negligently attempted a right-hand turn from the left lane, barring him from recovering damages.

Governor Hogan Appoints New Judges to Maryland Court of Appeals, Anne Arundel County, Baltimore County, and Washington County

Governor Larry Hogan announced multiple judicial appointments during the months of August and September 2021 for the Maryland Court of Appeals, the Anne Arundel County Circuit Court, the Baltimore County Circuit Court, and the Washington County District Court.

Chief Judge Joseph M. Getty was appointed the Chief Judge of the Maryland Court of Appeals on September 11, 2021. Previous to this, Chief Judge Getty served as a Judge in the 3^rd Appellate Judicial Circuit which contained Allegany, Carroll, Frederick, Garrett, Howard, and Washington counties from June 27, 2016 to September 10, 2021. Chief Judge Getty earned his B.A. in American Studies from Washington College, his M.A. in American Civilization from George Washington University, and his J.D. from the University Of Maryland School Of Law.

Judge Steven B. Gould was appointed to the Court of Appeals for the 7^th Appellate Circuit, which contains Montgomery County on September 11, 2021. Judge Gould previously served as a Judge on the Court of Special Appeals for the 7^th Appellate Circuit from April 18, 2019 to September 11, 2021. Judge Gould earned his B.A. in economics from the University of Pennsylvania and his J.D. from Boston University School of Law.

Judge Michael Edward Malone was appointed to the Anne Arundel Circuit Court on August 12, 2021. Judge Malone previously served as a delegate for District 33 in Anne Arundel County since 2015. Judge Malone obtained his B.S. from West Virginia University and his J.D. from the University of Baltimore, School of Law.

Judge Wendy Anne Zerwitz Schenker Epstein was appointed to the Baltimore County Circuit Court on August 12, 2021. Judge Epstein previously served as a Family Law Magistrate at the Baltimore County Circuit Court since 2014. Judge Epstein earned her B.A. from Western Maryland College (now McDaniel College) and her J.D. from the University of Baltimore, School of Law.

Judge Victoria Jeanne Lobley was appointed to the Washington County District Court on August 12, 2021. Judge Lobley has been a solo practitioner at Lobley Law Office, LLC since 2015, specializing in criminal defense and family law matters. Judge Lobley earned her B.A. from the University of Maryland, College Park, her J.D. from the University of Baltimore, School of Law and her LL.M. in taxation from the Georgetown University Law Center.

Rollins, Smalkin, Richards and Mackie would like to extend their congratulations to all of the new Maryland judicial appointments.  

Maryland Court of Special Appeals Holds that Jury Must Decide Who “Owns” a Dog

Mary Paone Latz v. Jacob Parr, No. 977, September Term, 2019 (Court of Special Appeals of Maryland)

Statistics show dog ownership increased in nearly every demographic over the past 10 years.  It’s no surprise that over the same period the law concerning liability for damages caused by dogs have presented unique challenges for Maryland courts and legislators.  In Mary Paone Latz v. Jacob Parr, the Maryland Court of Special Appeals was recently asked to address a surprisingly difficult question: who “owns” a dog?

           The pup at the center of the controversy was Ravyn, a two-and-a-half year old, seventy-to-eighty pound dog who had an alleged habit of getting loose.  Ravyn was adopted from a Maryland animal shelter by the defendant, Jacob Parr (“Defendant”), and his girlfriend of over nine years, Vicki Nichols.  Ms. Nichols lived and worked in New Jersey and visited Defendant in Maryland on most weekends.  Ravyn usually stayed with Ms. Nichols when she was in New Jersey.

Mary Latz (“Plaintiff”) and her husband rented a basement apartment near Defendant’s home.  On August 15, 2015, Ravyn ran through an open door to the Latz’s residence and began chasing the Latz’s cat.  Plaintiff was injured while trying to restrain and remove Ravyn from the premises.  Defendant and Ms. Nichols claimed Ravyn broke loose while they were walking when the collar broke off allowing Ravyn to run free.  Plaintiff and her husband claimed Ravyn ran loose regularly and, more importantly, was wearing a collar at the time of the incident.

Plaintiff filed suit in the Circuit Court for Howard County seeking compensation for her injuries.  Before the jury returned a verdict, the court granted Defendant’s motion for judgment.  The trial court concluded that the evidence showed that Ms. Nichols was Ravyn’s owner and, because Ravyn got loose while away from Defendant’s property, there was no evidence of Defendant’s negligence.

Plaintiff appealed to the Maryland Court of Special Appeals where the appellate court deliberated over whether Defendant could be considered Ravyn’s owner.  The appellate court analyzed Courts & Judicial Proceedings § 3-1901 (“CJP § 3-1901”), which provided the evidentiary standard for the cause of action.  CJP § 3-1901 was enacted in 2012 following the Tracey v. Solesky decision from Maryland’s highest court.  The Tracey court held that owners or harborers and keepers of pit bull or pit bull mix breeds who knew or had reason to know the breed of the dog could be held strictly liable for injuries caused by pit bulls or pit bull mixes.  CJP § 3-1901 modified this holding by creating a rebuttable presumption that the owner of a dog knew or should have known that the dog was vicious or dangerous, and that the rebuttable presumption could not be ruled on by a judge before a jury returns a verdict.  The language of CJP § 3-1901, however, did not define the term “owner” and failed to expressly include language extending the standard to “harborers” or “keepers” of dogs.

The Maryland Court of Special Appeals concluded that CJP § 3-1901 was enacted only to create the “rebuttable presumption” of the owner’s knowledge of the vicious or dangerous nature of the dog without making any other changes to the common law.  As such, the lack of a clear definition of “owner” in CJP § 3-1901 and its omission of the words “harborers” or “keepers” did not prevent the term “owner” from potentially applying to Defendant in this case.  Because the rebuttable presumption applied to the Defendant, the question of whether Defendant was Ravyn’s “owner” should have been submitted to the jury for consideration before the court granted Defendant’s motion for judgment.  Similarly, the appellate court decided that a jury could have concluded that both Defendant and Ms. Nichols owed duties to Plaintiff to control Ravyn at the time of the incident, meaning that this issue should have been submitted to the jury for a verdict.

The decision in Latz expands the definition of an “owner” of a dog under CJP § 3-1901 to include individuals who keep or harbor dogs.  This will likely enlarge the number of potentially liable parties in future claims for damages caused by dogs.  Because this issue must be decided by a jury first, motions for summary judgment and motions for judgment may be less successful in these cases moving forward, meaning that these cases will likely need to go to trial to obtain a complete defense verdict.

-Benjamin A. Beasley, Associate Attorney

Congratulations to Associate Ben Beasley on his back-to-back trial wins!

Congratulations to Associate Ben Beasley who recently went two-for-two in the District Court of Maryland for Baltimore City. In the morning, Mr. Beasley successfully defended an uninsured motorist claim believed to be the product of a staged accident. Through expert testimony, Mr. Beasley persuaded the judge that the accident could not have occurred in the manner in which the plaintiffs claimed. 

In the afternoon, Mr. Beasley defended a red light dispute with video evidence introduced by the plaintiff supportive of their theory of liability. With the assistance of testimony from his client and an independent witness, the court found that the plaintiff could not meet their burden, and entered judgment in favor of Mr. Beasley's client. 

Maryland Examines Public Policy Weighed Against Insurance Policy Exclusions in Uninsured Motorist Breach of Contract Suit

Dinora Dominquez v. Government Employees Insurance Company, No. 811, September Term 2020. Opinion by Beachley, J.

Maryland law requires that you purchase uninsured/underinsured motorist bodily injury liability insurance that covers at least $30,000 in damages per person injured, with a cap of $60,000 per accident. The Maryland Insurance Article only refers to “uninsured” motorists and motor vehicles, “an uninsured motorist or motor vehicle is, for all intents and purposes, the same as an underinsured motorist or motor vehicle.” Nationwide Mut. Ins. Co. v. Shilling, 468 Md. 239, 248-49 (2020) (citing Connors v. Gov’t Emps. Ins. Co., 442 Md. 466, 474 n.4 (2015)).

In March 2016, Dinora Dominquez was a passenger in a vehicle being operated by her daughter at the time that was rear ended by a vehicle that fled the scene before Ms. Dominquez or her daughter could identify the driver. Ms. Dominguez sustained serious injuries as a result of the collision and filed an uninsured motorist claim through her daughter’s GEICO Insurance policy which provided uninsured motorist bodily injury coverage limits of $30,000 per individual and $60,000 per occurrence. Ms. Dominguez was also insured under a separate GEICO insurance policy, which she purchased with her husband to cover their vehicle. Ms. Dominguez’s GEICO insurance policy provided uninsured/underinsured motorist bodily injury coverage limits of $300,000 per individual and occurrence. Ms. Dominguez filed an uninsured motorist claim with this policy as well.

At the time of the collision, Ms. Dominguez and her daughter resided in the same household. GEICO accepted Ms. Dominguez’s claim filed under her daughter’s policy but denied the claim under her own GEICO policy, citing an exclusion within Ms. Dominguez’s GEICO Policy that allowed the Insurer to deny the claim. The applicable exclusion stated that GEICO’s uninsured motorist coverage did not apply: “[t]o bodily injury sustained by an insured while occupying a motor vehicle owned by an insured and not described in the Declarations and not covered by the Bodily Injury and Property Damage liability coverages of this policy.” For purposes of this case, the GEICO policy defines the word “Insured” to mean: “(a) You and your spouse if a resident of the same household; (b) Your relative if a resident of your household[.]” The GEICO policy defined “You” and “Your” to mean “the policyholder named in the Declarations or his or her spouse if a resident of the same household.” The GEICO Policy defined “Relative” as “a person related to you who resides in your household.”

After the denial of the uninsured motorist claim under her own GEICO policy, Ms. Dominquez filed a breach of contract complaint against GEICO in the Circuit Court for Montgomery County. GEICO moved for summary judgment, asserting that as a matter of law, the exclusion contained within Ms. Dominquez’s policy permitted the denial of the claim. At the conclusion of a hearing on September 24, 2020, the Circuit Court rejected Ms. Dominguez’s argument that the exclusion in her GEICO policy was impermissibly broad and inconsistent with Maryland law contained in Md. Code, Ins. § 19-509(f)(1). The Court granted summary judgment in favor of GEICO.

 In examining the Circuit Court’s ruling on appeal, the Court of Special Appeals reviewed the legislative history surrounding Ins. § 19-509(f)(1), which permits an insurer to exclude coverage when the insured occupies an uninsured vehicle owned by an “immediate family member” who resides in the insured’s household. The public policy in support of Ins. § 19-509(f)(1) is “to prevent a family, owning several motor vehicles, from insuring only one or two of them with an insurer, leaving the other vehicles uninsured, or underinsured under a different policy, and being able to claim uninsured or underinsured motorist benefits from the first insurer even though no premium was paid to the first insurer for coverage of the other vehicles.” Gov't Emps. Ins. Co. v. Comer, 419 Md. 89, 98, 18 A.3d 830 (2011).

Based upon that examination, the Court of Special Appeals ruled that Ms. Dominquez would not be able to recover under her own insurance policy for an injury she sustained in an underinsured vehicle owned by an immediate family member. In affirming the Circuit Court’s decision, the Court of Special Appeals noted the prevailing Maryland law provides that when the contractual provision of an insurance policy conflicts with a stated public policy, the policy provision is invalid, but “only to the extent of the conflict between the stated public policy and the contractual provision.” State Farm Mut. Auto. Ins. Co. v. Nationwide Mut. Ins. Co., 307 Md. 631, 643 (1986) (citing Ins. Comm’r v. Metro. Life Ins. Co., 296 Md. 334, 340 n.6 (1983)).

-Towanda Luckett, Associate Attorney

 

Maryland Courts Determine that Features Inside Leased Property are in the Exclusive Control of the Lessee

 Smith v. Bay Front, LLC, No. 1272, 2021 Md. App. LEXIS 504 (Spec. App. June 15, 2021).

In a recent case decided by the Court of Special Appeals of Maryland, it was held that a tenant cannot recover for damages in premises liability cases using the doctrine of res ipsa loquitor when the owner had no notice or control of any danger regarding a feature inside the tenant’s house.

            In 2018, Ms. Anita Smith was walking down an interior staircase in her leased property when the stairs collapsed beneath her causing injury. Ms. Smith sued Bay Front, the owners of the property, for negligence and argued that res ipsa loquitor should apply. The circuit court held that there was no evidence that Bay Front knew or should have known of any defects in the staircase. As a result, the circuit court granted Bay Front’s motion for summary judgement.

            This Court reviewed and affirmed the circuit court’s judgment. First, the Court decided that Ms. Smith was only an invitee of the property when she occupied common areas. However, because the staircase in question was inside the home that Ms. Smith was leasing, it could not be considered a common area. Furthermore, a landlord is not liable for any injuries sustained by the tenant or their guests from defects inside the leased property that manifests after the tenant is in possession of the property. Therefore, Ms. Smith must prove that there was constructive or actual notice of the defect to show negligence. However, the Court states that, even in Ms. Smith’s own deposition, she testified that she never mentioned any issues or defects regarding the staircase which means Bay Front would not have had any notice regarding the condition of the staircase and the danger it posed.

Ms. Smith argues the doctrine of res ipsa loquitor should apply. However, to prove res ipsa loquitor, Ms. Smith had to show that the staircase was in the exclusive control of Bay Front. In this case, the staircase was inside of Ms. Smith’s leased property and was only used by Ms. Smith and her family. There was no way for Bay Front to observe the staircase and determine its condition without being notified by Ms. Smith. Therefore, the interior staircase was in the exclusive possession of Ms. Smith and does not satisfy res ipsa loquitor.

The Court determined that because Ms. Smith had exclusive control over the staircase and could not show that Bay Front had any actual or constructive knowledge about any defects to the staircase, the circuit court’s decision to grant the motion for summary judgment for Bay Front was correct.   

-Jocelyn Wang, Law Clerk

Congratulations to Associate Ashley Bond on her Recent Win!

 

Congratulations to Associate Ashley Bond on her recent win! Ms. Bond represented a business and its insurance company at the Maryland Workers' Compensation Commission. An employee of the business alleged to have sustained injuries to his arm at work after getting stuck between a ladder and a duct. Ms. Bond argued that an accidental injury did not occur, as alleged, as the employee was inconsistent with his description of the accident and had a lengthy history of prior medical conditions with similar symptoms. Ms. Bond further argued that the employee was not forthcoming with his doctors about his past medical history, including the similar symptoms that he experienced in the past.

The Commission agreed with Ms. Bond and found that no accidental injury occurred. 

Congratulations to Associate Ben Beasley for prevailing on a motion for summary judgment in the Circuit Court for Baltimore City!

 

Congratulations to Associate Ben Beasley for prevailing on a motion for summary judgment in Circuit Court! Mr. Beasley represented one of two insurance companies named as defendants.  The plaintiff sought uninsured motorist benefits from both after an auto accident.  Mr. Beasley’s client insured the vehicle the plaintiff operated at the time of the accident, which was registered out-of-state, was owned by an out-of-state resident, and was insured by an out-of-state insurance policy that excluded the plaintiff from coverage.  The other defendant insured the plaintiff’s personal vehicle, which was not involved in the accident.  Mr. Beasley argued that the court should apply the law of the state where the insurance policy was purchased and uphold the exclusion.  The court agreed and awarded summary judgment in Mr. Beasley’s client’s favor.

Clarity for the Statute of Limitations for Maryland Workers’ Compensation Modification Cases

 Montgomery County, Maryland v. Fernando Rios, No. 2642, September Term 2018.

In February of 2020, the Workers’ Compensation Commission (hereinafter “WCC”), announced that when filing for a modification, the statute only requires that the modification be applied for within the statute of limitations. This holding came out of the Montgomery County, Maryland v. Fernando Rios matter.

            Mr. Rios had filed a request to modify his workers’ compensation award, alleging a permanent partial disability. His filing took place less than one month before the statute of limitations expired. Mr. Rios submitted his filing without yet having obtained a medical evaluation for permanent impairment which is required by COMAR 14.09.09.02B. He did eventually complete the evaluation, but it was after the statute of limitations had expired on the matter.

            Montgomery County claimed that Mr. Rios claim was barred by the statute of limitations due to his failure to complete the medical evaluation, but the WCC disagreed and awarded the modification. Montgomery County then noted a record appeal to the Circuit Court for Montgomery County, once again alleging that the statute of limitations was violated due to Mr. Rios having not completed the medical evaluation. The Circuit Court affirmed the decision of the Commission, an appeal was then filed by the County.

            The Maryland Court of Special Appeals opinion, delivered by Judge J. Beachley, was issued on February 28, 2020. The Court reaffirmed the Circuit Court and the Commissioners position and held that the statute of limitations was not violated. The Court stated that in accordance with Section 9-736 (b)(3) of the Labor and Employment Article, it is only required that a modification of the award be “applied for” within the statute of limitations. The Court cites to the Maryland Court of Appeal’s recent decision in Gang v. Montgomery County, 464 Md. 270 (2019), which held that a failure to file a Motion for Modification form as required under the COMAR regulation, within the statute of limitations, does not bar an otherwise timely claim. The Court cites to this decision, as it sets the precedent that COMAR does not impose an additional requirement in order to satisfy the requirements of LE 9-736(b)(3). The County argued in the alternative that without the medical evaluation, Mr. Rios has no “basis in fact” as to his modification request, but the Court once again rejected this argument.

            This decision affects Maryland Workers’ Compensation Law due to it emphasizing the separation of COMAR requirements from statute of limitation requirements for modification requests. The Court has now clearly stated that it is only required that the modification be “applied for” within the statute of limitations.

-Kari Gallagher, Law Clerk.

RSRM Welcomes Associate Brandon James!

Brandon C. James is a 2020 graduate of the University of Baltimore School of Law and a 2017 graduate of the University of Maryland, Baltimore County. While attending UMBC, Mr. James majored in English and competed in the American Mock Trial Association, where he was named an All-American Attorney. In law school, Mr. James was inducted into the Royal Graham Shannonhouse III Honor Society, a staff editor of the University of Baltimore Law Forum, and a competing member of the National Trial Competition Team. He also completed internships with the Maryland Office of the Attorney General, Civil Division, and a mid-sized law firm, where he worked on matters including products liability, mass tort, and environmental law. 

Upon graduating from law school, Mr. James completed a judicial clerkship for the Honorable Kendra Y. Ausby at the Circuit Court for Baltimore City. While clerking for Judge Ausby, Mr. James conducted research on issues including business litigation, labor and employment litigation, and administrative law.

In his spare time, Mr. James enjoys traveling, watching Ravens football, and spending time with his family. Mr. James is originally from Baltimore City, so he also spends time volunteering in the community. 

Maryland Courts Refuse to Allow Non-Economic Damages for Pets

 Anne Arundel Cty. v. Reeves, No. 68, 2021 Md. LEXIS 259 (June 7, 2021)

    Recently, the Court of Appeals of Maryland held that an owner of a beloved pet may not recover for non-economic damages such as mental anguish or the loss of companionship.

    In 2014, Officer Rodney Price was investigating a string of burglaries in Anne Arundel County when he was allegedly attacked by Michael Reeves’ dog, Vern. As a result, Officer Price shot Vern and caused his death.

    The Reeves’ ("dog owners") filed suit against Anne Arundel County and Officer Price for trespass to chattel, violation of Reeves’ constitutional rights for the unlawful shooting and seizure of Vern, and gross negligence. The jury in trial court decided that Officer Price did commit trespass to chattel, violated both constitutional rights regarding the unlawful shooting and unlawful seizure of Vern, and was grossly negligent. However, the jury decided not to award any damages for the violations of constitutional rights but did award a total of $1,250,000 in economic and non-economic damages for gross negligence. Additionally, the jury awarded $10,000 in economic damages for the claim of trespass to chattel.

    The circuit court decided to amend the amount in damages by reducing the award for trespass to chattel to $7,500 due to the limit set by Md. Code Ann., Cts. & Jud. Proc. § 11-110 and decided to reduce the gross negligence award to $200,000. Afterward, the Court of Special Appeals held that CJP § 11-110 does not limit the amount of Reeves’ damages.

    The Court of Appeals decided damages are limited to $7,500 after reviewing the plain meaning and legislative history of CJP § 11-110. Because the statute defines compensatory damages as the fair market value of the pet and the reasonable and necessary cost of veterinary care, the Court of Appeals decided that meant damages were limited to these costs. Furthermore, the Court determined that the use of the word “means” indicates the list provided was complete and not illustrative.

    Additionally, the refusal to pass bills that amended the statute to allow for recovery of non-economic damages also indicated the General Assembly’s desire to limit compensatory damages. Therefore, the Court of Appeals decided to reverse the decision by the Court of Special Appeals.

    On the other hand, the dissenting opinion by Judge Hotten indicates that the majority erred in its decision to limit damages for the loss/injury of pets. Judge Hotten recognized the connection between pets and humans and how other states have protected this relationship by allowing non-economic damages for the loss/injury of pets. Judge Hotten points out the idiosyncrasy of no limit on compensatory damages on all other types of property except pets. As Judge Hotten states, a person can kill “a beloved family dog…and pay no more than $10,000 in damages” while a liar who “tricks a family into selling a painting…would face uncapped…damages.”

    This decision shows how Maryland courts still limit the amount in damages that can be recovered for the loss/injury of a pet, but Judge Hotten indicates how the value of pets in society has changed and how the courts should follow suit.

-Jocelyn Wang, Summer Associate

RSRM Welcomes Associate Towanda Luckett!

Mrs. Luckett graduated from the University of Baltimore School of Law in 2016, and graduated from University of Maryland Global Campus, formally University of Maryland University College, in 2011 with an MBA degree. 

While attending law school, Mrs. Luckett completed a summer semester abroad, studying Comparative Civil Liberties in Haifa, Israel. She was also a Rule 16, Student Attorney with the Juvenile Justice Project where she assisted juvenile offenders serving life prison sentences in preparing for parole hearings. Mrs. Luckett was employed as a paralegal by the University of Baltimore Innocence Project Clinic, while earning her Juris Doctorate as an evening student. 

Following law school, Mrs. Luckett worked as an Honors law clerk for the Office of the State's Attorney for Baltimore City in the Homicide Division. After being promoted, Mrs. Luckett served as an Assistant State's Attorney, prosecuting a variety of cases in the Juvenile, District and Circuit Courts, and concluded her tenure in the Special Victims Unit. 

In her leisure, Mrs. Luckett enjoys traveling with her husband, cooking, watching crime dramas, reading, cheering on the Baltimore Ravens, and spending time with her nieces and nephews. 

Governor Hogan Appoints New Judges to Baltimore, and Carroll Counties

 Governor Larry Hogan recently announced multiple new judicial appointments to the Baltimore County District Court as well as the Circuit Court for Carroll County.

Judge Krystin Richardson was appointed to the Baltimore County District Court. Prior to her appointment, she served as an administrative law judge with the Office of Administrative Hearings since 2018, and prior to working as an ALJ, she served as an Assistant State’s Attorney in Baltimore County. Judge Richardson obtained her B.A. from the University of Maryland Eastern Shore and her J.D. from the University of Maryland Francis King Carey School of Law.

Judge Susan Zellweger, also appointed to the Baltimore County District Court, received her B.A. from the University of Delaware and her J.D. from the University of Baltimore School of Law. She served as a judicial law clerk to the Honorable Alfred L. Brennan in the Circuit Court for Baltimore County, and has worked as a public defender in Baltimore County since 1998.

Governor Hogan appointed Brian DeLeonardo to the Circuit Court for Carroll County. He obtained his B.S. from Towson University and his J.D. from the University of Baltimore School of Law. He began his career serving as a law clerk for the Honorable Charles E. Moylan, Jr. in the Court of Special Appeals, followed by working as an Assistant State’s Attorney in Carroll County. Judge DeLeonardo also worked with the Office of the Attorney General and served as managing partner of DeLeonardo, Smith & Associates handling criminal and civil matters. Since 2014 until his appointment, he served as the State’s Attorney for Carroll County.

 

Congratulations to Maryland’s new judges!

A Preliminary Decision from the Maryland Insurance Administration Does Not Constitute A “Final Decision” For the Purposes of Collateral Estoppel

 David Boyd, et ux. v. The Goodman-Gable-Gould Company, No. 2139, September Term 2019. Opinion by Eyler, James R., J.

    After a fire destroyed the home of David Boyd and Penny Coco-Boyd (collectively “the Boyds”) in 2016, they gave notice of their loss to their homeowners’ insurer, State Farm Fire and Casualty Company (“State Farm”). The Boyds subsequently engaged the services of Goodman-Gable-Gould Co. (“GGG”), a public adjuster, to adjust their claim with State Farm. A public adjuster is an independent insurance professional that a policyholder may hire to help settle an insurance claim in exchange for a percentage of any proceeds collected on the policyholder’s behalf.

    The Boyds eventually became dissatisfied with GGG’s services and filed a complaint against GGG with the Maryland Insurance Administration (“MIA”), alleging that GGG engaged in fraudulent and dishonest practices, displayed incompetence, and wrongfully withheld monies. The MIA ultimately issued a preliminary decision in favor of GGG. Although the Boyds were entitled to challenge the Commissioner’s preliminary decision under Maryland Code Ann., Insurance § 2-210, the Boyds elected not to request an administrative hearing to contest that determination.

    While the MIA complaint was pending, the Boyds initiated a declaratory judgment action in the Circuit Court for Montgomery County, seeking a declaration that they had a right to terminate their contract. In response, GGG moved for summary judgment on the basis that, since the Boyds did not file an administrative appeal within thirty (30) days, the preliminary decision issued by the MIA became a “final decision.” According to GGG, the Boyds were collaterally estopped from pursuing their claims in the circuit court since they pursued claims premised on the same core facts before the MIA. The court agreed with GGG and held that, since the Boyds chose not to contest the MIA’s preliminary decision in favor of GGG, the Boyds had been afforded “every opportunity to pursue their claims” administratively and were estopped from doing so in the circuit court.

    In reviewing the circuit court’s ruling on appeal, the Court of Special Appeals cited to Baston v. Shiflett, 325 Md. 684, 705 (1992), which held that “the decision of an administrative agency may have preclusive effect if the agency decision was the product of a quasi-judicial proceeding.” In making that determination, the Court employed a three-part test for deciding the preclusive effect of agency decisions. An agency decision can have preclusive effect if: (1) the agency acted in a judicial capacity; (2) the issue presented to the fact finder in the second proceeding was fully litigated before the agency; and (3) resolution of the issue was necessary for the agency’s decision. Exxon Corp. v. Fischer, 807 F.2d 842, 845-46 (9th Cir. 1987) (citing Batson, 325 Md. at 701).

    The Court next looked to Md. Code Ann., Ins. § 2-214(a), which provides that the MIA Commissioner acts in a quasi-judicial manner when holding a hearing on a challenge to its preliminary decision. In this case, since the Boyds never requested a hearing pursuant to Md. Code Ann., Ins. § 2-210, the Boyds action before the MIA never amounted to a quasi-judicial proceeding.

    Since the MIA Commissioner’s preliminary determination in favor of GGG was not deemed to be a “judicial proceeding,” the three-part Baston test was not satisfied, and the Court held that the Boyds were not collaterally estopped from pursuing concurrent relief in the circuit court.

-John Thompson, Associate Attorney

Congratulations to John Thompson on his Recent Trial Win!

 

    John's client was falsely accused of running a red light, thereby causing a three-car collision. One of the drivers involved in the collision, Plaintiff, alleged injuries due to the accident. 

    Plaintiff's mother testified at trial that she arrived at the scene following the collision and heard John's client say that he was "trying to beat the light." 

    John's client and the third driver involved in the accident testified that John's client had a green light when he entered the intersection. 

    Plaintiff testified that she had not yet entered the intersection when John's client ran the red light and struck her vehicle, Plaintiff provided photographs of her vehicle, which she indicated were taken at the location of the impact. Those photographs were contradictory to Plaintiff's testimony, as her vehicle was positioned in the middle of the intersection. 

    Based on this inconsistency, the Court found John's client's version of the accident to be more credible than Plaintiff's, and therefore the Court entered judgment in favor of him. 

Promising New Changes for Civil Litigation in Maryland

           The Maryland General Assembly has recently certified multiple proposed constitutional amendments for the November 8, 2022 ballot. These proposed amendments, if successful, will cause some major changes to civil litigation in the State of Maryland.

The Maryland General Assembly recently passed Senate Bill 670 (SB670). SB670, if successful on the ballot, will change the maximum amount in controversy in which a party can bring a civil suit without a jury trial from $15,000 to $25,000.

The bill was first read during Senate Judicial Proceedings on February 3, 2021 and in its initial reading it stated the amount in controversy as being raised to $30,000.  It was then amended in the House on April 9, 2021, and the amount in controversy was changed to $25,000. The bill then went back to the Senate and was passed on April 12, 2021 with the House Amendment. The bill was then enacted under Article II, Section 17(c) of the Maryland Constitution – Chapter 598 on May 30, 2021. It is now certified to appear on the Maryland Ballot on November 8, 2022 as a constitutional amendment.

This proposed amendment will have a large impact on civil litigation in Maryland if it succeeds. By raising the amount in controversy in which parties may sue without a jury trial, there may be a reduction in the number of civil jury trials, and an increased amount of bench trials. This would alleviate some of the burden on both the Maryland Courts and the parties to civil litigation as jury trials are often more time consuming and costly as compared to bench trials. The change will mean that only parties to litigation with an amount in controversy over $25,000 may demand a jury trial.

In addition to SB670, the upcoming November 8, 2022 ballot will contain a vote regarding name changes to both of Maryland’s Superior Courts. Currently Maryland’s initial appeals court is named the Maryland Court of Special Appeals and Maryland’s Superior Court is named the Maryland Court of Appeals. The proposed changes would change the Maryland Court of Special Appeals’ name to the Appellate Court of Maryland and change the Maryland Court of Appeals’ name to the Supreme Court of Maryland. Chief Judge of the Maryland Court of Appeals Mary Ellen Barbera stated that the current Court names have caused “confusion from beyond the borders of our state as lawyers, law students and litigants research, contact and even file papers with the wrong court. That same confusion persists among Marylanders.”[i] The proposed name change will ideally alleviate the confusion that Chief Judge Barbera addresses.  

As we approach the November 8, 2022 ballot, it will be important to watch for these proposed changes and how they affect the future of civil litigation in Maryland.

-Kari Martiniano, Law Clerk

---

[i] Danielle E. Gaines, General Assembly Passes Bill to Rename Maryland’s Top Court, Maryland Matters (April 6, 2021), https://www.marylandmatters.org/blog/general-assembly-passes-bill-to-rename-marylands-top-court/.

Congratulations to Two Associates on their Recent Trial Wins!

Congratulations to Associate Benjamin Beasley on his recent jury trial win! Mr. Beasley's client was falsely blamed for causing an accident. The plaintiff claimed that his truck was pushed and forced off the side of the road while Mr. Beasley's client was allegedly involved in street racing. At the time of the incident, Mr. Beasley's client was driving a rental vehicle in the area of the accident that matched the description of the purportedly at-fault vehicle. Mr. Beasley's client adamantly denied any involvement in the alleged accident. 

A witness claimed to have witnessed the event and took photographs of the at-fault vehicle. At the time of the lawsuit, however, both the witness and the plaintiff "lost" the photos. 

At trial, Mr. Beasley highlighted glaring inconsistencies in the witness' and the plaintiff's version of events, as well as perceived biases on the part of the witness. Mr. Beasley corroborated his wrongfully accused client's version of events with business records and testimony from the rental car company that showed that there was no damage to the rental vehicle when it was inspected and ultimately returned and that the tags on the rental car did not match the witness' description of the at-fault vehicle. 

The jury deliberated for nearly an hour, but ultimately returned a verdict finding that Mr. Beasley's client was not liable. 

___________________________________________________________________________________

Congratulations to Associate Ashley Bond on her recent trial win! Ms. Bond represented an insurance company who allegedly breached their contract with their insured by failing to pay uninsured motorist benefits. 

The insured, Plaintiff, contended that she was entitled to uninsured motorist benefits as she was involved in a hit-and-run accident, and she sustained injuries from that accident. 

Plaintiff, however, could not recall details of the vehicle that struck her nor the circumstances surrounding the accident. Furthermore, Plaintiff's version of events changed when she described the accident to emergency responders and medical providers. 

To make matters worse, at trial, Plaintiff testified that she saw the unidentified vehicle enter the intersection and head in her direction, yet she decided to step off the curb and cross the street at that same time. 

After a rigorous cross-examination of the Plaintiff, Ms. Bond argued that given Plaintiff's inconsistencies, Plaintiff was not credible, and even if she was, she would be contributorily negligent. 

The Court agreed with Ms. Bond and ruled in favor of the Defendant. 

The Maryland Workers’ Compensation Commission’s Refusal to Reopen a Claim is not Subject to Judicial Review

 Bd. of Educ. v. Sanders, No. 111, 2021 Md. App. LEXIS 253 (Spec. App. Mar. 31, 2021)

       The Maryland Court of Special Appeals recently held that a Maryland Workers’ Compensation Commission’s (the “Commission”) order summarily denying the reopening of claim is not subject to judicial review, as the Commission did not consider new evidence nor address the merits of the request.  

      Linda Sanders (“Sanders”) filed a workers’ compensation claim for injuries she sustained to her neck and left shoulder. On June 25, 2015, the Commission issued an order, which denied Sanders’ request for temporary total disability benefits and authorizations for surgery to the left shoulder, a referral to a spine specialist, additional weeks of physical therapy, and an Electromyography (“EMG”).

      Three (3) years later, Sanders filed a request for modification of the June 25, 2015 Order. She attached medical bills and a report from Dr. Anand Murthi (“Dr. Murthi”) whom she ultimately sought for surgical treatment of her left shoulder. She requested payment of such bills. The Commission denied this request. Sanders appealed to the Circuit Court of Harford County (the “Circuit Court”). This appeal was dismissed as it was untimely.

     Again, on January 3, 2019, Sanders filed a request for modification of the June 25, 2015 Order.  She requested identical relief, namely, payment of Dr. Murthi’s medical bills. Sanders attached a transcript of Dr. Murthi deposition in which he opined that Sanders required a total left shoulder replacement surgery. The Commission again, without holding a hearing, denied this request on January 4, 2019. Sanders appealed to the Circuit Court. The Employer and Insurer filed a motion to dismiss for failure to state a claim, arguing that the Commission’s January 4, 2019 Order was not subject to appeal. The Circuit Court denied this motion. Ultimately, both parties filed motions for summary judgment. The Circuit Court granted Sanders’ motion, and remanded the case back to the Commission, instructing the Commission to consider Sanders’ request for modification. The Employer and Insurer appealed to the Court of Special Appeals.

    The Court of Special Appeals noted that Maryland Courts have consistently held that the Commission’s decision to deny a request to reopen and modify a claim is not a reviewable decision. The Court of Appeals distinguished between Commission decisions which consider new evidence and address the merits of a request to reopen and those which summarily deny such requests. Specifically, if the Commission considers the merits of the claimant’s argument or relies on new evidence in the issuance of a new or amended order, then the decision is reviewable. 

      When determining whether an Order is reviewable the trial court should look at whether evidence was taken on the application, whether, in entering its new order, the Commission discussed or made findings with respect to the correctness, validity, or propriety of the earlier order, and whether, in denying relief, the Commission either acted summarily, without assigning reasons, or focused only upon defects in the application itself. 

   Here, the Commission summarily denied Sanders’ request and did not hold a hearing on the matter.  Furthermore, the Commission did not make any findings regarding Sanders’ request or alter the original Order in any way. Therefore, the Commission did not perform any of the actions in its denial which would allow the January 4, 2019 Order to be reviewable.

-Ashley Bond, Associate Attorney

Maryland Court of Appeals Determines That the Breach of the Duty to Defend Does Not Entitle a Plaintiff to Prejudgment Interest as a Matter of Right

 Nationwide Property & Casualty Insurance Company, et al. v. Selective Way Insurance Company, Court of Special Appeals of Maryland, September Term, 2020 (April 1, 2021), Opinion by Getty, J.

In 2001, Questar Builders, Inc. (“Questar”) was hired as a general contractor for a new apartment complex.  Questar hired numerous subcontractors, who were contractually obligated to obtain general liability policies listing Questar as an additional insured prior to commencing work on the project. Four of these subcontractors obtained insurance agreements with Selective Way Insurance Company (“Selective Way”).

In 2006, the owner of the complex sued Questar and others alleging defective construction with $4.5 million in property damage. Questar’s own liability insurer, Nationwide Property and Casualty Insurance Company (“Nationwide”) appointed and paid for defense counsel for Questar, who denied liability and filed third-party complaints against each of their sub-contractors seeking indemnity and contribution for the work they each performed on the project. Questar also wrote to Selective Way to seek defense and indemnification according to the four policies listing Questar as an additional insured.  Despite this, Selective Way denied Questar’s requests.

        The primary suit against Questar settled but the action regarding Selective Way’s duty to defend Questar continued. After years of litigation, it was determined that Selective Way breached its duty to defend Questar in the construction defect lawsuit and was liable to Nationwide in the amount of $1,647,659.00, including over $400,000.00 dollars in prejudgment interest. Selective Way filed a timely appeal to the Court of Special Appeals challenging the ruling that they had a duty to defend the underlying construction lawsuit, the prejudgment interest on the damages awarded by the jury, and the award of attorneys’ fees and expenses incurred by Nationwide in the declaratory judgment action.  The Court of Special Appeals reversed the circuit court’s judgment with respect to prejudgment interest on defense costs and remanded the issue of attorneys’ fees and expenses incurred in the construction defect suit. Nationwide filed a timely petition to the Court of Appeals, which was granted solely on the issue of prejudgment interest.

The Court of Appeals started their analysis with the general rule that entitlement to prejudgment interest is an issue for the finder of fact and should typically be “left to the discretion of the jury.” I. W. Berman Props. v. Porter Bros., Inc., 276 Md. 1, 18 (1975) (quoting Affiliated Distillers Brands Corp. v. R.W.L. Wine & Liquor Co. Inc., 213 Md. 509, 516 (1957)).  However, the court recognized that there is an exception to this rule that allows for prejudgment interest as a matter of right when “the obligation to pay and the amount due” is “certain, definite, and liquidated by a specific date prior to judgment” such that “the effect of the debtor’s withholding payment was to deprive the creditor of the use of a fixed amount as of a known date.” Buxton v. Buxton, 363 Md. 634, 656 (2001) (quoting First Virginia Bank v. Settles, 322 Md. 555, 564 (1991)).  The court also pointed to Maryland Rule 2-604(a) as the source of the procedural requirements for obtaining pre-judgment interest in the State of Maryland, which states rewards of a prejudgment interest must be “separately stated” in a verdict sheet. See Fraidin v. Weitzman, 93 Md. App. 168, 219 (1992).

On Appeal, Nationwide argued that this case was exceptional and met the requirements for prejudgment interest as a matter of right because of Selective Way’s duty to provide a defense to Questar. Although the Court of Appeals agreed with this basic premise, they identified issues with the other elements necessary to establish prejudgment interest as a matter of right.  The court had previously determined that, where a contract requires a “sum certain on a date certain[,]” the amount due is fixed. United Cable Television of Balt. v. Burch, 354 Md. 658, 669 (1999) (quoting Crystal v. West & Callahan, Inc., 328 Md. 318, 343 (1992)).  Nationwide contended that the defense costs were definite and fixed at the time they were incurred and, but for Selective Way’s breach of its duty to defend Questar, Selective Way would have been aware of the exact costs as evidence by paid invoices and receipts.

To the contrary, the Court of Appeals determined that the legal fees incurred by Nationwide in its defense of Questar were not ascertainable at the time of the breach and therefore were not liquidated on a date prior to trial.  The Court of Appeals reasoned the attorney’s fees incurred by Nationwide in its defense of Questar were billed at an hourly rate as litigation work was completed and the full cost of the defense was not ascertainable at the time of Selective Way’s breach because the full cost to defend Questar had not yet been incurred by Nationwide.

The Court of Appeals then turned to the procedural requirements of Md. Rule 2-604(a). In this case, the jury was not provided instructions on prejudgment interest and included no mention of prejudgment interest in their verdict sheet. The court held that Md. Rule 2-604(a) provides a uniform rule that all discretionary awards of prejudgment interest by a fact finder must be separately stated in the verdict or decision.  Since this requirement was not met, the Court of Appeals found no basis to uphold the circuit court’s award of prejudgment interest in this case.

For these reasons, the Court of Appeals found that Nationwide was not entitled to prejudgment interest as a matter of right and the lack of a separately stated award of prejudgment interest in the verdict sheet failed the requirements for a discretionary award under Maryland Rule 2-604(a).  This decision provides clarity on several issues regarding how to preserve claims for prejudgment interest related to defense costs and the procedures necessary to ensure that fact finders have the tools and information necessary to articulate the type of interest owed by an insurance provider when similar breaches occur.

- Horton McCormick, Associate Attorney