Maryland Court of Appeals Prevents an Injured Firefighter from Double Dipping

Spevak v. Montgomery Cnty., 2022 Md. LEXIS 323.

        Recently, the Maryland Court of Appeals issued an unreported opinion that clarified the standard necessary to apply the offset provision contained in Md. Code Ann., Lab. & Empl. § 9-610.  The offset provision was designed to preclude duplicative recovery for the same injury, essentially preventing double-dipping into the same pot of comparable benefits.  This provision does not however hinder a claimant from receiving workers’ compensation benefits that are owed.  Instead, it is a means of regulating the terms of compensation for injury.

        The case before the Court of Appeals involved a firefighter who, after serving nearly three decades, went into retirement due to a service-related back injury.  Upon his retirement, Mr. Spevak began collecting $1,859.07 per week in service-connected total disability retirement benefits.  Nine years into retirement, Mr. Spevak suffered hearing loss related to his employment from exposure to loud noises, such as fire engines, sirens, and alarms.  Due to this hearing loss, Mr. Spevak filed an additional workers’ compensation claim to which the County objected.  The County argued that Mr. Spevak’s compensation for his hearing loss should be offset because he was already receiving service-connected total disability retirement benefits due to his back injury, which compensated him for wage loss. The County further noted that a failure to apply the offset would result in duplicative recovery for the same loss and Mr. Spevak would collect more than the maximum compensation available. Such compensation would be contrary to the legislative intent and workers’ compensation law.  Mr. Spevak countered arguing that prior case law identifies a “same injury” test, and if applied, compensation for hearing loss should not be offset because the back injury arose nine years prior to the occupational hearing loss. If the “same injury” test would not be satisfied, then Mr. Spevak’s compensation would not be subject to any offset.  

        The sole issue, in this case, was whether Mr. Spevak’s benefits were “similar benefits” under LE § 9-610. To address this question, the Court looked to the plain language of LE § 9-610(a) and prior case law and concluded that the “same injury” standard is the proper test to identify whether benefits are subject to an offset under LE § 9-610. The Court ultimately held for the County, stating that the benefits Mr. Spevak was receiving for his back injury fully compensate him for all injuries related to his service as a firefighter. Other service-connected benefits would therefore be duplicative under the workers’ compensation system.

        Following this case, it becomes apparent that in the event an individual suffers more than one occupational injury, benefits may be “similar” and subject to the offset even if injuries develop on different body parts and/or there is a significant gap of time from which the injuries developed. The focus and application of the provision appear to fall on the type of benefit received, rather than the type of injuries suffered.

                -- Faith Zellman, Law Clerk

            

Maryland’s Intermediate Appellate Court Expands Scope of Personal Safety Exception

 

David P. Bogert, et al. v. Thomas A. Thompson, Jr., et al., No. 1171, Sept. Term, 2021.

    Under most circumstances, a plaintiff cannot recover for pain and suffering when the damage caused by a defendant’s negligence is limited to property only. A person seeking to recover for emotional pain in tort usually must also show an accompanying bodily injury. However, in a recent case Maryland’s Court of Special Appeals (“COSA”) expanded the scope of one exception to this general rule.

    At issue in Bogert v. Thompson was the application of the personal safety exception. Under this rule, there may be recovery when the defendant’s negligence causes property damage that results in emotional injuries that are due to the plaintiff’s reasonable fear for the safety of himself or for the members of his family.

    The facts of the case are as follows: On September 22, 2019, during the early morning hours Thomas A. Thompson, Jr. crashed his truck into the house where David P. Bogert and his family resided. Mr. Thompson was driving under the influence of alcohol, lost control of his truck, and crashed it through the Bogerts’ garage. Directly above the garage were the bedrooms of Mr. Bogert’s minor children. At the time, everyone was asleep but were immediately awakened by the sound of the truck’s impact. The noise caused Mr. Bogert to experience a flashback to an incident in 2005 while he was serving in Iraq. As a result, Mr. Bogert immediately believed his house was under attack and he rushed to his children’s bedrooms.

    Counsel for the Defendant, Mr. Thompson, moved for summary judgment and argued that, since the only damage caused by the Defendant was to the Bogerts’ property (which occurred while the Bogerts were sleeping), there could be no recovery for emotional injuries. To support this position, the defense distinguished the current case with the facts of Bowman v. Williams, 164 Md. 397 (1933), which allowed the plaintiff to recover for mental injuries after he witnessed a truck collide into the side of his house nearby his children’s bedroom. In Bowman, the plaintiff actually witnessed the negligent damage to his property while in the current case the Bogerts did not. The circuit court agreed that Bowman was distinguishable and granted summary judgment.

    On appeal, counsel for the Bogerts argued that the personal safety exception was applicable because Mr. Bogert was placed in reasonable fear for the safety of his children due to Mr. Thompson’s negligence, and this fear caused Mr. Bogert to incur measurable emotional injuries. In response, counsel for the Defendant argued that the cases applying the personal safety exception all involve situations where the plaintiff witnessed the accident giving rise to their mental injury. As such, observing the act of negligence is necessary before the exception will apply.

    In rejecting this contention, the COSA stated that a tortious act damaging a plaintiff’s property and causes what sounds like a loud explosion would likely cause a plaintiff to be just as afraid for his safety and the safety of his family if he hears the explosion, but does not see what caused it, as a plaintiff who sees the cause by witnessing the negligent act unfold. Therefore, when applying the personal safety exception the plaintiff need not witness the accident so long as (1) he was aware of it immediately after the accident occurred, and (2) that awareness caused the plaintiff to reasonably fear for his own safety or the safety of his family members.

             -- John Thompson, Associate

 

RSRM Congratulates its Attorneys on their Maryland State Bar Association Appointments!

 

Tara Barnes, Partner – MSBA Judicial Appointments                                                                         Committee Co-Chair

John Thompson, Associate – MSBA Young Lawyers Section Council                                                            Wellness Committee Co-Chair

Ashley Bond, Associate – MSBA Young Lawyers Section                                                                        Council Wellness Committee Co-Chair

Logan Hayes, Associate - MSBA Young Lawyers Section Council                                                         Harford / Cecil Circuit Representative

The Court of Special Appeals Clarifies Subrogation Rights of Carriers Under the Maryland Workers’ Compensation Act

Conley v. Trumbull Ins. Co., No. 0081-2021 (Md. Ct. Spec. App. Jul. 18, 2022)

    In a recent unreported opinion by the Court of Special Appeals, a three-judge panel confirmed that the Appellee did not waive their subrogation interest by failing to expressly reserve that right in the final settlement agreement between the parties. This case stemmed from an on-the-job injury that occurred due to the negligence of a third-party tortfeasor. Following the injury, the Appellant retained an attorney and filed a workers’ compensation claim against Appellee, the employer’s workers’ compensation carrier. Additionally, Appellants filed a “third-party claim” against the tortfeasor, an employee of a national bottling company. Appellants and Appellee reached an “Agreement of Final Compromise and Settlement” which concluded Appellants’ claim against Appellee. Appellants' claim against the Third Party was subsequently settled. 

    Appellee then sought reimbursement from Appellants’ third party settlement under Appellee’s right of subrogation under the Maryland Workers’ Compensation Act (“MWCA”). However, Appellants refused to provide the proceeds of the third party settlement because they believed Appellee waived its right to subrogation by failing to preserve that right in the final settlement agreement between the parties. In turn, Appellee filed a complaint against Appellants in an attempt to enforce Appellee’s subrogation right under the statute. On July 17, 2020, the Circuit Court of Baltimore County granted summary judgment in favor of Appellee, finding as a matter of law that Appellee’s statutory lien under the MWCA, survived the full and final settlement agreement. Appellants filed a notice of appeal. 

    The main question on appeal was did the Circuit Court err in granting summary judgment of Appellee’s statutory subrogation claim against Appellant, where Appellee did not expressly reserve their statutory subrogation interest in the full and final settlement agreement between the parties? Appellants believed that Appellee had waived their right to the third party proceeds by failing to reserve their statutory right under the details of the full and final settlement. Appellee argued that their silence concerning their subrogation rights did not amount to a waiver of their statutory lien on any of Appellants’ recoveries from the third-party tortfeasor. Since the decision to grant summary judgment is purely legal, the case was reviewed de novo. 

    No case law in Maryland had determined whether an employer/insurer’s subrogation right may be extinguished by failing to reserve that interest in a settlement agreement. However, after analyzing the MWCA’s amended history, along with general provisions, this indicated to the court that before October 1, 2018, an employer/insurer’s subrogation interest was not waivable by agreement. The court held that at the time of this claim, an employer’s subrogation interest was not waivable by agreement under Md. Code Ann., Lab & Empl. §9-104. As a result, Appellee did not waive its subrogation interest by failing to expressly reserve it in the final settlement agreement between the parties. This decision clarified workers’ compensation carrier’s subrogation rights against claimants in the state of Maryland. 

            -- Scott Mitchell, Law Clerk

Cosa Makes Clear That “Definite Proof” In WCC Hernia Claims Refer To The Quality Of Evidence And Not A Heightened Standard Of Proof

    The Court of Special Appeals (“COSA”) recently issued a reported opinion discussing the “definite proof” requirement found in Section 9-504 of the Maryland Labor and Employment Article. Section 9-504 of the Maryland Labor and Employment Article requires an employer to provide compensation to a covered employee for a hernia arising in the course of employment if the employee provides “definite proof” that satisfies the Workers’ Compensation Commission (“WCC”) that: (1) the hernia did not exist before or as a result of injury or strain a preexisting hernia has become so aggravated, incarcerated, or strangulated that an immediate operation is needed, and (2) notwithstanding any other provision of the title about notice, the injury is reported to the employer within forty-five (45) days of the occurrence.

    This case arose in September 2019 when a UPS employee sustained a hernia injury while working in the course of his employment. The employee notified UPS of the injury the following day, and over the following months, the employee met with doctors and eventually had surgery to repair the hernia in November 2019. In February 2020, a hearing was held before the WCC, after which the WCC found the employee sustained an accidental injury arising out of the course of employment, the disability of the employee’s hernia is the result of the accident injury, and the employee was temporarily totally disabled from September 2019 to January 2020. As a result, UPS and its insurer had to pay causally related medical expenses and weekly pay. UPS and the insurer subsequently appealed the WCC decision to the Circuit Court for Howard County, where an “on-the-record” hearing was held in August 2020. The circuit court affirmed the WCC decision. UPS and insurer thereafter appealed to the Court of Special Appeals, where they argued, among other things, that the WCC and circuit court erred in applying a preponderance of the evidence standard to the “definite proof” requirement in § 9-504.

    COSA began its analysis with the plain language of the statute. Finding that the statute does not expressly or implicitly equate “definite proof” with any standard of proof, it reasoned that if the Maryland Legislature had wanted a heightened standard, it would have done so expressly. COSA then proceeded into Maryland case law on the issue and found that the Court of Appeals never made reference to any new or stricter standard, but rather its analyses in the cases focused on the lack of certainty in the proof provided. Last, COSA looked to neighboring jurisdictions with similar statutes and found that, similar to Maryland, these jurisdiction’s case law never equated “definite proof” to a higher standard of proof. Based on its entire review, COSA held that the language of the statute is clear and that the term “definite proof” refers to the quality of evidence and does not constitute a standard of proof.

    While this case makes clear there is no heightened standard similar to that of a clear and convincing standard, it should put practitioners on notice of the need to have clear and credible evidence that can sufficiently satisfy Section 9-504’s requirements.

                    --Bryan P. Cleary, Associate

Congratulations to Associate Logan Hayes on her recent trial win in the District Court for Prince George’s County!

Ms. Hayes successfully defended an aquarium tank company in a product liability case. Plaintiff alleged that his 500-gallon aquarium tank had developed a leak due to a product defect, resulting in damage to his home. At trial, after Plaintiff rested his case, Ms. Hayes moved for judgment in favor of her client. Using applicable case law and relevant statutes, she argued that Plaintiff failed to prove his claims of breach of implied warranty of merchantability, breach of implied warranty for fitness for a particular purpose, and negligence. The court agreed, finding that Plaintiff had not met his burden in proving any of his claims, and entered a judgment in Ms. Hayes’ client’s favor.

Congratulations to Ms. Hayes on this outcome!

The Supreme Court’s Prescription for the United States: Implications of Ruan v. United States

         Amongst the recent release of controversial opinions, the Supreme Court issued an opinion that opioid “pill mill” doctors cannot be convicted under the Controlled Substances Act (“CSA”) without a finding of subjective mens rea. The CSA makes it unlawful for any person “knowingly or intentionally…to manufacture, distribute, or dispense…a controlled substance.” Registered doctors, however, a permitted to dispense controlled substances via prescription, so long as the prescription is “issued for a legitimate medical purpose…acting in the usual course of his/her professional practice.”

        Petitioners Dr. Xiulu Ruan and Dr. Shakeel Kahn were both individually indicted and convicted of violating 21 U.S.C. § 841, also known as the CSA. Dr. Ruan was accused of improperly issuing more than 300,000 prescriptions for controlled substances over a four-year period, being a top prescriber in the nation for a type of fentanyl, and linking his prescribing practices to his own financial interests. On the other hand, Dr. Kahn was accused of selling controlled substances in exchange for cash without performing any physical or legitimate exam. While both physicians appear to have violated the CSA, the Supreme Court was tasked with reviewing the physician’s state of mind in their unlawful prescribing practices.

        The government argued heavily for an objective mens rea standard, stating that the statute’s “knowingly or intentionally” language contains an implicit “objectively reasonable good-faith effort” or “object honest-effort standard.” The Court rejected this argument and held that in order to convict a doctor for violating § 841, the government must prove beyond a reasonable doubt that the defendant knew that they were acting in an unauthorized manner or intended to do so. Had the Court sided with the government, a defendant’s criminal liability would turn on the mental state of a hypothetical “reasonable” doctor, rather than on the mental state of the actual defendant.

        With this decision, pill mill doctors are not off the hook, but rather, charged physicians face higher scrutiny from jurors when brought to court. Considering the lengthy sentences that follow a violation of the CSA, the clarification of the appropriate standard is critical to the proper prosecution of such violations and administration of justice. However, the objective hypothetical of a “reasonable” person makes frequent appearances in criminal law. In cases where a defendant is charged with involuntary manslaughter, negligent homicide, or assault, the defendant’s criminal liability rests heavily on an objective standard that the Supreme Court has now taken a step away from. The Supreme Court’s decision may influence how defense attorneys argue their client’s mens rea in crimes where reasonableness is the standard. If these newly founded arguments succeed, the stability of criminal definitions and statutory elements may be in jeopardy. While all nine justices considered the policy reasons behind implementing a subjective mens rea standard, their limited focus to CSA violations may prove disruptive to the entire criminal legal field.  

-- Faith Zellman, Law Clerk

Congratulations to Partner Rod Barnes on his Recent Win!

A 70-year-old grandmother from Florida was in Maryland Christmas shopping with her granddaughters two days before Christmas at a local shopping mall.  While still shopping with her granddaughters, the store closed for the night.  As the grandmother and her granddaughters were leaving the store, she claimed that the steel overhead security gate suddenly and without warning dropped from the ceiling six feet overhead and struck her on the crown of her head.  The Grandmother filed suit against the mall and the retail store claiming that the gate was defective and dangerous to store patrons.  She claimed to have suffered a traumatic brain injury which left her with cognitive deficits and persistent headaches.  She also claimed to have suffered cervical spine injuries which required her to receive numerous nerve block injections and ultimately a cervical spine fusion.  Plaintiff claimed medical expenses in excess of $169,000.00 and pain and suffering in excess of $900,000.00.

At trial, Mr. Barnes successfully argued that the Plaintiff’s medical expert was unqualified to testify about the fairness and reasonableness of the Plaintiff’s medical bills, all of which were from out-of-state healthcare providers.  The Court agreed that the Plaintiff’s expert who was a local Maryland physician did not demonstrate sufficient familiarity or knowledge about the billing practices in Florida or Texas to enable him to testify about their reasonableness.  Thus, all the Plaintiff’s medical bills were excluded from evidence. The Plaintiff then proceeded with a reptilian theory of damages.

Mr. Barnes carefully cross-examined the septuagenarian about her extensive medical problems that pre-existed the alleged Mall incident.  He also highlighted her varying accounts of how the incident happened that she shared with her dozens of healthcare providers – including that she accidentally walked into the gate as it was partially lowered at closing time.  Plaintiff called 5 additional witnesses, all of whom were family members.  None of her witnesses saw the alleged incident so there was minimal cross-examination.

During his closing argument, Mr. Barnes highlighted the fact that the Plaintiff never called an expert witness who testified that there was a problem with the security gate.  Plaintiff didn’t describe the gate, didn’t introduce a picture of the gate, didn’t explain how the gate worked, didn’t identify what part of the gate failed, and had no evidence that this type of incident ever occurred before the subject incident, or in the 5 years since.

The Jury deliberated for 3 hours before returning a unanimous defense verdict.

Congratulations to Mr. Barnes on this outcome!

Congratulations to Partner Benjamin Beasley on his recent trial win in the Circuit Court for Baltimore City!

Mr. Beasley represented an individual who made a left turn on a yellow arrow turn signal and collided with an oncoming motorist’s vehicle that had a green light.  Relying on provisions in the Transportation Article and applicable case law, Mr. Beasley argued that his client was not negligent as his client had the right to clear her passage across the intersection.  The court agreed, finding Mr. Beasley’s client was not negligent and entering judgment in Mr. Beasley’s client’s favor.

 

Congratulation to Mr. Beasley on this outcome!

The Workers’ Compensation Commission gained Authority to Order a Complete Reimbursement of all Independent Medical Examination No-Show Fees.

    

    COMAR 14.09.03.08B(6) was recently amended to allow the Maryland Workers’ Compensation Commission (“WCC”) to order claimants to pay reasonable expenses and costs actually incurred with missed independent medical examinations (“IME”). .  The prior regulation only permitted the Commission to award employer/insurers reimbursements up to $125.00 per missed IME.  This is now a huge victory for employer/insurers, as the cost of missed IMEs were often far greater than $125.00.  

    Initially, we hoped that with the ability to award larger sums for reimbursement of IME no-show fees, employers/insurers would suffer fewer financial losses, and claimants would be deterred from missing IME appointments.  

    Unfortunately, since the passing of this revised regulation, the WCC has still often declined to award full reimbursement of IME no-show fees.  Rather, the Commission relied on a trusted doctor to survey various medical practitioners throughout Maryland and to calculate an average no-show fee.  According to this doctor, the average no-show fee in Maryland was approximately $350.00.  Since this determination, the trend from the Commission is to award no more than $350.00 per missed appointment.  Unfortunately, this amount is significantly less than many of the invoices received for IME no-show fees. 

    Still, it is important to file issues for reimbursement of IME no-show fees, in order to ensure claimants understand the financial implications of missing medical appointments.  In order to successfully prevail on issues for reimbursement of IME no-show fees, it is imperative that the employer/insurer’s attorney receive the following documents:

        1.  The letter sent to claimant and their attorney advising them of the independent medical                                        examination appointment.

        2.  The invoice from the independent medical examination provider with the no-show fee.

        3.  The check issued by the employer/insurer for the costs of the no-show fee.

    It is vital that the letter sent to claimant and their attorney is sent to the correct addresses.  For extra security, the letter should also be emailed to claimant’s attorney with a request for a read receipt.  If claimant can prove that they did not receive notice of the IME, the employer/insurer is unlikely to receive reimbursement.  Similarly, it is important that IMEs are scheduled well in advance, and that notice of the IME is provided to claimant as soon as possible, in order to allow time for the claimant to make any necessary arrangements to attend the appointment.  

    If you have any questions on how to pursue issues for reimbursement of IME no-show fees, do not hesitate to contact RSRM’s Workers’ Compensation Department, consisting of Partner Paul Donoghue, Partner Alicyn Campbell, and Associate Ashley Bond.

                -- Ashley Bond, Associate

Maryland Court Echoes Jurisdictions Across the Country, Over the Interpretation of Business Interruption Coverage, as it relates to Covid-19.

GPL Enterprise, LLC v. Certain Underwriters at Lloyd’s, et al., No. 302, Sept. Term 2021. Opinion by Arthur, J.

    In a recently reported opinion issued by the Court of Special Appeals of Maryland, a three-judge panel concluded that a commercial property insurance policy designed to cover “direct physical loss or damage to” property does not apply to the lost revenue of a restaurant, which was forced to shut its doors during the pandemic.

    The underlying dispute, in this case, arose from an insurance claim made by GPL Enterprise, LLC (hereinafter "GPL"), which operates a restaurant called The Anchor Bar. Two weeks after Governor Larry Hogan issued an emergency order closing all Maryland restaurants and bars, GPL filed a claim with their insurance company. GPL's claim sought coverage for direct physical harm, loss, or damage to their premises, which they claim resulted from Covid -19 and Governor Hogan’s emergency order. The insurance carrier denied GPL’s claim, presumably citing an absence of “direct physical loss of or damage to” the property itself, as a pre-condition for coverage.

    As a result, GPL filed a two-count complaint in the Circuit Court for Frederick County alleging breach of contract and requesting the Court declare the parties’ rights under the policy. The insurance providers prevailed on a motion to dismiss at a hearing on April 27th. GPL appealed that decision.

    The policy in question is a commercial property insurance policy. The primary purpose of which is to protect the property that the insured uses in its business “against direct physical loss or damage as a result of fire, vandalism, meteor strike, etc.” In addition, the policy included business interruption coverage for the loss of income and additional expenses incurred from the direct loss or damage. The meaning of “direct physical loss of or damage to” property is the central issue in this case. As the court sought to answer, whether the Governor’s order or the Covid-19 virus resulted in direct physical loss of or damage to GPL’s property.

    No Maryland appellate court had decided this issue. However, numerous other courts around the country had ruled on similar issues, which the Court of Special Appeals deemed virtually identical to GPL’s claim. The Court of Special Appeals cited numerous cases that determined that language, which is practically identical to that of GPL’s insurance policy, was unambiguous. The Court pointed to the inclusion of the term “physical” as a clear indicator that some form of a material alteration to the property must be present for the insurance claim to be viable.

    The Court noted that, unlike a fire or meteor strike, the Governor’s order had no tangible or physical impact on GPL’s restaurant or the property inside it. As a result, the pre-condition that GPL show a  “direct physical loss of or damage to” the business, which was needed in order to obtain business-interruption coverage, had not been satisfied. This opinion shows how courts in Maryland have fallen in line with other jurisdictions across the country as insurance providers and businesses attempt to establish new boundaries in the wake of COVID-19.

            -- Scott Mitchell, Law Clerk

RSRM Welcomes Associate Bryan Cleary!

 

Bryan Cleary earned his J.D. from the University of Baltimore School of Law in May 2021. Before that, he graduated from Moravian University in 2018 with a major in Political Science. While attending law school, Mr. Cleary served as a staff editor for the University of Baltimore Law Forum and was a Maryland Rule 19 Student Attorney in the Saul Ewing Civil Advocacy Clinic. Mr. Cleary also spent time interning with the Honorable Debra L. Boardman of the United States District Court for the District of Maryland. 

 

Prior to and during his undergraduate education, Mr. Cleary worked as an operations supervisor for UPS for four years, where he was responsible for managing numerous employees and various areas of the building. 

Immediately after graduating from law school, Mr. Cleary clerked for the Honorable Timothy J. McCrone in the Circuit Court for Howard County.

 

Outside of the office, Bryan enjoys watching and playing sports, spending time with friends and family, traveling, reading, and playing with his German Sheppard, Stella.

Maryland Court of Appeals Upholds its Tolling of the Statute of Limitations Due to the COVID-19 Court Closures

 

Murphy v. Liberty Mut. Ins. Co., 2022 Md. Lexis 166 (Filed April 22, 202) (opinion by McDonald, J.)

        In a recently published opinion by the Court of Appeals, Maryland’s highest court held that former Chief Judge Barbera acted within her authority when she issued an administrative order on April 24, 2020,  tolling the statute of limitations in civil matters due to the COVID-19 emergency court closures.

        The underlying commercial dispute in Murphy originally arose in Maryland’s Federal District Court. The parties in the federal suit disputed the timeliness of certain claims and whether the Federal District Court possessed diversity jurisdiction over the claims. As the resolution of these questions depended on the validity of Judge Barbera’s administrative order, the Federal District Court “certified” the question of the order’s validity to Maryland’s Court of Appeals.

        In upholding the administrative order’s validity, the Court of Appeals looked to the Chief Judge’s authority under the Maryland Constitution, the Maryland Code, and the Maryland Rules. The Murphy Court first referenced Art. IV. § 18 of the State Constitution, which confers both administrative and rulemaking authority on the Chief Judge, particularly as that authority pertains to the “practice and procedure” of the courts. The opinion also noted the General Assembly’s acknowledgment that the rulemaking power of the Court of Appeals, “shall be liberally construed.” Md. Code Ann. Cts. & Jud. Proc. § 1-201(a).

        While recognizing that the statute of limitations is a “product of legislation,” the Murphy Court reasoned that it falls to the courts to “interpret and administer” the deadlines imposed by the statute of limitations. Ceccone v. Carroll Home Services, LLC, 454 Md. 680, 691, (2017); Md. Rule 1-203 (computation of time). To illustrate this point, the court observed that questions as to when an action accrues and triggers the statute of limitations are often left to judicial determination, citing Cain v. Midland Funding, LLC, 475 Md. 4, 38 (2021), Poffenberger v. Risser, 290 Md. 631, 634-38 (1981), and Hahn v. Claybrook, 130 Md. 179 (1917). The Murphy Court reasoned that, as with any other enactments of the legislature, courts must ascertain and carry out the legislative purpose behind the statute of limitations.

        In examining the various responsibilities of Maryland’s branches of government during the Pandemic, the court looked to Maryland Rule 16-1003(a)(7), which, during an emergency, allows the Chief Judge to: “suspend, toll, extend, or otherwise grant relief from time deadlines, requirements, or expirations otherwise imposed by applicable statutes,”

        Against this backdrop, the Murphy opinion recounted the various administrative orders issued in response to the COVID-19 Pandemic and found “ample and explicit authority under Article IV of the State Constitution and the Maryland Rules” for the Chief Judge to issue the administrative tolling order.

        The remaining issue was whether the order “overreached the authority of the Judiciary” under Articles 8 (separation of powers) and 9 (prohibition against suspension of laws). Regarding separation of powers, the court looked to examples of shared authority between the branches to highlight that the powers of the three branches are often intertwined. For example, the General Assembly has a role in the election and appointments to positions in the Executive Branch while the General Assembly may entrust “legislative-type powers” to Executive Branch agencies charged with administering certain situates. Despite some shared authority, branches run afoul of Article 8 when they “usurp” the powers of another branch. In upholding the validity of the order, the court held that the order was not an expression of a judicial policy preference but rather fell under the court’s “practice and procedure” functions under the Maryland Constitution.

        Finally, the court considered where the order violated Article 9’s prohibition against the suspension of laws. Interestingly, despite being part of the Maryland Declaration of Rights since 1776, the provision had not yet been interpreted by the Court of Appeals. Article 9 provides, "[t]hat no power of suspending Laws or the execution of Laws, unless by, or derived from the Legislature, ought to be exercised, or allowed." The court noted that Murphy Enterprises, the party arguing the violation of Article 9, failed to articulate why the court’s order violated the article and, even if the order constituted a “suspension” of laws, doing so was under the court’s core constitutional powers was in coordination with the other branches of government.  

        While there may be some remaining questions as to how long the statute may be tolled when applied to a particular case, the Murphy opinion left no doubt that the Court of Appeals had the authority to issue the COVID-19 tolling orders. 

                -- Joseph Kavanaugh, Associate

Governor Hogan Announces Several Appointments to Maryland’s Trial and Appellate Courts

In February, Governor Hogan announced several judicial appointments to the Maryland Court of Appeals, Court of Special Appeals, and trial courts in Baltimore City and Washington County. 

 

Judge Angela M. Eaves was appointed to the Maryland Court of Appeals to succeed Judge Robert N. McDonald. Before her appointment to the Court of Appeals, Judge Eaves served as the Administrative Judge for Harford County Circuit Court. Judge Eaves' legal career included work at both the Maryland Attorney General's Office and the Maryland Legal Aid Bureau. Judge Eaves also served as an assistant city attorney for the City of Dallas. Judge Eaves earned her bachelor's, master's, and J.D. from the University of Texas. 

 

Judge Matthew J. Fader was appointed to the Maryland Court of Appeals to succeed Judge Joseph M. Getty. Judge Fader was the chief judge of the Maryland Court of Special Appeals prior to his appointment to the Court of Appeals. Before taking the bench, Judge Fader worked for the U.S. Department of Justice, the Maryland Attorney General's Office, and was a partner at the international law firm, K&L Gates, LLP. Judge Fader received his B.A. from the University of Virginia and his J.D. from Yale Law School. 

 

Judge Anne K. Albright was appointed to succeed Judge Fader on the Maryland Court of Special Appeals. Judge Albright was a member of the Circuit Court bench in Montgomery County at the time of her appointment to the Court of Special Appeals. Previously, Judge Albright worked for the Maryland Public Defender's Office and the law firm Albright & Rhodes. She obtained her A.B. from Dartmouth College and her J.D. from Georgetown University Law Center.  

 

Judge E. Gregory Wells was appointed to serve as the chief judge of the Maryland Court of Special Appeals. Judge Wells had been a member of the Court of Special Appeals since 2019, before which he sat in Calvert County Circuit Court. Judge Wells previously worked in the Attorney General's Office's Criminal Appeals Division and served as the State's Attorney for Calvert County. Judge Wells earned his B.A. from the College of William & Mary and his J.D. from the University of Virginia. 

 

Judge Joseph S. Michael was appointed to the Circuit Court for Washington County. Judge Michael was the deputy state's attorney for Washington County and had previously maintained a part-time civil practice. Judge Michael obtained his B.A. from the University of Maryland and his J.D. from Washington & Lee University School of Law. 

 

Judge Tameika M. Lunn-Exinor was appointed to the District Court of Maryland for Baltimore City. Judge Lunn-Exinor was an administrative law judge at the Office of Administrative Hearings at the time of her appointment. Before becoming an administrative law judge, Judge Lunn-Exinor practiced civil litigation at firms in Baltimore and Washington, D.C. She received her B.A. from Johns Hopkins University and her J.D. from George Washington University School of Law

 

Judge Lydie Essama Glynn was appointed to the District Court of Maryland for Baltimore City. Judge Glynn was the chief solicitor in the litigation and appeals division at the Baltimore City Solicitor's Office. Her legal career also included work for the Attorney General's Office and other positions at the City Solicitor's Office. Judge Glynn obtained her B.A. from the University of Pennsylvania and her J.D. from the University of Virginia.

 

Judge Ana De la Hoz Hernandez was appointed to the District Court of Maryland for Baltimore City. Judge Hernandez worked for the Maryland Public Defender's Office, most recently in the Baltimore City felony trial division. Prior to becoming a lawyer, Judge Hernandez taught special education courses in Miami-Dade County, Florida. Judge Hernandez received her A.A. from Florida International University, her B.A. from the University of Florida, and her J.D. from the University of Miami School of Law.

 

Judge Theresa Morse was appointed to the District Court of Maryland for Baltimore City. Before her appointment, Judge Morse worked for the Attorney General's Office's Organized Crime Unit and both the Anne Arundel County State's Attorney's Office and the Baltimore City State's Attorney's Office. Judge Morse earned her B.A. from Boston College and her J.D. from the University of Maryland, Francis King Carey School of Law. 

 

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

Congratulations to Associate Logan Hayes on her recent win!

Ms. Hayes successfully represented a client involved in a motor vehicle accident in which the Plaintiff claimed personal injuries and property damage as a result of her client’s alleged negligence.

The Plaintiff argued that he was traveling on a roadway, had his left turn signal on, and was making a left turn when his vehicle was T-Boned by Ms. Hayes’ client, who was proceeding through the intersection. During Ms. Hayes’ cross-examination, the Plaintiff testified that he had a solid green arrow and the right of way at the intersection. The Plaintiff also presented an independent witness who, under cross-examination by Ms. Hayes, admitted that Ms. Hayes’ client entered the intersection under a yellow light.

Based upon her client’s testimony that he had the right of way in the intersection and the supporting testimony of the Plaintiff’s own independent witness, the Court ruled in favor of the Defense. The Court found that Ms. Hayes’ client had the right of way, was permitted to proceed through the intersection and did not contribute to the collision, rather that the Plaintiff unlawfully and negligently attempted a left-hand turn without the right of way, barring him from recovering damages. 

Maryland Court of Special Appeals: Contributory Negligence as a Matter of Fact is Reserved for the Jury Despite Multiple Inferences of a Plaintiff’s Potential Negligence

Jacqueline Cador v. YES Organic Market Hyattsville Inc., No. 0898, September Term 2020. Opinion by Moylan, J. (Court of Special Appeals February 1, 2022).

In a recently published decision by the Court of Special Appeals, Maryland’s intermediate appellate court clarified the distinction between the evidentiary predicate requiring a finding of contributory negligence as a matter of law and the predicate allowing for a finding of contributory negligence as a matter of fact. 

On September 21, 2016, Jacqueline Cador ("Plaintiff") went shopping with her family in a grocery store owned and operated by Yes Organic Market Hyattsville Inc. ("Defendant"). It was near closing time and the floors had recently been mopped by an employee of the Defendant. Upon entering the store, the Plaintiff spent a few moments talking to an employee in the check-out area near a conspicuously placed sign reading "Caution: Wet Floor." Although the Plaintiff never acknowledged seeing this "Wet Floor" sign, she was standing very close to it when talking to the employee. The Plaintiff then proceeded to walk down an aisle and fell almost immediately after entering the aisle. Very close to the site of the fall, on the side of the aisle, was a yellow mop bucket. 

As a result of the fall, the Plaintiff required partial knee replacement surgery. The Plaintiff subsequently filed suit against the Defendant for negligence. Prior to trial, the Defendant filed a motion for summary judgment arguing the Plaintiff’s contributory negligence barred recovery. The Defendant argued that, based on the proximity of the Plaintiff to the "Wet Floor" sign after she first entered the store and the mop bucket near to where she fell, the Plaintiff must be deemed to have seen one or both of those objects and was thereby put on notice that the floor was dangerous. Accordingly, the Defendant reasoned that the Plaintiff had notice that heightened caution was necessary and that she failed to exercise that caution. The trial court agreed, concluding that the undisputed evidence showed that the Plaintiff was contributorily negligent by failing to exercise heightened caution when required.

The question raised on appeal was whether the existence of contributory negligence a question of law for the judge or a question of fact for the jury. The Court of Special Appeals cited to Menish v. Polinger Company, 277 Md. 553, 356 A.2d 233 (1976) in support of the proposition that knowledge of a dangerous condition may be imputed to a plaintiff when the supporting factual predicate is so "distinct, prominent and decisive" that reasonable minds could not differ with respect to its message. On the other hand, when the factual predicate is not unequivocal but emits permitted inferences in different directions, then a case of contributory negligence that satisfies the burden of production is not necessarily a case of contributory negligence as a matter of law. Id. at 563.

In the instant case, there was no direct evidence that the Plaintiff was aware that the floor was wet. However, the Court focused on whether the evidence permitted the inference that the Plaintiff should have been aware of the condition of the floor, given her proximity to the "Wet Floor" sign and the yellow mop bucket to where she fell. The Court also raised the question of who is entitled to draw such an inference — the Judge or the Jury.

The Court found that the existence of one "Wet Floor" sign at the entrance of the market was insufficient to warn customers of the wet condition of the floors throughout the store. But what about the yellow mop bucket right next to the spot where the Plaintiff fell? If reasonable minds could not differ that the evidence demonstrated (1) that the Plaintiff actually saw the yellow mop bucket, and (2) that observation communicated the message that the aisle floors were wet, then a finding of contributory negligence as a matter of law would be appropriate.

The Court cited a string of cases which held that “such failures to observe and to avoid are generally deemed to be questions of fact left to the jury.” G.C. Murphy Co. v. Greer, 75 Md. App. 399, 403 (1988); see also Chalmers v. Great Atlantic & Pacific Tea Co., 172 Md. 552, 558 – 59 (1957). Here, the inference that the Plaintiff must have seen the mop bucket was permitted even though she testified that she did not see it. However, that inference was for the jury to make, not the judge. With respect to the message communicated by that mop bucket, the message that the floor was recently mopped, and therefore wet, was one such conclusion that could have been drawn. On the other hand, another conclusion could be that the mop bucket was placed there in advance, waiting for the arrival of an employee to mop the aisle.

        Given the fact that multiple inferences were permitted, when considered in the light most favorable to the Plaintiff, a genuine dispute of material fact existed. Since reasonable minds could have differed as to whether the Plaintiff was put on notice that the floors were wet, the Court concluded that summary judgment on the issue of contributory negligence was not appropriate. Although the evidence permitted a finding of contributory negligence, that finding was for the jury to make and not the judge.

        - John K. Thompson, Associate Attorney