Recent Developments in the Law
Vol. No. XXV
December 13, 1999
In order to keep you abreast of the recent developments in the law, we are reporting the substance of several current decisions of major import in the jurisdictions of Maryland, the District of Columbia and Virginia.
This material is being provided for your general information only, and is not a substitute for obtaining legal advice. The information provided is not provided as legal advice, or in the course of an attorney-client relationship. You should always consult an attorney for advice about the specific circumstances of your case.
Insurance: In Nationwide Insurance Co. v. Rhodes, 127 Md. App. 231 (1999), the Court of Special Appeals of Maryland held that a homeowners' insurer has no duty to defend the insured against a claim for workers' compensation benefits. A nursing assistant slipped and fell on the icy steps to her patients' home while on duty in 1992. Initially, she filed a claim with the Workers' Compensation Commission, which was denied on the grounds that she was an independent contractor and not an employee. The circuit court reversed the Commission and awarded her benefits. Nationwide Insurance Company, which had issued the homeowners a homeowners' liability policy refused to pay for the defense of the workers' compensation claim because such claims were excluded under their policy. The homeowners died while the cases were pending and the personal representative, Connie Rhodes, sued Nationwide to recover $3,475.00 in attorneys fees expended on the workers' compensation claim. The circuit court held that Nationwide must pay the fees. The Court of Special Appeals reversed, reasoning that imposing an obligation on the insurer to defend workers' compensation claims would essentially transform personal liability and medical payment policies into workers' compensation and statutory compliance policies and that such a "transformation" was not in accord with the reasonable expectation of coverage under a homeowners' policy.
The Court of Appeals of Maryland, in Bausch & Lomb, Inc. v. Utica Mutual Insurance Co., 355 Md. 566 (1999), held that an insurance policy endorsement eliminating an "own property" exclusion provided first-party coverage for damage to the insured's property. Bausch & Lomb operated a plant in Sparks that had been contaminated with heavy metals and the hazardous chemical compound, trichloroethylene. Bausch & Lomb spent approximately $530,000 to test the site and $231,000 to clean up the contamination. Bausch & Lomb had purchased a standard "Comprehensive General Liability" policy from Utica from 1970 to 1986. Originally, the policies contained an "own property" exclusion. However, the four policies purchased from 1982 to 1985 contained an endorsement, which circuit court ruled in favor of Bausch & Lomb, awarding more than $800,000 to the company. The Court of Special Appeals reversed and entered a declaratory judgment in favor of Utica. The Court of Appeals affirmed but remanded the case to the circuit court to determine whether the endorsement added to the policies between 1982 and 1985 provided coverage for damage to Bausch & Lomb's own property. On remand, the circuit court ruled that Bausch & Lomb was entitled to $160,000 from Utica under the endorsement as well as $561,000 in attorney's fees. The Court of Special Appeals, in an unreported opinion, held that the policy endorsement provided first-party coverage but that the circuit court had prematurely awarded policy limits before determining the exact amount of damages that occurred during each year. It also reduced the award of attorney's fees to $60,000. The Court of Appeals affirmed the decision of the intermediate appellate court that the endorsement did cover first-party property damage and that the record was insufficient on the issue of damages. It reasoned that the plain meaning of the endorsement's language was to provide coverage for damage to Bausch & Lomb's own property. The Court also held that there was no evidence in the record regarding the amount of environmental property damage to Bausch & Lomb's own property from 1982 to 1985. It also stated that no evidence supported the trial court's conclusion that the technology is unavailable to determine the amount of environmental damage. The Court also held that insureds are only entitled to attorney's fees when they successfully seek to enforce coverage for third-party liability. Therefore, since Bausch & Lomb was seeking enforcement of first-party coverage, it was not entitled to attorney's fees. eliminated the exclusion and set a liability limit of $50,000 per occurrence. In 1987, Utica sought a declaratory judgment in the Circuit Court for Baltimore County that it had no duty to defend or indemnify Bausch & Lomb for the costs of cleaning up the Sparks site.
In Hartford Fire Insurance Co. v. Himelfarb, 355 Md. 671 (1999), the Court of Appeals of Maryland held that summary judgment was not proper because the insureds created a question of fact whether they substantially complied with a proof-of-loss provision in their policy. In exchange for a loan, Herbert and Frances Himelfarb maintained a security interest in the property of Baltimore Woodworks. The property was stored in the Himelfarb's warehouse. Baltimore Woodworks defaulted on the loan and filed for bankruptcy. Before the property could be sold at a bankruptcy sale, approximately $32,000 worth of property was stolen from the warehouse. The Himelfarbs had an insurance policy with Hartford. In order to comply with the policy, they needed to meet a 60 day time limit on filing a proof of loss with Hartford. They told Hartford that they would not be able to make a full accounting of the loss until they had a chance to compare the amount of property available for sale with the amount of property before the theft. This would take longer than the 60 day time limit under the policy with Hartford. The Baltimore City Circuit Court granted summary judgment for Hartford. The Court of Special Appeals of Maryland reversed. Affirming the decision of the Court of Special Appeals, the Court of Appeals of Maryland held that, under the policy, furnishing a complete proof of loss within the 60 day time limit was not an express condition precedent to Hartford's duty to pay the claim. The Court clarified its holding by stating that the 60 day period "affects only the time when Hartford's obligation to pay becomes presently enforceable." The Court also held that substantial compliance with the proof-of-loss provision was sufficient. Thus, summary judgment was improper because the Himelfarbs had presented a question of fact as to whether they had substantially complied with the policy's 60 day time limit.
In Farley v. Allstate Insurance Co., 355 Md. 34 (1999), the Court of Appeals of Maryland held that an insured who was suing his insurer for under insured motorist benefits for damages sustained in an automobile accident is not allowed to disclose to the jury the amount of under insured motorist coverage. While William J. Farley was driving a United States Postal Service truck in the course of his employment, he was struck by another vehicle driven by Lamont Gregory. At the time of the accident, Farley had automobile liability insurance with Allstate and Gregory had an automobile insurance policy with State Farm Mutual Insurance Company. Farley's policy with Allstate included a provision for under insured motorist benefits. Farley and his wife sued Gregory and Allstate, alleging negligence against Gregory and breach of contract against Allstate for not paying out the under insured motorist benefits available under the policy. The Farleys settled with Gregory for $25,000, the limit of his liability policy. The jury returned a verdict against Allstate for $31,087.02 with interest and costs. The Farleys believed this award was too low and appealed. On its own motion, the Court of Appeals of Maryland granted certiorari and affirmed the lower court. The Court reasoned that generally, evidence of a defendant's insurance is inadmissible to show fault or lack thereof. However, in cases where the insurance carrier is a party to the lawsuit, the existence of insurance cannot be kept from the jury. Nevertheless, unless the amount of the uninsured/under insured motorist coverage is in dispute, it should not be disclosed. In this case, the Court concluded that the amount of under insured motorist coverage was not in dispute and, therefore, the Farleys' policy with Allstate was inadmissible because it was not relevant to the issue of the Farleys' damages.
In Cigna Property and Casualty Companies v. Zeitler, 126 Md. App. 444 (1999), the Court of Special Appeals of Maryland held that claims of negligence and breach of contract were properly submitted to the jury where marine insurer and broker failed to provide the insured with the insurance that he had requested and failed to alert him to significant changes in his coverage from his prior policies. In September, 1995, Zeitler's yacht was damaged when Hurricane Luis hit St. Maarten. Zeitler believed that his yacht was covered by a marine insurance policy issued by Cigna that was procured by Jack, Marin & Associates, Inc. ("JMA"). Cigna denied Zeitler's claim for the loss of the yacht, citing to a provision in the policy that stated that it did not provide coverage in Caribbean waters after July 1, 1995. A jury returned a verdict against Cigna and JMA for $200,329.74 on the negligence and breach of contract claims. The circuit court denied Cigna and JMA's motions for judgment notwithstanding the verdict. The Court of Special Appeals of Maryland affirmed. JMA claimed that Ziegler failed to offer expert testimony regarding the duty of care JMA owed to its client as a professional insurance broker. The Court of Special Appeals reasoned that when a broker fails to procure insurance that is specifically requested, an expert is not needed in order to prove negligence. Therefore, the Court opined, the trial court did not err in denying JMA's motion for judgment. The breach of contract and negligence actions against Cigna were based on an allegation that Cigna violated COMAR 09.30.32 because it did not notify Zeitler that his renewal policy for 1994-95 contained a change in benefits. The Court held that an insurance policy may be considered a renewal policy even though it contains new terms. It reasoned that Zeitler could not have appreciated that it was not a renewal policy unless Cigna or Zeitler's broker informed him that the policy with the same insurer for the same vessel was new. Therefore, the trial court correctly submitted the breach of contract and negligence claims to the jury.
Civil Procedure In a case of first impression, Pittman v. Atlantic Realty Co., 127 Md. App. 255 (1999), the Court of Special Appeals of Maryland held that a motion for summary judgment cannot be averted by a party filing an affidavit that contradicts her own deposition testimony. Atlantic Realty Co. owned property where Pittman, now age 9, and his mother lived when Pittman was 2 years old. It was alleged in the complaint that Pittman suffered brain damage from his exposure to lead paint while residing/staying at Atlantic's property. During deposition, Pittman's mother testified that they lived at that property for less than two months and that she let her friend, who still lived at that location, to babysit Pittman once every two weeks or once per month. Pittman's mother's own expert stated that it was "unlikely" that the exposure to lead paint while at the property was a substantial contributing factor to Pittman's brain damage. Once discovery was completed, Atlantic moved for summary judgment. Pittman's mother's filed an affidavit in opposition to the motion, where she stated that Pittman spent at least eight hours per day at the residence even after Pittman and his mother moved out. Pittman's expert also filed an affidavit, asserting that based on the increased exposure, that exposure to lead paint at the property was "to a reasonable degree of medical probability" a substantial cause in Pittman's lead poisoning. The Circuit Court for Baltimore City granted the motion for summary judgment, striking the affidavits. The Court of Special Appeals affirmed, bringing Maryland law into line with the law of the federal courts. The Court reasoned that a jury question was not raised by filing an affidavit that contradicted the earlier deposition testimony. The Court opined that it declined to "allow prior testimony elicited during a deposition to be decimated by the stroke of a pen in a subsequent affidavit."
In Ben Lewis Plumbing, Heating & Air Conditioning, Inc. v. Liberty Mutual Insurance Co., 354 Md. 452 (1999), the Court of Appeals of Maryland held that an insured was not required to plead the defense of negligent misrepresentation specifically when it had filed a general denial. Liberty Mutual Insurance Company ("Liberty") sued Ben Lewis Plumbing, Heating & Air Conditioning, Inc. ("Lewis"), seeking the balance due for premiums on policies issued by Liberty to Lewis. Lewis filed a counterclaim, alleging breach of contract and negligent misrepresentation, based on Lewis's claims that Liberty had represented that the premiums would be substantially lower. The jury found that Lewis was liable to Liberty for the premium and that because Lewis had proved negligent misrepresentation, Liberty was liable to Lewis on the breach of contract claim. The trial court struck the verdict in favor of Liberty and entered judgment in favor of Lewis. The Court of Special Appeals of Maryland reversed. The Court of Appeals of Maryland affirmed the judgment of the intermediate appellate court. The Court of Appeals held that the Court of Special Appeals erred in holding that Lewis could not assert the defense of negligent misrepresentation because it had not been affirmatively pleaded. It stated that negligent misrepresentation is not one of the 21 affirmative defenses that may be pled pursuant to Rule 2-323(g). The Court also commented that under Rule 2-323(d), when a general denial is filed, it is not necessary for the pleader to assert "[every defense of law or fact" in the answer, except for those specifically listed in section (g). The Court concluded that because Lewis pled a general denial, Lewis did not waive its defense of negligent misrepresentation by not specifically pleading it. However, the Court affirmed the judgment because the circuit court erred in failing to grant Liberty's motion for judgment at the conclusion of the case on the ground that Lewis had a duty to read the policy that clearly indicated the dividend change.
Torts: The Court of Appeals of Maryland, in Nelson v. Carroll, 355 Md. 593 (1999), held that the claim of an "accident" is not a valid defense to a battery claim when the undisputed evidence shows that the defendant intended to commit an assault. In July of 1992, Nelson was at a night club when he was approached by Carroll. Carroll demanded the repayment of an $8,000.00 debt Nelson owed to Carroll. Nelson offered to make a payment but Carroll found the offer to be unsatisfactory, withdrew a handgun and pistol-whipped Nelson. During the course of the beating, the gun discharged, striking Nelson. As a result, Nelson was unconscious for approximately three or four months, had several operations, and testified that he had lost nearly all of his eyesight. According to Nelson's attorney, Nelson died last year. The Court concluded that as a matter of law, Carroll's actions evidenced a clear intent to commit a battery. It reasoned that "[because the defendant has committed an assault, the intent element of assault is subsumed into the battery claim even though the defendant contends that the actual harm was accidental or otherwise unintentional." The Court further opined that if a person intends to frighten another by assaulting him or her and inadvertently touches him or her, that person is liable for a battery. After concluding that Carroll had no such "accident" defense, the Court held that the only remaining question is for the jury to determine the amount of damages.
The Court of Special Appeals of Maryland, in Doe v. Doe, held that public policy does not bar a husband's claim for intentional infliction of emotional distress and fraud in a divorce proceeding against his wife because there is no exception to the abrogation of interspousal immunity for those claims. The Does were married in September of 1989 and had three children. In 1990, Ms. Doe began having an affair. In July of 1996, Mr. Doe discovered the affair and questioned the paternity of the children. Blood tests confirmed that Mr. Doe was not the father of two of the children. Mr. Doe filed a complaint for absolute divorce, asserting adultery. He also brought claims of intentional infliction of emotional distress and fraud. The trial court dismissed the tort claims. The Court of Special Appeals of Maryland reversed. It first reviewed the holdings in Lusby v. Lusby, 238 Md. 334 (1978), Boblitz v. Boblitz, 296 Md. 242, 275 (1983), and Bender v. Bender, 57 Md. App. 593 (1984), which hold that interspousal tort suits are permitted in both negligence an intentional tort cases. The Court noted that there was no exception to the abrogation of interspousal immunity for the torts of intentional infliction of emotional distress or fraud. The Court specifically rejected as unpersuasive the case of Pickering v. Pickering, 434 N.W.2d 758 (S.D. 1989), that was relied on by the trial court. The Court of Special Appeals reasoned that because interspousal immunity has been abrogated with respect to intentional tort cases, without any reservation for cases in which the parties happen to have children, and because the "best interests of the children" are not more implicated by these claims than similar claims in a divorce proceeding, there was no public policy reason for this interspousal tort suit to be precluded.
In Matthews v. Amberwood Associates Limited Partnership, Inc., 351 Md. 544 (1998), the Court of Appeals of Maryland held that a landlord owed a duty to a social guest of a tenant, who, while in the tenant's apartment, was killed by a dangerous dog kept by the tenant because the landlord had knowledge of the dog and its dangerous propensities, the presence of the dog was in violation of the lease, and the landlord could have taken steps to reduce the danger. While Shanita Matthews and her son were visiting a friend's apartment, pit bull that was kept in the apartment and known to be vicious, fatally attacked Ms. Matthews' child. The jury found for the plaintiffs in a combined verdict of over $7 million for the wrongful death of the child and intentional infliction of emotional distress. The trial court granted the defendants' motion for judgment notwithstanding the verdict on the intentional infliction of emotional distress count, reduced the non-economic damages award from $600,000 to $350,000, and denied all other motions. The Court of Special Appeals of Maryland reversed. The Court of Appeals of Maryland reversed again and remanded. The Court reasoned that in a multi-unit facility, the landlord ordinarily has a duty to maintain the common areas in a reasonably safe condition. However, the court reasoned, a landlord is not ordinarily liable to a tenant (or guest of a tenant) for injuries from a hazardous condition in the leased premises that comes into existence after the tenant has taken possession. The Court found that the jury was justified in finding that the landlord had a duty to the plaintiffs and that the duty was breached because the landlord retained control over the matter of animals in the tenant's apartment and the landlord knew of the past vicious behavior by the dog, coupled with the extremely dangerous nature of pitt bulls and the foresee ability of harm to persons and property in the apartment complex. The Court cited to its decision of Shields v. Wagman, 350 Md. 666 (1998) in support of its decision.
Negligence: In McQuay v. Schertle, 126 Md. App. 556 (1999), the Court of Special Appeals of Maryland held that when a woman was killed by a tractor that accidentally dumped bales of wood pulp on her car, it was proper to submit whether the woman was contributory negligent to the jury but it was prejudicial error to instruct the jury that violation of fire hydrant and/or "no parking" regulations could be evidence of contributory negligence. Rebecca Lynn Wozniak stopped her car on a dark industrial roadway, turned her headlights off, and turned toward the back seat to talk to a friend. Wozniak was parked within 15 feet of a fire hydrant and was also parked near an area where "no parking" signs were posted. Regulations prohibited parking in those areas. Schertle, while working in the area, was driving a tractor loaded with bales of wood pulp. Schertle had to quickly brake the tractor to avoid hitting Wozniak. The quick stop caused the bales to fall on Wozniak's vehicle, crushing the vehicle and killing Wozniak. McQuay, the personal representative of Wozniak's estate and Wozniak's four minor children sued Schertle and his employers in a survival claim and wrongful death action sounding in negligence. The trial court instructed the jury that violation of a fire hydrant and/or no parking regulation could be evidence of contributory negligence. The jury found Schertle negligent but also found Wozniak to be contributory negligent and judgment was entered in favor of Schertle and his employers. The Court of Special Appeals vacated and remanded. The Court reasoned that it was proper for the jury to consider whether Wozniak was contributory negligent because reasonable minds could have found that she failed to exercise care for her own safety. The Court further stated that the regulation prohibiting parking within 15 feet of a fire hydrant was not intended to protect occupants of vehicles on adjacent roads from injury or death. Thus, the trial court erred when it instructed the jury that violation of this regulation could be used as evidence of contributory negligence. The Court also held that the parking regulation prohibiting parking in two areas where the signs were posted was not intended to prevent injury or death to vehicle occupants in the factual circumstances of this case and that the posted signs did not control the area in which Wozniak was parked. Thus, it was also prejudicial error to submit a violation of this regulation to the jury as evidence of contributory negligence.
In Crews v. Hollenbach, 126 Md. App. 609 (1999), the Court of Special Appeals of Maryland held that a gas leak repairman injured while on the job was barred from recovery because, by the nature of his employment, he was deemed to have assumed all reasonably anticipated risks inherent in dealing with gas leaks. Hollenbach, an employee of an excavator, struck and ruptured a natural gas line owned by Washington Gas Company. Crews, an employee of Washington Gas, was injured while repairing the ruptured gas line. Crews sued Hollenbach and others involved in the excavation. The trial court granted summary judgment for the defendants, basing its ruling on primary assumption of risk. The Court of Special Appeals of Maryland affirmed. The Court explained that a primary assumption of the risk defense usually applies when the defendant lacks any duty to protect the plaintiff from the particular risk and as a result, the defendant cannot have breached any such duty of care. The Court also contrasted that defense with the defense of secondary assumption of the risk which occurs when a plaintiff chooses to encounter a particular risk created by the defendant. The Court reasoned that when a gas leak repairman accepts a position with a gas company, he does not only assume the risks associated with the least dangerous gas leaks, but rather, he assumes the risks associated with gas leaks generally. The Court also opined that the danger of an explosion caused by a gas leak is clearly within the scope of risks intrinsic to the occupation of a gas leak repairman. The Court stated that Crews accepted his position as a gas leak repairman in full awareness of the dangers involved therein. Thus, the trial court correctly granted the defendants' motion for summary judgment because by virtue of his employment, Crews was deemed to have assumed all reasonably anticipated risks inherent in dealing with gas leaks.
The Court of Special Appeals of Maryland, in Wilbur v. Suter, 126 Md. App. 518 (1999), held that the plaintiff was not entitled to a jury instruction that violation of a statute may be negligence where the testimony gave rise only to speculation that there was a nexus between defendants' renovations to their house, in violation of the building code, and a fire which spread from defendants' house to plaintiff's house. Bruce Suter had renovated the house he owned with Alma Gibson without obtaining the requisite building permits. The home was never inspected by a building inspector. A few months prior to the fire, Suter noticed that there was a problem with the switch on the basement stairway light fixture. Subsequently, a fire originated in the basement of Suter's and Gibson's house and spread to Wilbur's adjoining home. Wilbur sued Suter for the damages to her home, alleging negligence and intentional tort. The trial court granted judgment in favor of Gibson and the jury returned a verdict in favor of Suter. The Court of Special Appeals of Maryland affirmed. Quoting from Hartford Ins. Co. v. Manor Inn of Bethesda, Inc., 335 Md. 135, 155-56 (1994), the Court said that "[the violation of a statute may furnish evidence of negligence. ... It may be actionable when it causes harm to a person within the class of persons the statute seeks to protect and the harm is the kind that the statute is designed to prevent. Although the violation of a statute is evidence of negligence, it is not per se enough to make a violator thereof liable for damages. For that to occur, the plaintiff must show that the violation was a proximate cause of his or her injury, ... that had not been interrupted by a break in the chain of causation." The Court of Special Appeals reiterated that if the evidence of a violation of a statute does not rise from the level of speculation to proximate cause, the issue should not be submitted to the jury. The Court agreed with the trial court that the evidence at trial amounted to mere speculation that, even if a permit had been taken for the renovation work and even if an inspection had occurred, there was a causal connection between the work Suter did and the fire, or that an inspection would have revealed a defect in the light switch that caused the fire. The Court stated that such suppositions are insufficient to prove a cause of action.
In Tucker v. Shoemake, 354 Md. 413 (1999), the Court of Appeals of Maryland held that the "Fireman's Rule" does not bar a police officer from suing the owner of a trailer park for injuries caused on the premises while responding to a call when the injuries were caused by negligence unrelated to the officer's reason for coming to the place. On September 15, 1996, Police Officer Gerald Tucker was responding to a domestic dispute in a privately owned trailer park. When Officer Tucker walked from the street onto the grassy common area between the pavement and the trailer where the dispute allegedly was occurring, he stepped on a metal cover that gave way, causing him to fall into an underground compartment. The metal cover fell on top of him, injuring him to the extent that he can no longer return to his police duties. Officer Tucker and his wife sued Shoemake, the owner of the trailer park, in the Prince George's County Circuit Court, alleging negligence, breach of duty to warn, and loss of consortium. The trial judge threw the case out of court, essentially stating that the suit was barred by the Fireman's Rule. The Court of Appeals of Maryland granted certiorari on its own motion before the case could be considered by the Court of Special Appeals of Maryland and reversed. The Court explained that the Fireman's Rule is a common law principle that says that firefighters and police officers "generally cannot recover for injuries attributable to the negligence that requires their assistance." The Court reasoned that Officer Tucker "was not injured by the negligently-created risk that occasioned his presence at the trailer park. He was at the trailer park in response to a domestic call, whereas he was injured as a result of stepping on the allegedly improperly seated metal cover to the underground valve compartment." It opined that the negligence alleged to cause Officer Tucker's injuries was independent to the situation requiring his services as a police officer. Therefore, the Court concluded, the Fireman's Rule does not apply to this case and the officer's suit can proceed.
The Court of Appeals of Maryland, in Coates v. Southern Maryland Electric Cooperative, Inc., 354 Md. 499 (1999), held that a utility company which owned a pole that was struck by a vehicle, killing one passenger and injuring another, may ordinarily anticipate that travelers will use the road in a lawful and reasonable manner and, therefore, breached no duty of care to the plaintiffs. In August of 1991, a vehicle driven by George Thompson swerved off the road and struck a utility pole, killing one passenger, Mary Ann Coates, and injuring another, Mary Ann's minor daughter, Lavita Coates. At the time of the accident Lavita was pregnant. As a result of the accident, Lavita lost her baby. Irene Coates, Mary Ann's mother, sued Southern Maryland Electric Cooperative ("SMECO") individually and for Mary Ann Coates, Lavita, Lavita's sister, and Lavita's unborn child. The circuit court granted SMECO's motion for summary judgment. The Court of Appeals granted certiorari prior to consideration by the intermediate appellate court and affirmed. The Court reiterated that in order to state a cause of action for negligence, the plaintiff must first show that the defendant was under a duty to protect the plaintiff from the injury. The Court stated that the "foresee ability of harm test" has been used to determine the existence of a duty. After reviewing the applicable cases, the Court opined that liability on the part of a utility is found only when (1) the utility chose the location of the pole, free from governmental direction, and (2) the pole created a danger to persons while on the traveled portion of the road. The Court concluded that SMECO had no duty to anticipate that a vehicle traveling in a posted 35 mile per hour zone would go out of control and strike a pole that was at least 14 feet from the edge of the lane in which the vehicle was traveling.
Labor and Employment: The Court of Special Appeals of Maryland, in Lovelace v. Anderson, 126 Md. App. 667 (1999), held that an off-duty police officer working as a security guard for a hotel was entitled to immunity for the plaintiff's injuries which occurred when the officer intervened in a felony at the hotel because at the time of the crime, the officer was acting within the scope of his authority as a police officer and was acting without malice or gross negligence. Anderson, an off-duty police officer was working as a security guard for a hotel when a robbery attempt occurred. One of the robbers pulled a sawed-off shotgun and Anderson fired his own gun at the robber. During the course of the fight, Lovelace, a guest at the hotel who was standing at the front desk, was hit by a ricocheting bullet from Anderson's gun. Lovelace sued Anderson and the hotel. The trial court granted summary judgment in favor of Anderson and the hotel. The Court of Special Appeals of Maryland affirmed. In reaching it decision, the Court pointed to several provisions of the Courts and Judicial Proceedings Article of the Maryland Code. Section 5-309.2 protects a law enforcement officer from civil liability when acting outside of the officer's jurisdiction. The Court reasoned that because of the nature of the crime, Anderson was acting in his role as a police officer when he intervened. Section 5-511(b) provides that law enforcement officers are entitled to qualified immunity when acting within their jurisdiction only if there is no malice and the officer is acting within the scope of his or her authority. The court held that Anderson was acting within the scope of his employment and there was no evidence of ill will or malice on the part of Anderson. Section 5-605(a)(1) provides that law enforcement officers are entitled to qualified immunity when acting outside of their jurisdiction only if the officers' actions are not grossly negligent. The court opined that a reasonable police officer would have had probable cause to believe that the armed robbers posed a deadly threat and that Anderson was authorized to use deadly force. Thus, the Court concluded, that as a matter of law, Anderson was not grossly negligent.
Evidence: In Wrobleski v. de Lara, 353 Md. 509 (1999), the Court of Appeals of Maryland held that attorneys on either side of a dispute may question the opponent's expert witness about how much money he earned during the previous year providing expert testimony. Wrobleski sued Dr. de Lara for negligently performing a routine surgical pelvis examination during which Wrobleski's small intestine was punctured. Wrobleski presented two experts while de Lara presented three. At trial, over the objection of Wrobleski's counsel, the defense challenged Wrobleski's experts, questioning them about how often they had testified on behalf of medical malpractice plaintiffs and how often they had testified specifically for Wrobleski's attorney. Once expert testified that he had earned $27,000 working for Wrobleski's counsel in 1995. The fact finder returned a verdict in favor of de Lara. The Court of Special of Maryland appeals affirmed the trial court's decision to allow this questioning of Wrobleski's experts. The Court of Appeals of Maryland also affirmed. The Court held that because of the nature of expert testimony, counsel must be given wide latitude when exploring that witness's bias and/or motivation. The Court opined that such information may be significant to the trier of fact in determining the witness's credibility. The court also reasoned that when faced with "a witness skilled in the art of testifying," other than toting one's own experts, the most effective challenge of that witness may be in exposing that witness's financial interest or bias. The Court cautioned that "wholesale rummaging" through the records of an expert would not be permitted and that such investigations would be "tightly controlled." It also warned that attorneys would not be allowed to expose information that is personal to the witness that has no real relevance to the credibility of his or her testimony.
Damages: In Beynon v. Montgomery Cablevision Limited Partnership, 351 Md. 460 (1998), the Court of Appeals of Maryland held that in survival actions, where a decedent experienced great fear and apprehension of imminent death before the fatal physical impact, the decedent's estate may recover for such emotional distress and mental anguish as are capable of objective determination. In 1990, a van driven by Douglas K. Beynon, Jr. collided with a tractor trailer driven by James P. Kirkland that was stopped on the west side of the Capital Beltway. Kirkland testified that he was at a complete stop at the "rear of the congestion." The back-up apparently occurred because Montgomery Cablevision Limited Partnership was doing some repair work on a cable that had fallen from a utility pole. Beynon left skid marks 71 ½ feet long in an attempt to avoid the collision. Beynon was killed on impact. In wrongful death and survival actions sounding in negligence, Beynon's parents sued Kirkland, Kirkland's boss, and Montgomery Cable. Beynon's parents alleged that Kirkland's truck did not have proper lighting and that there were inadequate signs warning of the downed cable. They claimed that their son suffered pre-impact fright that was evidenced by the lengthy skid marks. The jury found for the parents, awarding the estate $2,000 for funeral expenses and $1,000,000 for pre-impact fright. The trial judge reduced the jury's pre-impact fright award, in accordance with the statutory cap for noneconomic damages, to $350,000. The Court of Special Appeals of Maryland affirmed the decision except that it reversed the pre-impact fright award. In a 4-3 decision, the Court of Appeals of Maryland upheld the trial judge's award for pre-impact fright. The evidence presented at trial was sufficient to maintain the award.
In a related case, the Court of Appeals of Maryland, in Smallwood v. Bradford, held that damages for pre-impact fright may be recovered in a survival action but there is no separate recovery for loss of enjoyment of life and evidence of the decedent's financial condition at the time of death is irrelevant. William Jerald Todd was killed instantly when his automobile was sideswiped by a vehicle driven by Hilton T. Bradford. Brenda Smallwood, personal representative of Todd's estate, brought suit against Bradford, alleging Bradford's negligence caused Todd's death. She sought damages for pre-impact fright, mental and/or emotional pain, anguish, suffering and/or distress and for loss of enjoyment of life. Smallwood also argued that Todd's suffering was increased because he knew that he would be leaving debts behind him when he died. Evidence at trial indicated that Todd attempted to avoid the impact when he saw Bradford's vehicle sliding toward him. The trial court granted Bradford's motion for judgment on the above damages but denied it with respect to liability. The jury found Bradford negligent and awarded Todd's estate only $2,000 for funeral expenses. The Court of Appeals of Maryland heard the case before it was considered by the Court of Special Appeals of Maryland. Following Beynon, the Court, in a 4-3 decision, reversed the trial court's ruling on Todd's pre-impact fright. However, the Court unanimously affirmed the trial court's ruling that damages for "loss of enjoyment of life" before and after Todd's death were not recoverable. The Court reasoned that Todd did not suffer any "post-impact or post-death loss of enjoyment of life" because he did not survive the fatal impact. It also opined that "pre-impact loss of enjoyment of life" damages either overlap, or are identical to, any "pre-impact fright" damages and, therefore, are not recoverable because "duplicative or overlapping recoveries in a tort action are not recoverable." In affirming the trial court's ruling that evidence of Todd's poor financial situation should be excluded as irrelevant, the Court of Appeals reasoned that "it could be speculated, with equal credibility, that, if [the decedent] even thought about his debts just prior to his death, he was relieved that he would not have to worry about them any longer."
Intellectual Property: The Court of Special Appeals of Maryland, in Bond v. PolyCycle Corp., 127 Md. App. 365 (1999), held that a process is still a trade secret under the Maryland Uniform Trade Secrets Act even though the components necessary to the process are easily available on the open market. In 1995, Bond and two other men formed PolyCycle Corporation, with Bond as the president. While president, Bond made several adaptions to a medical technology that separated toxins from medical waste so that it could now be used to remove paint from plastic in a non-destructive manner. After consulting with an attorney in 1997, Bond believed that both he and PolyCycle were entitled to use the modifications. Bond then resigned, took all of the technology (including computer files, papers, and records pertaining to the technology) with him and deleted several other relevant files from the corporation's computers. PolyCycle filed suit in the Circuit Court for Baltimore County, demanding the return of the technology and asking that Bond be enjoined from disclosing or using it. The trial court held that Bond misappropriated a trade secret, granted the injunction sought by PolyCycle, and also awarded the corporation attorney's fees. The Court of Special Appeals of Maryland affirmed. The Court held that the formula of how to extract the paint and other adherents from the plastic forms the basis for the trade secret. The fact that the materials to do so are available on the open market is "not dispositive," the Court ruled. It also held that the taking of the corporation's computer files relating to the process without the corporation's authority constituted a theft, and thus a misappropriation under the Commercial Law Article. The Court also held that when Bond deleted the corporation's computer files, his acts were malicious. As a result, the Court remanded the case to determine how much PolyCycle should be awarded in attorney's fees incurred in defending the appeal.
Contracts: The Court of Appeals of Maryland, in United Cable Television of Baltimore Ltd. Partnership v. Burch, 354 Md. 658 (1999), held that a late fee charged by a cable company that is greater than the legally prescribed rate of interest is an unlawful penalty. United Cable Television of Baltimore Limited Partnership ("United") offers cable services to residents of Baltimore City through its subsidiary, TCI of Baltimore. United's services cost approximately $20.00 per month. However, it charges a late fee of $5.00 on overdue accounts. This late fee was challenged by United customers in a class action lawsuit. The circuit court held that the late fee was an unreasonable penalty and not a valid liquidated damages provision. The circuit court ordered United to pay $6,701,503.60 in damages (which constituted the excessive fees collected by United) and $897,015.11 in prejudgment interest. United appealed and the Court of Appeals of Maryland issued a writ of certiorari on its own motion before the case was considered by the Court of Special Appeals. The Court of Appeals affirmed in part and reversed in part, reasoning that a cable customer's promise to pay a late fee pursuant to their contract with United is a contract to pay money. It stated that the late fees charged by United are not regulated by the Cable Communications Policy Act of 1984, 47 U.S.C. § 521 et seq. or by the F.C.C. Therefore, the late fees are subject to the common law. The Court reiterated that the common law dictates that where a party to a contract agrees to pay a greater sum for the default on payment of a lesser sum, the larger sum constitutes a penalty, and not liquidated damages. It opined that the costs expended in the collection process on delinquent accounts are recoverable as damages for breach of a contract to pay. Since this amount is often difficult to prove, courts have permitted liquidated damages provisions as long as the amount charged is a reasonable estimate of the actual damages. The Court held that the late fees were not a reasonable estimate of the actual damages and the permissible amount United may charge is fixed by law to an easily determined amount, the legally prescribed rate of interest. The damages assessed against United were, therefore, the difference between the penalty amount and the actual damages as found by the circuit court.
Civil Rights: In Spriggs v. Diamond Auto Glass, (U.S.C.A. 4th Circuit 1999), the U.S. Circuit Court for the Fourth Circuit held that an employee could sue his employer for an allegedly discriminatory breach of his at-will employment contract under 42 U.S.C. § 1981 (1991). While Spriggs was employed at Diamond Auto Glass, he claimed that he was subjected to so much racial harassment by the assistant manager/office manager that he was forced to quit. Spriggs brought suit in federal court, alleging that the racial harassment constituted a violation of 42 U.S.C. § 1981 (1991). The code section, 42 U.S.C. § 1981 (1991), protects against racial discrimination in the making or enforcing of contracts. The U.S. District Court ruled that Spriggs could not use an allegedly discriminatory breach of an at-will employment contract to serve as a predicate for an action filed under 42 U.S.C. § 1981 (1991). The Fourth Circuit reversed. Agreeing with the Fifth Circuit, the Court reasoned that Spriggs' performance of his assigned job duties was consideration exchanged for Diamond's promise to pay. The Court ruled that, therefore, Spriggs had a contract with Diamond and could bring an action under the 1991 amendment to § 1981.
Premises Liability: In Carter v. Shoppers Food Warehouse Md., Corp., 126 Md. App. 147 (1999), the Court of Special Appeals of Maryland held that the trial court properly excluded the testimony of an expert in a slip and fall case where the expert's testimony would not have assisted the jury in determining whether the carpet the plaintiff tripped on was dangerous because the expert's investigation was limited to an interview with the plaintiff and a cursory investigation of the incident area more than four years after the incident occurred. On November 21, 1993, Sarah Carter fell, injuring her knee when she slipped on a rubber mat in the produce section of a grocery store owned by Shoppers Food Warehouse. Carter sued Shoppers, alleging that Shoppers failed to maintain its premises in a safe condition. Following discovery, Shoppers filed a motion for summary judgment and a motion in limine to exclude Carter's safety expert from testifying at trial. The trial court granted both of Shoppers' motions. The Court of Special Appeals of Maryland affirmed, agreeing with Shoppers that Maryland Rule 5-702 was properly considered by the trial court when it excluded the expert from testifying. It noted that the admissibility of expert testimony is a matter "soundly within the trial court's broad discretion, and the court's decision rarely will constitute grounds for reversal." The Court reasoned that although the expert had extensive knowledge of safety standards and regulations, he "limited his investigation to the testimony of an interested party and a cursory analysis of the store and its current carpets." It further opined that the expert's testimony would not assist the juror's understanding of a fact in issue because common knowledge sufficiently provides a juror with the ability to understand a slip and fall on a carpet. The Court noted that the expert's opinion clearly lacked knowledge of statutory guidelines requiring a certain weight or type of carpet and scientific testing of the actual carpet at issue. Without this information, the Court concluded, there was no foundation upon which to admit the expert's testimony that the carpet at issue was inappropriate or dangerous.
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