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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.
Recent Developments
in the Law
Jeffrey R. Schmieler, Esquire
Saunders & Schmieler, P.C.
8737 Colesville Road
Suite L-200
Silver Spring, Maryland 20910
(301) 588-7717
www.sslawfirm.com
© Saunders & Schmieler, P.C. 2002
MARYLAND COURT
OF APPEALS
Insurance-Reduction in uninsured benefits -- Lewis v. Allstate
Insurance Co., 368 Md. 44, 792 A.2d 272 (2002). The Court of Appeals held that even though an insured motorist
had previously been paid $5,000 under the medical payments endorsement in his
own insurance policy, he was still entitled to the full $11,154 jury award for
uninsured motorist benefits. The Court held that there is no statutory authorization for a policy provision which
reduces the amount of an uninsured motorist benefits, to which the insured is
otherwise entitled, by the amount of money which the insurer had previously
paid to the insured under a medical payments endorsement in policy.
Products Liability - Defects in Handguns
-- Halliday v. Strum, Ruger
& Co., Inc., 368 Md. 186, 792 A.2d 1145 (2002). Mother of a three-year old who shot himself
to death with his father’s gun failed to state a cause of action for strict
liability against the gun manufacturer of the gun, since, under the consumer
expectation test, the handgun functioned as intended and as expected and, therefore,
was not defective. What caused the
tragedy was the carelessness of the father in leaving the loaded weapon where the child was able to find it.
Statute of Repose-Breach of Contract and
Warranty
-- Hagerstown Elderly
Associates v. Hagerstown Elderly Building Associates, et al.; Houck and Co.
v. Dryvit Systems, 368 Md. 351, 793 A.2d 579 (2002). The statute of repose, a law that
protects members of the construction industry from lawsuits filed to recover
for damages caused by long-latent defective conditions, applies to all causes
of action and pleadings, including breach of contract and breach of warranty.
Insurance-Personal Injury -- MeGonnell v. U.S. Automobile
Association, 368 Md. 633, 796 A.2d 758 (2002). The Court of Appeals reversed the Court of Special Appeals,
finding that an exclusion limiting liability in a primary automobile policy
applied only to that policy and not to the excess coverage section of a second
umbrella policy. Once the policy limits
pursuant to a household exclusion of the primary automobile policy were
satisfied, the exclusion did not apply to claims brought under the excess
coverage section of the umbrella policy.
The insurer’s contention that the exclusions applicable to the primary
policy also apply to the victim’s claim was unfounded, and would ultimately
defeat the purpose of purchasing an umbrella policy.
Personal Injury, Asbestos-Statutory
Interpretation -- Crane
v. Scribner, 2002 WL 1277581 (Md.
June 11, 2002). In actions for
personal injury founded on exposure to asbestos, for purposes of deciding
whether to apply the statutory cap for non-economic damages for exposure
occurring after July 1, 1986, the Court of Special Appeals adopted the exposure
approach. This method allows plaintiffs
whose exposure occurred prior to July 1, 1986 to avoid the statutory cap, even
though the disease had not manifested itself after that day.
Personal Injury, Asbestos-Evidence -- Georgia Pacific
Corporation v. Pransky, 2002 WL
1277576 (Md. June 11, 2002). The Court
of Appeals reaffirmed $9 million award for asbestos related mesothelioma since
the evidence presented at trial was clearly sufficient to establish that
plaintiff’s exposure to certain asbestos dust during a specific time period was
a substantial factor in causing the mesothelioma. Also, the statutory cap on non-economic damages did not apply
since the last known exposure occurred prior to July 1, 1986.
Expert testimony-Evidence -- Witte v. Azarian, 2002 WL 1315598
(Md. June 18, 2002). The Court of
Appeals broadly construed the law limiting the admissibility of expert
testimony for those experts who have not devoted more than 20% of the expert’s
professional activities to activities that directly involve testimony in personal
injury claims. Only when medical
examinations, telephone conferences, review of documents and the like are
performed in preparation for testifying does the evaluation constitute activity
that directly involves testimony. The
Maryland legislature’s use of the narrower term “directly involve testimony”
instead of broader “related to” language was found to be dispositive, since the
legislature would not wish to greatly shrink the pool of eligible experts.
Employee Termination-Public Policy -- Wholey v. Sears Roebuck et al., 2002 WL 1335280 (Md. June 19, 2002). Plurality opinion holding that Maryland
public policy does favor the investigation and prosecution of crimes, thus a
cause of action for the wrongful termination of an at-will employee who reports
suspected criminal behavior to police or other judicial authorities does
exist. However, public policy does not
protect a private employee who is fired for investigating criminal activity or
reporting the activity to his supervisors only. The dissenting opinion argued
that the employer’s discharge here was also contrary to public policy, and that
the plurality too narrowly construed the tort of “abusive discharge.”
Damages-Post-Judgment Interest -Carpenter Realty
Corporation et al. v. Imbesi,2002 WL 1340330 (Md. June 20,2002). When the original judgment for the plaintiff is reversed on
appeal but a subsequent judgment is later awarded, the plaintiff is not
entitled to post-judgment interest retroactive to the original judgment. The original judgment had been removed so
the post-judgment interest must be calculated from the date of entry of the
subsequent judgment.
MARYLAND COURT
OF SPECIAL APPEALS
Torts-Evidence --Antoinette Dow et al. v.
L&R Properties, Inc., 144 Md. App. 67, 796 A.2d 139 (2002). Summary judgment improper where material
issue of fact exists as to whether paint in rental home was lead based. Also, circumstantial evidence may support a
negligence determination if it amounts to a reasonable likelihood or
probability rather than a mere possibility.
In Maryland, meager evidence of negligence is sufficient to carry the
case to the jury, providing it is not wholly speculative.
Contracts, Evidence - Fraud, Negligent
Misrepresetation
- Greenfield, et ux. v. Udo Heckenbach, 144 Md. App. 108, 797 A.2d 63
(2002). Plaintiff may bring tort
actions for fraud or negligent misrepresentation that are based on false,
pre-contract promises by the defendant and admit parol evidence even if (1) the
written contract contains an integration clause and (2) the pre-contractual
promises that constitute fraud are not mentioned in the written contract, and
are thus admitted through parol evidence.
Furthermore, statute of frauds and merger by deed do not bar a tort suit
for either fraud or negligent misrepresentation because those counts are not
based “on the contract” between the parties but are based on misrepresentations
that induced the contract.
Torts-Civil Procedure -- Hansen v. Larsen, 144 Md. App. 201, 797 A.2d 118 (2002). A person is not “absent from the state”
merely because he or she does not reside in Maryland. A person will be deemed absent from the state, for statute of
limitations purposes, only if he or she cannot be “reached by processes of the
court.” This includes persons actually
residing in the state. Torts-Evidence--Southern Management Corporation et
al. v. Mariner, 144 Md. App. 188,
797 A.2d 110 (2002). Testimony
regarding prior fires resulting from clogged clothes dryer was allowed
since a similarity in time, place, and circumstances
existed. When such a showing of
substantial similarity is made, evidence of past accidents, tendencies or
defects may be admissible in negligence suit if the trial judge considers that
the probative value of the admittance outweighs the dangers of prejudicial
effect.
Criminal-Evidence -- Walker v. State,
2002 WL 1082334 (Md. App. May 31,
2002). State allowed to impeach its own
witness with prior unsworn, inconsistent statement under Rule 5-607 even when
state was not “surprised” by the witnesses testimony. Instead, using otherwise inadmissible evidence as a “subterfuge”
is the only limit to a party’s impeachment of its own witness under the rule.
Workers Compensation -- Montgomery County
v. George R. Smith, 2002 WL 1160198 (June 3, 2002). Court of Special Appeals reversed
Compensation Commission and Circuit Court grant of workers compensation to
off-duty prison guard during basketball game on prison grounds. The court held that the injury did not
“arise out of” his employment, for workers' compensation purposes, because his
job did not require him to be on the basketball court where he was injured. The
court also held that the injury did not occur “in the course of” his employment
for workers' compensation purposes. The guard's injury occurred after his day's
work was finished, he was not fulfilling work-related duties at the time he
injured himself, the guard could have exercised virtually anywhere to keep in
shape, and the guard was not hired to play basketball.Personal
Injury-Statutory Interpretation -- Ford
v. Douglas, 2002 WL
1162913 (Md. App. June 4, 2002). Since one-year statute of limitations applicable to actions for
“assault, libel, or slander” is unambiguous and legislative intent is clear,
actions for battery fall under the three-year general statute of limitations.
Personal Injury-Evidence
-- Singleton
v. Travers, 2002 WL 1205056 (Md. App.
June 6, 2002).
The trial court
improperly construed §10-104(c) of the Courts and Judicial Proceedings
Article when it granted summary
judgment in favor of defendant in automobile accident based on absence of live
expert testimony for plaintiff’s injuries. A causal connection between a
disability claimed by plaintiff and defendant’s negligence will require expert
testimony only when it involves a complicated medical question involving
facts. Otherwise, when causal
connection generally relates to matters of common experience, knowledge or
observation of laymen, expert testimony to show causation will not be required
at all. And, when required, expert
testimony used to show causation may be expressed in a written medical report
as long as the opinion contained therein is otherwise admissible.
Personal Injury-Retirement
Benefits
-- Board ofTrustees
for the Fire and Police Employers’ Retirement System of the City of Baltimore
v. Mitchell, 2002 WL 1301278 (Md.
June 14, 2002). The Court of
Special Appeals reaffirmed the decision of the Retirement Board granting
special disability benefits to the estate of a deceased firefighter. The court held that the firefighter’s
pancreatic cancer, caused by occupational hazards, was an “injury” under the
city’s Retirement Act which rendered him totally and permanently incapacitated
from further performance of his duties.
The case was remanded to determine whether this cancer was a new
cancer or whether it developed from an earlier cancer, for purposes of
statutory 5-year limitations period for filing a claim for special disability
benefits.
DISTRICT OF COLUMBIA
COURT OF APPEALS
Landlord &
Tenant-Duty of Care
-- Settles v. Redstone Development
Corporation, 797 A.2d 692 (D.C. 2002).
Court of Appeals upheld a grant of summary judgment to the defendant
landlord, holding that the landlord was not liable for an injury occurring on
the leased premises on which no measure of control was exercised by the
landlord. The premises was deemed to be
in exclusive control of the tenant, despite the fact that landlord was on
notice that the tenant might be in violation of air conditioning service. Liability for third-party injury will not be
imposed on landlord for every lease violation by a tenant, except for
situations in which a tenant maintains an extremely dangerous
instrumentality. Statutory
Interpretation-Notice-Sovereign Immunity -- Dingwall
v. District of Columbia Water and Sewer Authority, 2002 WL 1065905 (D.C.
2002). The en banc court
reinstated a prior panel decision holding that a plaintiff is not required to
provide notice of suit to the D.C. Water and Sewer Authority (WASA) in a suit for negligence. Section12-309 of the D.C. Code,
which requires pre-suit notice to the Mayor in an action against the District,
does not apply to WASA. The court
relied on language in WASA’s charter referring to it as a corporate body with a
separate legal existence within the District government. The court also cited §43-1672(b) of the
D.C. Code, and concluded that since WASA is “subject to” all the laws of the
District, it is subordinate to, and bound by, the laws applicable to other District instrumentalities.
U.S. COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Copyrights and
Intellectual Property
-- Nelson-Salabes Inc. v. Morningside Development LLC and G. Neville Turner, 284 F.3d 505 (4th Cir.
2002). In a case of first impression
for the 4th Circuit, the court affirmed a $736,000 award for the
architectural firm Nelson-Salabes while rejecting the developer’s argument that
the firm granted them an “implied nonexclusive license” to use the firm’s
drawings after another architect was hired. The implied license argument was used as an affirmative
defenseto copyright infringement.
However, while the court affirmed the amount of the award, it found
joint and several liability improper because the award was not based on the
firm’s damages, but on the defendant’s profits. The court vacated and remanded since no finding had been made
that defendants were engaged in a “practical partnership,” a finding necessary
for a profit-based award under copyright law.
ADA-Wrongful Discharge
-- Pollard v. High’s of Baltimore, 281
F.3d 462 (4th Cir. 2002).
The lower court was correct in holding that a woman with a back injury
that was believed to be temporary was not disabled under the Americans with
Disabilities Act. Later certification
by her physician that her injury was and had been permanent did not change
analysis under the ADA, under which temporary impairments are presumed not to
be covered but are analyzed on a case-by-case basis. Here, the worker failed to show that she was substantially impaired
in a major life activity, even if “working” is considered a major life
activity, because she immediately obtained other employment after leaving the
defendant company.
For full text of the
above opinions, click on www.courts.state.md.us,www.dcca.state.dc.us,www.uscourts.gov, or e-mail
schmielerj@sslawfirm.com
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