FIRM PUBLICATIONS - Mid-Atlantic Tort Law Update

INTRODUCTION

     This publication contains a Mid-Atlantic Regional Insurance and Tort Law survey which addresses the applicable law in those areas of particular interest to the liability insurance industry, in the States of New Jersey, Delaware, Pennsylvania, Maryland, Virginia, West Virginia and the District of Columbia. The survey is compiled by the Law Firm of Saunders & Schmieler, a general practice firm actively engaged as defense practitioners in all courts in the State of Maryland, Commonwealth of Virginia and The District of Columbia. The firm maintains offices in Montgomery County and Baltimore, Maryland as well as the District of Columbia, Arlington and Richmond, Virginia.

     Our Silver Spring office is centrally located so as to enable this firm to best service our multi-jurisdictional practice and is readily accessible to the courts located in the District of Columbia and Baltimore City and is located in the largest urban area adjacent to the new Southern District of the U.S. District Court for the District of Maryland which services Prince George’s, Montgomery, Calvert, Charles and St. Mary's Counties. Our office is a mere seven (7) minutes to the Courthouse.

     The firm specializes in the general practice of law particularly with respect to general trial and litigation legal services inclusive of insurance defense cases and litigation, general tort liability defense cases, personal injury defense litigation, medical malpractice defense litigation, environmental defense litigation, products liability defense litigation, premises liability defense litigation and construction accident liability defense litigation, and has extensive experience in a wide range of corporate and commercial law, contract law and general liability defense claims inclusive of, but not limited to, products liability, general tort liability, personal injury litigation, environmental litigation, toxic chemical litigation, toxic fume and contamination claims as well as occupational illness defense claims and Workmen's Compensation claims.


SURVEY OF INSURANCE AND TORT LAW IN
NEW JERSEY, DELAWARE, PENNSYLVANIA, MARYLAND,
DISTRICT OF COLUMBIA, VIRGINIA AND WEST VIRGINIA

OVERVIEW OF THE LAW RELATING TO INSURANCE DEFENSE

ILimitations of Actions
IIAccrual
IIINon Suits
IVResponsive Pleading
VStatute of Repose for Improvements to Real Property
VIStacking of Uninsured Motorist Coverage
VIIService
VIIIContributory Negligence
IXPunitive Damages
XProducts Liability/Strict Liability
XICompensatory Damages
XIIJoint Several Liability
XIIIMinors, Age, Responsibility
XIVDram Shop Liability
XVIndemnification
XVIContribution
XVIIWorkers’ Compensation
XVIIIContracts of Insurance & Construance of Ambiguity
XIXWrongful Death
XXSummary Judgments
XXIBad Faith
XXIILandlord Liability for Criminal Acts of Third Parties
XXIIIInsured's Right to Independent Counsel
XXIVDuty to Defend


1. LIMITATION OF ACTIONS

A. MARYLAND

     According to section 5-101 of the Court's Judicial Proceedings Article of the Maryland Annotated Code, a civil action at law shall be filed within three (3) years from the date it accrues unless another provision of the Code provides a different period of time within which an action can be commenced. Thus, unless a specific exception applies, all civil actions must be filed within three years. The most noticeable exceptions to the three year rule are: a twelve (12) year statute of limitations on a promissory note or other instrument under seal, bond, judgment, recognizance or contracts under seal. The statute of limitation for adverse possession is twenty (20) years. As for assault, libel, and slander, all actions shall be filed within one (1) year from the date it accrues. An action for damages for injuries arising out of the failure to render professional services by a health care provider shall be filed within the earlier of five (5) years of the time the injury was committed or three years of the date the injury was discovered. If the claimant was under the age of eleven (11) at the time the injury was committed, the time limitation prescribed shall commence when the claimant reaches the age of eleven (11)

years. Finally, according to the Commercial Law Article of the Maryland Annotated Code section 2-275 an action for breach of any contract for sale must be commenced within four (4) years after the cause of action has accrued. Therefore, for the most part, unless the case involves one of the aforementioned exceptions, the statute limitations for civil actions is three (3) years.

B. DISTRICT OF COLUMBIA

     A.     Negligence: For personal injury or property damage the limitation is three (3) years;[1]

     B.     Intentional Torts: For libel, slander, assault, battery, mayhem, wounding, malicious prosecution, false arrest or false imprisonment the limitation period is one (1) year;[2]

     C.     Intentional Infliction of Emotional Distress: Court looks at the acts underlying the alleged infliction to determine the applicable statute of limitations;[3]

     D.     For the recovery of lands, or tenements: 15 years;[4]

     E.     For the recovery of personal property or damages for its unlawful detention: three (3) years;[5]

     F.     For a statutory penalty of forfeiture: one (1) year;[6]

     G.     On an executor’s or administrator’s bond: five (5) years; or any other bond or single bill, covenant, or other instrument under seal: twelve (12) years;[7]

     H.     On a simple contract, express or implied: three (3) years;[8]

     I.     For which a limitation is not otherwise specifically prescribed: three (3) years;[9]

     J.     And for the recovery of damages for an injury to real property from toxic substances including asbestos: five (5) years from the date the injury is discovered or with reasonable diligence should have been discovered.[10]

     K.     For claims under the Uniform Commercial Code: four (4) years.

C. VIRGINIA

     Five (5) years for claims involving property damage (whether personal or real); claims by parents for medical expenses incurred by minors; claims for breach of written contracts. (Virginia Code section s 8.01-243(b) and 8.01-246.

     Four (4) years for claims involving breach of contract for sale of goods under the Uniform Commercial Code. (Virginia Code section 8.2-725.)

     Three (3) years for claims involving breach of oral or implied contracts. Implied contracts include contracts for indemnification or contribution. (Virginia Code section 8.01-246.)

     Two (2) years for claims involving personal injury and fraud. (Virginia Code section 8.01-248.)

D. NEW JERSEY

1)     I year - Libel, slander

2)     2 years - Personal injuries, wrongful death, discrimination

3)     4 years - Contracts

4)     6 years - Trespass, injury to real or personal property, conversion, tortious injury to right other than personal injury, libel or slander, non U.C.C. contract claims

5)     10 years - State of repose

6)     20 years - Real estate or rents recovery

E. DELAWARE

1)     I year - Negligence v. City of Wilmington

2)     2 years - Wrongful death, personal injury, property damage, medical malpractice - 2 years from date of injury with outside of 3 years - 6 year toll for children

3)     3 years - Trespass

4)     4 years - U.C.C contracts

5)     6 years - Bonds

     * No general Statute of Limitations

F. PENNSYLVANIA

1)     6 months - Action against state

2)     1 year - Libel, slander, invasion of privacy, actions on bonds

3)     2 years - Assault, battery, false arrest, malicious prosecution, abuse of process, personal injury/negligence, personal injury/property damage based in negligence, intention or other tort

4)     3 years - Workers' Compensation

5)     4 years - Contract/U.C.C.

6)     5 years - Revival of joint lien - real property, specific perf.

7)     6 years - General statute of limitations

8)     20 years - Execution against personal property - writings under seal

9)     21 years - Possession or payment of any charges relating to real property

G. WEST VIRGINIA

     West Virginia Code section 55-2 et seq. provides for the following limitation of actions and suits.

     1)     2 years - Wrongful death, personal injury, injury to real or personal property, survival, medical malpractice;

     2)     4 years - U.C.C./Contract

     3)     5 years - Non- U.C.C. contracts

     4)     10 years - Recovery of lands


II. ACCRUAL

A. MARYLAND

     As to accrual, the question of when a cause of action accrues is a judicial one to be decided by the Court and not the trier of fact. Jones v. Sugar, 18 Md. App. 99, 305 A.2d 219 (1973) . Generally limitations against a right or a cause of action begins to run from the day of the wrong. However, there are a number of causes of actions that it is not immediately apparent to the Plaintiff at the time the wrong was committed that damage has occurred. Under these types of situations, Maryland has held that the discovery rule is applicable.[11]

B. DISTRICT OF COLUMBIA

     In the District of Columbia the Statute of Limitations ordinarily begins to run from the time at which all of the elements of the Plaintiff's cause of action exist.[12] In D.C., actions on a contract begin to run from the time of breach.[13] The limitations period under the District of Columbia’s three (3) year limitations period for negligence begins to run when the Plaintiff suffers injury.[14] In determining when a legal malpractice claim accrues, the District of Columbia follows the "injury rule" under which claims for legal malpractice accrue when the Plaintiff suffers actual injury and not when the act causing the injury occurs.[15]

C. VIRGINIA

     A cause of action in Virginia accrues at the time of the injury and not at the time of discovery, except for limited situations involving medical malpractice cases and claims involving fraud. The statute of limitations does not begin to run for a minor until the minor has reached the age of eighteen (18) with the exception of medical malpractice cases involving minors (Virginia Code section 8.01-229.)

D. NEW JERSEY

     New Jersey courts hold that a tort action accrues not when the tortious conduct occurs, but when the consequential injury or damages occurs. Burd v. N.J. Tel. Co., 149 N.J. Super. 20, 372 A.2d 1355, aff’d 76 N.J. 284, 386 A.2d 1310 (1977). New Jersey also abides by the discovery rule, which tolls the statute of limitations until the plaintiff becomes aware of the injury or should have become aware of the injury. Ayers v. Jackson Tp., 189 N.J. Super. 561, 461 A.2d 184 (1983). The discovery rule does apply to medical malpractice cases. Morgan v. Napolitano, 71 N.J. 133, 363 A.2d 346 (1976).

E. DELAWARE

     The cause of action in a tort cases accrues at the time of injury. Howmet Corp. v. City of Wilmington, 285 A.2d 423 (Del. Super. Ct. 1971). The Delaware courts subscribe to the “inherently unknowable injury” theory, which tolls the statute of limitations until the injury manifests itself or becomes ascertainable. Issacson, Stopler & Co. v. Artisan’s Sav. Bank, 330 A.2d 130 (Del. Super. Ct. 1974). The Delaware courts also adhere to the continuing negligence theory, which allows the action to accrue when the negligence ends. Begar v. Dixon, 547 A.2d 620 (Del. Super. Ct. 1980).

F. PENNSYLVANIA

     The general rule in Pennsylvania is that the cause of action accrues at the time an act or omission occurs. The exception to this rule appears when the injury or damage is sustained after the act or omission, thus the action accrues when the damage and injury are sustained. Schwab v. Cornell, 160 A. 449, 306 Pa. 536 (1932). A medical malpractice case based on informed consent accrues at the time the medical procedure is performed, unless fraud or active concealment is pleaded and proved. Levenson v. Souser, 45 D. section C.3d 458 aff’d, 557 A.2d 1081. See also, Ayers v. Morgan, 48 Luz. L. Reg. 277 (1985). Pennsylvania also adheres to the doctrine of continuing wrong, which causes an action not to accrue until the cessation of the continuing wrong. Conduit and Foundation Corp. v. Municipal Authority of Lemoyne, 8 Cumb. 64, (1957).

G. WEST VIRGINIA

     West Virginia has adopted the discovery rule with respect to applicability of limitations periods in medical malpractice cases, and applicable limitations periods do not begin to run until plaintiff knows or by the exercise of due diligence should know that he has been injured, and the identity of the person or persons responsible. Slack v. Kanawah Co., 423 S.E. 2d 547 (1992). There is an outside limit of 10 years for medical malpractice cases. (W. Va. Code section 55-7B-4) however this limit does not apply to wrongful death actions.


III. NON SUITS

A. MARYLAND

     In Maryland there is no automatic dismissal or an automatic non-suit after the cause of action is at issue. According to Rule 2-506 of the Maryland Rules of Civil Procedure, a Plaintiff may dismiss an action without leave of court by filing a Notice of Dismissal at any time before the adverse party files an Answer or a Motion for Summary Judgment or by filing a Stipulation of Dismissal signed by all parties who have appeared in the action. Otherwise, the Plaintiff may dismiss an action only by Order of Court and upon such terms and conditions as the Court deems proper. Unless otherwise specified in the Notice of Dismissal, a dismissal is without prejudice. Usually, the first voluntary dismissal is without prejudice, and the second voluntary dismissal is with prejudice.

B. DISTRICT OF COLUMBIA

     The is no automatic dismissal or a non-suit of an action once one has been filed in D.C. and the parties are at issue. Voluntary Dismissal in D.C. is set forth in D.C. Superior Court Rule 41.[16]

C. VIRGINIA

     In Virginia, a plaintiff has an absolute right to take a nonsuit to an action once it has been filed. (Virginia Code section 8.01-380.) The right to non-suit a case extends up until the time that the case has been submitted to a trier of fact for a decision. A plaintiff has six (6) months from the time of a non-suit within which to refile an action, or may refile an action during any remaining period of time left under the original statute of limitations, whichever period is longer. (Virginia Code section 8.01-229(e).)

D. NEW JERSEY

     New Jersey allows plaintiffs to dismiss actions. A plaintiff may dismiss an action without prejudice at any time before the plaintiff is served by a responsive pleading or by filing a stipulation of dismissal signed by all the parties appearing in the action. N.J. Rule 4:37-1. Otherwise a plaintiff cannot dismiss a case, without leave of Court. Id. If a plaintiff files a new suit based on the same cause of action and against the same defendant, the defendant can move for costs of the previous suit. N.J. Rule 4:37-4.

E. DELAWARE

     Dismissal of actions are permitted in both the Court of Chancery and Superior Court and are governed by the same language. See Court of Chancery Rule 41 and Superior Court Civil Rule 41. The plaintiff can dismiss an action without prejudice before any response by the adverse party or by filing a stipulation with all parties after a response is provided. A defendant may move to dismiss a case under this rule if the plaintiff fails to prosecute or does not comply with these Rules. The Court may on its own or any other party's motion dismiss a case that has been inactive for I year.

F. PENNSYLVANIA

     In Pennsylvania, a discontinuance is the exclusive method of voluntary termination of an action by a plaintiff before the commencement of trial Pa. R.C.P. No. 229 (1), 42 Pa. C.S.A. Formal application for a discontinuance to the Court is not required. After a discontinuance, a plaintiff may proceed on the same cause of action upon the payment of costs of the former action. Pa. R.C.P. No. 231(a). 42 Pa. C.S.A. Voluntary Non-Suit is the exclusive method for the plaintiff to voluntarily terminate an action during trial. Pa. R.C.P. No.230 42 Pa. C.S.A. Plaintiff may take a voluntary non-suit without leave of Court until the plaintiff has rested his case-in-chief, after which the allowance of the nonsuit is within the Court's discretion.

G. WEST VIRGINIA

     An action may be dismissed by the Plaintiff by filing a Notice of Dismissal prior to the filing of an Answer or Motion for Summary Judgment by the Defendant, or by filing a Stipulation of Dismissal signed by all parties. A matter will be dismissed for failure of a plaintiff to prosecute upon motion of the Defendant. Unless otherwise specified, in the order, a voluntary dismissal is without prejudice. R.C.P. 41.


IV. RESPONSIVE PLEADINGS

A. MARYLAND

     According to Maryland Rule 2-321, a party shall file an answer to a complaint within thirty (30) days after being served. If the Defendant is served outside of the State or if the Defendant is a Corporation the time is extended to sixty (60) days. As for motions, a response shall be filed within fifteen (15) days.

B. DISTRICT OF COLUMBIA

     A responsive pleading to a Complaint in D.C. must be filed within 20 days after the service and summons on the Defendant under D.C. Sup. Ct. R. Rule 12 (a).

C. VIRGINIA

     Under Virginia Rule 3.5 a Defendant has 21 days after the filing of a motion for Judgment in which to file a responsive pleading. A Defendant's failure to file a response within this time period will result in a default judgment.

D. NEW JERSEY

     In New Jersey, the defendant must answer a complaint and file any counterclaim within 20 days after service on the defendant. N.J. Rule 4:6-1. This time is enlarged to 35 days if: 1) service is made by mail, publication or posting; 2) service is made outside the State, or 3) service is made on an agent of the defendant. Failure to respond may be considered an admission. See N.J. Rule 4:5-5.

E. DELAWARE

     Time to file responses to pleadings in Delaware is governed by the Rules of each Court. Superior Court Civil Rules require a responsive pleading to be filed within twenty (20) days after service of process. See Rule 12. The same deadline applies to the Court of Chancery. See Court of Chancery Rule 12.

F. PENNSYLVANIA

     A responsive pleading in Pennsylvania must be filed within twenty (20) days after service of the preceding pleading, and a defendant outside the U. S. has sixty days to respond. Pa. R. C. P. No. 1026, 42 Pa. C.S.A.

G. WEST VIRGINIA

     The Federal Rules of Civil Procedure form the basis of the service of process rules in West Virginia with some modifications. An Answer is due twenty (20) days from the date of service if service is made on an agent, a responsive pleading must be filed within thirty (30) days. Service must be made within one hundred eighty (180) days of issuance of the summons. R.C.P. 12.


V. STATUTE OF REPOSE FOR IMPROVEMENTS TO REAL PROPERTY

A. MARYLAND

According to section 5-108 of the Courts Judicial Proceedings Article of the Maryland Annotated Code, no cause of action for damages accrues and a person may not seek contribution or indemnity for damages occurred when wrongful death, personal injury, or injury to real or personal property resulting from the defective and unsafe condition of an improvement to real property occurs more than twenty (20) years after that the entire improvement first became available for it's intended use. A cause of action for damages does not accrue and a person may not seek contribution or indemnity from any architect, professional engineer, contractor for damages incurred when wrongful death, personal injury or injury to real or personal property, resulting from the defective and unsafe condition of an improvement to real property, occurs more than 10 years after the date the entire improvement became available for its intended use. Upon accrual of a cause of action, an action shall be filed within (3) three years. This section does not apply if the defendant was in actual possession and control of the property as owner, tenant, or otherwise when the injury occurred. A cause of action for an injury described in this section accrues when the injury or damage occurs.

B. DISTRICT OF COLUMBIA

     The District of Columbia Code provision section 12-301 entitled "Actions arising out of Death or Injury caused by Defective or Unsafe Improvements to Real Property" states that action(s) involving recovery for damages for personal injury, injury to real or personal property, or wrongful death resulting from the defective or unsafe condition of an improvement to real property, and for contribution on indemnity which is brought as a result of such injury or death, shall be barred unless in the case where the injury is the basis of such action, such injury occurs within the ten (10) year period beginning on the date the improvement was substantially completed, or in the case where death is the basis of such action, either such death or the injury resulting in such death occurs within such ten (10) year period.

C. VIRGINIA

     An action for recovery of injury to property or for bodily injury arising out of a defective or unsafe condition of an improvement to real property must be brought against the individuals designing or constructing the improvements to real property within five (5) years from the date of performance of such service. (Virginia Code section 8.01-250.)

D. NEW JERSEY

     New Jersey’s Statute of Repose is codified in N.J. S.A. 2A:14-1.1, which states as follows:

No action whether in contract, in tort, or otherwise to recovery damages for any deficiency in the design, planning, supervision or construction of an improvement to real property, or for any injury to property, real or personal, or for an injury to the person, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages sustained on account of such injury, shall be brought against any person performing or furnishing the design, planning, supervision of construction or construction of such improvement to real property, more than 10 years after the performance or furnishing of such services and construction. This limitation shall not apply to any person in actual possession and control as owner, tenant, or otherwise, of the improvement constitutes the proximate cause of the injury or damage for which the action is brought.

     The discovery rules is not applicable to this statute. Hudson County v. Terminal Const. Corp., 154 N.J. Super. 264, 381 A.2d 355 (1977).

E. DELAWARE

     Statute of Repose is recognized in the State of Delaware. 10 Del. C.A. section 8127. The statute does not allow a cause of action based on contract, tort or otherwise for damages, contribution, or indemnification resulting from injuries person or property due to the construction of improvements to real property after the expiration of six (6) years from the completion for the work.

F. PENNSYLVANIA

     It appears that Pennsylvania does not have a statute of repose for improvements to real property. Therefore, the accrual and limitations stated earlier would apply to any cause of action arising from a death or injury caused by a defective or unsafe improvement to real property.

G. WEST VIRGINIA

     The West Virginia Code provides that all actions for personal injury or property damage must be brought within two (2) years from the date of accrual. However there is an "architects and builders statute" which limits the time within which actions can be brought against architects, engineers, and others in the construction industry for construction of or improvements in real property to ten (10) years after the performance of such services or construction. W. Va. Code section 55-2-7. Under the Statute of Repose a cause of action is foreclosed after ten (10) years after the improvement is made regardless of when the injury occurred. Gibson v. W. Va. Dept. of Highways, 406 S.E. 2d 440 (1991).


VI. STACKING OF UNINSURED MOTORIST BENEFITS

A. MARYLAND

     According to Article 48a section 543 of the Maryland Annotated Code, no person may recover uninsured motorist coverage for more than one motor vehicle liability policy or insurer in either a duplicate or supplemental basis. n The phrase “duplicative” as used in the statute means payment in full, twice or more for the same claim, while the term “supplemental” is more inclusive and refers to attempts to fill the deficiencies in the uninsured motorist coverage for the primary policy by claiming under a second policy. Under either term, after a claim for policy limits has been paid under the primary policy, recovery under a secondary policy is prohibited.

B. DISTRICT OF COLUMBIA

          Under the District of Columbia Code Provision 35-2102 (27) “stacking” is defined as “a legal procedure wherein the limits of liability applicable to a single motor vehicle policy of insurance are added to the limits of liability of all motor vehicles which may be insured by one motor vehicle liability policy of insurance involved in one accident.” Underinsured motor vehicle coverage under 35-2106 (c-1) states that insurance that includes underinsured motor vehicle coverage may include terms and conditions that preclude stacking of underinsured motor vehicle coverage. Furthermore, provision (7) section 35-2107 states that “Any Motor Vehicle policy of insurance may include terms and conditions that preclude stacking of uninsured motor vehicle coverage.” Thus, it appears that stacking in some instances is permitted in the District of Columbia unless the specific policy of insurance precludes such stacking.

     In the District of Columbia, if more than one excess indemnity policy applied to give claim arising out of asbestos exposure, thermal insulation manufacturer could designate which policy’s limits would apply in that case, but it could not “stack” policy limits.[17] In situations in which the District of Columbia No-Fault Motor Vehicle Insurance Act and the District of Columbia Workers’ Compensation Act applies benefits payable under Workers’ Compensation are primary over benefits payable under no fault. Thus, personal injury protection benefits must be paid by a self-insured employer only if benefits paid under Workers’ Compensation do not accord an injured individual the full measure of recovery he would receive from PIP benefits.[18]

C. VIRGINIA

     The term stacking (in the intra-policy context) refers to multiplying the policy limits of a particular coverage by the number of automobiles to which that coverage applies. (i.e., if stacking is permitted, med pay coverage with limits of $5,000 and four automobiles on the policy would provide $20,000 of med pay coverage to the insured). The Virginia Supreme Court has specifically ruled that Division I insureds (named insureds and all resident/relatives of his household) may stack med pay coverage.[19] Accordingly, Division I insureds may stack med pay and medical expense coverages up to four automobiles, assuming the insured's medical expenses exceed the combined amount.

     Division II insureds are comprised of individuals (Other than named insured and his resident/relative) who occupy and owned or non-owned automobile, with certain restrictions. An analysis of stacking begins (but does not necessarily end) with Nationwide Mut. Ins. Co. v. Shelton,[20] in which the Virginia Supreme Court ruled that, while Division I insureds may stack their med pay coverage, Division II insureds may not.

D. NEW JERSEY

     The New Jersey legislature has expressly stated that the stacking of uninsured motorist coverage policies is prohibited. N.J.S.A. 17:28-1.1 states as follows:

Uninsured and underinsured motorist coverage provided for in this section shall not be increased by stacking the limits of coverage of multiple motor vehicles covered under the same policy of insurance nor shall these coverages be increased by stacking the limits of coverage ' of multiple policies available to the insured. If the insured had uninsured motorist coverage available under more than one policy, any recovery shall not exceed the higher of the applicable limits of the respective coverages and the recovery shall be prorated between the applicable coverages as the limits of each coverage bear to the total of the limits.

E. DELAWARE

     In Delaware, an insurer is statutorily required to offer uninsured coverage to all insured, who have a right to reject that aspect of the policy 18 Del. C.A. section 3902. Delaware law does not permit stacking of uninsured vehicle coverage. “The affording of insurance under this action to more than one (1) person or to more than (1) vehicle shall not operate to increase the limits of the insurer’s liability. 18 Del. C.A. section 3902 (c). When the insured owns more than one vehicle and carries uninsured motorist coverage on each vehicle, only the policy for the vehicle may be utilized.

F. PENNSYLVANIA

     Until recently “uninsured” coverage was required by law in Pennsylvania. Now it is optional. Pennsylvania allows for the stacking of uninsured coverage benefits. See 75 Pa. C.S.A. 1738. When multiple policies exist, the policy covering the vehicle occupied by the injured person is first exhausted. After the exhaustion of the first policy, the policies covering other motor vehicles but under which the injured person is insured are looked to for recovery. See 75 Pa. C.S.A. section 1733. Pennsylvania allows the insured to waive his right to stacking the limits of coverage and purchase coverage which states the limits for the vehicle. In exchange, the insured receives a reduced premium rate which reflects the different cost of coverage. 75 Pa. C.S.A. section 1738. The recovery of both underinsured and uninsured benefits for the same accident is barred. Erie Ins. Exchange v. Danielson. 621 A.2d 656, 423 Pa. Super 524 (1993).

G. WEST VIRGINIA

     The West Virginia Uninsured Motorist Statute makes no mention of priority in primary coverage or stacking. The liability of two (2) insurers under two (2) policies should be evenly divided, and an insured simultaneously covered by two (2) uninsured motors policies may recover on both policies up to the limits of liability in each or the amount of judgment, whichever is less. W. Va. Code section section 17 D-1 et seq.


VII. SERVICE

A. MARYLAND

     Service of process in Maryland may be made by delivering to the person to be served a copy of the Summons, Complaint, and all other papers filed with it or by mailing to the person to be served a copy of the Summons, Complaint, and all other papers filed with it by certified mail requesting restricted delivery. Service by certified mail is complete upon delivery. When Proof is made by Affidavit that the Defendant has acted to evade service, the Court may order that service be made by mailing a copy of the Summons, Complaint, and all other papers filed with it to the Defendant at the Defendant's last known residence and delivering a copy of each to a person of suitable age and discretion at the Place of business, dwelling house, or usual place of abode of the Defendant. Furthermore when Proof is made by Affidavit that good faith efforts have been made to serve the Defendant, but the Plaintiff has been unsuccessful, the Court may order any other means of service that is deemed appropriate in the circumstances and reasonably calculated to give actual notice. Such methods of alternative service may be by mailing the documents to the Defendant's last known address and:

  1. by posting the notice at the courthouse door or on a bulletin board within its immediate vicinity;

  2. by publishing the notice at least once a week in each of the three successive weeks in one or more newspaper of general circulation published in the county in which the action is pending; or

  3. in an action in which the right to possession to land including lease hold interests are involved, by posting the notice in a conspicuous place on the land by a sheriff. Service is made upon a corporation, association, or joint stock company by serving its resident agent, president, secretary, or treasurer. Service is made upon the State of Maryland by serving the Attorney General. Service is made upon the United States by serving the United States attorney for the District of Maryland.

According to Maryland Rule 2-507, an action is subject to dismissal if the Plaintiff has not served the Defendant within one (1) year after the complaint was filed. Furthermore, a case is subject to dismissal for lack of prosecution if the Plaintiff fails to pursue the case for more than a year.

B. DISTRICT OF COLUMBIA

     In D. C., except for collection cases, all plaintiffs must file proof of service within sixty days after filing the complaint, unless that deadline has been extended for good cause shown in a motion filed within such sixty day period. If proof of service is not timely filed, the Clerk will issue an order providing that the case shall stand dismissed without prejudice after fourteen days from the date such order is docketed. If during that fourteen day period, plaintiff files a motion purporting to show good cause why the case should not be dismissed, the order of dismissal will not take effect until the Court has ruled on that motion. Complaints involving third (or subsequent) party actions, interpleader, and persons needed for just adjudications are subject to the same provisions concerning service and dismissal. (SCR Civ. 4(j), 14, 19, 22, and 41 (b) ).

C. VIRGINIA

     A plaintiff may serve a motion for judgment (complaint) within one (1) year of filing or longer if the defendant cannot be located with due diligence. See Virginia Rule 3:3. The return of service should be made pursuant to Virginia Rule 3:4.

D. NEW JERSEY

     In New Jersey, an action may be dismissed if a summons is not issued within ten (10) days after filing a complaint. N.J. Rule 4:4-1. The plaintiff, their attorney or Clerk of the Court may issue the summons. Id. The sheriff or a person specially appointed by the Court have the authority to serve process. If the sheriff returns the summons and complaint unserved, or 40 days elapses from the time the sheriff received the process, the plaintiff or their attorney may seek private service or service by registered or certified mail. N.J. Rule 4:4-3. The person making service must make a return stating the name of the person served, place, mode and date of service. If service is made by a person other than a sheriff, proof of service shall be made by an affidavit. N.J. Rule 4:4-7.

E. DELAWARE

     “Every writ used for commencement of an action shall bear date on the dat it was issued and shall be returnable on the day fixed by the rules of the court issuing the writ or, if there be no such rule, on the day fixed by Statute.” 10 Del. C.A. section 3101. As to the commencement of civil actions: In the Superior Court , see Civil Rule 3 of the Superior Court; in the Court of Chancery, see Rule 3 of Court of Common Pleas; and before Justice of the peace, see Civil Rule 4 of Justice of the Peace. The officer serving the summons must state in the return the time and manner of service. 10 Del. Ca. section 3103.

F. PENNSYLVANIA

     Pennsylvania allows only the sheriff or a competent adult not a party to the action to serve original process. Pa. R.C.P. No. 400, 42 Pa. C.S.A. “Original process shall be served within the Commonwealth within thirty (30) days after the issuance of the writ or the filing of the Complaint.” Pa. R.C.P. No. 401 (a), 42, Pa. C.S.A. If service is not accomplished within thirty (30) days, the serving party may present the original process back to the Court which will reissue the writ or reinstate the complaint, thus continuing its validity. Pa. R.C.P. No. 401(b), 42 Pa. C.S.A. Writs and complaints can be reissued or reinstated at any time and any number of times. Id. Return of service made by the sheriff or other person shall be made forthwith and set forth the date, time, place and manner of service and the identity of person served. Pa. R.C.P. No. 405, 42 Pa. C.S.A. Return of service made by a person other than a sheriff, shall be by affidavit. Id.

G. WEST VIRGINIA

     The rules of service are identical to those contained in the Federal Rules of Civil Procedure Rule 4. R.C.P. 4


VIII. CONTRIBUTORY NEGLIGENCE

A. MARYLAND

     The State of Maryland is a contributory negligence state. Under Maryland Law, contributory negligence of a Plaintiff will bar him from recovery regardless of its ratio or proportion as contrasted with that of the Defendant. Further, where Plaintiff is guilty of contributory negligence, the Defendant’s negligence is immaterial. Miller v. Mullenix, 227 Md. 229, 176 A.2d 203 (1962).

B. DISTRICT OF COLUMBIA

     The District of Columbia is a contributory negligence jurisdiction. Comparative negligence is not applicable in D.C. Contributory negligence of the plaintiff is a complete bar to recovery. Any negligence on the part of the Plaintiff which at all contributes to the injury, bars the Plaintiff from recovery. The defenses of contributory negligence and assumption of risk are not available, however, against employees in actions based on an employer’s breach of the statutory duty to provide reasonable safe working conditions for wage earners, except where the employee’s actions are willful, wanton or in reckless disregard for her/his own safety.[21]

C. VIRGINIA

     Virginia strictly applies a contributory negligence rule. The jury is instructed that they are not to compare the negligence of the plaintiff or the defendant. Once the issue of contributory negligence is submitted to a jury, the jury must find that the sole proximate cause of the injury was the defendant’s own negligence. Any negligence on the part of the plaintiff, which at all contributes to the injury, bars the plaintiff from recovery.

D. NEW JERSEY

     New Jersey does not recognize contributory negligence as a bar to recovery in a negligence action. N.J.S.A. 2A:15-5.1. New Jersey is a comparative negligence state and allocates liability and damages as follows:

In any negligence actions in which the question of liability is in dispute, including actions in which any person seeks to recover damages from a social host as defined in section C.2A:15-5.5 for negligence resulting in injury to the person or the real or personal property, the trier of fact shall make the following as findings of fact:

The amount of economic and non-economic damages which would be recoverable by the injured party regardless of any consideration of negligence, that is, the full value of the injured party's damages;

The extent, in the form of a percentage, of each party Is negligence. The percentage of negligence of each party shall be based on 100% and the total of fall percentages of negligence of all the parties to a suit shall be 100%. In an action in which a person seeks to recover damages from a social host for negligence resulting in injury to the person or to real or personal property, the negligence of any person. in becoming intoxicated shall be considered by the trier of fact, and the trier of fact shall allocate a percentage of negligence to that person.

     The judge shall mold the judgment from the finding, of fact made by the trier of fact.

     If one party pays more than their share, he is entitled to seek contribution from other parties. N.J.S.A. 2A:15-5.3.

E. DELAWARE

     The rule of contributory negligence was at one time firmly established in Delaware. See Jones v. Pennsylvania R. Co, 123 A.2d 111 (Del. Super 1956). Presently, Delaware is a comparative negligence state 10 Del. C.A.S. 8132 titled comparative negligence states:

In all actions brought to recover damages for negligence which results in death or injury to person or property, the fact that the plaintiff may have been contributorily negligent shall not bar a recovery by the plaintiff or his legal representative where such negligence was not greater than the negligence of the defendant or the combined negligence of all defendants against whom recovery is sought, but any damages awarded shall be diminished in proportion to the amount of negligence attributed to the plaintiff.

F. PENNSYLVANIA

     In Pennsylvania, contributory negligence is a complete bar to recovery by the plaintiff. Crane v. Neal, 132 A.2d 675, 389 Pa. 329 (1957). The plaintiff is guilty of contributory negligence if he has not acted as a reasonably prudent person would have acted under the circumstances. Weschler v. Buffalo & Lake Erie Traction Co., 143 A. 119, 293 Pa. 472 (1928).

G. WEST VIRGINIA

     In King v. Kayak Mfg. Co., 387 S.E. 2d 511 (1989) the West Virginia courts adopted a system of comparative negligence in cases where the plaintiffs fault does not equal or exceed the combined negligence of the defendants. The comparative negligence standard was made retroactive to all cases tried after 11/9/89, regardless of the date of the occurrence. Where plaintiff’s negligence exceeds that of the Defendant(s), there is no recovery.


IX. PUNITIVE DAMAGES

SUPREME COURT

     Pacific Mutual Life Insurance Co. v. Haslip, 111 S. Ct. 1032, 113 L.Ed. 2d 1 (1991).

     The United States Supreme Court in Haslip considered the substantive and procedural due process constraints to the issuance of punitive damages. The Court had indicated the prospect of substantive and procedural due process constraints in Browning - Ferris Industries v. Kelco Disposal, Inc., 109 S. Ct. 2901 (1989), noting that due process might act as a check on undue jury discretion in the absence of any statutory limit and that a punitive damage award might not pass muster under the due process clause if it was the product of bias or passion or reached in proceedings that lacked the basic elements of fundamental fairness.

     The Court commented that "unlimited jury discretion - or unlimited judicial discretion - in the fixing of punitive damages may invite extreme results that jar one's constitutional sensibilities".

     The Court declined to draw a "mathematical bright line between the constitutionally acceptable and the constitutionally unacceptable that would fit every case, but observed that the "general concerns of reasonableness and adequate guidance from the Court when the case is tried to a jury properly enter into the constitutional calculus." On that premise, it examined three (3) aspects of the award; 1) the instructions given to guide the jury in determining whether and how much to award, 2) judicial oversight for review of the verdict and 3) the amount itself.

A. MARYLAND

     In Maryland, the recent pronouncements of both the Maryland Court of Special Appeals and the Court of Appeals clearly reflect the constitutionally mandated review of punitive damage award in view of the Haslip case. While the case of Alexander and Alexander v. Evander, 920 Sept. Term 1990 filed October 4, 1991, following the Supreme Court mandate of Haslip prescribed an "objective standard" for the imposition of punitive damages awards and imposed procedural review on jury awards for the issuance of punitive damages predicated upon the Haslip decision, the case is now obsolete.

     In Owens-Illinois, Inc., et al. v. William Zenobia, Sr., et al., which was decided on February 14, 1992, and is found at 1992 Maryland Lexis 21, the Court of Appeals completely set aside twenty (20) years of Maryland jurisprudence and completely re-organized the system for awarding punitive damages in tort actions in the State of Maryland. In Zenobia, the Court drastically changed the State’s punitive damages law creating a new standard for juries to use in deciding punitive damages issues and increasing the Plaintiff’s burdens of proof when seeking punitive damages. In Zenobia, the Court: 1) examined the characterizations of the Defendant’s conduct which may expose a Defendant to a potential award of conduce which may expose a Defendant to a potential award of punitive damages; 2) more precisely defined that nature of the conduct potentially subjecting a Defendant to punitive damages in non-intentional tort cases; and 3) heightened the standard of proof required of a Plaintiff seeking an award for punitive damages.

     The Court overruled a long line of Maryland cases that justified an aware of punitive damages premised on conduct described as 1) gross negligence and 2) implied malice. The Court indicated that the availability of punitive damages ought to depend upon the “heinous nature of the Defendant’s tortious conduct.” the Court indicated that the “gross negligence” standard was too broad and too vague in area of behavior resulting in unfair and inefficient use of the doctrine of punitive damages. The Court adopted the “actual malice” standard and so defined that standard as being conduct characterized by 1) evil motive, 2) intent to injury, 3) ill will, or 4) fraud.

     The Court indicated that the “actual malice” standard which characterized a Defendant’s conduct by evil motive, intent to injury, ill will, or fraud does not translate easily into products liability cases; i.e., cases whose theories depend upon 1) negligence; 2) strict liability; and 3) breach of warranty. The Court indicated that since in Maryland a breach of warranty suit is a contract action, punitive damages are not recoverable under a breach of warranty count.

     The Court held that in a products liability case whether it is premised on negligence or strict liability, the Plaintiff must prove:

  1. actual knowledge of the defect on the part of the Defendant and

  2. the Defendant’s conscious or deliberate disregard of the foreseeable harm resulting from the defect. The Plaintiff must show that the Defendant actually knew of the defect and of the danger of the product at the time the product left the gross or wanton or outrageous will to satisfy this standard. It must be a “conscious or deliberate disregard” of the potential harm to customers.

     The Court held that Maryland requires a “clear and convincing evidence” standard of proof in cases of punitive damages. The Court held that in any tort case a Plaintiff must establish by clear and convincing evidence the basis for an award of punitive damages.     

     The practical effect of Zenobia is to abolish punitive damages in most tort cases in Maryland unless there is clear and convincing evidence of actual malice. This effectively would eliminate a punitive damage issue being submitted to a jury in most of the cases, certainly those involving automobile accidents, negligence, even allegations of gross negligence in products cases and completely eliminates the "implied malice” standard which had existed for nearly twenty (20) years under prior Maryland law.

B. DISTRICT OF COLUMBIA

     In D.C., there is no statutory monetary limit to the amount of an award for punitive damages. Punitive Damages in the District of Columbia are appropriately awarded to penalize a Defendant for his or her conduct where his or her actions are accompanied by fraud, ill will, recklessness, or willful disregard of the Plaintiff's rights. They may be awarded only when there is also a verdict assessing compensatory or other actual damages.[22] Punitive damages generally are not awarded in contract actions and are available only where the alleged breach of contract merges with and assumes the character of a willful tort.[23]

     However, in view of Pacific Mutual Life Insurance Company v. Haslip, Supra, the existent law of punitive damages in the District of Columbia must be tempered by constitutional standards of due process both substantive and procedural.

C. VIRGINIA

     By statute in Virginia, punitive damages are insurable provided, however, that they do not arise out of the intentional act of the insured. Punitive damages are recoverable where the plaintiff is able to prove, by a preponderance of the evidence, that the actions of the defendant were willful or wanton, or that there was such recklessness as evidences a conscious disregard for the rights of others. Mere intoxication, without more, is not sufficient to establish a claim for punitive damages. Punitive damages are not recoverable for breach of contract unless there is a separate tort. Thus, there are no bad faith punitive damages for failure to pay a claim under an insurance policy unless there is an independent willful tort. The amount of punitive damages must bear some relation to the compensatory damage claim. The maximum punitive damages recoverable, by statute, cannot exceed $350,000. 00. (Virginia Code section 8. 01-3 8. 1. ). In a most recent case, Mattison v. Dallas Carrier Corp., VLW 91-B-320 J. Niemeyer, the Court held that a State Law for awarding punitive damages denied a defendant due process of law because it allowed the jury “to exercise unconstrained discretion in making its awards.” The decision, which is believed to be the first in the country to find a punitive damage award unconstitutional because the lack of due process protection, may provide a basis for challenging the scheme for awarding punitive damages.

     However, in view of Pacific Mutual Life Insurance Company v. Haslip, Supra, the existent law of punitive damages in the District of Columbia must be tempered by constitutional standards of due process both substantive and procedural.

D. NEW JERSEY

     New Jersey courts award punitive damages for two reasons: To punish for egregious conduct and to deter others from acting in the same manner. Monturi v. Englewood Hosp., 246 N.J. Super 547, 588 A.2d 408 (1991). De Angelis v. Jamesway Dept. Store, 205 N.J. Super. 519, 501 A.2d 561 (1985). There must be a showing of actual damage before punitive damages are awarded. O’Connor v. Harms, 111 N.J. Super. 22, 266 A.2d 605 (1970). New Jersey does not have a ceiling for punitive damages, but all relevant circumstances should be considered before making an award. Herman v. Sunshine Chemical Specialties, Inc., 133 N.J. 329, 627 A.2d 1081 (1993).

E. DELAWARE

     Delaware Courts do allow for punitive damage awards. The purpose for awarding punitive damages is to punish the tort-feasor when his act is willful and wanton and to prevent others like him from committing similar acts. Riegal v. Aastad, 272 A.2d 715 (Del. 1970); Shepard v. A.C. and S. Co., Inc., 484 A.2d 521 (Del. Super. 1984). There must be a showing of actual damages before punitive damages can be awarded. Id. The State of Delaware does not adhere to a mathematical formula when awarding punitive damages but does consider the amount of compensatory damages when making a punitive award. Malcolm v. Little, 295 A.2d 711 (Del. 1972); Sheppard v. A.C. and S. Co., 484 A.2d 521 (Del. Sup. 1984).

F. PENNSYLVANIA

     Punitive or exemplary damages are not allowed unless actual damage has been suffered and the injuries are caused intentionally or due to reckless and wanton behavior. See Pennsylvania R. Co. v. Books, 57 Pa. 339 (1868). There appears to be no cap for punitive damages in Pennsylvania, and a jury can fix any amount subject to the reduction by the Court if the damages are excessive under the circumstances of the case. International Electronics Co. v. N.S.I. Metal Products Co., 88 A.2d 40, 370 Pa. 213 (1952). Punitive damages do not have to bear a reasonable relationship to the compensatory damage award., Kirkbridge v. Lisbon Contractors, 555 A.2d 800, 521 Pa. 97, on remand, 560 A.2d 809, 385 Pa.Super 292.

G. WEST VIRGINIA

     A finding of compensatory damages is necessary to support an award of punitive damages. La Placa v. Oden, 428 S.E. 2d 322 (1993). In order to support an award of punitive damages, an act must have been done maliciously, wantonly, mischievously or with a criminal indifference to civil obligations, however a showing of actual malice is not necessary. Punitive damages are available to punish the Defendant for "willfulness" or an intentional infliction of damages, but should bear a reasonable relationship to compensatory damages. Leach v. Biscayne Oil & Gas Co., 289 S.E. 2d 197 (1982).


X. PRODUCTS LIABILITY/STRICT LIABILITY

     The State of Maryland adopted strict liability in tort in the landmark case of Phipps v. General Motors Corp., 278 Md. 337, 363 A.2d 955 (1976). The Maryland Court of Appeals in Phipps specifically adopted strict liability in tort predicated upon section 402A of the Restatement (Second) of Torts. Under the Restatement, in order to recover under a theory of strict liability in tort, a Plaintiff must show:

  1. that the product was in a defective condition at the time it left the possession or control of the seller;

  2. that it was unreasonably dangerous to the user or consumer;

  3. defect was a cause of the injuries; and

  4. that the product was expected to and did reach the consumer without substantial change in its condition.

     section 402A on its face, subjects a seller of a defective product to strict liability without regard to the knowledge of the defect and “even though (the seller) has exercised all possible care in the preparation and sale of the product.” [Restatement Second] of Torts at 402A comment (a) 1965.

     In Owens-Illinois v. Zenobia, 66 Sept. Term 1991 (1992 Maryland Lexis 21) on February 14, 1992, held that the seller is not strictly liable for failure to warn unless the seller had “knowledge, or by the application of reasonable, developed human skill and foresight should have knowledge, of the presence of . . . . of the . . . . danger.” The Court adopted comment (j) of section 402A of the Restatement which is applicable to a strict liability cause of action where the alleged defect is a failure to give adequate warning(s) in so holding the Court adopted the “state of the art” theory of liability as espoused in comment (j), the Court held that a manufacturer of a product is held to the knowledge of an expert in the field and that the knowledge or state of the art component is an element to be proven by the Plaintiff. In a strict liability failure to warn case, the alleged defect is the failure of the seller to give an adequate warning. The seller, however, need not give any warning if the requisite state of the art or knowledge does not require it.

     Under Maryland law, contributory negligence is not a defense to a strict liability claim. Ellsworth v. Sherne Lingerie, Inc., 303 Md. 581 495 A.2d 348 (1985).

     In Maryland, in determining whether a manufacturer should be held strictly liable for injuries sustained by the design of a particular product is a decision that involves the consideration of important policy issues. Lundgren v. Ferno-Washington Company, Inc., 80 Md. App. 565 (1989). For the most part, the strict liability doctrine does not apply to cases where liability is depended upon an existence of a design defect. Frericks v. General Motors Corp., 274 Md. 288, 336 A.2d 118 (1975). It is when the product involves an inherently unreasonable risk when the court examines the issue of strict liability.

     Under the doctrine of strict liability, the defect of a product can be of manufacture or of design but for the most part, the question of whether a particular design is defective depends upon a balancing of the utility of the design verses the magnitude of the risk. Anthony Pools v. Shehan, 295 Md. 285, 455 A.2d 434 (1983). Under such test, a product is defective as to design if the risk or danger of the product outweighs the product's utility. Simpson v. Standard Container Company, 72 Md. App. 199, 527 A.2d 1337 (1987). In some instances, where risks in the design are inherently unreasonable, no balancing test is necessary in strict liability actions. Troja v. Black and Decker Manufacturing Company, 62 Md. App. 101, 488 A.2d 516 (1985).

B. DISTRICT OF COLUMBIA

     The District of Columbia recognizes strict liability in tort. D.C. has adopted a strict liability standard in products liability cases. Product misuse and assumption of the risk are defenses to strict liability, whereas contributory negligence is not. "Product Misuse" is defined as the use of a product in a manner that could not reasonably be foreseen by the Defendant.[24] In some situations, a Plaintiff's failure to read a warning may be a manufacturer's defense in a products liability action.[25] This defense may be overcome; however, by evidence that a properly worded warning would have been verbally communicated to Plaintiff in, for example, his or her work place.[26] An injured party has a cause of action against all parties who participated in placing the defective product into the stream of commerce.[27] The Plaintiff need not be a purchasers of the product, but can be an intended user of the comsumer.[28]

C. VIRGINIA

     Virginia does not recognize strict liability. A products liability action brought in Virginia must be based either on negligence, or be based on a breach of an implied or expressed warranty. These would include warranties of merchantability and fitness for a particular purpose. If a product is unreasonably dangerous, then the courts would generally find that there is a breach of warranty. The main difference between a breach of warranty claim for strict liability and a Restatement of Tort section 401 (a) claim for strict liability, is that, in Virginia, it is still possible to, under the appropriate circumstances, disclaim warranties. Lack of privity of contract is not a defense for a breach of warranty claim.

D. NEW JERSEY

     Products liability law in New Jersey is governed by statute N.J.S.A. 2A:58C-1 et seq. The following excerpts from the statute describe fully the extent of the law in New Jersey:

Liability

     A manufacturer or seller of a product shall be liable in a product shall be liable in a product liability action only if the claimant proves by a preponderance of the evidence that the product causing the harm was not reasonably fit, suitable or safe for its intended purpose because if: a. deviated from the design specification, formula, or performance standards or the manufacturer or from otherwise identical units manufactured to the same manufacturing specifications or formulae, or b. failed to contained adequate warnings or instructions, or c. was designed in a defective manner.

Defenses

     a. In any product liability action against a manufacturer or seller for harm allegedly caused by a product that was designed in a defective manner, the manufacture or seller shall not be liable if:
     (1) At the time the product left the control of the manufacturer, there was not a practical and technically feasible alternative design that would have prevented the harm without substantially impairing the reasonably anticipated or intended function of the product; or
     (2) The characteristics of the product are known to the ordinary consumer or user, and the harm was caused by an unsafe aspect of the product that in an inherent characteristic of the product that consumes the product with the ordinary knowledge common to the class of persons for whom the product is intended, except that this paragraph shall not apply to industrial machinery or other equipment used in the workplace and it is not intended to apply to dangers posed by products such as machinery or equipment that can feasibly be eliminated without impairing the usefulness of the product; or
     (3) The harm was caused by an unavoidably unsafe aspect of the product and the product was accompanied by an adequate warning or instruction as defined in section 4 of this act.
     b. The provisions of paragraph (1) of subsection a. of this section shall not apply if the court, on the basis of clear and convincing evidence, makes all of the following determinations:
     (1) The product is egregiously unsafe or ultra hazardous;
     (2) The ordinary user or consumer of the product cannot reasonably be expected to have knowledge of the product’s risks, or the product poses a risk of serious injury to persons other than the user or consumer; and
     (3) The product has little or no usefulness.
     c. No provision of subsection a. of this section is intended to establish any rule, or alter any existing rule, with respect to the burden of proof.

Adequate product warning or instruction;
rebuttable presumption of adequacy after approval

     In any product liability action, the manufacturer or sell shall not be liable for harm caused by a failure to warn if the product contains an adequate warning or instruction or, in the case of dangers a manufacturer or seller discovers or reasonably should discover after the product leaves its control, if the manufacturer or seller provides an adequate warning or instruction. An adequate product warning or instruction is on e that a reasonably prudent person in the same or similar circumstances would have provided with respect to the danger and that communicates adequate information on the dangers and safe use of the product, taking into account the characteristic of, and the ordinary knowledge common to, the persons by whom the product was intended to be used, or in the case of prescription drugs, taking into account the characteristics of, and the ordinary knowledge common to, the prescribing physician. If the warning or instruction given in connection with a drug or device or food or food additive has been approved or prescribed by the federal Food and Drug Administration under the "Federal Food, Dug, and Cosmetic Act," 52 Stat. 1040, 21 U.S.C. section 201 et seq., a rebuttable presumption shall arise that the warning or instruction is adequate. For purposes of this section , the terms "drug" "device", "food", and "food additive" have the meanings defined in the "Federal Food, Drug, and Cosmetic Act."

Punitive Damages

     a.     Punitive damages may be awarded to the claimant only if the claimant proves, by a preponderance of the evidence, that the harm suffered was the result of the product manufacturer's or seller's acts or omissions were actuated by actual malice or accompanied by a wanton and willful disregard of the safety of product users, consumers, or others who foreseeably might be harmed by the product. For the purposes of this section "actual malice” means an intentional wrongdoing in the sense of an evil-minded act, and "wanton and willful disregard" means a deliberate act or omission with knowledge of a high degree of probability of harm to another and reckless indifference to the consequences of such action or omission. Punitive damages shall not be awarded in the absence of an award of compensatory damages.
     b.     The trier of fact shall first determine whether compensatory damages are to be awarded. Evidence relevant only to punitive damages shall not be admissible in that proceedings. After such determination has been made, the trier of fact shall, in a separate proceeding, determine whether punitive damages are to be awarded. In determining whether punitive damages are to be awarded, the trier of fact shall consider all relevant evidence, including but not limited to, the following:
     (1)     The likelihood at the relevant time that serious harm would arise from the tortfeasor's conduct;
     (2)     The tortfeasor's awareness of reckless disregard of the likelihood that the serious harm at issue would arise from the tortfeasor's conduct;
     (3)     The conduct of the tortfeasor upon learning that its initial conduct would likely cause harm; and
     (4)     The duration of the conduct or any concealment of it by the tortfeasor.
c.     Punitive damages shall not be awarded if a drug or device or food or food additive which caused the claimant's harm was subject to pre-market approval or licensure by the federal Food and Drug Administration under the "Federal Food, Drug, and Cosmetic Act," 52 Stat. 1040, 21 U.S.C. section 301 et seq. or the "Public Health Service Act," 58 Stat. 682, 42 U.S.C. section 201 et seq. and was approved or licensed; or is generally recognized as safe and effective pursuant to conditions established by the federal Food and Drug Administration and applicable regulations, including packaging and labeling regulations. However, where the product manufacturer knowingly withheld or misrepresented information required to be submitted under the agency's regulations, which information was material and relevant to the harm in question, punitive damages may be awarded. For purposes of this subsection , the terms “drug," "device," “food", and "food additive" have the meanings defined in the "Federal Food, Drug, and Cosmetic Act."
d.     If the trier of fact determines that punitive damages should be awarded, the trier of fact shall then determine the amount of those damages. In making that determination, the trier of fact shall consider all relevant evidence, including, but not limited to, the following:
(1)        All relevant evidence relating to the factors set forth in subsection b. of this section ;
(2)        The profitability of the misconduct to the tortfeasor;
(3)        When the misconduct was terminated; and
(4)        The financial condition of the tortfeasor.

Environmental tort action; inapplicability of act:

The provisions of this act shall not apply to any environmental tort action.

Burden of proof in product liability action;
establishment or alteration of existing rule:

     Except as otherwise expressly provided in this act, no provisions of this act is intended to establish any rule, or alter any existing rule, with respect to the burden of proof in a product liability action.

E. DELAWARE

     The Delaware Courts recognize products liability actions, but they do not recognize products liability actions based on the theory of strict liability. The Supreme Court of Delaware held that the theory of strict liability is precluded by the Uniform Commercial Code. Cline v. Prowler Indus. of Maryland, Inc., 418 A. 2d 968 (Del. 1980).

F. PENNSYLVANIA

     The law of products liability in Pennsylvania has been developed largely by case law and is primarily based on negligence or breach of warranty. Like many other states, Pennsylvania has adopted strict liability in products cases dealing with abnormally dangerous things and activities. Mazza v. Berlanti Const. Co., 214 A.2d 257, 206 Pa. Super 505 (1965). In 1966, the Pennsylvania Supreme Court extended the rule of strict liability to defective products by adopting the Restatement of the Law of Torts 2d. section 402A.

G. WEST VIRGINIA

     West Virginia has adopted strict liability in products liability cases to recover for property damage when defective product damages property only. Star Furniture v. Pulaski, 297 S.E. 2d 297 (1982). However the defense of assumption of the risk is available against the Plaintiff in a products liability case, King v. Kayak Mgt. Corp., 387 S.E. 2d 511 (1989), and the W. Va. Courts have held that "the doctrine that conditions or activities which are intrinsically dangerous will result in liability without proof of negligence will not be adopted into the state’s tort products liability law. "Morning Star v. Black and Decker, 253 S.E. 2d 666 (1979).


XI. COMPENSATORY DAMAGES

A. MARYLAND

     In Maryland, according to section 11-108 of the Courts and Judicial Proceedings Article of the Maryland Annotated Code, in any action for damages for personal injury in which the cause of action arises on or after July 1, 1986, an award for non-economic damages may not exceed $350,000.00. (Maryland cap on non-economic recovery) section 11-108 was amended in 1994, and the non-economic damages cap was raised to $500,000.00 for causes of action and extended to wrongful death actions arising after October 1, 1994 with an increase of $15,000.00 each year beginning October 1, 1995 for causes of action arising between October I of each year and September 30 of the following year. Under the statute, non economic means pain, suffering, inconvenience, physical impairment, disfigurement, loss of consortium, or other non pecuniary injury. Furthermore, noneconomic damages does not include punitive damages. If the jury awards an amount for non-economic damages that exceeds the limitation the Court shall reduce the amount to conform to the limitation.

     On February 7, 1992, the Maryland Court of Appeals in the case of Murphy v. Edmonds, 99 Sept. term 1990 filed February 7, 1992, upheld the cap on non-economic damages. The Court held:

1)     Maryland's statutory cap on non-economic damages in personal injury cases as set forth in the Maryland Court's and judicial proceedings code section 11-108, does not violate equal protection guarantees of article 24 of the Maryland Declaration of Rights and

2 )     Maryland's statutory cap on non-economic damages in personal injury cases does not violate the right to jury trial under Articles 5 and 23 of the Maryland Declaration of Rights. The Court's reasoning underpinning the decision was:

a)     the damage cap is an economic regulation which is rationally related to a legitimate government purpose and is entitled to a strong presumption of constitutionality. The general assembly had ample rationale for enacting the measure

b)     the statute does not transfer the determination of an issue of fact from the jury to the judge.

B. DISTRICT OF COLUMBIA

     The District of Columbia does not have a cap on compensatory damages. The District of Columbia is a wide open jurisdiction as no statutory cap has been enacted in the District of Columbia.

C. VIRGINIA

     The only compensatory damages cap recognized in Virginia is one for a claim for medical malpractice. A medical malpractice claim is limited to a $100,000.00 cap.

     Virginia does not have any special fines or penalties in the normal compensatory damage claims. A major exception to this rule is a claim for a conspiracy to injure another in their trade, business or reputation which allows the plaintiff to recover triple damages under Virginia Code section s 18.2-499-500.

D. NEW JERSEY

     New Jersey does not statutorily limit the amount that is recoverable by a plaintiff. Furthermore, New Jersey trial courts are directed not to disturb jury verdicts unless it shocks judicial conscience or is manifestly unjust. See Curey v. Lovett, 132 N.J. 44, 622 A.2d 1279 (1993).

E. DELAWARE

     The purpose and object of awarding compensatory damages is to impose satisfaction for injury done. Jardel Co., Inc. v. Hughes, 523 A. 2d 518 (Del. Super 1987). There is no statutory law in Delaware which restricts the amount that can be awarded for compensatory damages. The Court does have the authority to overturn an excessive verdict, but each case rests on its own facts. Lacey v. Beck, 161 A.2d 579 (1960).

F. PENNSYLVANIA

     The Pennsylvania Constitution, Art. 3 section 18 prohibits the General Assembly from limiting the amount of recovery for injuries to people or property except for worker's compensation. The Courts are not so limited and may set aside jury awards if the excessive award shocks the Court's conscience or sense of justice, or is clearly beyond reason, or is founded on prejudice or sympathy or a misconception of the law. Weed v. Kerr, 205 A.2d 858, 416 Pa. 233 (1961); Brown v. Ouaker City Cab, 117 A.681, 274 Pa. 289 (1922).

G. WEST VIRGINIA

     West Virginia has a One million dollar ($1,000,000.00) limit on non-economic loss in medical malpractice claims. W. Va. Code section 557 B-8.


XII. JOINT & SEVERAL LIABILITY

A. MARYLAND

     In 1941, Maryland adopted the Uniform Contribution Among Tortfeasors Act (UCATA), which abrogated the common law rule that if the injured party released one of the joint tortfeasors from liability, then the remaining tortfeasors were also released. Due to the complexity of the act, a detailed in depth explanation is provided.

According to section 19 entitled "Effective Release on Injured Person Claims":

A release by the injured person of one joint tortfeasor, whether before or after judgment, does not discharge the other tortfeasors unless the release so provides; but reduces the claim against the other tortfeasors in the amount the consideration paid for the release, or in any amount or proportion by which the release provides that the total claim shall be reduced, if greater than the consideration paid.

According to section 20, entitled "Effect of release on right of contribution":

a release by the injured person of one joint tort-feasor does not relieve him from liability to make contribution to another joint tortfeasor unless the release is given before the right of the other tortfeasor to secure a money judgment for contribution has accrued, and provides for a reduction, to the extent of the pro rata share of the released tort feasor, of the injured person's damages are recoverable against all other tortfeasors.

     The Court of Appeals of Maryland first considered the application of section 19 and section 20 of the Maryland UCATA in Swigert v. Welk, 133 A.2d 428 (1957). The Maryland Court, posing a hypothetical situation, indicated that if a plaintiff received a consideration from one joint tortfeasor for a pro rata release, then the amount of consideration, if greater than the released tortfeasors' pro rata share, will reduce the judgment entered against the remaining tortfeasor by the amount that consideration paid exceeded the pro-rata share. In a subsequent case, Chilcote v. Von Der Ahe Van Lines, 476 A.2d 204 (1984), the Court held that where a released joint tortfeasor paid a settlement amount less than his ultimate pro rata share of the subsequent judgment, then the subsequent judgment would be set-off by the released Defendant's pro rata share rather than the consideration paid by him in settlement. Another important case which interpreted section 19 and section 20 of the Act is Martinez v. Lopez, 476 A.2d 197 (1984). The Martinez Court held that where the amounts paid by the settling joint tortfeasor is more than the ultimate judgment, the pro rata reduction produces a negative result which fully satisfies the judgment and the plaintiff may not recover anything from the defendant against whom the judgment was entered. The rationale for this theory is that an injured party is entitled to only one satisfaction for an injury. It is clear that under the facts of Martinez, the non-settling defendant enjoys a windfall since the settling defendant pays the entire judgment. The following hypotheticals will provide clarification.

     Example No. 1: Plaintiff v. Defendants I and 2.

     Plaintiff enters into a valid joint tortfeasor release with Defendant 1 for the consideration of $60. The plaintiff proceeds against Defendant 2 and obtains a judgment in the amount of $100. Pursuant to Swigert, plaintiff may only recover $40 from defendant 2 since the amount paid by the settling defendant exceeds the pro rata share ($50).

     Example No. 2: Plaintiff V. Defendants 1 and 2.

     Plaintiff enters into a valid joint tortfeasor release with Defendant 1 in the amount of $20 and obtains a judgment against Defendant 2 in the amount of $100. Pursuant to Chilcote, Plaintiff may only recover $50 from defendant 2 since the judgment is reduced by the pro rata share ($50) notwithstanding that the Plaintiff recovered less than the pro rata share from the settling tortfeasor.

     Example No. 3: Plaintiff v. Defendants 1 and 2.

     Plaintiff enters in a joint tortfeasor release with Defendant 1 in the amount $150 and obtains a judgment against Defendant 2 in the amount of $100. Pursuant to Martinez, Plaintiff may recover nothing from Defendant 2 since the amount of the consideration paid by the settling tortfeasor, $150, exceeds the amount of the judgment.

     Further, according to Chilcote, in a situation involving a master-servant relationship, and the liability of the master is vicarious, the master-servant represents but one pro rata share. For example, a driver of an automobile and an owner who is not the pro rata share. Moreover, Martinez (Example No. 3) held that the settling tortfeasor had no right of contribution from the nonsettling tortfeasor even though he paid in excess of the judgment subsequently obtained against the non-settling tortfeasor.

     However, one should not conclude from the mere existence of two or more tortfeasors that they are necessarily deemed to be "joint tortfeasors", a judicially crafted term of art. Generally, two or more tortfeasors are considered joint tortfeasors when they act in concert or concurrently to cause one harm. Morgan v. Cohen, 523 A.2d 1003 (1987). In Cohen the claimant who was injured in a car accident settled her case against the other driver and executed a general release whereby for consideration she released all of mankind. Subsequently, the claimant instituted a malpractice action Dr. Cohen. The Court held that the action against Dr. Cohen was not barred as a matter of law even though the plaintiff executed a general release since the injuries inflicted by the doctor were not caused by the accident. The Court reasoned that Dr. Cohen caused separate and additional harms for which he could be held independently liable. This is so despite the fact that the original tortfeasor could be held jointly liable for the harms allegedly caused by Dr. Cohen. This case has been widely criticized and has caused considerable confusion within the legal community. Nevertheless, it serves as an example, albeit a contentious one, where two concurrent or successor tortfeasors have been held not to have caused the same harm and the latter tort feasor not necessarily subject to the terms of a general release.

B. DISTRICT OF COLUMBIA

     D.C. has not adopted the Uniform Tortfeasor Act. In cases where the Plaintiff has settled the claim prior to trial with I or 2 or more joint tortfeasors, the Defendant remaining at trial is entitled to a set-off from the judgment based on the settlement. If the trier of fact has found the settling Defendant liable, a pro rata (based on the number of tortfeasors) reduction may be ordered.[29] The credit may be limited in a low verdict situation such that a Defendant found liable at trial at least will have to pay his or her pro rata share of the verdict.

     D.C. Rule 68 entitled "Offer of Judgment" states that any time, more than 10 days before trial begins, a party defending against a claim may serve upon the adverse party an offer to be taken against the defending party. This Rule is identical to its Federal counterpart.

C. VIRGINIA

     Virginia recognizes joint and several liability without any special limitations. If two or more defendants contributed to causing an injury, then both are liable. However, if an injury was caused by two separate acts, one of which the defendant is responsible for, and if the plaintiff is unable to prove what injuries were caused by the defendant, then the plaintiff is not entitled to recover for their injuries. Virginia requires that the plaintiff prove his case by a preponderance of the evidence, even when there are two possible causes and the defendant is only responsible for one of the two possible causes for the injuries. This rule is different than the rule applied in many jurisdictions where the burden shifts to the defendants to apportion who may be responsible for a particular injury.

     Virginia has adopted the rule that allowed for one joint tort feasor to enter into a release with the Plaintiff without releasing any other tortfeasor. Under Virginia Code section 8.01-35.1., a Plaintiff may settle with one joint tortfeasor, without releasing any other joint tortfeasor. A settling joint tortfeasor is not entitled to make a claim for contribution against the other joint tortfeasor. Nor can the other joint tortfeasor make a claim against the joint tortfeasor who has settled the claim. Virginia does not have a statutory procedure for offer of compromise and settlement, or offer of judgment.

D. NEW JERSEY

     New Jersey recognizes the theory of joint and several liability, in which two or more people who owe a duty, which each performs negligently, are held jointly liable. This remains true even though their duties may have been diverse or disconnected, as long as the acts caused an injury to the plaintiff. Melone v. Jersey Cent. Power & Light Co., 18 N.J. 163, 113 A.2d 13 (1955). New Jersey also adheres to the alternative, liability theory, in which the plaintiff is unable to determine which tortfeasor is actually liable for the injury, or what share the tortfeasors are liable. Lyons v. Premo Pharmaceutical Labs, Inc., 170 N.J. Super. 183, 406 A.2d 185 (1979) . If one tortfeasor pays more than his pro rata share, he is entitled to contribution from the others. See N.J.S.A. 2A:15-5.3.

E. DELAWARE

     Delaware recognizes joint and several liability. See 10 C.A. 6301. "Joint tortfeasors' means two (2) or more persons jointly or severally liability in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them." Id. Neither the basis of liability nor the relationship among the joint tortfeasors is relevant. Blackshear v. Clark, 391 A.2d 747 (Del. Supr. 978). Joint tortfeasors do have the right to recover amongst themselves under the theories of contribution and indemnification.

F. PENNSYLVANIA

     Pennsylvania law holds joint tortfeasors jointly and severally liable to a plaintiff for the injury caused by their negligence. Rau v. Marko, 17 A.2d 422, 341 Pa. 17 (1941). Under Pennsylvania statutory law, recovery is allowed against each defendant for that portion of the total dollar amount of their causal negligence to the amount of causal negligence attributed to all defendants against whom recovery is allowed. The plaintiff may recover the full amount against any defendant, and the defendant who is compelled to pay more then his share may seek contribution. 42 Pa. C.S.A. section 7102.

G. WEST VIRGINIA

     Joint tortfeasors are jointly and severally liable, and if sued jointly both are liable to the extent proved. Kvdom v. Frazier, 412 S.E. 2d 219 (1991). A judgment against one tort-feasor is not necessarily an acquittal of the other. Plaintiff may only obtain satisfaction against one joint tort-feasor and that will bar recovery against the remaining tort-feasor, however, payment of a judgment by a party who is secondarily liable confers upon that party a right to reimbursement by the party which is primarily liable. Miller v. Monongahela Power Co., 403 S.E. 2d 406 (1991).


XIII. MINORS

A. MARYLAND

     Maryland follows the common law standard regarding the liability of children which holds that a child is not to be held to the same standard/degree of care that an adult would have used. He is to be held to that standard/degree of care which ordinary prudent children of his age, intelligence, experience and development would have used under the same circ=stances. Pratt v Maryland Farms Condominium Phase 1, Inc, 42 Md. App. 632, 402 A.2d 105 (1979) . Children below the age of five (5) are as a matter of law, incapable of contributory negligence. Miller v. Graff, 196 Md 609, 78 A.2d 220 (1951). According to article one statute section 24 of the Maryland Annotated Code, a person of 18 years of age or more is an adult for all purposes whatsoever and has the same legal capacity rights, powers, privileges, duties, liabilities, and responsibilities. The term minor refers to persons who has not attained the age of 18 years.

B. DISTRICT OF COLUMBIA

     The age of majority in D.C. is eighteen (18). [30] The District of Columbia adopts the tender years doctrine, not the Common law, wherein a child of tender years, depending on his age and knowledge, may not be charged with contributory negligence.[31]

     In the District of Columbia a child is liable for his torts as if he were an adult except where his tender years preclude him from framing the mental attitudes necessary to complete the tort in question.[32] In cases of tort requiring malice as an essential element, a very young child may be considered as a matter of law incapable of determining the requisite evil intent and no liability would attach to his act.[33] Lastly, with respect to negligent torts, the age of a child may prove to be a mitigating factor, since he is held liable only where he has failed to exercise a degree of care equal to that governing the ordinary child of comparable age, knowledge and experience.[34]

C. VIRGINIA

     The age majority in Virginia is eighteen (18). Virginia follows the common law rule concerning negligence by a minor. A minor under the age of seven (7) cannot be responsible for negligence. Between the ages of seven (7) and fourteen (14), there is a rebuttable presumption that a minor cannot be responsible for negligence, and over the age of fourteen (14), the minor can be responsible for negligence.

     While an individual is a minor, the statute of limitations does not run against that minor, except in medical malpractice cases. In medical malpractice cases, the injured minor has two (2) years after reaching the age of ten (10) within which to bring a claim.

D. NEW JERSEY

     New Jersey holds the age of majority to be 18 years old. N.J.S. A 99:17B. Minors are liable for intentional torts (acts of violence). See Guzy v. Gandel, 95 N.J. Super 34, 229 A.2d 809 (1967). Minors in New Jersey are held to the standard of care applicable to reasonable persons of like age, intelligence and experience under like circumstances. Goss v. Allen, 134 N.J. Super 99, 338 A.2d 820, reversed, 170 N.J. 442, 360 A.2d 388 (1975). Certain activities performed by minors are so hazardous that the courts will hold them to adult standards (driving car or boat) . Id.

E. DELAWARE

     In Delaware the age of majority is 18. 1 Del. C.A. section 701. Delaware provides statutory authority to recover up to $5,000.00 from the parents or guardian of a minor who intentionally or recklessly destroys personal or real property. 10 Del. C.A. section 3922. Delaware statutory law also holds the owner of a car jointly and severally liable with a minor who is permitted to use that car and does so in a negligent manner, causing injury and/or damage. 21 Del. C.A. section 6106.

F. PENNSYLVANIA

     Pennsylvania falls in line with the common law rule that minors are held to a different standard of care than adults. The yardstick measuring a minor's standard of care is by comparing the conduct to other minors of like age, experience, capacity, and development to see if they would ordinarily exercise the same conduct under similar conditions. Kuhns v. Brugger, 135 A.2d 395 390 Pa. 331 (1957) . There is a conclusive presumption that children under seven cannot be contributorily negligent. Dynes v. Bromley, 57 A. 1123, 208 Pa. 633 (1904) . There is a rebuttable presumption that children between the ages of seven and fourteen cannot be contributorily negligent, but this presumption is generally a matter for a jury determination. Kelly v. Pittsburgh Birmingham Traction Co., 54 A. 482, 204 Pa. 623 (1903). After the age of fourteen, there is no presumption. Furthermore, these age demarcations as to capacity are equally applicable to minor defendants as they are to minor plaintiffs. Berman by Berman v. Phil. Bd. of Ed., 456 A. 2d 545, 310 Pa. Super 153 (1983).

G. WEST VIRGINIA

     The age of a majority in West Virginia is eighteen (18) years of old.

     West Virginia law holds that a minor under the age of seven (7) years cannot be responsible for negligence. For children between the ages of seven (7) and fourteen (14) years, there is a rebuttable presumption that the minor cannot be responsible, and over the age of fourteen (14) years the courts have held that a minor can be shown to be responsible for negligence. W.Va. Code section 44-10-4 and S.H. v. R.S.H., 289 S.E. 2d. 186 (1982). Pursuant to W.Va. Code section section 55-7-Al and 7A2, parents can be found liable for up to $2,500 for any damages caused by a minor that is willful and malicious, any such action being in addition to any action against the minor.


XIV. DRAM SHOP

A. MARYLAND

     To date, the State of Maryland has yet to pass legislation enacting Dram Shop Laws. Maryland is one of the Five States that take the position that there can be no civil liability for serving alcoholic beverages in the absence of a dram shop act. More than forty years ago, in State v. Hatfield, 197 Md. at 254, the Court of Appeals of Maryland held that "the law, (apart from statute) recognizes no relation of proximate cause between a sale of liquor and a tort committed by a buyer who has drunk the liquor.” In 1981, in Felder v. Butler, 292 Md. 174 (1981), the court refused to abandon its holding in Hartfield and to adopt the modern trend of cases which recognizes a cause of action against a tavern owner by a party injured as a result of the negligent acts of a patron to whom alcoholic beverages were served while the patron was visibly intoxicated. Although the Court recognized that a number of jurisdictions impose civil liability upon vendors of intoxicating liquors for damages caused by their intoxicated customers, it declared that "we decline, for now, to join the new trend of cases..." Id. at 184.

     As to the care required of innkeepers in general, an innkeeper is not strictly liable for his invitees and does not insure their safety, but is only required to take reasonable care in providing for their safety. Apper v. East Gate Associates, 28 Md. App. 581, 347 A.2d 389 (1975).

B. DISTRICT OF COLUMBIA

     The District of Columbia does not have a Dram Shop Act Per Se.[35] However, the District of Columbia does prohibit the sale of alcoholic beverages to minors or already intoxicated persons.[36] D.C. Code section 25-121 states in pertinent part that the sale, service of delivery of beverages to any intoxicated person, or to any person of notoriously intemperate habits, or to any person who appears to be intoxicated.[37] While this section imposes an obligation upon commercial vendors of liquor to refrain from providing alcoholic drinks in circumstances indicating that a person is intoxicated and reasonably likely to cause harm to others, it has never been held to impose that duty upon social hosts.[38]

C. VIRGINIA

     Virginia does not recognize Dram-Shop Liability. However, Virginia does prohibit the sale of alcoholic beverages to persons under 21 years of age or an interdicted and/or intoxicated person.[39] In Virginia, there is no liability on the seller of intoxicating liquor for negligence resulting in personal injuries sustained by a third party.[40] section 4.1 - 304 of the Virginia Code and the Virginia Common Law does not recognize Dram Shop Liability on the part of the person who purveys an alcoholic beverage to someone else who then causes a tort to occur.[41]

D. NEW JERSEY

     New Jersey does have a Dram Shop Act, which holds alcohol beverage servers liable to third parties. N.J.S.A. 2A:22A et seq. "This act shall be the exclusive civil remedy for personal injury or property damages resulting from the negligent service of alcoholic beverages by a licensed alcoholic beverage server. 11 N.J.S.A. 2A:22A-4. The licensed alcohol server may not be sued under any other theory or statute by the injured party. Furthermore, the statute states the precise conditions for which damages can be recovered:

     a.     A person who sustains personal injury or property damage as a result of the negligent service of alcoholic beverages by a licensed alcoholic beverage server may recover damages from a licensed alcoholic beverage server only if:
     (1)     The server is deemed negligent pursuant to subsection b. of this section ; and
     (2)     The injury or damage was proximately caused by the negligent service of alcoholic beverages; and
     (3)     The injury or damage was a foreseeable consequence of the negligent service of alcoholic beverages.
     b.     A licensed alcoholic beverage server shall be deemed to have been negligent only when the server served a visibly intoxicated person, or served a minor, under circumstances where the server knew, or reasonably should have known, that the person served was a minor.

     The statute limits the alcohol beverage server's liability for damages, which is the percentage of negligence attributable to the alcohol beverage server. N.J.S.A. 2A:22A-6.

E. DELAWARE

     At one time the state of Delaware did recognize a cause of action by a third-party against a tavern owner for injuries caused by a drunk patron. Taylor v. Ruiz, 394 A.2d 765 (Del. Super. 1978). The Delaware Court reversed itself holding that an action based on "Dram Shop" principles should be legislatively created and not created by the judiciary. DiOssi v. Maroney, 549 A.2d 1361 (Del. Super. Ct. 1988). There is a Delaware statute which creates a duty for alcohol licensees and their employees to stop serving patrons who are visibly intoxicated. 4 Del. C.A. section 706. The Court expressly stated in DiOssi that this section does not create a cause of action by a third party against a tavern owner. See also Oakes v. Megaw, 565 A.2d 914 (Del. Supr. 1989), which extends the bar to this type of action even if a tavern owner sold alcohol to minors.

F. PENNSYLVANIA

     Pennsylvania does not hold a liquor licensee liable to third parties for damages caused by a customer off the licensed premises unless the customer was visibly intoxicated. 47 P.S. section 4-497 (1965). Under any condition, the licensee can be held liable to third parties when they sell alcohol to minors. Mathews v. Korieczu, 527 A.2d 508, 515 Pa. 106 (1987). A social host may also be liable for furnishing minors with alcohol. Congini by Congini v. Protersville Value Co., 470 A.2d 515, 504 Pa. 157 (1983). The test for determining whether a social host is liable for injuries sustained by a minor as a result of alcohol is whether the host intentionally rendered substantial assistance to the minor's consumption, not whether the host actually served the minor. Jefferies v. Conn., 537 A.2d 355, 371 Pa. Super 12.

G. WEST VIRGINIA

     West Virginia statute recognizes a cause of action in tort for injuries proximately caused by the sale of alcohol to intoxicated persons or persons who are "physically incapacitated from drinking" which results in personal injury to a third party. Va. Code section 60-712 and section 55-7-9. Bailey v. Black, 394 S.E. 2d. 58 (1990). The sale of liquor to a person under twenty-one (21) years of age also gives rise to a cause of action against a licensee in favor of a purchaser or third party injured as a proximate result of the unlawful sale. W.Va. Code section 60-8-20(a).


XV. INDEMNIFICATION PROTECTION FROM CO TORTFEASOR IN
          SETTLEMENT WITH PLAINTIFF

A. MARYLAND

     It is first important to note that the Uniform Contribution Among Tortfeasors Act previously set forth under the topic of Joint Several Liability, does not impair any right of indemnity under existing laws. In Maryland, indemnity requires that when one of the wrong doers is primary liable, that wrong doer must bear the whole loss. Board of Trustee of Baltimore County Community Colleges v. RTKL Associates Inc. , 80 Md. App. 45, 559 A. 2d 805 (1989) in deciding whether to grant indemnity, the ordinary active/passive analysis will be employed. Under this analysis, a party is only entitled to indemnification when the parties actions, although negligent, are considered to be passive or secondary to those of the primary tortfeasor. According to Hanscome v. Perry, 75 Md. App. 605, 542 A.2d 541 (1988), the right of indemnification may arise by express agreement or implication. Thus, assuming a valid indemnity agreement exists, the court would then apply the active passive test to determine whether or not one of the defendants is entitled to be indemnified by the other.

B. DISTRICT OF COLUMBIA

     Indemnification: In D.C., indemnity is a common-law remedy which shifts the monetary loss from one compelled to pay it to another whom equity dictates should bear it instead.[42] Implied indemnity is essentially an equitable remedy that arises without agreement, and by operation of law to prevent result which is regarded as unjust or unsatisfactory.[43] In D.C., where the language of an indemnification agreement is broad and sweeping, the Court will construe the agreement liberally so as to encompass losses incurred in whole or part by the negligence of the indemnitee. [44] A cause of action for indemnity accrues on the date payment is made by the party seeking indemnity, which is three (3) years in D.C. for indemnification and contribution.

D.C. has no statute dealing with the effect of a release or settlement in respect to liability or contribution. However, D.C. has substantial case law on release and settlement.[45] D.C. recognizes either a pro rata deduction (1/2) or a pro tanto deduction (deduction for the amount the Defendant settled for) which recognizes a third party right of action against settling Defendants.

C. VIRGINIA

     Virginia Code section 8.01-249 (5) provides that an action for Indemnity is deemed to accrue when the indemnitee has paid or discharged a legal obligation. A third party claim for indemnity cannot be asserted before the cause of action is deemed to have accrued.[46] Recovery amongst joint tortfeasors, absent a contract is limited to Contribution. For active/passive negligence it is not the form of the act or omission that defines the character of negligence as active or passive, for indemnity purposes, it is the relationships between the parties involved and the nature of the legal obligation violated by the negligence that decides the issue.[47]

D. NEW JERSEY

     In the state of New Jersey, indemnification is a contractual right and not a statutory or common law right.

E. DELAWARE

     Delaware holds that indemnification is a contractual right. 10 Del section 6305. The Uniform Contribution Act states that no law involving contribution will effect the right to indemnification.

F. PENNSYLVANIA

     Indemnity is an equitable remedy founded in the common-law that shifts loss from one defendant to another. Potts v. Dow Chemical Co., 415 A. 2d 1220, 272 Pa. Super (1979). In Pennsylvania, an indemnification relationship may be formed in three ways: implied contract, expressed contract, or by operation of law, or other circumstances which justify this equitable relief. If an indemnitee made a good faith settlement and notice is given to the indemnitor, the indemnitee still assumes the risk of proving liability and the reasonableness of the settlement in any subsequent litigation. Daily Express, Inc. v. Northern Neck Transfer Corp., 490 F. Supp. 1304 (1980). The indemnitor is entitled to a trial by jury to determine whether or not liability existed and whether the contract of indemnity had been breached. Martinique Shoes, Inc. v. New York Progressive Wood Heel Co. , 217 A.2d 781, 207 Pa. Super. 404 (1966) .

G. WEST VIRGINIA

     An action for indemnification is recognized when an indemnitee has paid or discharged a legal obligation.


XVI. CONTRIBUTION

A. MARYLAND

     Under Maryland law, the right of contribution exists among joint tortfeasors. The issue of contribution depends on joint tortfeasors' liability to third parties. State of Md. for Use of Gliedman v. Capital Airlines, Inc., 297 F. Supp. 298. (D. Md. 1967) .

According to section 20 of the Uniform Contribution Among Tortfeasors Act, entitled "Effect of release on right of contribution":

a release by the injured person of one joint tort-feasor does not relieve him form liability to make contribution to another joint tortfeasor unless the release is given before the right of the other tortfeasor to secure a money judgment for contribution has accrued, and provides for a reduction, to the extent of the pro rata share of the released tortfeasor, of the injured person Is damages are recoverable against all other tortfeasors.

B. DISTRICT OF COLUMBIA

     Both contribution and indemnification are available under D.C. law.[48] However, neither contribution nor indemnity can be awarded to a party who is not a joint tortfeasor.[49] In other words, the District of Columbia permits a party to enforce contribution against one who shares common liability to the original Plaintiff.[50] Under the principal of contribution a tortfeasor against whom a judgment is rendered is entitled to recover proportional shares of a judgment from the other joint tortfeasor(s) whose negligence contributed to the injury and who were also liable to the Plaintiff.[51] For contribution to be available, two (2) or more Defendants must have acted in concert, or independently, causing a single injury in an indivisible manner. Just because the acts are not simultaneous but successive doesn't mean that contribution is improper where acts concur in causing injury.

C. VIRGINIA

     By statute in Virginia, one joint tort-feasor can seek contribution of another joint tort-feasor as a result of payment of a judgment. (Virginia Code section 8.01-35.) Contribution is generally limited to fifty percent (50%) of the amount of the judgment. As a general rule, a claim for indemnification is limited to claims based on contracts, although there is some argument that a claim for indemnification may be based on an active/passive negligence theory.

     Virginia was one of the last jurisdictions in the country to adopt a rule that allowed for one joint tortfeasor to enter into a release with the plaintiff without releasing any other joint tortfeasor. Under Virginia Code section 8.01-35.1, a plaintiff may settle with one joint tortfeasor, without releasing any other joint tortfeasor. A settling joint tortfeasor is not entitled to make a claim for contribution against the other joint tortfeasor. Nor can the other joint tortfeasor make a claim against the joint tortfeasor who has settled the claim.

D. NEW JERSEY

     By statute in New Jersey, a joint tort-feasor can seek contribution against another joint tort-feasor. See N.J.S.A. 4:48-4. New Jersey is a comparative negligence state, therefore each defendant is only liable for the pro rata share equaling the percentage of his negligence. "Any party who is compelled to pay more than his percentage share may seek contribution from the other joint tortfeasors.” N.J.S.A. 2A:15-5.3(e).

E. DELAWARE

     Delaware recognizes the right of contribution in 10 Del.C.A. section 6302, which states the following:
(a)     The right of contributions exists among joint tortfeasors.
(b)     A joint tort-feasor is not entitled to a money judgment for contribution until he has by payment discharged the common liability or has paid more than his pro rata share thereof.
(c)     A joint tort-feasor who enters into a settlement with the injured person is not entitled to recover contribution from another joint tort-feasor whose liability to the injured person is not extinguished by the settlement.
(d)     When there is such a disproportion of fault among joint tort-feasors as to render inequitable an equal distributor among them of common liability by contribution, the relative degree of fault of the joint tort-feasors shall be considered in determining their pro-rata share.

P. PENNSYLVANIA

     Pennsylvania adheres to the Uniform Contribution Among Tortfeasors Act. 42 Pa. C.S.A. section 8322 et seq. The Act expressly states that contribution exists between joint tortfeasors, which is defined as two or more persons jointly and severally liable in tort for the same injury to persons or property. 42 Pa. C.S.A. section 7102 allows the defendant to seek contribution in the ratio amount for which the joint tortfeasor is causally liable. The Uniform Contribution Among Tortfeasors Act entitles a joint tortfeasor to a money judgment only when that joint tortfeasor has by payment discharged the common liability or paid more than their pro-rata share.

G. WEST VIRGINIA

     The West Virginia courts have recognized both an inchoate right of contribution as well as a statutory right of contribution. W.Va. Code section 55-7-13. Comparative contribution between joint tortfeasors is based upon relative degrees of negligence. Sitzes v. Anchor Motor Freight, 289 S.E. 2d 679 (1982) . The right of inchoate contribution arises under any theory of liability which results in a common obligation to the Plaintiff, Board of Education v. Zando, 390 S.E. 2d 796 (1990). If there is no allocation of negligence, apportionment is made on a pro-rata basis. "Mary Carter" agreements are enforceable and not per se contrary to public policy, however such agreements must be promptly disclosed to both the court and opposing parties.


XVII. WORKER'S COMPENSATION

A. MARYLAND

     The Worker’s Compensation Act in giving an employee the right to compensation for injuries sustained during the course of his employment, regardless of fault and irrespective of negligence of the employer, bars suit predicated on common law negligence against the employer. Ward v. Aetna Casualty Insurance Company, 260 Md. 651, 273 A. 2d 125 (1971) . Further, American Radiator Standard Corporation v. Mark Engineering Company, 230 Md. 584, 187 A.2d 864 (1963), states that Article 101 section 15 of the Maryland Annotated Code makes the statutory payment of workmen's compensation the exclusive remedy for disability or death of an employer resulting from 1) an accidental personal injury 2) arising out of and in the course of employment. Under Maryland law, there are situations where an employee would not come within the exclusively rule. According to Article 100 section 58 of the Maryland Annotated Code which states that where injury or death which compensation is payable under the Workers’ Compensation Article was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof, the employee may proceed either by law against that other person to recover damages or against the employer for compensation.

     If a person other than the employer is legally liable for the worker's injury or death, the employer, insurance carrier, subsequent injury fund, and/or the worker or his dependents' may maintain a tort action for damages against that third person. If damages are recovered, the employer or insurer and the subsequent injury fund are the first reimbursed for any benefit paid under the worker's compensation act and the balance is paid to the worker or his dependents. Article 101 section 58; Gray v. State Roads Commission, 253 MD 421, 252 A.2d 810 (1969).

     A co-employee is regarded as a "person other than the employer" and therefore may be sued in tort. However, under Article section 62, a "statutory employer" is not a third party and is immuned from tort liability.

B. DISTRICT OF COLUMBIA

     A.     Exclusiveness: Employer liability under the Act is exclusive and is in place of all other forms of liability. In other words, compensation to which an employee is entitled under the Worker’s Compensation Act is the employee's exclusive remedy against the employee referable to the claimants' injury or death.[52] If the employer fails to secure payment of the compensation due; however, the employee may claim compensation under the Act and secure payment from the Special Fund,[53] or maintain a civil action at law for damages.[54] If the employee chooses the latter, the employer may not plead the defenses of negligence of a fellow employee, assumption the risk, or contributory negligence.[55]

     B.     Third Party Liability: When an employee is injured as a result of the negligence of a 3rd party, the employee may claim compensation from his or her employer, file a civil suit against the 3rd party responsible, or do both. If an employee intends to file suit against the 3rd party, he must do so within six (6) months of the date he receives an award of workers' compensation. An award is defined as including only a formal order or decision, not a recommendation. An employee of a subcontractor may bring a third

party action against a negligent general contractor where all compensation benefits have been received from the subcontractor.[56] An employee of a subcontractor may not bring a 3rd party action if the general contractor provides compensation coverage for all subcontractors.

     C.     Statutory Employer: In Meiggs v. The Associated Builders, Inc., 545 A.2d 631, 634 (D.C. App.)(1988), the D.C. Court of Appeals held that a general contractor is only deemed the constructive employer of a sub-contractor's employee when the general contractor actually secures a defaulting contractor's compensation payments to an injured employee. In Meiggs, the subcontractor did secure payments to its employee. The Court ruled that since the general contractor did not secure payment of compensation to Meiggs under its contingent Sec. 36-303(c) duty, double liability was not possible, and no reason existed for engaging in the legal fiction for constructively deeming the general contractor, Meiggs' employer.

C. VIRGINIA

     Virginia strongly applies the exclusive remedy rule for workers' compensation. This rule even applies to intentional torts. All of the contractors and subcontractors working for a general contractor are entitled to the exclusive remedy benefit. The Worker's compensation statute is located at section 65.2-100 et seq. in the Code of Virginia.

D. NEW JERSEY

     New Jersey has a worker's compensation statute. N.J.S.A. 34:15-1 et seq. The New Jersey statute provides that when there is an employment relationship and the employee is injured while performing his employment, his exclusive remedy for damages is through worker's compensation. N.J.S.A. 34:15-8. The position of exclusivity has been reaffirmed many times by the New Jersey courts. See Fregara v. Jet Aviation Business Jets, 764 F. Supp. 940 (D.N.J. 1991); Jones v. New Jersey Mfrs. Cas. Ins. Co., 71 N.J. Super. 512, 177 A.2d 336 aff'd 77 N.J. Super. 147, 185 A.2d 678 aff'd 39 N.J. 555, 189 A.2d 711; Hall v. Hercules Powder Co., 20 N.J. Misc. 168, 26 A. 2d 164 (1942) . A general contractor shall be liable to subcontractors and their employees who are injured due to defective conditions of ways, works, machines or in plants which was not discovered by the employer due to his negligence. N.J.S.A. 34:15-3.

E. DELAWARE

     In the State of Delaware, Workmen’s Compensation serves two (2) primary purposes: Providing a scheme for assured compensation to employees for work related injuries without regard to fault and to relieve employers and employees of the burden of civil litigation. Champlain Cable Corp. v. Employers Mut. Liab. Ins. Co., 479 A2d 835 (Del. Supr. 1984); New Castle Court v. Goodman, 461 A. 2d 1012 (Del. Supr 1983). The latter purpose is expounded further by 19 Del. C.A. section 2304, titled "Compensation as exclusive remedy." section 2304 expressly states that the only form of recovery by an employee injured while in the course of employment is worker's compensation, "regardless of the question of negligence and to the exclusion of all other rights and remedies." Third parties are not bound by this Act. Ianire v. University of Del., 255 A.2d 687 (Del. Super 1969).

F. PENNSYLVANIA

     The Pennsylvania Worker's Compensation Act and Occupational Disease Act governs the rights of employees and their dependents to receive compensation for injury or death suffered by the employee arising in the course of and relating to the employment. 77 Pa. S.C.A. section 1 et seq. An employee is barred from suing his employer for any injury which would fall under the provisions of this Act. Boal v. Electric Storage Battery Co., 98 F. 2d 815 (1938). As a general rule, the Worker's Comp. Act is construed liberally. Dunn v. Treso, 124 A.174. 279 Pa. 518 (1924). This Act applies to work related injuries occurring within Pennsylvania. Arvoulas v. Magiana, 39 A.2d 263, 155 Pa. Super 577 (1944). The employee’s right to compensation is statutory, and the employer is liable without having to prove negligence or fault but this does not make the employer an insurer. Olin Corp. v. Workmen's Com. App. Bd., 324 A. 2d 813 (1974).

G. WEST VIRGINIA

     Worker's Compensation is the exclusive remedy for work related injuries, and the provisions of the act may not be waived. W.Va. Code section 23-2-7. The act takes from an employee his common law right to sue his employer. Belcher v. Richardson, 317 F. Supp 1294. There is a two year statute of limitations on filing claims, and a five (5) year time limit for reopening dormant cases. W.Va. Code 23-2 et seq.


XVIII. CONTRACTS OF INSURANCE & CONSTRUANCE OF AMBIGUITY

A. MARYLAND

     When the language of an insurance contract is unambiguous, construction is within the province of the Court, however, where the language of the contract is ambiguous, construction is for the trier of fact, and any ambiguity is to be resolved against the company which prepared the policy in favor of the insured. Schuler vs. Erie Insurance Exchange, 81 Md. App. 499, 568 A.2d 873 (1990).

B. DISTRICT OF COLUMBIA

     In D.C. when interpreting an insurance policy, the Court must first determine whether the language is plain and unambiguous and therefore controlling as a matter of law, or whether words are ambiguous and in need of interpretation through rules of construction, and objective evidence of the parties intent.[57]

     In construing ambiguous language of insurance contract, a court must consider objective evidence of insured's intent; the most important evidence is the interpretation that parties themselves give a contract, as manifested by their conduct subsequent to formation. Reasonableness of different interpretations of an insurance policy is determined by intent of insured, rather than the insurer.[58]

     Under District of Columbia law, terms of insurance policy, so long as they are clear and unambiguous, constitute an express contract between parties and must be enforced, unless they violate a statute or pubic policy.[59]

     Clear and unambiguous language should be construed according to its everyday meaning. Ambiguous policy language should be construed in favor of insured wherever reasonable.[60]

C. VIRGINIA

     Contracts of insurance are liberally construed to provide coverage and any ambiguity in the contract will be construed against, the insurance company and in favor of the insured.

     A standard contract may, except for cases involving common carriers, contain exculpatory clauses relieving the party of liability for their own negligence.

     Virginia has not adopted any broad reaching rules for allowing for recovery of extraordinary damages for breach of contract. Punitive damages are generally not recoverable for breach of contract unless there is a separate independent willful tort.

     Virginia has very few statutory rules concerning triggers of coverage and apportionment, except in motor vehicle cases. Determination of when coverage applies and apportionment between policies is usually made by reference to the policy language. Virginia applies the rule of construction that the policy is construed in favor of the insured and against the insurer and that in ambiguous situations, the policy is construed to find coverage.

D. NEW JERSEY

     The New Jersey courts view insurance contracts as adhesion contracts. See Longobardi v. Chubb Ins. Co. of New Jersey, 121 N.J. 530, 582 A.2d 1257 (1990). The New Jersey courts have taken the position that language in an insurance policy is ambiguous if the average policy holder cannot determine his rights and privileges. Rvan v. State Healthy Benefits Com’n, 260 N.J. Super 359, 616 A.2d 952 (1992); American White Cross Laboratories, Inc. v. Continental Ins. Co. , 202 N.J. Super 372, 495 A.2d 152 (1985). Generally, under New Jersey law, contracts for insurance are construed liberally and in favor of the insured. Kaufman v. Provident Life and Cas. Ins. Co., 828 F. Supp. 275, aff'd 993 F.2d 877 (1992).

E. DELAWARE

     In Delaware, insurance policy contracts are considered contracts of adhesion and are always construed against the insurer who drafted it. Novellino v. Life Ins. Co. of North America, 216 A. 2d 420 (Del. 1966); Graham v. State Farm Mutual Auto Ins. Co., 565 A.2d 908 (Del. Super. 1989). The Courts of Delaware deem a contract to be ambiguous if it is susceptible to two or more interpretations. Delledonne v. State Farm Auto Ins. Co., 621 A.2d 350 (Del. Super 1992). If there is an ambiguity in the contract it will be construed in favor of the insured and against the insurer. Traveler's Indem. Co. v. Lake, 594 A.2d 38 (Del.Super. 1991).

F. PENNSYLVANIA

     The Court determines the construction of an insurance policy contract. Standard Venetian Blind Co. v. American Empire Ins. Co., 469 A.2d 563, 503 P. 300 (1983). The rules of construction only apply when the meaning of the contract is ambiguous. Enrlich v. U.S. Fidelity & Guaranty Co., 51 A. 2d 794, 356 Pa. 417 (1947). The Pennsylvania Courts construe insurance policy contracts liberally in favor of the insured and strictly against the insurer. Thomas v. Metropolitan Life Ins. Co., 131 A.2d 600, 388 Pa. 499 (1957).

G. WEST VIRGINIA

     A contract of insurance includes not only those terms expressly contained therein, but also those terms implied by law. Paxton v. Allstate Ins. Co., 663 F. Supp. 49 (S.D.W.Va, 1987). However, where the policy provisions are clear and unambiguous, and not contrary to statute, regulation or public policy, they will be applied and not construed judicially. Transamerica Ins. Co. v. Arbogast, 662 F. Supp. 164 (N. D. , W. Va. 19 87). When reasonable people can differ about the meaning of an insurance contract, all ambiguities will be construed in favor of the insured. D'Annunzio v. Security Connecticut Life Ins. Co., 410 S.E. 2d 275 (1991).


XIX. WRONGFUL DEATH

A. MARYLAND

     According to section 3-904 of the Courts and Judicial Proceedings Article of the Maryland Annotated Code, a wrongful death action shall be for the benefit of the wife, husband, parent, and the child of the deceased person. If there are no persons who qualify under these aforementioned beneficiaries, an action shall be for the benefit of any person related to the deceased person by blood or marriage or who was totally dependent upon the deceased. As to limitations of damages, for the death of a spouse, minor child, or parent of the minor child, damages awarded are not limited or restricted by the pecuniary benefit rule which may include damages for mental anguish, emotional pain and suffering, loss of society, companionship, comfort, protection, marital care, parental care, filial care, attention, advice, counsel, training, guidance, or education where applicable. For a death of an unmarried child, who is not a minor child, the damages awarded under this section are not limited or restricted by the pecuniary loss which may include damages for mental anguish, emotional pain and suffering, loss of society, companionship, comfort, protection, marital care, parental care, filial care, attention, advice, counsel, training, or guidance. Further, the Act only allows one action with respect to the death of a person.

     It should be noted that according to the Estates and Trusts Article of the Maryland Annotated Code section 7-401, a Personal Representative is entitled to bring a "survival action" on behalf of the deceased for injuries suffered just as if the deceased were alive.

section 3-904. Action for wrongful death.

(a)     Primary beneficiaries. - An action under this subtitle shall be for the benefit of the wife, husband, parent and child of the deceased person.

(b)     Secondary beneficiaries. - If there are no persons who qualify under subsection (a), an action shall be for the benefit of any person related to the deceased person by blood or marriage who was wholly dependent upon the deceased.

(c)     Damages to be divided among beneficiaries. - In an action under this subtitle, damages may be awarded to the beneficiaries proportioned to the injury resulting from the wrongful death. The amount recovered shall be divided among the beneficiaries in shares directed by the verdict.

(d)     Damages if spouse or minor child dies. - For the death of a spouse, minor child, or parent of a minor child, the damages awarded under subsection (c) are not limited or restricted by the "pecuniary loss" or "pecuniary benefit" rule but may include damages from, mental anguish, emotional pain and suffering, loss of society, companionship, comfort, protection, marital care, parental care, filial care, attention, advice, counsel, training, guidance, or education where applicable.

(e)     Damages if unmarried child, who is not a minor, dies.- For the death of an unmarried child, who is not a minor child, the damages awarded under subsection (c) are not limited or restricted by the "pecuniary loss" or "pecuniary benefit" rule but may include damages for mental anguish, emotional pain and suffering, loss of society, companionship, comfort, protection, care, attention, advice, counsel, training or guidance where applicable if:

1) The child is 21 years old or younger; or

2) A parent contributed 50 percent or more of the child's support.

     The non-economic damages cap of 11-108 of the court's and judicial proceedings article of the code provides to wrongful death cases. Potomac Electric Power Company v. Smith, 79 Md. App. 591, 558 A.2d 768 (1989).

     In an action instituted by the personal representative against a tortfeasor for a wrong which resulted in the death of the decedent, the personal representative may recover the funeral expenses of the decedent up to $2,000 in addition to other damages recoverable in the action.

B. DISTRICT OF COLUMBIA

     A wrongful death action shall be brought by the personal representative of the Decedent.[61] A wrongful death action shall be brought within one (1) year after the death of the injured person.[62]

     Damages under the Wrongful Death Act go solely to the benefit of the spouse and next of kin. Pecuniary loss includes the present value of the Defendant's share of the Decedent's anticipated earnings. The damages also include the value of services lost to the family as a result of the decedent's death.[63] The reasonable expenses of the last illness and burial are also included in the damage calculation.[64]

     A survival action is brought by the legal representative of the decedent.[65] The damages in a survival action go to the benefit of the estate of the decedent, and are limited to the loss of the decedent's prospective net lifetime earnings discounted to present worth.[66] The Plaintiff may also recover for conscious pain and suffering suffered by the decedent prior to death.[67] Neither the survival statute or Wrongful Death Act provide for non-economic loss to family members.[68]

C. VIRGINIA

     Virginia allows a personal representative to bring an action for a claim for wrongful death. The general class of beneficiaries for a wrongful death claim are the surviving spouse, the children of the deceased, and any child of the deceased's children, or if there be none such, then the parents, brothers and sisters of the deceased, or if the decedent has left both surviving spouse and parent or parents, but no child or grandchild, the award shall be distributed to the surviving spouse and such parent or parents. Damages include sorrow, mental anguish and solace which may include society, companionship, comfort, guidance, kindly offices and advice of the decedent, compensation for the recently expected loss of income of the decedent, and service protection and care and Assistance provided by the decedent (there must be some showing that the decedent provided funds, money or support to the beneficiaries) expenses for the care, treatment, hospitalization of the decedent, incident to the injury resulting in death, reasonable funeral expenses and punitive damages. There is no cap on damages for wrongful death in Virginia.

section 8.01-50. Action for death by wrongful act; how and when to be brought.

A.     Whenever the death of a person shall be caused by the wrongful act neglector default of any person or corporation . . . such as would, if death had not ensued have entitled the party injured to maintain an action then, and in every shall be such case, the person who, or corporation that liable in an action for damages . . .

B.     Every such action under this section shall be brought by and in the name of I the personal representative of such deceased person within the time limits specified . . .

     It is to be noted that section 8.01-56 provides that an action shall not abate by death but rather the pleading should be amended so as to conform to an action under section 8.01-50 and proceed with as if the action had been brought under such section . In such cases, however, there shall be but one (1) recovery for the same injury. Under this section , after the death of the deceased Plaintiff, there can be no recovery for mental anguish, pain or suffering of the deceased. Seymour v. Richardson, 194 VA 709, 75 S.E. 2d 77 (1953).

D. NEW JERSEY

     New Jersey has a statutory cause of action for wrongful death N.J.S. A. 2A:31-1 et seq. The beneficiaries of a wrongful death action are those persons that could have had an intestate interest in the decedent's estate and in the proportion that they were entitled to take. N.J.S.A. 2A:31-4. Any action brought under the New Jersey Act must be commenced within 2 years after the death of the decedent. N.J.S.A. 2A:31-3. The New Jersey wrongful death statute is remedial in nature rather than penal, therefore punitive damages are not, awarded. Kern v. Kogan, 93 N.J. Super 459 226 A.2d 186 (1967).

E. DELAWARE

     Delaware has codified its wrongful death action in 10 Del. C.A. section 3721 et seq. The beneficiaries of such an action shall be a spouse, parent and children. If there are no beneficiaries as named above, an action can then be brought by any person related to the deceased by blood or marriage. The statute of limitations for a wrongful death action is two (2) years. 10 Del. C.A. section 8108.

F. PENNSYLVANIA

     A wrongful death action may only be brought by the personal representative of the decedent until six months after the death of the decedent. After that time, any person entitled by law may bring the action and act as trustee ad litem on behalf of all persons entitled to damages Pa. R.C.P. No. 2202, 42 Pa. C.S.A. When an action is brought in Pennsylvania to enforce rights arising under another jurisdiction, the laws of the other jurisdiction shall govern the action. Pa. R.C.P. No. 2207, 42 Pa. C.S.A. Beneficiaries include the following: spouse, children, or parents of the deceased. 42 Pa. C.S.A. section 8301. Wrongful death action must be commenced within one (1) year after death. 42 Pa. C.S.A. section 1722, 5524 .

G. WEST VIRGINIA

     West Virginia recognizes claims for wrongful death, as well as survival actions. W.Va. Gode section 55-7-8a. Damages in survival actions are limited to property damage, personal injury damages not resulting in death, and damages for fraud and deceit.

     The 1992 West Virginia Wrongful Death Statute provides for an action to be brought by the administrator of an estate for damages that to a jury or court "may seem fair and just" including, mental anguish, and solace, loss of services and income, costs of final illness, reasonable funeral expenses suffered "dependents", i.e. surviving spouse, children, stepchildren, brothers, sisters, parents and any persons who were financially dependent on the deceased. There is a two (2) year Statute of Limitations on such actions.


XX. SUMMARY JUDGMENTS

A. MARYLAND

     According to 2-501 of the Maryland Rules of Civil Procedure, the Court shall enter judgment in favor of or against the moving party if the motion and response show that there is no genuine dispute as to any material facts and that the party in whose favor of judgments entered is entitled to a judgment as a matter of law. It is important to note that, Rule 2-501 has recently been amended and now requires that all facts relied upon within the Motion for Summary Judgement be attested to by Affidavit based upon personal knowledge. Prior to the amendment a party could use Answers to Interrogatories which are answered to the best of that person's knowledge and belief. Thus, the new rule would require that this information be placed in an affidavit based on personal knowledge.

     The response to a Motion for Summary Judgment shall identify with particularity the material facts that are disputed. When a Motion for Summary Judgment is supported by an affidavit or other statement under oath, an opposing party who desires to convert any fact contained in it may not rest solely upon allegations contained in the pleading, but shall support the response by an affidavit or other written instrument under oath. An affidavit supporting or opposing a Motion for Summary Judgment shall be made upon personal knowledge, and shall set forth such facts as would be admissible evidence and shall show affirmatively that the affiant is competent to testify to the matter stated in the affidavit. The court may direct entry of judgment for or against one or more but less than all the parties to the action, upon one or more but less than all of the claims presented by a party to the action and for some but less than all of the amount requested when the claim for relief is for money only and the court reserve disposition of the balance of the amount requested. According to 2-311 of the Maryland Rule of Civil. Procedure, a party shall file a response within 15 days after being served with the Motion for Summary Judgement or within the time allowed for parties original pleading pursuant to Rule 2-321, whichever is later.

B. DISTRICT OF COLUMBIA

     Subject to the Motions deadline set forth in Rule 12-I (n), a Motion for Summary Judgment may be filed by a party seeking to recover on a claim at any time after twenty (20) days have expired from the commencement of the action or after service of a motion for Summary Judgment by an adverse party.[69] A defending party may move for Summary Judgment at any time prior to the Motions deadlines.[70] It is well settled that Summary Judgment is proper where the moving party establishes that no genuine issue as to any material fact exists and that he is entitled to judgment as a matter of law.[71]

C. VIRGINIA

     Summary judgments in Virginia are very difficult to obtain since, by Rule of Court, depositions, testimony and affidavits may not be used to support a summary judgment. Virginia Rule 2:21 governs summary judgment motions.

D. NEW JERSEY

     A party may file a Motion for Summary Judgment at any time after 20 days from original service or after served with a Motion for Summary Judgment by an adverse party. N.J. Rule 4:4601. Summary Judgment can be based on pleadings, depositions, answers to interrogatories, admissions on file and affidavits. N.J. Rule 4:46-2 Summary Judgments are granted if the Court finds that there is no material fact challenged and that the moving party is entitled to judgment as a matter of law. The Court may award attorneys' fees at the end of trial to the prevailing party if the Court finds that the Summary Judgment Motion was denied due to a factual contention raised in bad faith by the opposing party. N.J. Rule 4:46-6.

E. DELAWARE

     Delaware permits Motions for Summary Judgment in both the Court of Chancery and Superior Court. See Court of Chancery Rule 56; and Superior Court Civil Rule 56. Although the rules use some different language, they both adhere to the same fundamental principles. A party may move for summary judgment twenty (20) days from the commencement of the action or after service of a motion for Summary Judgment by the adverse party. A Motion for Summary Judgment can be supported with pleadings, depositions, answers to interrogatories, admissions on file, and affidavits. A party opposing a motion for summary judgment may not merely deny the factual allegations but must support the denial with items mentioned above. Tarzer v. International Ser. Indus. Inc., Del. Ch., 402 A.2d 382 (1979) .

F. PENNSYLVANIA

     A motion for summary judgment is governed by Pa. R.C.P. No. 1035, 42 Pa. C.S.A. The motion may be filed after pleadings have been closed but before such time that may cause a delay to the trial. A motion for summary judgment can be supported by pleadings, depositions, answers to interrogatories, admissions and supporting affidavits. The Court will grant summary judgment if there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rossi v. Penn St. Univ., 489 A.2d 828, 340 Pa. Super. 39 (1985). When considering the motion for summary judgment, the Court examines the record in the light most favorable to the non-moving party. Richard Mall Corp. v. Kasco Const., 486 A.2d 978, 337 Pa.Super. 204 (1984)

G. WEST VIRGINIA

     West Virginia's Summary Judgment Rule is derived from and substantially identical to FRCP 56. Affidavits in support are allowed, and the movant has the burden of proving that there exists no dispute of any material fact. R.C.P. 56


XXI. BAD FAITH

A. MARYLAND

     In Maryland, an insurer is obligated to act fairly and in good faith in settling third-party liability claims within the policy limits, State Farm Mut. Auto. Ins. Co. v. White, 248 Md. 324, 236 A.2d 269 (1967). This obligation of fair dealing and good faith is a fiduciary duty which arises out of the insurer's exclusive control of the investigation, settlement and defense of the claim against its insured. The insurer's exclusive control over the litigation creates an actual or potential conflict of interest between insurer and insured. The duty to act fairly and in good faith requires the insurer to give equal weight to its own interests and those of the insured. The insurer must act honestly, exercise reasonable care, diligently investigate and appraise the case, and keep its insured reasonably well-informed of the progress of the case, including settlement offers. Although the good faith standard requires the insurer to act honestly and diligently, it does not impose liability upon the insurer for simple negligence. Sobus v. Lumbermen's Mut. Cas. Co., 393 F. Supp. 66 (D. Md. 1975 applying Maryland Law) . Serious and recurrent negligence, however, may be evidence of bad faith. If an insurer acts in bad faith by not settling a third party claim within policy limits, then it is liable for any verdict in excess of the policy limits. See, eg. , White, 248 Md. at 330-31, 236 A.2d at 272.

     Maryland Courts have limited the scope of the tort of bad faith to the insurer's duty to settle and have expressly refused to expand the tort to situations involving an insurer's bad faith failure to pay an insurance claim. Johnson v. Federal Kemper Ins. Co. , 74 Md. App. 243, 246, 536 A.2d 1211, 1212 cert. denied, 313 Md. 8, 542 A.2d 844 (1988). The Maryland courts, however, have not decided whether the tort should be extended to the duty to defend. In Fireman's Fund Ins. Co. v. Raleigh, 59 Md. App. 305, 317, 475 A.2d 509, 514-15, cert. denied, 301 Md. 176, 482 A.2d 502 (1984), however, the trial court assumed that the tort of bad faith did exist and even awarded the insured punitive damages. On appeal, the Court did not address the validity of a bad faith claim based on an insurer's refusal to defend its insured.

     Maryland does not recognize a first party bad faith claim. Also the bad faith claim of an excess carrier against the primary carrier is predicated upon the Doctrine of Equitable Subrogation by which the excess carrier steps into the shoes of the insured in relation to the primary carrier. The rights of the excess carrier are derivative in nature and depend upon the rights of its insured in relation to the primary insurance carrier.

B. DISTRICT OF COLUMBIA

     To recover under the tort of Bad Faith refusal to pay, the Plaintiff must show that the insurer did not have a reasonable basis for denying benefits under the policy of insurance and that it knew or recklessly disregarded it and there existed a lack of a reasonable basis when it denied the claim.[72] Note: Equitable Estoppel prevents insurance companies from asserting the statute of limitations defense where the insurance company has made misleading representations to the insured and the insured has relied on those representations to his detriment.[73]

     The District of Columbia recognizes the theory of a first party bad faith claim.

C. VIRGINIA

     Virginia does not recognize an independent cause of action for bad faith failure to pay an insurance claim. At most, an insured is only entitled to recover attorneys' fees for bad faith failure to pay a first-party claim.

     Recovery from an insurance company for an amount in excess of the policy limits is only allowed were the insured can prove by clear and convincing evidence that the insurer's failure to settle with the policy limits was the result of an intentional disregard of the insureds interest for the financial benefit of the insurer.

     Virginia recognizes a limited "bad faith" theory of recovery.

D. NEW JERSEY

     New Jersey recognizes bad faith causes of actions based on both contract and tort theories. Picket v. Lloyd's, 131 N.J. 457, 621 A.2d 445 (1993). Under New Jersey law, the insurer's obligation with respect to settlement is to exercise good faith in dealing with offers of settlement. Having both the insured's and its own best interest in mind, the insurer must make reasonably diligent efforts to determine the facts and theories upon which a good faith judgment can be made as to an appropriate settlement. Kaudern v. Allstate Ins. Co., 277 F. Supp 83 (1967). This duty is increased when the insurerreserves full control, under the policy, to handle the claim. See Royal Farms Resort, Inc. v. Investors Ins. Co. of America, 65 N.J. 474, 323 A.2d 495 (1974).

E. DELAWARE

     Delaware does recognize a cause a action against an insurer for bad faith handling of a claim. When the insurer has sole control of the defense and the insurer tortiously settles a claim over the policy limits, the insured or excess insurer has a cause of action. Stilwell v. Pursons, 145 A.2d 397 (Del 1958) . In order for an insurer to avoid this type of action, it must enter into a settlement only if it is reasonable and made in good faith. Corrado Bros. v. Twin City Fire Ins. Co., 562 A.2d 1188 (Del. Super. 1989).

F. PENNSYLVANIA

     An insurer is required to act in good faith and determine the interest of the insured when deciding whether to litigate or settle. Walasavage v. Marinelli, 483 A.2d 509, 334 Pa. Super 396 (1984). An insurer may refuse to settle in good faith and has no absolute duty to settle a claim when the possible judgment against the insured exceeds the amount of coverage. U.S. Fire Ins. Co. v. Royal Ins. Co., 759 F.2d 306 (1985) . Neither the excess insurer nor the insured can recover from the primary insurer, when the insured approved the latter Is decision to go to trial. Puritan Ins. Co. v. Canadian Universal Ins. Co. , 775 F.2d 76 (1985). But a primary insurer can be held liable to an excess carrier for an amount in excess of the limits if the handling of the claim or settlement is evidenced by bad faith. Id.

G. WEST VIRGINIA

     An agreement of insurance to pay lawful damages on behalf of the insured constitutes a contract for the benefit of the person insured and may be enforced in an action, however, where the insurer acts reasonably, and without negligence in refusing proper settlement it meets its obligations to the insured. Daniels v. Hardemann Mut. Ins. Co., 422 F.2d 87 W.Va. (1970). Punitive damages may be awarded to an insured against its insurer for failure to settle a claim within policy limits, but the policy holder must establish a high threshold of actual malice in order to prevail. Shamblin v. Nationwide, 396 S.E. 2d. 766 (1990) . The West Virginia Statute renders unenforceable provisions in an insurance policy requiring arbitration of claims.


XXII. LANDLORD LIABILITY FOR CRIMINAL ACTS OF THIRD PARTIES

A. MARYLAND

     The leading case regarding a landlord Is duty to protect against Criminal Acts of Third Parties in Maryland is Scott v. Watson, 278 Md. 160; 359 A.2d 548 (1976), and Henly v. Prince George’s County, 305 Md. 320; 503 A.2d 1333 (1986).

     According to Scott, Maryland law does not impose upon the landlord of an urban apartment complex any special duty to tenants to protect them from the criminal acts of third parties committed in common areas within the landlord's control; a landlord's duty is to exercise reasonable care for the tenants' safety and traditional principals of negligence regarding proximate or intervening causation will determine whether landlord is liable for an injury resulting from a breach of the duty, including injury caused by criminal acts of third parties.

     If the landlord knows, or should know, of criminal activity against persons or property in the common areas of his building, he has a duty to take reasonable measures, in view of the existing circumstances, to eliminate the conditions contributing to the criminal activity.

     In Henley, the Court dealt with the concept of foreseeability and adds the concept that all persons owe a duty to all other persons to use reasonable care to protect them from harm must be limited to avoid liability for unreasonably remote consequences.

B. DISTRICT OF COLUMBIA

     The leading case regarding a Landlord's duty to protect against Criminal Acts of Third Parties in the District of Columbia is Graham v. M&J Corp., 424 A.2d 103 (1980).

     According to Graham, for negligence to exist on part of landlord for criminal activity in common area of building which causes injury to tenant's landlord, the landlord not only must have foreseen danger, but also, he must have failed to take security measures reasonable under circumstances. What measures are reasonable is determined by a jury assessment of protective measures taken in buildings of similar character and class.

     The landmark case in D.C. by which recent similar cases have been measured is Klien v. 1500 Massachusetts Ave. Apt. Corp., 141 U.S. App. D.C. 370 (1970). In Klien, the landlord's duty of care is held to be similar to the innkeeper-quest standard: "reasonable care in all the circumstances." The landlord is held especially accountable for crimes against tenants and properly related to the landlord's negligence to control the common areas properly. Important considerations are: a) whether the landlord had actual or constructive notice of prior criminal activity in the building; b) were the tenants warned; c) were appropriate security measures Introduced. Another consideration is whether security measures had decreased from the time the injured lessee became a tenant to the present. This is especially important if criminal activity had been on the rise. Most important in Klien is whether the landlord took "those steps within his power to minimize predicable risks to the tenant."

     In addition, Lacy v. D.C. , 424 A. 2d 317 (1980), should be considered when assessing a landlord's liability with regard to criminal acts by third parties. Lacy appears to be one of the most recent cases on liability for criminal acts of third parties. The test is still a proximate cause test, but, the substantial factor test was introduced which is an element of the proximate cause analysis. In Lacy, the Court said that the general rule of foreseeability is that the Defendant is liable, despite the intervening act of a third party if the intervening act should have been reasonably anticipated and protected against. In Lacv, the Court perceived a criminal act as an extraordinary act and the Court articulated that the criminal act is a precise act and must be precisely foreseen. See also Doe v. D.C., 524 A.2d 30 (1987), wherein the Court to expanded Lacv to broaden the foreseeability requirement. while it is true that, because of the extraordinary nature of criminal conduct, the law in D.C. requires that the foreseeability of the risk of such conduct must be "more precisely shown" than as usually required in a typical negligence situation, (Lacy at 323), Doe, holds that this heightened showing does not require previous occurrences of the particular type of harm. A showing of foreseeability can be met instead by a combination of factors which give Defendants an increased awareness of the danger of a particular criminal act.

     In the District of Columbia, each crime district is described as a "carney block" in view of the standard of care and prevailing law in the District of Columbia on landlord liability for criminal acts of third parties being dependent upon what, if any, protective measures are taken in buildings of a similar character and class in the neighborhood. As a practical matter it is necessary to obtain a security survey of the carney block in which the building is located in order to establish the applicable standard of care. This proves to be expensive in the defense of a claim predicated upon the landlord's liability for the criminal acts of third parties.

C. VIRGINIA

     The law in Virginia for Criminal Acts of Third Parties was articulated in the case of Gulf Reston, Inc. v. Rogers, 215 Va. 155 (1974) .

     The Court in Gulf held that there is no general duty on the part of a landlord to protect a tenant from isolated criminal acts of third persons merely because of relationship. In determining whether a duty exists, the Court examined the likelihood of injury, the magnitude of the burden of guarding against such injury, and the consequences of placing the burden on the Defendant must be taken into account.

     The Court in Gulf noted the general rule that a landlord is not an insurer, and owes a duty to maintain the premises in a reasonably safe condition, free of latent defects. Traditionally, this did not include a duty to police, and the Court stated the general rule:

A landlord does not owe a duty to protect his tenant from a criminal act of a third person, citing the Restatement of Torts 2d section 315, which imposes no duty to prevent another from continuing a crime unless a special relationship exists. section 314 (a) and 320 of the Restatement 2d cites innkeepers, guests, and other "special relations", but not landlord-tenant relationships.

     In Klingbeil Mgt. Group v. Vito, 233 Va. 445 (1987), the Court relied on Gulf and held that, as a general rule, a landlord does not owe a duty to protect his tenants from criminal acts of third persons. In Klingbeil, Plaintiff tenant was raped in her apartment by an unknown assailant and sued the apartment complex for failure to maintain proper security measures. Likewise, the Court in Richmond Medical Supp. v. Clifton, 235 Va. 584 (1988) also cited the doctrine of Gulf that a landlord is not liable in tort to a tenant for failure to protect the tenant from criminal acts of third parties. In Richmond a commercial property owner was sued when thieves broke in the tenant's premises and stole both money and equipment.

     Additionally, the case of Wright v. Webb, 234 Va. 527 (1987) held that a business invitor owes the same duty of reasonable care to an invitee that a landlord owes to his tenant (no obligation to protect his tenant from criminal acts or third parties).

     Specifically, the Court in Wright said that "a business invitor, whose business does not attract or provide a climate for assaultive crimes had no duty to take measures to protect an invitee from criminal assault, unless he has knowledge that criminal assaults are occurring or about to occur, indicating an imminent probability of harm to an invitee.” In Wright it is also important to note that there were two prior acts of violence in or near the parking lot, where the criminal assault on the Plaintiff occurred. The Court held that these prior incidents would not lead a reasonable person to conclude there was an imminent danger of criminal assault, which required the invitor to take action to protect the Plaintiff.

     An intervening cause in Virginia must so entirely supersede Defendant's negligence that it alone produces injury. An intervening cause is not a superseding cause if it is put into operation by the Defendant's wrongful act. Coleman v. Blankenship Oil Corp., 221 Va. 124 (1980). In Banks v. City of Richmond, 232 Va. 130 (1986), the Plaintiff sued the city for a gas explosion in her apartment. The Court held that the alleged negligence of the city was nothing more than mere circumstance of explosion. Further, the Court said the conduct of the maintenance man in applying an open flame to an area where gas had collected was a superseding, intervening and not reasonably foreseeable cause. See also Huffman v. Sorensen, 194 Va. 932 (1953), where the Court held that no responsibility for wrong attaches when there intervenes independent acts of third persons which is the immediate cause. "There can be not causal connection between the negligence of the Defendant, and the injuries sustained by the Plaintiff from the causes shown the by evidence. The negligence of the Defendant and the injuries so received by the Plaintiff are entirely separated and the chain of causation interrupted by several intervening events. Those events constituted new, efficient and independent causes which superseded the original act of negligence of the Defendant." Id. at 940.

D. NEW JERSEY

     New Jersey courts have held that based strictly on the relationship between a landlord and a tenant, without more, the landlord does not owe that tenant the duty to protect the tenant from the crimes of third parties. Braitman v. Overlook Terrace Corp., 132 N. J. Super 51, 332 A. 2d 212, aff 'd 68 N. J. 368, 346 A. 2d 76 (19 74). Although there is no duty based on the relationship alone, it may arise under certain circumstances. See Trentacost v. Brussel, 164 N.J. 214, 412 A.2d 436 (1978). Essentially, the courts have not precluded such a cause of action.

E. DELAWARE

     The relationship between the landlord and the tenant is governed by statute in Delaware 25 Del C.A. section 5301 et seq. There has been a case which implied that the landlord does owe a duty to the tenant for safe and secure premises. Koutoufaris v. Dick, 604 A. 2d 390 (Del Supr. 1992). It appears that this area of the law has only been cursorily explored.

P. PENNSYLVANIA

     There is no general duty for a landlord to protect tenants from criminal acts, but if the landlord does provide security, the landlord may incur a voluntary duty or a duty by agreement. Feld v. Merriam, 485 A.2d 742, 596 Pa. 383 (1984); See Reider v. Martin 519 A. 2d 507, 359 Pa. Super. 586, app. den. , 535 A. 2d 83, 517 Pa. 594 (1986).

G. WEST VIRGINIA

     West Virginia law does not make the landlord the insurer. of tenant safety for criminal acts of third parties. In such cases the standard negligence rules of foreseeability and knowledge are applied. The intentional committing of a crime is a superseding cause, although the Defendant’s negligence created a situation which afforded the opportunity for a third person to commit such a crime, unless the Defendant realized, or should have realized the likelihood that such person would commit the crime. State of W.Va. ex rel Poulos v. Fidelity & Cas. Co. of N.Y., 263 F. Supp. 81 (P.C. W.Va. 1967).


XXIII. RIGHT TO INDEPENDENT COUNSEL

"N/D" = "Not Decided"
JURISDICTIONNEW JERSEY PENNDELAWARE MARYLANDVIRGINIA D.C.W.VA
Multiple insured insureds with antagonistic interests YesN/DN/D YesN/DN/DN/D
Potential claims/ covered/ non covered counts YesN/DN/D YesN/DN/DN/D
Damages sought in excess of policy. N/DN/DN/D N/DN/DN/DN/D
Misconduct of insurer in conducting defense N/DN/DN/D N/DN/DN/DN/D
Insurer's decided failure to settle N/DN/DN/D N/DN/DN/DN/D
Uninsured motorist N/DN/DN/D YesN/DN/DN/D


XXIV. DUTY TO DEFEND

JURISDICTIONNEW JERSEY PENNDELAWARE MARYLANDVIRGINIA D.C.W.VA
Claims potentially within coverage YesYesYesYes YesYesYes
Covered and clearly non covered counts in the same law action YesYesYesYes YesYesYes


Footnotes:

[1]D.C. Code section 12-301.

[2]D.C. Code section 12-301 (4).

[3]Burda v. National Association Postal Sup., 592 F. Supp. 273 (D.C. 1984).

[4]D.C. Code section 12-301(1).

[5]D.C. Code section 12-301(2).

[6]D.C. Code section 12-301(5).

[7]D.C. Code section 12-301(6).

[8]D.C. Code section 12-301(7).

[9]D.C. Code section 12-301 (8).

[10]D.C. Code section 12-301 (10).

[11]The Court stated in Poffenberger v. Risser, 290 Md. 631, 431 A.2d 677 (1981), that the cause of action accrues when the claimant in fact knew or reasonably should have know-n the wrong. Actual knowledge, either expressed or implied is sufficient to start the running of the limitations However, constructive knowledge is not. As for contracts, according to section 2-275 of the Commercial Law Article of the Maryland Annotated Code, a cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach.

[12]National R. R. Passenger Corp. v. Notter, 677 F. Supp. (D.C. 1987).

[13]D.C. Code section 12-301(7) - includes claims for Breach of Warranty as well.

[14]D.C. Code section 12-301(8); Pouty v. National RR, 572 F. Supp. 200 (1977 ) .

[15]D.C. Code section 12-301, 1981. Byers v. Burleson, 713 F.2d 856 (C.A. D.C. 1983).

[16]D.C. Superior Court rule 41 states in pertinent part: an action may be dismissed by the Plaintiff without Order of Court (1) by filing notice of dismissal at any time before service by the adverse party of an answer or of a Motion for Summary Judgment, whichever first occurs, or (2) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a Plaintiff who has once dismissed in any court of the United States or of any state an action based on or including the same claim. Rule 41(2) goes on to state that dismissal may be obtained by Order of Court. If, however, a counterclaim has been plead by the Defendant prior to the service upon the Defendant of the Plaintiff’s Motion to Dismiss, the action shall not be dismissed against the Defendant’s objection unless the counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the Order, a dismissal under this paragraph is without prejudice.

[17]Owens-Illinois, Inc. v. Aetna Cas. & Sur. Co., 597 F. Supp. 1515 (D.C. 1985).

[18]D.C. Code section 35-2101, 35-2113, 35-2110 (b,f), 36-301 to 36-344. McCrae v. Marques, 688 F. Supp. 653 (D.C. D.C. 1987)

[19]Virginia Farm Bur. Mut. Inc. Co. v. Wolfe, 212 Va. 162, 183 S.E. 2d 145 (1971).

[20]225 Va. 316, 302 S.E. 2d 36 (1983).

[21]Martin v. George Hyman Construction Co., 422 A.2d 1288 (D.C. 1980).

[22]Franklin Investment Co. v. Smith, 383 A.2d 355 (D.C. 1978) .

[23]Sere v. Group Hospitalization, Inc., 443 A. 2d 33 (D.C. 1982) .

[24]Payne v. Soft Sheen Products, Inc., 486 A.2d 712 (D.C. 1985).

[25]Ferebee v. Chevron Chemical Co., 237 U.S. App. D.C. 164, 736 F. 2d 1529 (1984).

[26] Id.

[27]Berman v. Watergate West, Inc., 391 A.2d 1351 (D.C. 1978) .

[28]Cotton v. McGuire Funeral Services, Inc., 262 A.2d 806 (D.C. 1970).

[29]Martello v. Hawley, 112 U.S. App. D.C. 129, 300 F. 2d 721 (1962) .

[30]D.C. Code section 30-401.

[31]U.S. v. Benson, 185 F.2d 995, 88 U.S. App. D.C. 45 (C.A. D.C. 1951).

[32]Cleveland Park Club v. Perry, 165 A.2d 485 (D.C. MunApp. 1960) .

[33]Id.

[34]Id.

[35]Today, a vast majority of states recognize a cause of action against vendors of alcoholic beverages for the torts of their intoxicated patrons. This liability is based upon Dram Shop Acts, negligence based on the violation of Alcoholic Beverage Control Acts, Common Law Negligence, and willful and wanton misconduct. The District of Columbia does recognize a cause of action in negligence based on a violation of D.C. Code 325-121 for sale of alcohol to intoxicated persons.

[36]D.C. Code section 25-121.

[37]Marrusa v. District of Columbia, 484 F.2d 828 (D.C. Cir. 1973).

[38]Cartwright v. Hyatt Corp., 460 F. Supp 80 (D.C. 1978).

[39]Va Code section 4-62. If any person shall, except pursuant to the provisions of section 4-48 or section 4-50, sell any alcoholic beverages to any person and at the time of such sale shall know or have reason to believe that the person to whom the sale is made is (I) less than twenty-one years of age, except as to beer as provided herein or (ii) interdicted, or (iii) intoxicated, he shall be guilty of a misdemeanor. If a person shall sell beer to another person and at the time of such sale shall know or have reason to believe that the person to whom the sale is made is less than twenty-one years of age or had not attainted the age of nineteen years by July 1, 1985, he shall be guilty of a misdemeanor.

[40]Webb v. Recrua Ltd. Partnership, 624 F. Supp. 471

[41]Webb v. Blackies House of Beef, Inc. (E.D. Va. 1985). 811 F.2d 840 (4th Circuit 1987).

[42]Myco, Inc. v. Super Concrete Co., Inc., 565 A.2d 293 (D.C. App 1929).

[43]Id.

[44]Moses-Ecco v. Roscoe-Ajak, 115 U.S. App. D.C. 366 (1936) .

[45]Martello v. Hawley, 112 U.S. App. D.C. 129 (1962); Martello permitted a pro-rata reduction of the award where the setting Defendant is found to be at fault injured Plaintiff may settle with one or more of the negligent tortfeasors without thereby surrendering the right to recover against others. Snowden v. Transit Systems, 147 U.S. App. D.C. 204 (1971); Lamphier v. Washington Hospital Center, 524 A.2d 729 (D.C. App. 1987).

[46]Gemco-Ware v. Rongene, 234 Va. 54 (1987) - The right to recover for Contribution and Indemnification arises from the payment or discharge of the common obligation.

[47]Glover v. Johns-Manville Corp., 662 F. 2d 225 (1979) - A party may only prevail on its indemnity claim if its negligence was in some sense passive or secondary in bringing about the injury suffered by the original claimant, under Virginia law, active negligence prevents a party's seeking indemnity altogether.

[48]Grogan v. Gen Maintenance Service Co., 763 F.2d 444, 246 U.S. App. D.C. 154 (C.A. D.C. 1985).

[49]Rose v. Hakim, 335 F. Supp 1221, 163 U.S. App. D.C. 246 (D.C. 1971).

[50]Emmert v. U.S., 300 F. Supp 45 (D.C. 1969).

[51]Dawson v. Contractors Transport Corp., 467 F. 2d 727, 151 U.S. App. D.C. 401 (C.A. D.C. 1972).

[52]D.C. Code section 36-304 (a) (1981).

[53]D.C. Code section 36-319 (b), 36-340 (1981).

[54]Id.

[55]D.C. Code section 36-319(b), 36-340 (1981).

[56]DiNicola v. George Hyman Construction Co., 407 A.2d 670 (D.C. 1979).

[57]Keene Corp. v. Ins Co. of North America, 597 F. Supp 946, vacated 631 F. Supp. 34 (D.C. 1984).

[58]Keene, Supra.

[59]Chiriboga v. International Bank for Reconstruction and Development, 616 F. Supp. 963.

[60]Continental Cas. Co. v. Cole, 809 F.2d 891, 258 U.S. App. D.C. 50.

[61]D.C. Code section 16-2702 (1981).

[62]D.C. Code section 16-2702 (1981).

[63]Doe v. Binker, 492 A. 2d 857 (D.C. 1985).

[64]D.C. Code section 16-271.

[65]D.C. Code section 12-101 (1981).

[66]Hughes v. Pender, 391 A. 2d 259 (D.C. 1978).

[67]Doe v. Binker, 492 A. 2d 857 (D.C. 1985).

[68]Hughes, Supra.

[69]Super, Ct. R. 56 (a).

[70]Id., Rule 56 (b).

[71]Nader v. Detoledano, 408 A. 2d 31 (D.C. App. 1979); Kurth v.Dobricky, 487 A.2d 220 (1985).

[72]Washington v. Group Hospitalization, Inc. , 588 F. Supp. 517 (D.C. 1984).

[73]Bailey v. Greenberg, 516 A. 2d 934 (D.C. App. 1986).



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