Articles Posted in Maryland Courts

I’ve complained to you (all 14 of you) for years about Maryland’s ridiculous refusal to adopt dram shop laws to allow lawsuits against bars and restaurants who knowingly serve drunk people who then go out and hurt of kill someone.  A divided Court of Appeals says the Legislature should take the first step.  The legislature bows to the National Resturant Association lobbyists because there is no dead kids lobbying group that contributes money to Maryland General Assembly elections (except for MADD which does an awesome job with few resources).

The court did take a baby step in the right direction this month when it issued an opinion in two cases involving underage drinking that creates a path for victims and their families to bring civil lawsuits against adults who serve children alcohol.

This is a big step forward.  The Maryland Court of Appeals has previously found that social host liability is a near relative of a Dram Shop liability.  So it is not hard to imagine the court extending the reasoning of these cases as a logical move towards dram shop laws.  It is also noteworthy that Judge Sally D. Adkins wrote the opinion.  Judge Adkins wrote an amazing dissent in the last big dram shop case that came before the court, arguing that the law had to be changed because too many Marylanders were unnecessarily dying because drunk people are being overserved in our bars and our restaurants.   It could just be me but I think this is a sign that Judge Adkins’ thinking will soon carry the day.

I have always had an interest in spoliation of evidence.  Spoliation is the negligent or intentional destruction or alteration of evidence or the failure to preserve evidence for relevant to future, and sometimes even pending, litigation.  This is not an issue we see often in car accident cases but we do see it in truck accident and product liability cases and, to a less extent in medical malpractice claims.

The Maryland Court of Appeals took a look at this issue in Cumberland Insurance Group v. Delmarva Power. This case involved the treatment of spoliation of evidence when the physical object destroyed is itself the subject of the case.  The context is a little boring.  This is a battle between an insurance company and a utility company so, in my world, this is a bad guy on bad guy battle. The destruction here was also negligent which is a lot less sexy than willful destruction.

Anyway, the claim centered on a house fire of a home insured by Cumberland Insurance Group. After the fire, two of Cumberland’s experts inspected the house, as well as the meter and meter box that were removed from the scene by the Fire Marshal. Based on its experts’ inspections, Cumberland believed the meter and meter box were the source of the fire and sought a subrogation claim against Delmarva Power, the electric company for the property. Cumberland received an estimate for demolition of the property and issued a check to the homeowner that appeared to include the cost of demolition. Although Cumberland sent Delmarva notice that Cumberland intended to file a claim against Delmarva for subrogation, the notification did not include information regarding the schedule for demolition. Subsequently, Delmarva did not send any personnel to inspect the property before demolition occurred, less than sixty days after the fire.

An amendment to Rule 1-311 went into effect on January 1st.  The amendment requires that for all pleadings filed electronically with an electronic signature must include the attorney’s client protection fund number.

I cannot find the amended version of this new rule online.  I highly doubt Judge Barbera is going to drive down to your office to compel compliance.  But it would be a smart idea to start complying now.  At some point, someone is going to argue that the pleading was not valid without the lawyer’s client security trust fund number.  Do you win that battle?  Yes. But you lose even when you won; when you are fighting a fight that should not have been fought in the first place.  I also don’t want the clerk’s office calling and screaming at me.  It never pays to make those people mad.

Rule 1-311 is the rule that requires an attorney signature on every pleading.

Late last year, the Maryland Court of Appeals decided yet another “Should we shoot for justice or dwell on the hypertechnical?” case in Lisy Corp v. McCormick and Co.   The court went the wrong way.

In this case, the Plaintiff filed a lawsuit in Howard County alleging both tort and contract claims.  When you file a lawsuit in Maryland, you fill out a Case Information Report (“CIR”) to serve on the Defendant.  A CIR is a three-page administrative form that helps the court process cases. The court is looking to find out things like the nature of the claim and the amount of damages that are sought and, most germane to this case, whether the Plaintiff is seeking a jury trial.

Maryland Rule 16-202(b) makes it abundantly clearly that the purpose of the CIR is only case management by the court.  But it is also undisputedly a clear intention by the Plaintiff to seek a jury trial.

The Plaintiff’s attorney asked for a jury trial in the CIR but neglected to file a separate document as required by the rules requesting jury trial.  So the question in the case is whether a CIR is an acceptable vehicle for demanding a jury trial under Maryland law.

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Last week, the Maryland Court of Appeals decided Falls Garden Condominium Association v. Falls Homeowner’s Association.  It is not a personal injury case. In fact, it’s a case about parking spots. But Falls Garden is actually a case about settlement contracts and their enforceability.  If you are a Maryland personal injury lawyer, you need to know when a deal is actually a binding deal.

Typically, counsel on both sides of the aisle assume that you have a binding deal when you agree to the numbers on the claim.  Most settlements really do go smooth, particularly in car accident cases.  State Farm, GEICO and their brethren do not really care about confidentially, admissions, or anything else outside of its standard form settlement agreement.   But malpractice insurers and their doctors and hospitals and product liability defendants often treat settlement agreements like they are reinventing the wheel.

Keep in mind that, as plaintiffs’ attorneys, we never really have those types of things we are trying to slip in under the wire for a settlement.  Our essential term is money and we are not trying to get the defendants to agree to other terms in personal injury cases.

UPDATE: As of October 14, 2014, electronic filing is mandatory  for attorneys in Anne Arundel County.   Here is the rule.   In the online seminar, the court clerk said that all filings are electronic as of today, So, I think that if you have a case pending, all your pleadings must be e-filed from here.  She also indicated there would be a 30 day grace period so maybe mandatory is a strong word.   I think you are better off staying away from Google Chrome – my favorite – and sticking with use Internet Explorer or Firefox for your browser.  Below is the original blog post I wrote on this back in July.

We have been hearing for some time about the Maryland Electronic Courts (MDEC) project that will eventually allow for electronic filings, allowing Maryland lawyers to get the same modern conveniences of electronic filing that we have enjoyed in federal court for quite some time. This type of integrated case management system — between circuit, district, and appellate courts – will really change the practice of law on an administrative level and will hopefully allow us to speed past some of the filing related bottlenecks we have in pushing cases forward.

No more paralegals and couriers jumping  into their cars and racing to the courthouse to meet filing deadlines.  We don’t do a ton of the “last minute rush” stuff here but it does happen occasionally.  I have the courier bills to prove it which always annoy me to no end. Anne Arundel County somehow got picked to kickoff the e-filing program. Starting Monday, September 15,2014, lawyers can register for e-filing to get ready for the MDEC’s launch in Anne Arundel County.  As of October 14, 2014,  it is not going to be optional for lawyers.

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But she caught me on the counter (It wasn’t me)
Saw me banging on the sofa (It wasn’t me)
I even had her in the shower (It wasn’t me)
She even caught me on camera (It wasn’t me)
She saw the marks on my shoulder (It wasn’t me)
Heard the words that I told her (It wasn’t me)
Heard the scream get louder (It wasn’t me) – Shaggy (2000)

U.S. District Court Judge Paul Grimm granted summary judgment for Washington Metropolitan Area Transit Authority last week in a slip and fall, no impact bus accident case in Hall v. WMATA. A slip and fall no collision”the door shut on me” bus accident case in federal court?  I know it sounds bad, sure. But it gets worse.

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Maryland courtrooms are slow keeping up with the times.  This is not an altogether bad thing.  What happens in the courtroom matters and we should probably let society work out the kinks of technology and understand all of the potential unintended consequences before our judicial system leaps into the next big thing.

That said, geez.  It is 2014.  Can we get wi-fi in the courtrooms?  I can’t even get my phone on the Internet in some courthouses, like P.G. County Circuit Court  not to name any names.  We can e-file pleadings in federal court now and will be able to in state court at some point.  But we are about 15 years behind the curve.  Let’s not let the world get a full generation lead in technology over our courts.

One of the big issues that is increasingly getting attention is witnesses testifying at trial without actually showing up at trial.  Skype is the primary method that gets talked about, probably because its low cost makes it the most desirable.

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Update: Stop the presses.  This rule has already been repealed.

We have a new rule in Maryland: Rule 1-322.2:

Rule 1-322.2 shall take effect and apply to all actions commenced on or after July 1, 2014, and insofar as practicable to all actions then pending.

(a) Certificate Required. Every pleading or paper filed in an action on or after July 1, 2014 shall contain either:

(1) a certificate of compliance with Rule 1-322.1 that is signed by an individual who is (A) the party filing it or an attorney for the party, or (B) if the paper is filed by a nonparty, the person filing it or the person’s attorney, employee, or agent; or

(2) in an affected action under Title 20 of these Rules, a certificate that complies with Rule 20-201 (f)(1)(B).

Cross reference: For the definition of “affected action,” see Rule 20-101.

(b) Action by Clerk. The clerk shall not accept for filing any pleading or other paper requiring a certificate under section (a) of this Rule unless the pleading or paper contains the certificate.

Source: This Rule is new.

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The Maryland Court of Appeals just affirmed a lead paint verdict against the Baltimore Housing Authority.  This is yet another case where a governmental entity sought refuge of the Local Government Tort Claims Act.   Thankfully, the Baltimore Housing Authority could not avail causing brain damage to a child via this loophole, at least not in this case.

Facts of Case

The plaintiff lived in a Baltimore Housing authority for two years after her birth in 1995.   She was exposed, she alleged, to chipping and peeling lead based paint.  Her lead level was 13 mcg/dl.  When I defended these cases in the ’90s, we would have rolled our heads at that number.  Now we know better.   A level like this can cause real injury and can bring a large jury verdict in Baltimore.

The story from here is familiar.  The plaintiff’s mom noticed classic lead-related injuries manifested themselves early: attention issues,  delays in learning to read, and behavioral problems.  Plaintiff’s experts testified that she lost 5-7 IQ points.

The Baltimore Housing Authority put on its usual witnesses – Patrick Connor, Joseph Scheller, Joel Morse, etc. – to argue that the girl was not injured by lead-based paint.

The jury did not buy in,  awarding $160,000 in future lost wages (which seems low) and $1.1 million in non-economic damages. Under Maryland’s cap for non-economic damages, this portion of the award was reduced to $530,000.  Why so low?  The injuries occurred in 1995 when the cap was much lower. Continue reading