Articles Posted in Maryland Courts

Last month, Maryland’s Court of Appeals upheld a $7 million verdict to the plaintiff in an asbestos case even though there was no direct evidence that the defendants had installed the asbestos products at issue. In Wallace & Gale Asbestos Settlement Trust v. Busch, a 6-1 majority held that direct evidence of exposure to a specific defendant’s asbestos products is unnecessary. Rather, a defendant’s liability for asbestos exposure can be based on circumstantial evidence and reasonable inferences.

Facts of the Case

appellate decision asbestosThe underlying facts are fairly typical of most asbestos cases these days. The plaintiff (70-years-old at the time of trial) worked for 30 years as an HVAC technician. He primarily installed thermostats, sensors, and temperature control systems. The plaintiff himself never directly worked with asbestos, but he was sometimes around other people who were using asbestos.

Breaking up with a client is something all personal injury attorneys do on a fairly regular basis. A lot of cases look promising.  But an investigation and review of the medical records can sometimes paint a very different picture.  This is particularly true in medical malpractice cases where the medical records read differently from what the patient remembers or believes.

For the most part, lawyers are free, as the client is, to sever the attorney-client relationship.  If you have already filed a lawsuit for the client, things are a bit more complicated because you will need to get court permission before withdrawing from the case.  Before a case is actually filed, however, breaking up is a lot easier.

Maryland Ethical Rules

appellate court decision reversalI’m also fired up for a new year of appellate opinions.  Something about having a new year on a case that just seems exciting to me.  (In an unrelated note, I have four kids and few hobbies.)  But there have been few tort related appellate opinions this year to get me fired up.

Anyway, the Maryland Court of Appeals recently decided a Sutton-Witherspoon v. S.A.F.E Management, a case that is factually interesting to almost all of us in Baltimore.

Facts of Case: An Out-of-Control Victory Parade

The Maryland Court of Special Appeals took an interesting look at the scope of settlement releases in Harvey v. City Homes, Inc last week.  The case has some important reminders for Maryland plaintiffs’ attorneys that the case is not over after a settlement or verdict because the language of the release may be critical if the victim has future potential claims.  Continue reading

In Duckett-Murray v. Encompass Ins. Co. of Am., Encompass did its best effort to refuse coverage when its insured needed it after thirty years of receiving premiums from its insured.

This has to be the least shocking development since Kim Kardashian’s last divorce.  Listen, unlike a lot of lawyers, I understand when insurance companies fight like crazy in third party claims where the claimant is not their client. But this is a case where the family had been paying premiums for almost 30 years.  When an insurance company loses an appellate case on coverage involving their own insured, they should be ashamed of themselves.  Sure, perhaps it is a close call.  But don’t you want to err in favor of your own client?

Thankfully, the Court of Special Appeals ruled for the victim.  The key take-home lesson here is if there is any question about an umbrella or uninsured coverage, turn over every last stone. Because there is a real good chance you will find a path to move coverage.

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 outstanding job with few resources).

The court took 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 over-served 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 failing 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 see it in truck accident and product liability cases and, to a lesser extent, in medical malpractice claims.

spoliation evidence opinionThe Maryland Court of Appeals looked 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.

Facts of Cumberland Insurance Group v. Delmarva Power

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

I cannot find the amended version of this new rule online.  I highly doubt Judge Barbera will drive down to your office to compel compliance.  But it would be a smart idea to comply now.  At some point, someone will 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 to call and scream at me.  It never pays to make those people mad.

Rule 1-311 is the rule that requires an attorney’s 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 appellate opinion jury prayerCorp v. McCormick and Co.   The court went the wrong way.

Here, 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 clear 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 a jury trial.  So the question in the case is whether a CIR is an acceptable vehicle for demanding a jury trial under Maryland law.

Continue reading

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 apersonal injury settlement 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.

Contact Information