One thing I have committed to in 2013 is writing a blog post on every new Maryland personal injury-related opinion. Not just for you or for the blog traffic but to keep me abreast of ever-changing Maryland law. If you think I have missed a case, please let me know.
We have four personal injury related cases so far in 2013:
Last week, the Maryland Court of Appeals decided 100 Investment Limited Partnership v. Columbia Town Center Title Company. This is a business transaction case, so it is a little outside the usual purview of this blog. But it talks duty of care in tort cases which is spot on a topic of this blog and vicarious liability. It also talks about contractual indemnification which is a topic I have taught and published on it in the past. So I thought a quick write-up might be of interest. If you are looking for the usual personal injury fare, please drive through and check back tomorrow. Continue reading
Insurance companies are sometimes arrogant about [fill in the blank]. One phrase that fits neatly into that blank is “pretrial obligations.” The insurance company is not a party to the case and it feels at least a little outside the reach of a judge’s fist.
Judges used to the fear of that fist can get angry when their orders are brushed aside as the insurance company found out in Station Maintenance v. Two Farms, decided on Thursday by the Maryland Court of Special Appeals.
Plaintiffs, in this case, filed suit in Baltimore Court alleging that approximately 5,400 gallons of gasoline had leaked out of the defendant’s underground storage 
tanks at its facility on Pulaski Highway, in Baltimore, Maryland, contaminated their property. Plaintiff settled the case for $2.7 million and assigned their claims against another defendant to the settling defendant. The case proceeded along. The court ordered the parties to appear at a settlement conference and for the insurance companies to send a senior officer or employee of both insurance companies to come with settlement authority up to the full limits of its policy.
You can guess what happened next. The insurance company for one of the parties – Mid-Continent -didn’t post for one of the parties. Originally, the other defendant (now the plaintiff, really) sought attorneys’ fees and costs but quickly realized he was not reaching far enough and asked for a default judgment in the amount of one million dollars. The judge granted the motion. The question was: can the settlement judge do that? Continue reading
An opinion in the U.S. District Court of Maryland last week began like this:
This case is rooted in a hunting trip in South Africa, during which Dennis Danner, Alexander Danner, and Michael Coletta, plaintiffs, each killed a “trophy quality” male lion. The lion skins and skulls (the “Lion Trophy” or “Lion Trophies,” or “Cargo”) were shipped to the United States for tanning and taxidermy, but at some point were lost in transit. The Cargo was found several months later at a warehouse in Vancouver, Canada. By that time, two of the Lion Trophies had suffered irreparable damage, allegedly due to exposure to moisture and bacteria.
Oh, my. The plaintiff’s hunting trip with his son cost $250,000. He sued the freight companies for nearly $100,000 because not bringing home these dead lions just 
ruined all the fun.
Click to enlarge
The 4th U.S. Circuit Court of Appeals on Thursday affirmed a summary judgment ruling dismissing a trucking dispatching system manufacturer from a personal injury accident lawsuit. The court ruled that the company could not be responsible for a crash allegedly caused by a texting driver.
Interesting facts are presented in this case. Plaintiffs’ lawsuit arose from a truck crash on Route 40 in North Carolina. The defendant driver in his loaded tractor-trailer rear-ended several cars in front of him. Rear-end truck accidents are probably the least likely to cause a death. Tragically, this was a relatively rare exception. One of the plaintiffs’ infant children was killed.
On Christmas Eve, the Maryland Court of Special Appeals issued a treatise of an opinion written by retired Judge Charles E. Moylan in Antar v. Eagan. I will not give you a complete analysis because it is Christmas, but this case is worth talking about for Maryland personal injury attorneys. It highlights the perils of filing suit where there are two possible jurisdictions. The plaintiffs got a raw deal in this case, although I think they probably could have avoided 
the problem with more careful treading. Whether Maryland law truly reflects the court’s holding here is something for the Maryland Court of Appeals to decide.
Plaintiff sued Defendant in Pennsylvania, although they had jurisdiction in Baltimore City. Why leave Baltimore City, a jurisdiction that the anti-lawsuit folks tell us is “Easy Street” for Maryland plaintiffs? Well, this was a fire insurance case where the plaintiff alleged first-party bad faith. Maryland’s first-party bad faith law is of a joke, so they went to Philadelphia (which is considered more favorable than Baltimore for plaintiffs anyway).
The Philadelphia County court dismissed the case for forum non-conveniens with leave to refile their lawsuit in Maryland. The plaintiffs instead appealed and lost. Then they came back to Maryland and sued. Defendant won (again), this time on the statute of limitations.
Everyone has their soapbox issues where they maintain the rest of the world is crazy and sanity would be restored if everyone would just listen to us. I have mine; you have yours. Usually, at least for me, few others are paying attention and the world continues to be the world.
One of these issues for me is ad damnum clauses. Here is what happens time and time again: (1) a personal injury lawyer in Maryland file lawsuits and meaninglessly ask for a zillion dollars,(2) the Baltimore Sun and the Maryland Daily Record dutifully report the amount sought as though it actually matters, (3) the people of Maryland roll their eyes about a civil justice system that has run amok, (4) these people become jurors one day and walk in with said eyes still rolled.
The problem is two-fold. First, attorneys sometimes file for ridiculous amounts to draw attention to ourselves. Yes, that is a self-inflicted wound, but it does not lessen the pain for the rest of us.
But the other problem is that we have a duty to our client not to, you know, commit legal malpractice. I have long maintained that it is malpractice not to ask in the ad damnum clause for more than your client could conceivably recover because if you score with the jury more than you expected and you go over the ad damnum clause; you have two problems. First, the judge might refuse your motion to amend the complaint to comport with the verdict. But the even bigger problem is that you have loaded the gun for the plaintiff’s remitter motion. “They didn’t even ask for this much,” they will surely whine in the motion.
I’ve buried the lead to this story. Sorry. The good news is that under new Maryland Rule 2-305 that will be effective in January, plaintiffs’ lawyers are no longer even allowed – as I read the rule – to state a specific amount if the damages sought exceeded $75,000. Instead, the complaint should include the general statement that the amount the plaintiff seeks is more than $75,000. Continue reading
Today, I will break down the election from every conceivable angle and offer my opinions on how America chose and why.
Wait, don’t go anywhere. I’m kidding. I’d rather eat my own kidneys then talk about politics for another second. Let’s get back to developments in Maryland law.
The Maryland Court of Appeals issued an opinion in two consolidated cases against WMATA last week in the Tinsley and Hodges cases (full opinion here). Basically, an agreement (the WMATA Compact) ratified by Congress in the 1960s created an entity to run a mass transit system in and around the District of Columbia. No one argues that the Washington Metropolitan Area Transit Authority was a terrible idea. Having a system that crosses state lines is key for the Washington metropolitan area.
But tragically, lawmakers made life for WMATA more pleasant by giving them a free ride most times to negligent caused injuries and deaths without taking responsibility. Using the states’ ability to prevent lawsuits against themselves, they made the WMATA a “pass-through,” keeping those rights as held by D.C., Maryland, and Virginia. These governments waive that immunity on a criminally small level, allowing some handcuffed lawsuits against them. (Tragically. Criminally. I’m using incendiary language this morning in honor of the fallen election season.)
Anyway, for the WMATA agreement, it was decided that injured people could not sue WMATA for exercising governmental functions; it was also decided that people could sue WMATA for proprietary functions (like the average car or bus accident). Courts use a test to decide whether any action is governmental or proprietary, based on whether the action involves discretion or choice “grounded in social, economic, and political policy.” Continue reading
Tort lawyers rarely spend a ton of time worrying about whether their clients have indemnified the defendant for their own negligence because it rarely 
comes at issue. You rarely contract with the person causing you harm unless you are a patient and the world has not gone so mad as to allow doctors and hospitals to get patients to waive future malpractice claims against them. But a few times a year, a case will come across my desk where the injured victim signed something that arguably waives their right to bring a personal injury claim against the party responsible for their harm.
There are arguments on both sides of this. One side says adults should be able to agree by contract to whatever they want, including waiving tort claims. The other side points out that this is usually the small print on the contract between parties with unequal bargaining positions. Stated a little differently, if you and I go whitewater rafting, and I refuse to go based on some silly waiver language with the guy giving us the rafts, well, I don’t think you will ever ask me to go on a trip with you again. (There are also good moral hazard arguments by those who think consumers should be able to waive their tort rights.) I see both sides of the argument.
There is no such argument pending in Maryland’s appellate courts. The case law is clear that consumers can waive their rights to bring a personal injury claim by contract. The Maryland Court of Special Appeals this month in Rosen v. BJ’s Wholesale Club looked at a thinner slice of that question: can parents waive the rights of their minor children?
Here’s what happened. Plaintiffs’ take their three kids to BJ’s in Baltimore County (either Owings Mills or Hunt Valley I think). They park them in the BJ’s Kids Club. (I never even knew BJ’s had a kid’s club.) The kids’ club is a free babysitting service for kids to use while their parents shop. I can’t imagine it being all that nice but it reads well on paper: fixed playground structure with multiple levels, activities and entry points, murals, wall-mounted play stations, and movable play equipment. BJ’s had the parents sign a “If we hurt your kids you can’t sue us” waiver. I might paraphrase a bit.
I’m being a little whimsical in my telling of the facts, but the story turns serious. The parents’ five-year-old boy falls off a “Harry the Hippo” and falls, hitting his head at the play center and then fell approximately thirty-eight inches, striking his head on a concrete floor covered with a thin layer of carpet. The boy suffered life-threatening injuries. The boy went to the hospital. A CT scan found a large, acute epidural hematoma in the right temporal lobe of his brain. He was then transported to Johns Hopkins Hospital, where he underwent a craniectomy to relieve the fluid buildup in his brain.
(Post Aside: When I started reading this case, I was thinking the facts would be weak for the plaintiffs. But this is a good case on liability, right? You can’t have a concrete underneath a climbing area. If the kid fell off a chair or something on concrete, that would be one thing. But under a hippo thing that you climb on? That sounds like negligence to me.)
The issue is whether a parent may waive all future tort claims that his or her child may have. It was a case of first impression in Maryland. Baltimore County Circuit Court Judge Thomas J. Bollinger ruled in favor of BJ’s, finding that summary judgment was appropriate because there is no “alternative law for adults who sign exculpatory clauses for their children.” Plaintiffs appealed. Continue reading
We frequently get letters and phone calls from prisoners. It is hard not to discount these cases. It is not just the “People in Jail Are Less Likely to Be Credible” problem. It is also the “People Who Have Tons of Time on Their Hands Tend Chase Windmills” problem that is demonstrated by the 10 page letters that incarcerated people send to lawyers setting forth their grievances.
This bias leads lawyers to miss a lot of cases that are both lucrative and serve the interests of justice – Because we criminally mistreat our prisoners. But, because you have to kiss so many frogs to find a princess with prisoners, most lawyers just ignore the cases. We are probably guilty as charged on this one.
In fact, the only prisoner cases we have taken are cases where prisoners working on a road crew were hit by a prison owned or, better yet, a third party vehicle. Those are the facts of Goss v. Jennings, a “pedestrian” wrongful death case decided by the Maryland Court of Special Appeals last week.
While working on a litter pickup detail on the Capital Beltway (I-495) in Landover in Prince George’s County, a man was struck and killed by a dump truck. The plaintiffs filed a wrongful death/survival action against the driver, the Department of Corrections, and the Maryland State Highway Administration. The jury then returned a verdict against both the dump truck driver and the state of $2,025,000: $350,000 for the survival action and $1.675 million for the wrongful death action. Pursuant to the cap on non-economic damages, the trial court reduced the wrongful death awards to 150% of the wrongful death cap in 2007 of $680,000 ($1,020,000).
The state got out on a motion after the verdict, which was fine with plaintiffs because they had a defendant with insurance coverage and didn’t need to deal with the $200,000 cap. The truck driver and trucking company appealed. They made several accident specific arguments that were not interesting for our purposes. They also argued that the trial court erroneously imposed two statutory caps when only one cap applied. Continue reading
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