Personal Injury

Maryland Court Holds that Driver Is Not Covered as a Dependent of Policy Holder

October 29, 2015 | by Foran & Foran, P.A.

In a particularly fact-based ruling, the Maryland Court of Special Appeals ruled that a non-related person living with a policy holder was not covered as a dependent person for the purposes of an “umbrella” insurance policy. In Rigby v. Allstate Indem. Co., (Md. Ct. Spec. App. Sept. 30, 2015), the driver was using a vehicle owned by the policy holder when he struck and injured three people on the side of the road. The injured plaintiffs brought negligence claims against the driver for an amount that exceeded the amount of liability coverage on the vehicle.

At the time of the accident, the driver was living with the vehicle’s owner, who maintained two separate policies with the insurance company. The automobile insurance policy covered the vehicle involved in the accident for up to $500,000. The umbrella policy provided up to $5 million of coverage for negligence, and it defined “insured person” to include any dependent person in the policy holder’s care, if that person is a resident of the household. The insurance company sought a declaratory judgment from the circuit court that the driver was not covered by the umbrella policy. The circuit court found that the driver was not a dependent person covered under the policy, and the matter was appealed.

Plaintiff Wins Appeal in Maryland Lead Paint Case, Summary Judgment Reversed

October 4, 2015 | by Foran & Foran, P.A.

In a victory for the plaintiff, the Maryland Court of Special Appeals reversed the lower court’s order of summary judgment against her, allowing her lead paint claim to proceed. In Smith v. Rowhouses, 117 A.3d 622, 624 (Md. App. 2015), the plaintiff brought a negligence action against the defendant, alleging that she had ingested lead-based paint as a child when she lived inside a property managed by the defendant in the early 1990s. The building had been completely razed before the filing of the plaintiff’s lawsuit, and there was no way to test it for lead-based paint.

To establish a claim for negligence, the plaintiff must prove the elements of duty, breach, causation, and damages. To prove the element of causation in a lead paint case, the plaintiff must demonstrate that the property contained lead-based paint and that the lead-based paint substantially contributed to the plaintiff’s exposure to lead. Although it is widely known that lead-based paint was typically used in houses built before the 1950s, in Maryland, the age of the property alone may not be used as a factual basis for an expert to conclude the presence of lead-based paint in the interior of the property.

In Smith, historical records showed that the now-demolished building had been originally built in the early 1900s. The court found that the plaintiff’s expert, who had relied solely on the age of the building to determine that the property contained lead-based paint, provided an opinion that rested on an inadequate factual foundation. Therefore, the expert’s testimony was not admissible for purposes of proving causation.

Maryland Court of Special Appeals Rules Tobacco and Asbestos Defendants Can Be Joined in Wrongful Death Action

October 2, 2015 | by Foran & Foran, P.A.

In a recently released opinion in the case of Stidham v. R.J. Reynolds Tobacco Co. (Md. Ct. Spec. App. Aug. 27, 2015), the Maryland Court of Special Appeals finally answered the question of whether or not joinder of wrongful death claims against asbestos defendants with wrongful death claims asserted against tobacco defendants is proper. Despite the fact that the plaintiffs’ claims against the tobacco defendants had been dismissed by the circuit court due to misjoinder, and its claims against the asbestos defendants had been resolved by the time it reached the court, rendering the case moot by the time it reached the court, the court nevertheless addressed the merits of the case, finding that the appeal presented a recurring matter of public concern that, unless decided, would continue to evade judicial review.

In Stidham, the decedent initially filed a claim against asbestos manufacturers and distributors, alleging that he developed lung cancer due to his exposure to asbestos products. After his death, the wrongful death plaintiffs amended the complaint to add claims against certain tobacco companies, alleging that the asbestos and tobacco companies failed to warn the decedent that concurrent exposure to asbestos and cigarettes increased the risk to his health, a concept known as the synergy theory. Specifically, the theory proposes that a combination of asbestos exposure and the use of tobacco products exponentially increases the danger of developing cancer. Therefore, there is a much greater risk that cigarette smokers exposed to asbestos will develop lung cancer, as opposed to non-smokers solely exposed to asbestos.

Maryland Court of Special Appeals Dismisses Negligence Action Against Adult Who Allowed Underage Drinking at Her Residence

September 30, 2015 | by Foran & Foran, P.A.

The Court of Special Appeals of Maryland recently issued an opinion regarding a negligence action brought by the mother of a deceased minor against a host who allowed minors to consume alcohol at her home. The circuit court granted the defendant-host’s motion to dismiss the negligence claim, holding that no legal cause of action existed against the defendant, and the plaintiff appealed.

In Davis v. Stapf, Md. Ct. Sp. App. (2015), the defendant purchased alcohol for high school classmates of her son to consume at a party in the defendant’s home. The plaintiff alleged that, despite the defendant’s actual knowledge that they were intoxicated, the defendant allowed a partygoer to leave the party with the plaintiff’s son in his truck. Shortly after leaving the defendant’s residence, the driver crashed the truck, killing the plaintiff’s son. The defendant was charged with allowing underage persons to drink alcohol in violation of CL § 10-117(b).

To prevail on a negligence claim, the plaintiff must show that the defendant was under a duty to protect the victim from injury, the defendant breached that duty, the victim suffered an injury, and the injury proximately resulted from the defendant’s breach of the duty. A breach of a statutory duty is considered evidence of negligence only if (1) the victim was a member of the class of persons the statute was designed to protect, (2) the injury suffered was the type the statute was designed to prevent, and (3) the violation of the statute was the proximate cause of the injury sustained.

Maryland Court of Special Appeals Analyzes Roofing Contractor’s Duty of Care to Third Party in Negligence Case

September 2, 2015 | by Foran & Foran, P.A.

The Maryland Court of Special Appeals released an opinion in the case of Cash & Carry Am., Inc. v. Roof Solutions, Inc., 117 A.3d 52 (2015), providing a detailed explanation of the duty of care in a negligence action. The plaintiff in the case brought a negligence action against a contractor and subcontractor, alleging that their negligence caused a fire that damaged property belonging to his business. The question before the court was whether a roofing contractor who performs work on a structure owes a duty of care in tort to a third-party owner of personal property inside the structure. The Maryland Court of Special Appeals held that under the circumstances of the case, the roofing contractor did owe a duty of care to the third party, reversing the ruling of the lower court.

In Cash & Carry, the homeowner contracted with the defendants to replace the roof of his townhouse. A fire started on the roof when a torch used to heat tar paper ignited the wooden framework of the townhouse. The fire department put out the fire, but the water leaked into the house, damaging computers belonging to the homeowner’s business. The business brought a negligence action against the roofing contractors, seeking compensation for the damage caused by the fire. The lower court granted summary judgment in favor of the defendants, finding that they did not owe any legal duty to the business, which was not a party to the contract.

Maryland Court Allows Plaintiff to Bring Wrongful Death Suit Based on Same Conduct as Prior Personal Injury Case

August 21, 2015 | by Foran & Foran, P.A.

The Maryland Court of Special Appeals recently filed an unreported opinion in the case of McQuitty v. Spangler, Md. Ct. Sp. App. (2015), in which they decided the issue of whether the decedent’s survivors could bring a wrongful death action for the same conduct as the underlying personal injury action, after the decedent won the personal injury action.

The decedent was born in 1995 with severe cerebral palsy. In 2001, the parents of the decedent brought a personal injury action against the doctors on his behalf, alleging medical malpractice and breach of informed consent. After a jury trial, the decedent received a judgment in his favor in 2006, which was affirmed after several rounds of appeal. The decedent died in 2009, and his estate recovered money damages from the defendants in satisfaction of the judgment in March 2012.

On May 17, 2012, the decedent’s survivors brought a wrongful death action against the same parties, based on the same conduct that brought about the medical malpractice suit. The defendants filed a motion to dismiss, arguing that the principle of res judicata barred the survivors from bringing essentially the same suit against them. The circuit court granted the defendants’ motion to dismiss, and the survivors appealed to the Court of Special Appeals.

Maryland Court of Special Appeals Addresses Discovery Issue in Lead Paint Suit

July 31, 2015 | by Foran & Foran, P.A.

In a recent opinion, the Maryland Court of Special Appeals decided whether a trial court erred in refusing to allow plaintiff’s lead-paint inspection of a non-party’s home. In Johnson v. Franklin, the plaintiff had filed a lead-paint poisoning suit against a defendant property company that had previously owned the house. The plaintiff alleged that he suffered severe and permanent injuries from exposure to lead-based paint. The plaintiff sought to test the house, currently owned by a non-party to the suit, for lead-based paint. The Court of Special Appeals vacated the decision of the trial court denying the plaintiff’s request and remanded the case for further proceedings.

The plaintiff first contacted the non-party by letter, requesting her permission to conduct environmental testing of her house for the presence of lead-based paint. When the non-party failed to respond, the plaintiff filed a complaint in circuit court, seeking a court order permitting the inspection, which is known as an equitable bill of discovery. The non-party responded that she had already tested her house for lead paint, that the state and federal governments had approved it, and that she had provided those results and copies of the paperwork to the plaintiff. The trial court subsequently denied the plaintiff’s request.

On appeal, the Court of Special Appeals provided an explanation of how one may obtain an equitable bill of discovery, and the standard of review for the grant or denial of one—an issue that had never before been discussed by the court.

Maryland Court Rules in Favor of Insurance Company in Car Accident Settlement Case

July 30, 2015 | by Foran & Foran, P.A.

A recent case decided by the Maryland Court of Appeals addressed the issues of whether an insurance company may waive its right to receive written notice of a settlement offer from a motor vehicle insurance liability insurer, as required under Md. Code Ann., Ins. § 19-511, and whether the insurance company must demonstrate prejudice in order to deny uninsured/underinsured (UM/UIM) motorist coverage to its insured in cases where it did not consent to the settlement offer.

Woznicki v. GEICO Gen. Ins. Co., 115 A.3d 152 (Md. 2015) involved two car accident cases with the same issues presented to the court. In the first case, Woznicki received an offer from the at-fault driver’s insurance company for its policy limits ($20,000), in exchange for her release of all liability claims against it and its insured. Pursuant to the terms of her insurance policy, as well as Md. Code Ann., Ins. § 19-511, Woznicki was required to notify GEICO in writing of any settlement offer and obtain consent from GEICO before agreeing. While Woznicki’s attorney did provide written notification to GEICO of the settlement and request for consent, it was sent on the same day that Woznicki had signed the release accepting the settlement offer from the liability insurer. Woznicki argued later at trial that her attorney had obtained an oral consent to settle when he spoke with a GEICO claims representative on the phone. Nevertheless, although Woznicki’s policy with GEICO provided UM/UIM coverage of $300,000, GEICO denied her claim because of her failure to obtain its consent to settle with the at-fault driver’s insurance company. The second case also involved a plaintiff who accepted the tortfeasor’s liability coverage before her insurance company consented to the offer.

Maryland Court of Special Appeals Affirms Summary Judgment in Slip and Fall Case

July 15, 2015 | by Foran & Foran, P.A.

In a recent slip and fall case, Zilichikhis v. Montgomery County, Md. Ct. Sp. App. (2015), the Maryland Court of Special Appeals had before it a case arising out of an 82-year-old man’s slip and fall inside a parking garage owned and operated by a governmental agency.

The plaintiff had been attempting to walk to his car, which was parked in a parking garage. As he approached his vehicle, he slipped and fell twice. Shortly thereafter, he started complaining of a severe headache. He was taken to the hospital to seek emergency medical treatment, where he was diagnosed with a subdural hematoma that required immediate surgery. The plaintiff continues to suffer various impairments as a result of his traumatic brain injury.

After he filed suit, the county claimed immunity from suit as a governmental agency, and also a lack of liability due to the fact that it was not on actual or constructive notice regarding the presence of the alleged oil. They cited to the fact that the plaintiff had claimed he had not seen the oil on the ground the night before, when he parked his car, and also that he claimed it smelled fresh when he fell and he had gotten it onto his hand.

wrongful death caused by intoxicated driver

December 23, 2011 | by Foran & Foran, P.A.

In a recent wrongful death claim a Missouri police officer allegedly caused an accident that resulted in four deaths. A settlement was reached for $ 2.25 million to the surviving family members of the deceased parties. The driver, a police officer, was apparently intoxicated at the time of the collision and had significant blood alcohol levels in her blood even three hours after the accident. Read more about wrongful death cases here.

Bus accident
12/08/2011 09:35:27 AM

A jury in New York recently awarded 7.5 million dollars to two women who were involved in a bus accident. Apparently, the bus ran a red light and struck an automobile, thereby causing significant injuries to the two women. The bus company was offered a settlement of $ 3 million but declined. Now they are exposed to the 7.5 million verdict. Bus accident can be particularly catastrophic because of the size of the bus and the inability to stop a bus as quickly as an automobile. If you or a loved one is involved in a bus accident, call the Law Firm of foran & Foran, P.A. Continue Reading ›