Maryland Personal Injury Blog

Maryland Court of Special Appeals Addresses Insurer’s Liability in Car Accident Case

December 8, 2015 | by Foran & Foran, P.A.

The Maryland Court of Special Appeals examined the matter of underinsured motorist coverage and setoff amounts in a recent opinion concerning a car crash case, Allstate v. Kponve. In Allstate, the insured was involved in a motor vehicle accident and brought suit against the other driver, alleging that his negligence resulted in a severe injury to her. Her insurance company, Allstate, filed a motion to intervene in the lawsuit, contending that the other driver was likely an underinsured motorist and that Allstate may be bound by a judgment entered against him. The motion was granted. Allstate’s insured subsequently settled with the tortfeasor’s insurance company for his policy limits of $25,000, leaving Allstate as the remaining defendant.

After a trial, the jury found that the insured was not contributorily negligent, that the other driver caused the insured’s injuries, and that as a result of the accident, the insured suffered damages in the amount of $374,000. Allstate filed a motion to amend the judgment, requesting the court to reduce the judgment to $25,000. Allstate alleged that its insured’s policy had an underinsured motorist limit of $50,000 per individual, which should be reduced by the $25,000 settlement from the tortfeasor’s insurer. The trial court denied the motion, and Allstate appealed. On appeal, the court addressed the issues of whether the insurance company had the burden of proving the amount of underinsured motorist coverage and the amount of credit it was entitled to receive as the result of the settlement by the tortfeasor’s insurance company, if any.

Maryland Court Ruling Affirms Summary Judgment Against Former Tenant in Lead Paint Case

November 3, 2015 | by Foran & Foran, P.A.

The Maryland Court of Special Appeals recently ruled on a lead paint case, Barr v. Rochkind (Md. Ct. Spec. App. Sept. 29, 2015), in an action brought by a plaintiff alleging that she was exposed to lead-based paint while living in a rental property owned and managed by the defendants. The defendants filed a motion for summary judgment, contending that there was insufficient evidence to demonstrate that the rental property contained lead-based paint that caused the plaintiff’s injury. The motion was granted by the trial court, and the plaintiff appealed.

The plaintiff was born in 1995 and had lived in several different houses in Baltimore, including a rental property owned by the defendants from 2001 to 2003. From 1996 to 2002, the plaintiff was tested every year for lead, and the results showed elevated blood lead levels. When she was 17 years old, the plaintiff was diagnosed with brain-related neuropsychological impairment as a result of childhood exposure to lead. In bringing her negligence claim against the defendants, the plaintiff relied on circumstantial evidence, including an affidavit from a medical expert that opined that the plaintiff’s intellectual impairments were caused in part by her exposure to lead paint at the defendants’ property. There was no evidence presented of any testing performed on the paint.

Maryland Court of Appeals Analyzes Role of Medical Experts In Lead Paint Case

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

In a newly published opinion, the Maryland Court of Appeals considered whether a pediatrician, who has never treated a child victim of lead paint poisoning, may be permitted to offer an opinion as to medical causation of this condition. In Roy v. Dackman, the plaintiff filed a negligence action against the landlord and owners of a building for alleged personal injuries resulting from lead-based paint poisoning. The property was alleged to have been the only source of lead paint ingested by the child. The plaintiff identified two expert witnesses to testify as to the source of lead exposure, but only one of them as to the medical causation of the injuries suffered by the plaintiff. The testimony of the doctor in question established that he was well-read on the literature related to lead poisoning and its harmful effects on young children, but it revealed that he had never studied or treated directly in his practice an individual with lead-based poisoning.

The defendants filed motions to exclude the plaintiff’s expert witnesses, arguing that they were not qualified. The trial court agreed, and without the testimony of the plaintiff’s sole medical expert to establish causation, the court granted the defendant’s motion for summary judgment. The Court of Special Appeals affirmed the ruling, holding that he was not qualified to testify as an expert in lead poisoning, or offer an opinion as to the source or causation of lead exposure. However, when the Court of Appeals considered the requirements that must be met by an expert witness in order to qualify to testify as to the medical causation of alleged injuries from childhood lead exposure, it reversed the previous courts’ decisions as a clear abuse of discretion.

Maryland Court of Appeals Upholds “Gap” Insurance Policy in Pedestrian Accident Case

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

The Maryland Court of Appeals interpreted the “gap” provision of an auto insurance policy in Connors v. Government Employees Ins. Co., 442 Md. 466 (2015). In Connors, the plaintiff and her husband were walking in their neighborhood when they were struck by a vehicle backing out of a driveway. The plaintiff and her husband suffered serious injuries as a result of the accident, and her husband eventually died from his injuries.

The terms of the GEICO insurance policy of the plaintiff and her husband included underinsured motorist coverage of $300,000 per person and $300,000 per accident. The driver’s auto insurance policy was limited to $100,000 per person and $300,000 per accident. However, the amount of damages of the plaintiff and her husband exceeded all available insurance. The plaintiff settled with the driver’s insurance company for the limits of the driver’s liability insurance, paying $100,000 to the plaintiff and $100,000 to her husband before he died. The plaintiff then submitted claims for underinsured motorist coverage to GEICO under their own insurance policy, seeking $300,000 total. GEICO agreed that the plaintiff was owed an additional $100,000 under the terms of her policy, but they were in dispute as to the additional $200,000. The plaintiff subsequently brought an action for a declaratory judgment against GEICO regarding the payment of the $200,000 in underinsured motorist coverage benefits.

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.

Maryland Auto Insurance Policy Lapses Day Before Fatal Accident; Court Provides No Relief to Driver

October 6, 2015 | by Foran & Foran, P.A.

In a case with startling facts leading to worst-case scenario consequences, the Maryland Court of Special Appeals examined whether the insurance coverage of a driver expired just one day prior to a fatal accident. In Price v. State Farm Insurance Company (Md. Ct. Spec. App. September 14, 2015), the driver struck and killed someone crossing the street in a motorized wheelchair. As a result of the accident, the deceased’s heirs and estate filed an injury action against the driver.

In Price, the driver was delinquent in making his premium payment. On January 11, 2012, the insurance company sent a notice that, unless the premium was paid, his policy would be canceled on January 24, 2012 at 12:01 a.m. The letter also stated that, if payment was received any time after that date and time, the insurance company would inform him of whether and when the policy would be reinstated. It specifically added that there would be no coverage between the date and time of cancellation and the date and time of reinstatement.

Sometime on January 24, 2012, the driver’s wife mailed an electronic payment from her back to the insurance company, stating that it was intended to pay for the driver’s policy premium. Although the payment was processed on January 24, 2012, it was not received by the insurance company until January 26, 2012. In addition, the payment was applied to the wife’s, not the driver’s, auto policy. On the following evening of January 25, 2012, the driver hit and killed the deceased.

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.