Party On, Wayne or Stairway Denied? Litigants Seek to Clarify the Maryland Court of Appeals’ Administrative Orders Tolling And/or Suspending the Statutes of Limitations

/in /by Party On, Wayne or Stairway Denied? Litigants Seek to Clarify the Maryland Court of Appeals’ Administrative Orders Tolling And/or Suspending the Statutes of Limitations

In the 1992 film “Wayne’s World,” the titular character, newly flush with cash, goes to a music store to purchase “Excalibur,” a ’64 Fender Stratocaster “in classic white, with triple single-coil pickups and a whammy bar.”  He tests out the guitar, playing a few notes before the store clerk stops him and sternly points to a sign reading “NO Stairway to Heaven.”  Wayne, stopped in his tracks, incredulously remarks, “No Stairway?  Denied!”  The music store, caring nothing for the musician’s skill or quality of the instrument, made the policy decision to impose an absolute bar on the playing of Led Zeppelin’s 1971 song, “Stairway to Heaven,” on the premises.

Maryland’s statutes of limitations, set forth at Md.  Code Ann., Cts. & Jud.  Proc.  §5-101, et seq., impose a similar bar upon would-be litigants.  No matter the sufficiency of their case, the sympathy of their cause, or entitlement to relief, the law prevents them from bringing an action outside the applicable time period.  Maryland’s general limitations period affords a litigant three years from the date a cause of action accrued to file suit (although other limitations periods apply depending on the cause of action).  See Md.  Code Ann., Cts. & Jud.  Proc.  §5-101.  By way of example, if Wayne tripped over a guitar cable in the music store and sustained damages on December 1, 2017, he would have until December 1, 2020, to file suit.

While the general limitations period is easy enough for lawyers and lay-people to understand, the COVID-19 pandemic resulted in a flurry of orders across the United States, modifying the rules and operating procedures of the courts (including orders from Maryland’s highest court, the Court of Appeals), tolling and/or suspending the statutes limitations.

In its COVID-19 administrative orders, Maryland’s Court of Appeals ordered, among other things: a judicial state of emergency; a period from March 16, 2020, through July 20, 2020, during which the courts were closed to the public; and the tolling and/or suspension of deadlines relating to the initiation of matters (including statutes of limitations).  These orders have sparked vigorous debates amongst attorneys because some interpret the orders as applying only to those matters whose limitations period would have expired from March 16, 2020, through July 20, 2020 (the “narrow interpretation”), whereas other attorneys interpret the Court of Appeals’ orders as tolling and/or suspending the limitations period for all matters during the time the Courts were closed (the “broad interpretation”).

Those who support the narrow interpretation look to the following language:

For the purposes of tolling of statutes of limitations and other deadlines related to the initiation of matters, in this Order, “tolled or suspended by the number of days that the courts were closed” means that the days that the offices of the clerks of court were closed to the public (from March 16, 2020 through July 20, 2020) do not count against the time remaining for the initiation of that matter; and

For the purposes of tolling the statutes of limitations and other deadlines related to the initiation of matters, in this Order, “matters” are nunc pro tunc to March 16, 2020, those matters for which the statute of limitations and other deadlines and other deadlines related to the initiation would have expired between March 16, 2020, through the termination date of the COVID-19 emergency operations in the Judiciary as determined by the Chief Judge of the Court of Appeals.

Tenth Revised Administrative Order (August 6, 2021).  The inclusion of “nunc pro tunc” (Latin meaning “now for then”) in the administrative orders is significant because it allows the court to retroactively change the date of an order, deadline, or filing to a past date.  A narrow interpretation of the administrative orders views this language as limiting tolling to matters that would have expired from March 16, 2020, through July 20, 2020, and tolling those matters by 141 days from March 16, 2020 (the administrative orders also provide a 15 day grace period after the expiration of the tolling period).  Under their interpretation, Wayne’s deadline for filing would remain unchanged because it falls outside of the March 16, 2020, through July 20, 2020 time period during which the courts were closed to the general public.

But those who support the broad interpretation look to the following language:

. . . all statutory and rules deadlines related to the initiation of matters required to be filed in a Maryland state trial or appellate court, including statutes of limitations, shall be tolled or suspended, as applicable, effective March 16, 2020 by the number of days that the courts are closed to the public . . .

. . .  For example, if two days remained for the filing of a new matter on March 15, 2020, then two days would have remained upon the reopening of the offices of the clerks of court to the public on July 20, 2020.  With the additional fifteen days, seventeen days would be left for a timely filing, beginning July 20, 2020.

Tenth Revised Administrative Order (August 6, 2021).  The argument in favor of the broad interpretation is that the scope of the tolling is not limited to matters falling within the March 16, 2020, through July 20, 2020 time period because the tolling applies to “those matters for which the statute of limitations  . . . would have expired between March 16, 2020, through the termination date of the COVID-19 emergency operations in the Judiciary . . .”.  Id.  To date, the COVID-19 emergency operations in the Judiciary have not ended.  Accordingly, under the broad interpretation, Wayne had 261 days to bring suit as of March 15, 2020, and, following the time during which the courts were closed to the general public, would have 276 days from July 20, 2020, to bring suit.

While Maryland Appellate Courts have yet to clarify this particular issue in an opinion, the Supreme Court of Massachusetts analyzed a similar tolling order, compared it with COVID-19 tolling orders in other jurisdictions, and noted that Maryland was among the jurisdictions that imposed a broad, blanket extension on the initiation of all matters (not just those that would have expired within a specified period).  See Shaw’s Supermarkets, Inc. v. Melendez (Slip Op. SJC-13054, 2021).  Additionally, at least one plaintiff has appeared to have prevailed in arguing for the broad interpretation of the administrative orders in defending against a motion for summary judgment before a Maryland trial court.  See e.g., Reed v. One Call Concepts, Inc., et al. (2021).

Ultimately, it will fall upon the Maryland Court of Appeals to determine whether its “party on, Wayne” or “stairway denied” for plaintiffs relying upon the administrative orders to file outside of the general limitations period.  Still, an answer may be coming soon.  Recently, the United States District Court for the District of Maryland presented a certified question to the Maryland Court of Appeals, asking Maryland’s high court to determine whether it had the authority to modify the applicability of the statutes ofl limitations.  See Jesse J. Murphy, et al. v. Liberty Mutual Insurance Co., (Misc. No. 5, September Term, 2021) (argued December 3, 2021).  Based upon the questions asked by the Court of  Appeals at oral argument, it would be surprising if the high court determines that it did not, in fact, have the authority to toll and/or suspend the statutes limitations.  Attorneys are optimistic that the court of appeals will also clarify the application of its administrative orders when addressing the certified question, but if the high court does not, there will surely be an appeal on the issue in the near future.  Until Maryland’s high court explicitly addresses the issue, plaintiffs should err on the side of caution and comply with the legislatively-established statutes of limitations, while defendants may continue to challenge matters filed outside of the March 16, 2020, through July 20, 2020 tolling period that have potential timeliness issues under the Statues of Limitations.

For more information contact Stephen J. Marshall.

Home Improvement Restitution and the Unexpected Battle of Semantics

/in /by Home Improvement Restitution and the Unexpected Battle of Semantics

Home improvement is a scary endeavor for most homeowners, and choosing the right contractor is a tall order. Imagine how Eugene Uzoukwu of Baltimore, Maryland, must have felt when he found out that the contractor he hired had lied about being a licensed home improvement contractor and destroyed his home.

On March 17, 2017, Mr. Uzoukwu entered into a contract with Kevin Servance for work on his Baltimore City home. Mr. Uzoukwu agreed to pay $14,000 to Mr. Servance to install a new rubber roof and remove the existing fire escapes in the rear and side of the property. The contract included all material, labor, and permits necessary to complete the work and listed a Maryland Home Improvement Commission license number. So far, so good, right? Wrong.

To remove the existing rear fire escape, Mr. Servance decided to attach it to a truck and step on the gas in an attempt to detach it from the exterior wall of the home. Unconventional – yes, but it gets worse. Prior to pulling it down, Mr. Servance had failed to detach the fire escape and brought down part of the property’s rear wall. Not surprisingly, Mr. Uzouwku reported this incident to the Maryland Home Improvement Commission, and it was then discovered that Mr. Servance was not a licensed home improvement contractor. He was charged with violating Maryland Business Regulation Section 8-601(a), which prohibits persons from selling home improvement services without a contractor’s license, and Mr. Servance pleaded guilty. He was sentenced to six months incarceration, with all but three consecutive weekends suspended, followed by a six-month term of probation. Mr. Uzoukwu then sought restitution under Section 11-603 of the Criminal Procedure Article of the Maryland Code.

On December 3, 2019, the Baltimore City Circuit Court held a restitution hearing, and Mr. Uzoukwu testified about the incident and damage to the home. Mr. Servance argued that removing the fire escape was considered “demolition” and therefore did not require a contractor’s license. The court denied Mr. Uzoukwu’s request for restitution, stating that there was no connection between Mr. Servance’s crime (performing home improvement work without a license) and the damages to the house from removing the fire escape as the work was, in fact, demolition. Mr. Uzoukwu appealed.

On appeal, the Court of Special Appeals focused on whether or not removing a fixture or element of a building, in this case, a fire escape, is home improvement work for purposes of Maryland Business Regulation Section 8-601’s licensing requirement. The court examined both the definition section of the rule and the common dictionary definition of the term and concluded that the work performed was, in fact, a home improvement. Therefore, Mr. Servance needed to be properly licensed.  The contract required Mr. Servance to remove the fire escape without otherwise changing the house into something else, and had the process gone properly, the rest of the house, including the wall, would have remained intact. Furthermore, during the restitution hearing, Mr. Uzoukwu had testified that he hired Mr. Servance to carry out a “total renovation” and that taking down the fire escapes was part of that plan. Nothing in the contract or testimony reflected any intention to remove exterior walls from the home or tear down the home to build something new. The contract was to alter the house, not demolish it, and Mr. Servance needed a license to enter into it and perform the contracted work. By selling and performing these services without a license, Mr. Servance had violated Maryland Business Regulation Section 8-601(a), and Mr. Uzoukwu was entitled to seek restitution. The court reversed the Baltimore City Circuit Court judgment and remanded it for a new restitution hearing and determination.

This case is a cautionary tale for those hiring contractors and seeking out home improvement. Do your homework – information regarding licensing requirements and researching license numbers can easily be found by simply visiting the Maryland Home Improvement Commission website. Don’t be afraid to ask questions or get second opinions. Educate yourself and know your rights and remedies – it may save you from losing a wall!

For more information regarding this decision, see Gene Uzoukwu v. State of Maryland, et al., No. 409, September Term, 2020.

Written by associate Jessica Corace.

Three Ways to Guarantee a Traffic Infraction Will Torpedo Your Defense in a Personal Injury Case

/in /by Three Ways to Guarantee a Traffic Infraction Will Torpedo Your Defense in a Personal Injury Case

As lawyers representing a wide variety of motor carriers in personal injury cases, we are often asked what effect a traffic citation issued against an employee driver following an accident will have on any civil proceedings brought against the motor carrier and its driver. Not only is the driver facing potential fines and consequences that may impair his or her ability to be licensed or to maintain or find employment, but the driver also faces potential civil liability along with his or her employer. As the disposition of the traffic infraction can happen quickly and have serious implications for any civil case arising out of an accident, a driver and his or her employer must act fast to consult an attorney experienced in these matters.

A traffic citation following an accident is not going to go away on its own. In most cases, an employee driver is faced with four options: The driver may pre-pay the citation; appear in court and plead “guilty”; plead “no contest”; or may plead “not guilty.” Three of these options are likely to torpedo a defense against civil liability in a related personal injury proceeding.

Pre-paying a Traffic Citation and Pleading “Guilty”

Following a motor vehicle accident, many drivers may be tempted to pre-pay a citation and avoid the hassle of going to court. This is often the case when a driver is from out of state. However, this may prove to be a serious mistake as it will immediately impact any civil case arising from the accident.  A Virginia statute provides that when an accused pre-pays a ticket, the tender of payment operates as a waiver of a court hearing and constitutes the entry of a guilty plea.  See Virginia Code Ann. § 19.2-254.1. Thus, pre-paying the ticket operates no differently than if the driver pleads guilty in open court. A guilty plea is admissible evidence in civil proceedings, as in a personal injury case, and will be offered into evidence as an admission of fault on the driver’s part. Of course, the driver’s employer will be vicariously liable for the acts of its driver when its driver was operating the vehicle within the scope and course of employment, which is often the case.

What About a Plea Bargain?

Virginia prosecutors know that a conviction for certain infractions can be harmful to a driver’s CDL licensure. They may sometimes offer a plea agreement to reduce a fine or to amend the charge to a less impactful one in exchange for a plea of guilty. The plea agreement may be an attractive option for the employee driver. However, such an agreement will not shield a driver and employer from the impact of the guilty plea in a civil proceeding.

Plea of “No Contest”

Drivers charged in many states who hope to avoid the civil implications of pleading guilty in a traffic hearing often take advantage of another option – pleading “no contest” (also known as a plea of nolo contendere).  When a driver enters a “no contest” plea in open court, he or she is neither admitting nor denying that he or she committed an infraction or crime. The court will still enter a conviction against the driver and impose a sentence as if the driver was guilty. In most states, this plea is advantageous as it cannot be used as evidence of an admission of fault in a civil proceeding. However, Virginia is different. It is among only a minority of states that allow “no contest” pleas as admissible evidence to prove an admission of fault. See Virginia Code Ann. § 8.01-418.

Plea of “Not Guilty”

As there are essentially three ways to plead that can ultimately be used against the driver and his or her employer to prove civil liability, only a plea of “not guilty” will insulate a driver and his or her employer from admission of fault in a civil case. A “not guilty” plea will also allow a driver to fight the charge and potentially prevail at trial.

As handling a traffic citation arising out of an accident involving personal injury is wrought with pitfalls from the start, it is important to consult with an attorney experienced in these matters quickly. If you are an employer or a driver facing a charge related to a motor vehicle accident and are unsure how to proceed, please contact the law firm of Franklin & Prokopik, P.C.

For more information contact Stephen J. Marshall.

Court of Special Appeals: A Commercial Tenant’s Employee is a “Tenant” While on Employer’s Leased Property for Purposes of Premises Liability

/in /by Court of Special Appeals: A Commercial Tenant’s Employee is a “Tenant” While on Employer’s Leased Property for Purposes of Premises Liability

In Ford v. Edmondson Vill. Shopping Ctr. Holdings, LLC, 251 Md. App. 335, 254 A.3d 138 (2021), the Court of Special Appeals revisited the issue regarding the extent to which a landlord has a duty to protect its tenants from the criminal acts of third persons committed on the landlord’s property. In a premises liability case, the duty owed by the owner of the property to someone on the property begins with an analysis of the latter’s legal status on the property at the time of the incident. Although the Ford court ultimately remanded the case on the issue of whether the landlord owed the crime victim a duty of care, before doing so, it seemingly created a bright-line rule previously undeclared in Maryland case law: for purposes of premises liability, an employee of a commercial tenant has the same legal status on the leased property as the employer-tenant itself: a tenant, not a business invitee.

The underlying facts in Ford involve the shooting death of Deric Ford that occurred on August 8, 2017, inside the Dollar General store in the Edmonson Village Shopping Center (“Shopping Center”) in Baltimore City, Maryland. At the time of the shooting, Mr. Ford was working as the Dollar General store manager when he was shot by a robber who entered the store and held him at gunpoint. Mr. Ford’s estate (“Plaintiffs”) brought a wrongful death action in the Circuit Court for Baltimore City against the owner of the Shopping Center, Edmonson Village Shopping Center Holdings, LLC (“Edmonson Village”), alleging that Edmonson Village failed to take adequate security measures in common areas of the Shopping Center, causing it to become a “haven” for foreseeable violent criminal activity, and thereby proximately causing the store manager’s murder.

Edmonson Village moved to dismiss the complaint arguing that as a matter of law, Mr. Ford was not a business invitee and that it did not owe Mr. Ford a duty to protect him from the criminal acts of third persons inside the Dollar General’s leased premises. The circuit court granted the motion ruling that, as an employee of a tenant working inside the leased premises, Mr. Ford’s status was that of a tenant, not a business invitee, and that Edmonson Village did not owe Mr. Ford a duty to protect him from the criminal acts of third parties committed inside the leased premises. Plaintiffs appealed.  The issue on appeal was whether the circuit court erred in dismissing Plaintiff’s negligence claims on the ground that Edmondson Village did not owe Mr. Ford a duty to protect him from the criminal acts of third persons that took place on the Dollar General store premises.

In Maryland, “the duty owed by the owner of the property to someone on the property begins with an analysis of the latter’s legal status on the property at the time of the incident.” See Davis v. Regency Lane, LLC, 249 Md. App. 187, 207 (2021) (cleaned up).  In analyzing Mr. Ford’s status on the premises at the time of the shooting, the court in Ford looked at various factors including the location on the property where the shooting occurred, the purpose for which Mr. Ford entered the property, the purpose Mr. Ford was serving at the time of the shooting, and the nature of Mr. Ford’s relationship with the Dollar General and Edmonson Village.

The court explained that “[a]lthough there is no Maryland case directly on point, other courts have held that for purposes of premises liability, an employee of a commercial tenant has the same status on the leased property as the employer-tenant itself.” Ford at 151. In the case at bar, “Mr. Ford entered Dollar General’s leased premises at Dollar General’s invitation, to work for Dollar General, and he was fulfilling that purpose when he was killed during a robbery inside the store. He was not invited to work inside the leased premises by Edmondson Village, and he did not enter the leased premises as a customer.” Id. at 152. Simply put, at the time of the shooting, Mr. Ford “was an employee of the tenant, i.e., an agent of Dollar General.” Id. at 151. Therefore, Mr. Ford’s status on the Dollar Store premises vis-à-vis Edmonson Village at the time of the shooting was that of a tenant. Id. at 142

The court further elaborated that, because the status of an individual on property may change depending on where he or she is located on the owner’s property at the time of the incident, Mr. Ford may well have been a business invitee of Edmonson Village had he been located on a common area of the Shopping Center when he was shot and killed. Id. at 152. However, that was not the issue. “The issue was Mr. Ford’s status while working for a tenant inside the tenant’s leased premises. Given his location and the purpose he was serving while there, it only makes sense that Mr. Ford would take on the status of his employer, i.e., that of a tenant.” Id.

The court ultimately vacated the judgment of the circuit court and remanded the case on the issue of duty, holding that “at this stage of the litigation [i.e., motion to dismiss for failure to state a claim], the facts are not sufficiently developed to answer the legal questions whether Edmonson Village owed Mr. Ford a duty to protect him from the criminal acts of third persons on the Dollar General premises by providing security measures in the common areas of the Shopping Center.” However, the principles expounded in the Ford court’s holding regarding Mr. Ford’s legal status on the property at the time of the shooting will undoubtedly be relied on in future litigation.

For more information, contact Stephen J. Marshall.

Malicious Defendants Beware: Stipulating to Liability Does Not Prevent the Imposition of Punitive Damages

/in /by Malicious Defendants Beware: Stipulating to Liability Does Not Prevent the Imposition of Punitive Damages

Punishment of a defendant is not often a consideration for jurors in civil litigation, though it may become more commonplace following the District of Columbia Court of Appeals holdings in Edwards v. Safeway, Inc., 216 A.3d 17 (D.C. 2019).

Generally, in order to obtain punitive damages in tort cases, a plaintiff must demonstrate that the defendant committed a tortious act (i.e., negligence, assault, battery), and that act must be accompanied by conduct and a state of mind evincing malice or its equivalent. Jonathan Woodner Co. v. Breeden, 665 A.2d 929, 937-38 (D.C.1995). While the tortious conduct only requires a finding by a preponderance of the evidence, The District of Columbia Court of Appeals requires that punitive damages be established by clear and convincing evidence. The rationale for the heightened standard is that punitive damages are penal in nature, and therefore “a more exacting standard” (as many other jurisdictions, including Maryland, impose) should be required.

Much more recently, in Edwards, the District of Columbia Court of Appeals held that defendants cannot remove the issue of punitive damages from the jury by simply stipulating to liability. The plaintiff in that case, Ms. Edwards, alleged that she was falsely accused of shoplifting leading to her false imprisonment, assault, and defendants’ conversion of Ms. Edwards’ rightful possessions. She sought punitive damages for the actions of the employees of the defendant Safeway, Inc. The trial court precluded Ms. Edwards from presenting evidence of punitive damages, including a surveillance video of the alleged incident, because the defendant had admitted liability and because the manner of the conversion did not matter relating to the amount of damages in the case. The District of Columbia Court of Appeals disagreed, finding an abuse of discretion, and reversed and remanded the matter for further proceedings.

Most notably, the Edwards Court concluded that Safeway’s admission of liability was immaterial to the issue of punitive damages, because a plaintiff’s entitlement to punitive damages is a separate question from that of liability. Though an admission of liability may result in the exclusion of extraneous factual evidence, it does not preclude a plaintiff from showing how the incident happened, if such evidence is material and relevant to the question of punitive damages. The Court further concluded that the video showing the incident or any other evidence regarding the circumstances of Ms. Edwards’s stop at the store, such as her testimony, would have been unquestionably relevant to the issue of whether Ms. Edwards may have a claim for punitive damages that should have been sent to the jury for consideration.

The Edwards Court noted that the evidence relating to punitive damages, as well as the Standardized Civil Jury Instructions for the District of Columbia regarding punitive damages, should have been presented to the jury. The instruction provides that the jury may award punitive damages only if the plaintiff has proved with clear and convincing evidence: (1) that the defendant acted with evil motive, actual malice, deliberate violence or oppression, with intent to injure, or in willful disregard for the rights of the plaintiff; and (2) that the defendant’s conduct itself was outrageous, grossly fraudulent, or reckless toward the safety of the plaintiff.

The court did not address the issue of unfair prejudice that may result to defendants that have stipulated to liability in such cases where punitive damages are sought. While a plaintiff is entitled to make their case for punitive damages, defendants will push the courts to strike a delicate balance in weighing the substantive value of possible evidence in support of punitive damages, while not allowing evidence that will prejudice the defendants in the eyes of the jury. Evidence of malicious conduct may be relevant to the issue of punitive damages, but it should not prejudice the defendant to the point that the jury cannot fairly reach a conclusion as it relates to compensatory damages or fairly evaluate other portions of plaintiffs’ claims. Plaintiffs may receive additional and unreasonable sympathy from the jurors, which could lead to judgments based on emotion instead of the law. Still, morality may deem that if a defendant truly behaved in such a manner that is evil, malicious, or deliberately violent, then that defendant cannot claim prejudice. Needless to say, the District of Columbia frowns upon evil, malicious, and intentionally violent conduct, and now conceding liability can no longer be used as a shield to avoid punishment.

For more information contact Stephen J. Marshall.

 

Can a Lawyer Ethically Partake In Ex Parte Communications With an Adversary’s Current/ Former Employees?

/in /by Can a Lawyer Ethically Partake In Ex Parte Communications With an Adversary’s Current/ Former Employees?

The rules regarding whether a lawyer can communicate with a person represented by counsel are straightforward:

A lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter unless the lawyer has the consent of the other lawyer or is authorized by law to do so.[1]

But what if a lawyer seeks to communicate with his adversary’s current or former employee? Is the communication off-limits?

In instances where a lawyer seeks to communicate with an adversary’s current employee, their ability to make such contact will depend on whether the employee is a part of the “control group” or in other words, is one “who because of their status or position, has the authority to bind the corporation with respect to the matter.[2] Thus, a lawyer is not prohibited from contacting current employees who may serve as fact witnesses so long as they are not charged with the authority to act on behalf of the corporation in the particular area, which is the subject matter of litigation.[3] This means that it is very possible for a lawyer to contact, for example, your organization’s client’s hourly, low-level sales associate to gain information about a specific individual, policy, or circumstance that is often the subject of your run-of-the-mill slip and fall case.

The rules are even more relaxed when it concerns former employees of an organization since:

[c]onsent of the organization’s lawyer is not required for communication with a former constituent. […] In communicating with a […] former constituent of an organization, a lawyer must not use methods of obtaining evidence that violate the legal rights of the organization.[4]

According to the non-binding Legal Ethics Opinion #1670, it is “ethically permissible for an attorney to communicate directly with the former officers, directors, and employees of an adverse party unless the attorney is aware that the former employee is represented by counsel.”

This opinion was resounded in the recently published and Supreme Court of Virginia approved Legal Ethics Compendium Opinion #1890. And, though there is little case law concerning this specific topic, the issue was fully discussed by the trial court in Pruett v. Virginia Health Servs., Inc., 69 Va. Cir. 80 (2005).

In that medical malpractice case, the defendant corporation, Virginia Health Services, Inc., filed a motion for a protective order to bar the plaintiff’s attorney from having ex parte communications with its former employees (both former control group and non-control group employees) who were not parties to the action. The court denied the defendant’s motion for a protective order prohibiting ex parte contact with former employees. In its determination, the court considered the United States District Court of the Western District of Virginia’s decision in Armsey v. Medshares Mgmt. Servs., Inc., 184 F.R.D. 569 (W.D. Va. 1998) (denying ex parte communications with former employees where the former employees’ testimony may impute liability to the former employer), but ultimately relied on the explicit language of Rule 4.2, Comment 4 (now Rule 4.2 Comment 7, and LEO 1670.)

In its decision, the court in Pruett v. Virginia Health Servs., was careful to require Plaintiff’s attorney to (1) advise any former employee that he was representing a party suing the former employer; (2) determine whether the former employee was independently represented by counsel; and (3) advise the former employee that he or she is not his client. Plaintiff’s counsel was also prohibited from providing any legal advice to the former employee, apart from advising the former employee that he or she may obtain a lawyer if they wished to do so.

Therefore, it would seem that when in state court, former employees are “fair game” for ex parte contacts regardless of their former position within the company.[5] Of course, whether making her ex parte communications with a current or former employee, a lawyer must still comply with Va. Rule 4.3 (Dealing With Unrepresented Persons) and Va. Rule 4.4 (Respect For Rights Of Third Persons).                                                                                                                                                                                                                                                              [1] Va. Rule of Professional Conduct 4.2.

[2] Va. Rule of Professional Conduct 4.2, Comment [7].

[3] Va.  LEO 905 (1987).

[4] Va. Rule 4.2, Comment [4].

 Written by associate Alexandra Monaco.

Defending the Wet Bandits: How to Keep the Kitchen Sink Out of Evidence

/in /by Defending the Wet Bandits: How to Keep the Kitchen Sink Out of Evidence

Imagine, it’s 2021, and you have a consultation with potential clients, Messrs. Marv and Harry. You meet with them, and they look familiar. Harry has a gold tooth, which you’ve seen somewhere before.  When they tell you their legal troubles, it all comes together.

They are being sued by Mr. McAllister, individually and as representative for a putative class of West Virginia residents who all suffered extensive property damage at their homes when they were away on holiday vacation. Burglars stuffed dish towels in their kitchen sinks and left the water running.

Marv and Harry deny liability. You’re not convinced. You remind them they’ve been caught on camera before, engaging in similar conduct, and the images have been seen by millions of people around the world.  (You’re already mentally drafting juror voir dire to identify any viewers of one of the highest-grossing films of the 1990s.)  Marv and Harry disclaim any knowledge of the movie, continuing to profess their innocence. After consideration, you accept the matter because you love tough cases.

First things first . . . how do you keep those pesky allegations of prior misconduct from coming into evidence at trial?

Courts have recognized “the theory that where a defendant commits a series of crimes which bear a unique pattern such that the modus operandi is so unusual it becomes like a signature, then evidence of such other crimes may be admissible.” State v. Dolin, 347 S.E.2d 208 (W. Va. 1986) (citing e.g., United States v. Medina, 761 F.2d 12 (1st Cir.1985); United States v. Hamilton, 684 F.2d 380 (6th Cir.)). To make matters worse, if you’re in federal court, you may not get any warning that the plaintiff intends to introduce the decades old misconduct against your clients.

FRE 404 (b) (entitled “Other Crimes, Wrongs, or Acts”) initially provides in subsection (1) that “[e]vidence of any other crime, wrong, or act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.”  But FRE 404 (b)(2) (entitled “Permitted Uses”) throws open the evidentiary door, providing “[t]his evidence may be admissible for another purpose such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”

FRE 404 (b)(3) then requires the prosecutor in a criminal case to provide reasonable notice of any such evidence that the prosecutor intends to offer at trial, so that the defendant has a fair opportunity to meet it; articulate in the notice the permitted purpose for which the prosecutor intends to offer the evidence and the reasoning that supports the purpose; and do so in writing before trial — or in any form during trial if the court, for good cause, excuses lack of pretrial notice.

There is not a similar requirement for the plaintiff in a civil case in federal court, so you’ll need to be proactive in your defense.  In discovery, seek out any FRE 404(b) evidence plaintiffs intend to introduce at trial. Require the plaintiffs to identify what proof they may have that your clients actually committed the prior bad acts and the specific purpose(s) for which they contend the evidence is permitted.

Then, raise the issue with the federal trial court with a motion in limine to preclude the evidence.  You may have valid arguments that your clients didn’t even commit the prior acts, and therefore, such evidence is irrelevant. Even if the trial court believes they did it, you can contest whether the plaintiffs’ intended use for the prior misconduct fits within an exception. Finally, argue under FRE 403 that any probative value of the prior misconduct is nevertheless outweighed by the danger of unfair prejudice, even if the evidence can pass the permissive threshold under FRE 404(b)(2). Ask the federal trial court to address and rule on these issues before trial so that you can adapt your trial strategy accordingly.

Essentially, you’re asking the federal trial court, or your respective state court, to track the Rule 404(b) procedure utilized by state courts in West Virginia.  WVRE 404(b) previously replicated FRE 404(b) – only requiring the prosecutor in a criminal case to give pretrial notice of such evidence. But in 2014, WVRE was amended and now requires under WVRE 404(b)(2):

Any party seeking the admission of evidence pursuant to this subsection must provide reasonable notice of the general nature and the specific and precise purpose for which the evidence is being offered by the party at trial; and do so before trial — or during trial if the court, for good cause, excuses lack of pretrial notice.

(Emphasis added.)

Even before the 2014 amendment of WVRE, West Virginia state courts were applying a multi-step vetting process to analyze admissibility of “other bad act” evidence offered in civil cases. See Syllabus Points 1 & 2, Stafford v. Rocky Hollow Coal Co., 198 W.Va. 593, 482 S.E.2d 210 (W. Va. 1996) (requiring the offering party to identify the specific purpose for which the evidence is being offered under Rule of Evidence 404(b); directing an in camera hearing be held by the trial court, wherein the offering party must prove by a preponderance of the evidence that the acts or conduct occurred and that the opposing party committed the acts; and instructing the trial court to then determine the relevancy of the evidence under Rules of Evidence 401 and 402 and conduct the balancing required under Rule of Evidence 403).

You may never have the good fortune to be retained by Messrs. Marv and Harry. And I may never be able to convince you that they starred in one of the greatest legal movies of all time. But we can all learn from these characters and be mindful of Rule 404(b) evidence in the representation of our clients. We may need to aggressively defend against a plaintiff’s attempts to get our insured driver’s prior street racing convictions into evidence. Or we may doubt a property damage claimant’s assertion their vehicle was stolen and set ablaze in a field for the third time (coincidentally, of course).

Whatever the threat may be, let’s make sure we have a battle plan.

For more information contact Stephen J. Marshall.

Avoiding Rudderless Litigation: Assessing the Standard of Care for COVID Claims

/in /by Avoiding Rudderless Litigation: Assessing the Standard of Care for COVID Claims

Written by:

J. Michael Kunsch Sweeney & Sheehan, P.C.
Albert B. Randall, Jr. Franklin & Prokopik, P.C.

Initially published in USLAW Magazine Spring 2021

The COVID-19 pandemic has left a wide-ranging spectrum of devastation in its ongoing wake. Businesses have fought through mandated closures, constantly changing guidance, inability to secure PPE and cleaning supplies, and staffing issues to open and continue to serve their customers. Waiting on the other side of that fight are hundreds of already filed lawsuits, and the threat of an avalanche of more, claiming injury and damage due to exposure to the virus. Among the first issues to be addressed is the standard of care Courts will apply to those claims to determine whether appropriate care was rendered by the business.

As of mid-January 2021, there were 24.3 million confirmed cases of coronavirus in the United States, resulting in 402,000 deaths. Worldwide, there were 96.2 million cases and 2.06 million deaths.

While it seems an eternity, it has been a little over a year since the coronavirus first appeared. It is important to remember a few seminal dates regarding the virus and efforts to mitigate its spread. On January 9, 2020, the World Health Organization (“WHO”) announced that there was a mysterious coronavirus-related pneumonia centered in Wuhan, China. On January 21, 2020, the CDC confirmed the first U.S. coronavirus case in the United States in a Washington state resident who had returned from Wuhan. On January 31, 2020, the WHd declared a global public health emergency, and the United States followed with a declaration of a public health emergency on February 3, 2020. The CDC and OSHA (Guidance on Preparing Workplaces for COVID-19) issued initial guidelines on March 9, 2020.

Since the appearance of coronavirus, the WHO, CDC, and others have “followed the science” to learn about the disease and its transmission and offered guidance for preventing its spread. Some of that guidance has been unhelpful, and on occasion, it has been wrong. For example, on January 14, 2020, the WHO issued a now-infamous tweet claiming that Chinese authorities had “found no clear evidence of human-to-human transmission of the novel #coronavirus.” Thereafter, guidance from the WHO and CDC was equivocal about the efficacy of wearing masks to inhibit the spread of the virus. The business community has struggled to adapt to this changing guidance and to establish and follow best practices to protect their employees and customers. With litigation continuing to be filed alleging exposure to coronavirus, businesses are now faced with the task of determining what standard of care will be applied, and what burden of proof will be required. To date, a legislative answer to this quagmire has proven elusive, though efforts to find a solution are ongoing.

In the absence of a statutory definition, the determination of standard of care under the common law is informed from a variety of sources to determine what a “reasonable” business should have done to mitigate the risk of exposure. It is likely that Courts will look to governmental safety regulations to determine the standard of care. Such reliance is well established. See In Re City of New York, 522 F.3d 279, 285-286 (2d Cir. 2008) (governmental safety regulations can shed light on the appropriate standard of care); Rolick v. Collins Pine Co., 975 F.2d 1009, 1014 (3d Cir. 1992) (holding OSHA regulations were relevant to the standard of care). In Ebaseh-Onofa v. McAllen Hospitals, L.P., 2015 WL 2452701 (Tex. Ct. App., May 21, 2010), which involved the death of a nurse from H1N1, plaintiff argued that the standard of care was determined by the CDC’s purported requirement that healthcare workers wear n95 masks when treating patients suspected of having the virus.

Analysis of litigation already commenced informs us as to the thinking of the plaintiff’s bar on the standard of care issue. In May 2020, a lawsuit was filed in Philadelphia County, Pennsylvania, arising out of the death of a union steward at a meat processing plant due to respiratory failure caused by COVID-19. In the Complaint, plaintiff cited the January 31, 2020, WHO declaration, and the CDC and OSHA guidelines issued on March 9, 2020. The Complaint alleged that the employer: (1) failed to provide sufficient personal protective equipment; (2) forced workers to work in close proximity; (3) forced workers to use cramped and crowded work areas, break areas, restrooms, and hallways; (4) discouraged workers from taking sick leave in a manner that had sick workers in fear of losing their jobs; and (5) failed to properly provide testing and monitoring for individuals who may have been exposed to the virus that causes COVID-19. Interestingly, plaintiff also alleged that after the spread of H1N1 in 2009, meat processing plants were on notice of the danger of the airborne spread of the virus. Plaintiff specifically alleged that the employer ignored guidance from the CDC and OSHA by not mandating: (1) use of masks and PPE; (2) social distancing guidelines; (3) that workers who were feeling ill report their symptoms to their superiors; (4) that workers who were feeling ill stay at home from work and self-quarantine. It was further alleged that the plant violated OSHA regulations, including OSHA 1910.132, related to the use of PPE.

In Florida, legislation has been introduced to provide certainty and guidance to businesses subject to litigation for COVID-19 exposure and transmission. The proposed legislation would provide liability protections where a business made a good faith effort to substantially comply with authoritative or controlling government-issued health standards or guidance at the time the cause of action accrued. The bill contains strict pleading requirements, mandating that a Complaint be plead with particularity and include an Affidavit attesting that the plaintiff’s COVID-19 related damages/injury occurred as the result of the defendant’s acts or omissions. Further, before discovery is permitted, the Court is required to determine whether the business made such a good faith effort. If so, the defendant is immune from civil liability. Even if a good faith effort was not found, however, a plaintiff would be required to prove their case with a burden of at least gross negligence, established by clear and convincing evidence.
Similar legislative efforts are underway in other states and in the federal government. Clear minded proponents argue that while businesses should not be exempt from liability for intentional acts or disregard of current (or then-current) guidelines, the concept of reasonableness requires protection for businesses who acted in good faith in attempting to prevent the spread of the virus. Absent specific federal or state legislation, businesses will be mired in a web of potential liabilities and standards of care.

In the meantime, even without knowing the standard of care that will eventually be applied, there are some simple strategies that businesses should employ to mitigate the threat of litigation and future exposure. They should gather and retain all documents that were relied upon when forming workplace safety policies, be they federal, state and/or local governmental executive orders, public health authority recommendations and/or agency guidance. Since those orders and recommendations often changed, maintaining those records is critical to support the rationale behind company-issued protocols and policies that were contemporaneous with such health and safety guidance. Similarly, each iteration of workplace policies must be kept establishing compliance with changing governmental directives. Communications must also be retained to demonstrate that policies were clearly and effectively disseminated to employees, customers, vendors, and other invitees. Lastly, any documentary evidence of workplace posters, fliers, trainings, PPE, etc., should also be maintained to further evidence good faith attempts at compliance and distribution of information.

Given the unprecedented threats that faced all businesses, there is reason for some cautious optimism that factfinders will be somewhat sympathetic to corporate defendants, at least those who are able to show good faith attempts when attempting to comply with changing governmental guidance. While we await further direction from the legislative and judicial branches, we remain mindful of Jerry Garcia’s advice that we must “keep truckin’ on.”

Davis v. Regency Lane, LLC: When Is the Landlord Responsible for Two Fatal Shootings in the Common Area? Not When There Is No Evidence of the Circumstances Behind the Shooting.

/in /by Davis v. Regency Lane, LLC: When Is the Landlord Responsible for Two Fatal Shootings in the Common Area? Not When There Is No Evidence of the Circumstances Behind the Shooting.

A common issue that arises in the context of landlord-tenant relationships is the extent to which a landlord owes a duty to protect tenants and invitees against the criminal acts of third parties. Recently, in Davis v. Regency Lane, LLC, No. 1747, Sept. Term 2019 (Md. Ct. Spec. App. Jan. 28, 2021), the Court of Special Appeals revisited this issue in a reported opinion. The Davis case involved a wrongful death action against an apartment building owner, Regency Lane, LLC, brought by the estates of two teenagers who were shot and killed by an unknown assailant outside an apartment building in the parking lot. Plaintiffs alleged that Regency negligently failed to exercise reasonable care in providing adequate security measures on the premises to protect the tenants and invitees from foreseeable criminal activity. Through the course of discovery, Plaintiffs failed to provide any evidence regarding the circumstances of the shooting. The Circuit Court for Prince George’s County granted Regency’s motion for summary judgment, finding that Plaintiffs had failed to identify a dangerous physical condition that existed, that the shooting was a result of that condition, or that past criminal activities alerted Regency to the foreseeability of the deadly shootings. Plaintiffs appealed.

In its discussion, the Davis court provided a summary of the duty owed. Generally, a landlord has no special duty to protect tenants against crimes perpetrated by third parties on the premises. The landlord does have a duty, however, to exercise reasonable care, under the circumstances, in areas within the landlord’s control, such as common areas. If the landlord knows, or should know, of criminal activity against persons or property in the common areas, he has a duty to take reasonable measures, in view of the existing circumstances, to eliminate the conditions contributing to the criminal activity. The duty in that situation is to provide reasonable security measures to eliminate foreseeable harm.

For a landlord to have a duty to provide reasonable security measures, two things must be shown. First, a landlord must have the knowledge or should have knowledge based on the circumstances, that criminal activity on the premises has created a dangerous condition. Once a landlord has the requisite knowledge, the landlord must take reasonable measures to eliminate the condition contributing to the criminal activity. Second, the particular harm must be foreseeable, i.e., a landlord of ordinary intelligence, based on the nature or past criminal activity, should have foreseen the harm suffered. If the harm is not the type that would be associated with the known criminal activity on the premises, there is no duty to take measures to eliminate that harm.

The court found that there were sufficient facts in the record to support the finding that Regency had knowledge of criminal activity, and that the shootings were a foreseeable harm of that criminal activity. Therefore, Regency owed a duty to the decedents to take reasonable security measures to eliminate that harm. The court noted, however, that the appellants had not shown that a dangerous condition contributed to the shooting. The court held that “where appellants produced no evidence regarding the circumstances of the shooting, appellants could not meet their burden to show that any failure by Regency to satisfy its duty to take reasonable security measures was the proximate cause of the shooting.” The court explained that where the breach of duty is the failure of a landlord to provide security measures against known criminal activity, proximate cause will be found if “the breach enhanced the likelihood of the particular activity.”

In its analysis, the court acknowledged that proximate cause ordinarily is a question of fact. However, the court explained that when plaintiffs fail to meet their burden of showing a viable theory of causation in a negligence case, summary judgment is proper. The court again emphasized that appellants produced no evidence regarding the circumstances of the shooting, how it occurred, or what precipitated it. As such, there was no evidence to support a finding that extra security measures could have prevented the shooting. The court explained that proof of causation could not be based on mere speculation. Based on this lack of evidence, the court determined that appellants failed to show that inadequate security measures caused the decedents’ deaths. Accordingly, there was no triable issue of material fact to present to a jury on the issue of proximate cause. Therefore the circuit court properly granted summary judgment in favor of Regency.

Written by Andrew Stephenson.

 

 

Enforcement of Arbitration Provisions in the Context of Wrongful Death Claims in Virginia

/in /by Enforcement of Arbitration Provisions in the Context of Wrongful Death Claims in Virginia
Arbitration clauses are contained in a variety of contracts including those related to construction, employment, and nursing home care and they purport to require the parties to resolve their disputes through arbitration (outside the courtroom).  Generally, courts hold the contracted parties to their agreed-upon bargain.  The Supreme Court of Virginia has held that the meaning of a contract must be “gathered from all its associated parts assembled as the unitary expression of the agreement of the parties.”  Hale v. Hale, 42 Va. App. 27, 31 (2003) (quoting Berry v. Klinger, 225 Va. 201, 208 (1983)).  It has also held that the various provisions of a contract must be “. . . harmonized, giving effect to each when reasonably possible. . . .”  Schuiling v. Harris, 286 Va. 187, 193 (2013).  In addition to the existence of a plethora of common law about contract enforcement, the legislature enacted a statute aimed at the enforcement of arbitration provisions specifically.  Pursuant to Virginia Code § 8.01-581.02, upon a moving party’s showing of an agreement to arbitrate and upon refusal of the opposing party to arbitrate, the court “shall order the parties to proceed with arbitration” (emphasis added).But the enforceability of an arbitration provision within a contract is not always so simple or straightforward.  One complication arises when a party tries to enforce an arbitration provision within a nursing home contract against a plaintiff making a wrongful death claim.  Many states have refused to enforce arbitration in this context as against public policy, but Virginia does not have much controlling case law on the matter.  Luckily, the United States Supreme Court shed light on this issue by reversing a West Virginia Court of Appeals holding in 2012.  See Marmet Health Care Center, Inc. v. Clayton Brown, 565 U.S. 530 (2012).  In Marmet, three separate nursing home cases were dismissed by West Virginia state courts based on arbitration clauses included in the admission agreements.  In each of the three cases, a family member of a patient who had died sued the nursing home in state court, alleging that negligence caused injuries or harm resulting in death.  In each case, “a family member of the patient requiring extensive nursing care had signed an agreement with a nursing home on behalf of the patient” which included a clause requiring the parties to arbitrate all disputes.  Id. at 531.  On appeal, and after consolidating the three cases, the West Virginia Supreme Court of Appeals reversed the dismissals, holding that the arbitration clauses were unenforceable as a matter of public policy because they were adopted “prior to an occurrence of negligence that results in personal injury or wrongful death.”  Id. at 532.The United States Supreme Court held that that “[s]tate and federal courts must enforce the Federal Arbitration Act (‘FAA’), 9 U.S.C. § 1 et seq., with respect to all arbitration agreements covered by that statute.”  Id. at *530.  The Court further clarified that the FAA does apply to arbitration provisions related to wrongful death suits and that “the Supreme Court of Appeals of West Virginia, by misreading and disregarding the precedents of this Court interpreting the FAA, did not follow controlling federal law implementing that basic principle (emphasis added).”  Id. at 531.  Quoting itself in a prior case, the Court stated that the “statute’s text includes no exception for personal-injury or wrongful-death claims.  It requires courts to enforce the bargain of the parties to arbitrate.”  Id. at 532-533 (citing Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 217 (1985).Though the Marmet decision sheds light on the United States Supreme Court’s position on the matter, it is hard to tell whether and when Virginia will follow suit.  In the meantime, any arbitration provision (along with the remainder of a given contract) should be reviewed with legal counsel regularly to ensure that each clause remains enforceable over time and with changes in the law.For more information about this article, please contact Elena Patarinski at 804.932.1996 or epatarinski@fandpnet.com.