On the Record

During this holiday season, Marylanders can perhaps rejoice in the fact their top court is a “point of light” and not a “judicial hellhole,” according to a national organization that seeks to rein in what it considers runaway jury awards.

In its annual report, the American Tort Reform Association praises the Maryland Court of Appeals for its Sept. 24 decision upholding the state’s statutory cap on noneconomic damages. By contrast, ATRA scorns the Illinois and Georgia supreme courts for striking down their state laws limiting awards for pain and suffering.

In contrast to the “reasonableness” of Maryland’s high court, justices in those two “judicial hellholes” replaced “the policy judgments of elected legislators and governors with their own,” ATRA’s report says.

The Maryland Court of Appeals, in DRD Pool Service Inc. v. Freed, said the state legislature had a”rational basis” for enacting the cap on noneconomic damages. The General Assembly limited awards for pain and suffering to achieve the “legitimate legislative objective” of keeping insurance costs down for companies and individuals, as the cap enables insurers to better predict their financial exposure in litigation, the court said.

“In our view, the cap continues to serve a legitimate government purpose,” Judge Clayton Greene Jr. wrote for the court’s 6-judge majority.

Judge Joseph F. Murphy Jr., the sole dissenter, argued for a stricter standard. He said the cap’s defenders should have to show that it is substantially related to an important legislative objective.

Maryland’s noneconomic damages cap, which increases by $15,000 every Oct. 1, is currently $740,000.

Do you regard the court’s decision as a point of light?

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During the foreclosure crisis, much of the attention has focused on the people who have lost their homes.

But what about the purchasers of the foreclosed properties faced with what 50 state attorneys general – including Maryland’s Douglas F. Gansler — say is the real possibility that those foreclosures contained paperwork errors?

The situation illustrates why buyers should always insist on having their own title insurance coverage, rather than relying on the title policy the lenders insist they purchase, says real-estate attorney Lawrence S. Conn, of Baxter, Baker, Sidle, Conn & Jones PA in Baltimore.

“This is exactly the type of title defect that title insurance is designed to protect,” Conn said of paperwork errors in the foreclosure process.

The lender’s title policy, though, protects only the lender. Anything beyond that, such as the buyer’s down payment, would require an owners’ title policy, which is only marginally more expensive.

A buyer neglects this added coverage at his or her own peril, Conn added.

“Make sure that in this climate, [purchasers] certainly have title insurance,” he said.

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What began as being too lazy to shave while on vacation last week has morphed into my first deliberate attempt at facial hair.

My goatee will be gone by the weekend, when I have to be in pictures for a family wedding, but for now it’s growing on me. (Ha!)

Whether I sport a goatee in the future will largely depend on what a future Mrs. Jacobs thinks of it. But then I read about Head and Shoulders insuring the flowing locks of Pittsburgh Steelers safety Troy Polamalu for $1 million.

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Here are some tidbits to take your mind off Maryland’s heartbreaking loss yesterday:

• Jeffrey Toobin at The New Yorker gives three immediate observations about the legal implications of the health care legislation, including how it might affect the Supreme Court.
• Above the Law has more on the potential, legal fallout of the bill.
• Speaking of SCOTUS, an Iowa lawyer provides an interesting take in today’s Baltimore Sun about its upcoming Snyder v. Phelps case.
• Encyclopaedia Britannica files a $250 million lawsuit against Dickstein Shapiro LLP for allegedly botching a patent application. (HT: Law Shucks.)
• A former Wisconsin state employee has won a discrimination lawsuit against his employer… the State’s Equal Division. (HT and “Dept. of Irony” headline to Overlawyered.)
• Today’s business tip – prevent profit “leaking” by recording all of your time while in the office.

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ON THE COVER: Top court returns — The Court of Appeals begins its September 2009 term this week. The high court will hear cases addressing the cap on non-economic damages, legal malpractice and whether a truck driver can be guilty of vehicular manslaughter for leaving the scene of a gravel spill from his truck.

Also on the Court of Appeals — the judges recall their summer break; columnist Chris Brown ranks last year’s votes; and plaintiffs’ lawyers Henry E. Dugan Jr. and George S. Tolley III explain the importance of last term’s landmark informed-consent decision.

In Breaking News, Baltimore City Councilwoman Helen L. Holton fights new charges; an immigration lawyer is disbarred after pleading guilty to fraud; and an attorney owes fees for having filed suit without sufficient justification.

In Verdicts & Settlements, a motorcyclist receives $200,000 in damages after colliding with a hand truck that fell from a passing box truck.

U.S. District Magisitrate Judge Charles B. Day of Greenbelt has no plans to take it easy after stepping down from the Federal Magistrate Judges Association after a decade in senior posts at the group.

Stay up-to-date with our Law Digest, which includes cases from the U.S. 4th Circuit Court of Appeals and the U.S. District Court, Maryland.

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On the Cover: Right on the Money – Murder. Larceny. Can this really be a civil insurance case?

Also, a 2-1 panel of the 4th Circuit upholds the federal sex offender registration law and a regulation that makes it apply retroactively.

In Breaking News, a retired Rockville lawyer escapes disbarment by a single vote on the Court of Appeals, and Baltimore County Circuit Judge Lawrence R. Daniels says he will not run for re-election.

Read about a settlement between a Baltimore dry cleaner and a Lutherville couple who claim the store ruined their wedding attire, in Verdicts & Settlements.

In this week’s Pro Bono, real-estate lawyer Sophie Dagenais discusses her effort to get arabbers — horse-and-cart produce vendors — a new headquarters.

Joe Surkiewicz explains why IOLTA doesn’t work, in his Of Service column.

Stay up to date with our Legal Briefs and Case Digest, with cases from the Maryland Court of Appeals, Maryland Court of Special Appeals and the 4th U.S. Circuit Court of Appeals.

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From our sister paper south of the Potomac comes this story of a health insurance company that refused to pay on a $100,000 claim for a motorcycle rider’s injuries from a crash after he pleaded guilty to reckless driving, a misdemeanor. (He had been charged originally with drunken driving, Virginia Lawyers Weekly reported.)

Anthem Health Plans of Virginia figured there was no coverage because the General Provisions of its policy specify that it “does not cover any loss that results from the covered person committing … an illegal act.”

Roderick Bailey’s lawyer, though, argued that “illegal acts” is too broad a term to go undefined in the policy, which separately excludes the results of the insured’s felonies — under the “War” exclusion, 20 pages away from the General Provisions.

Misdemeanor reckless driving, by contrast, is essentially unintentional conduct, Bailey argues; and isn’t that what insurance is for? In other words, letting insurers deny coverage for unintentional conduct should be against public policy.

The lower court ruled for Anthem, which I’m told caused a stir among trial lawyers. Now, though, it’s the defense bar’s turn to worry: the Virginia Supreme Court has agreed to hear Bailey’s appeal.

A quick look online yields this similar case (pdf), decided in 2006 by a federal judge in Shreveport, La., but it’s hard to believe the situation doesn’t come up all the time. How do you think it would turn out here in Maryland?

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