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Opinions – Court of Special Appeals: 3/21/11
Listen to this articleDenial of appeal
BOTTOM LINE: The Court of Special Appeals did not have jurisdiction to hear a defendant’s appeal because the circuit court’s default judgment was not a final judgment and because the defendant’s pursuit of in banc review precluded appeal to the Court of Special Appeals.
CASE: Bethesda Title & Escrow LLC v. Gochnour, No. 1576, Sept. Term, 2009 (filed Feb. 28, 2011) (Judges Eyler, D., ZARNOCH & Hotten). RecordFax No. 11-0228-01, 15 pages.
FACTS: In October 2007, Robert Gochnour filed a four-count complaint in the circuit court alleging that under the guise of co-signing for the refinancing of a loan on a friend’s property, he was fraudulently misled to incur loans of $510,000 and to purchase the property. The four counts consisted of negligence, fraud and misrepresentation, conspiracy, and a declaratory judgment declaring the invalidity of the deed and the indebtedness.
Gochnour named multiple defendants, including a title company, Bethesda Title, which was alleged to have conducted the closing for the transaction. During the course of the litigation, First Tennessee Bank National Association (FTBNA) was added as a plaintiff in the action.
Gochnour sought and obtained a default judgment against the defendants. Gochnour’s co-plaintiff, FTBNA, subsequently obtained a default order against the defendants as well, but did not obtain a default judgment establishing damages. Bethesda Title then filed a motion to vacate the default judgment for lack of proper service.
Following denial of its motion to vacate judgment, Bethesda Title appealed to the Court of Special Appeals, which denied the appeal.
LAW: Bethesda Title asked the Court to consider whether the circuit court abused its discretion in denying Bethesda Title’s motion to vacate default judgment for lack of proper service. However, the more pertinent question was whether the Court of Special Appeals even had jurisdiction to hear the appeal of the circuit court’s default judgment.
In Quartertime Video & Vending Corp. v. Hanna, 321 Md. 59, 580 A.2d 1073 (1990), the court of appeals concluded that a default judgment entered against only one of several defendants was an interlocutory judgment, not a final judgment, because the rights and liabilities of fewer than all the parties had been adjudicated. 321 Md. at 64.
Here, the same appellate defect existed, in that Gochnour’s co-plaintiff, FTBNA, had not yet obtained a final default judgment against Bethesda Title. See Faragut Village Condominium Ass’n. v. Bowling, 168 Md.App. 376, 380 (2006). In addition, fewer than all of the claims in the action were adjudicated by the circuit court; Gochnour prayed for a declaratory judgment that the deed to the property in question was void and of no further effect, but no declaratory judgment was issued. Thus, unless Gochnour abandoned his claim for a declaratory judgment, the circuit court’s failure to rule on the claim presented another appellate defect undercutting the finality of the judgment and Bethesda Title’s right to appeal. Broadwater v. State, 303 Md. 461, 468. For these reasons, the Court lacked jurisdiction to consider Bethesda Title’s appeal of this non-final judgment.
Accordingly, the Court of Special Appeals denied the appeal.
COMMENTARY: Another impenetrable barrier to the appealability of the circuit court’s entry of a default judgment against Bethesda Title was Bethesda Title’s pursuit of in banc review in the circuit court.
Under Article IV, §22 of the Maryland Constitution, the decision of the in banc court “shall be the effective decision in the premises, and conclusive, as against the party at whose motion said points or questions were reserved …” See Bienkowski v. Brooks, 386 Md. 516, 544, n. 14 (2005). Maryland Rule 8-202(d) provides: “When notice for in banc review filed. A party who files a timely notice for in banc review pursuant to Rule 2-551 or 4-352 may file a notice of appeal provided that (1) the notice of appeal is filed within 30 days after entry of the judgment or order from which the appeal is taken and (2) the notice for in banc review has been withdrawn before the notice of appeal is filed and prior to any hearing before or decision by the in banc court. A notice of appeal by any other party shall be filed within 30 days after entry of a notice withdrawing the request for in banc review or an order disposing of it. Any earlier notice of appeal by that other party does not deprive the in banc court of jurisdiction to conduct the in banc review.”
If an overly literal reading of these provisions were adopted, Bethesda Title would arguably have two opportunities to appeal, on the grounds that: 1) it filed its notice of appeal before its notice for in banc review; and 2) it was now appealing the denial of the motion to vacate, not the in banc court’s action on the denial of the motion for reconsideration. Neither of these propositions is tenable. Review by an in banc court is “a substitute or alternative” for an appeal to the court of special appeals. Board v. Haberlin, 320 Md. 399, 406 (1990). When the legal issues are the same, it would fly in the face of the text and purpose of these constitutional, statutory and regulatory provisions to allow two appeals. If Md. Rule 8-202(d) could be avoided simply by noting an appeal before a ruling on a separately filed motion for reconsideration, not much would be left of the exclusivity and conclusiveness of the in banc review. The import of the Rule is that where there is no withdrawal of the notice for in banc review and the party seeking it goes to a hearing and obtains a decision, no right to appeal to this Court exists.
Bethesda Title argued that the legal issues raised before the in banc panel were separate, distinct, and different from those advanced in its appeal to the court of special appeals. In fact, however, the title company’s motion for reconsideration expressly incorporated its motion to vacate and memoranda and, as relief, asked the circuit court to “vacate the default judgment entered against Bethesda Title.” Likewise, Bethesda Title’s in banc review memorandum expressly incorporated the motion to vacate and memoranda and noted the prejudice it would suffer if the default judgment was not vacated. In short, Bethesda Title sought reversal of the default judgment for improper service of process, just as it did in its appeal to the court of special appeals.
Moreover, an examination of the title company’s filings in this Court demonstrated that Bethesda Title was making the same arguments to the court of special appeals that it did before the in banc panel. Specifically, it supplemented the record to include materials urging reliance on a previous decision in Altomare et al. v. Global Mortgage, Inc., et al., Case No. 292265-V; it attacked the circuit court for failing “to articulate a legally sufficient basis for the outright denial” of its motion to vacate; and it contended that it was “precluded” by the circuit court judge from presenting testimony. This appellate review was not permitted by the governing statutes, constitutional provisions, and rules.
For all of these reasons, the title company’s pursuit of in banc review in the circuit court precluded its appeal to the court of special appeals.
Licensure under the Gun Violence Act
BOTTOM LINE: For purposes of the “disqualifying crime” provision of the Gun Violence Act of 1996, the statutory penalty to be considered is the penalty that exists at the time of the application for a permit or renewal to carry or otherwise possess a regulated firearm, not the penalty in effect at the time of conviction.
CASE: Maryland State Police v. McLean, No. 1462, Sept. Term, 2009 (filed Feb. 28, 2011) (Judges Matricciani, Graeff & KENNEY (retired, specially assigned)). RecordFax No. 11-0228-00, 23 pages.
FACTS: In 1983, Anthony McLean, then 19 years old, was convicted of breaking and entering a storehouse, under Art. 27, §31B. At the time of his conviction, the maximum sentence of incarceration for that crime was imprisonment of not more than six months.
In 1994, the General Assembly repealed Art. 27 §31B, and enacted new legislation consolidating the crime of breaking and entering a storehouse with other crimes against property. The legislature increased the statutory penalty from a maximum of six months to a maximum of three years.
In 1996, the General Assembly enacted the Maryland Gun Violence Act of 1996, presently codified as PS §§5-101. The legislature added to the crimes disqualifying an individual from possessing a regulated firearm “a violation classified as a misdemeanor in the State that carries a statutory penalty of more than 2 years.” PS §5-101(g)(3).
In the years between 2001 and 2008, the Maryland State Police (MSP) renewed McLean’s handgun carry permit in addition to issuing to McLean other firearms licenses or permits.
In March 2006, in response to a request from the Superintendent of the Maryland State Police, the Maryland Attorney General issued an opinion concerning the application of PS §§5-133(b)(1) and 5-101(g)(3). The Attorney General opined that: “Because firearms law regulates the current possession or reception of a firearm, the determination as to whether a particular misdemeanor ‘carries’ a penalty in excess of two years should be made with reference to the penalty at the time of possession, if it is different from the potential penalty at the time of conviction.” 91 Op. Atty. Gen. Md. 68 (2006) (the Attorney General’s opinion).
On April 7, 2008, McLean applied to MSP for a renewal of his handgun carry permit. Relying on the Attorney General’s opinion, MSP denied the renewal application based on McLean’s 1983 conviction for breaking and entering. Because, at the time of the renewal application, the maximum penalty for the offense for which McLean had been convicted exceeded two years, MSP concluded that he had been convicted of a disqualifying crime that prohibited his possession of a regulated firearm.
McLean appealed to the Handgun Permit Review Board, which overturned MSP’s denial of McLean’s renewal application. The circuit court affirmed the decision of the Board.
MSP appealed to the Court of Special Appeals, which reversed.
LAW: CL §4-203 generally prohibits persons from wearing, carrying or transporting a handgun on their person or in a vehicle. But, subsection (b)(2) permits the wearing, carrying or transporting of a handgun by a person to whom a permit has been issued.
General qualifications that must be met for a handgun permit are set forth in PS §5-306. In addition, PS §5-133(b)(1) prohibits possession of a regulated firearm by a person who has been convicted of a disqualifying crime. Under PS §5-101(g)(3), the term disqualifying crime includes “a violation classified as a misdemeanor in the State that carries a statutory penalty of more than 2 years.”
The language of PS §5-101(g)(3), read together with PS §5-133(b)(1) is clear and unambiguous with respect to the issue presented here: a person who has been convicted of a violation classified as a misdemeanor in the State that carries a statutory penalty of more than two years may not possess a regulated firearm. The word “carries” expresses the present tense — i.e., that the statutory penalty to be considered is the penalty in effect at the time that qualification is being considered.
If it was the intent of the legislature to exempt from the provisions of §5-101(g)(3) an individual who was legally permitted to possess or carry a handgun prior to Oct. 1, 1996, when the law took effect, it is reasonable to presume that the legislature would have used operative language to express that intent. Nothing in the language of the statute evidences such an intent. See Pappas v. Pappas, 287 Md. 455, 465 (1980).
Furthermore, the legislative history indicates that the motivating rationale for adding certain misdemeanors, including fourth degree burglary, to the list of disqualifying crimes was to mirror federal law and expand the number of disqualifying crimes. Nothing in the legislative history suggests an intent to exempt from the amendment an individual who was legally permitted to possess or carry a gun prior to Oct. 1, 1996, when the law took effect.
Additionally, nothing in the statute or legislative history eclipses the plain meaning of the word “carries” and suggests that the penalty to be considered is the penalty that existed at the time of the conviction rather than the penalty in effect at the time of the application for a permit for a regulated firearm.
Contrary to McLean’s assertion that the current statutory scheme for burglary offenses bears no resemblance to the offense he was convicted of in 1983, fourth degree burglary does not differ substantively from the statutory crime of which McLean was convicted. Article 27, §31B, under which McLean was convicted in 1983, provided that “any person who breaks and enters a storehouse … of another … shall be guilty of a misdemeanor.” CL §6-205(b), the current equivalent, provides that “[a] person may not break and enter the storehouse of another.” The elements of the crime did not change in the recodification. The only substantive change was the increase in the maximum penalty.
The fact that storehouse breaking carried the least serious penalty among the crimes consolidated into the fourth degree burglary statute in 1994 in no way suggests that the legislature did not intend to make breaking and entering a storehouse a disqualifying crime in 1996.
What is clear is that in 1994 the legislature deemed it appropriate, in the exercise of its legislative prerogative, to increase the statutory penalty for the crime of breaking and entering a storehouse to a maximum of three years. Two years later, the legislature deemed it appropriate to add misdemeanors carrying a sentence of more than two years imprisonment to the list of crimes disqualifying an individual for possessing a regulated firearm. The fourth degree burglary statute, which included “storehouse breaking” was in effect when it did so. Therefore, it is reasonable to conclude that the legislature intended to make “storehouse breaking” a disqualifying crime under PS §5-101(g)(3).
In Brown v. Handgun Permit Review Board, 188 Md.App. 455 (2009), MSP denied Brown’s application to carry a concealed weapon based on his 1984 conviction in the District of Columbia for possession of a dangerous weapon — which at the time of conviction carried a maximum sentence of imprisonment of up to one year. MSP denied the application, reasoning that the equivalent crime in Maryland — that of wearing or carrying a dangerous weapon, a misdemeanor carrying a statutory penalty of imprisonment up to three years — was a “disqualifying crime” within the meaning of PS §5-101(g)(3).
MSP relied on the Attorney General’s opinion. Addressing the issue of out-of-state convictions, the Attorney General opined that “when MSP applies PS §5-101(g)(3), the agency should examine the equivalent Maryland offense that exists at present (rather than the equivalent extant at the time of conviction).” Id. at 464. The Board affirmed MSP’s denial of Brown’s handgun carry permit. It was concluded that, in the case of an out-of-state conviction, an ambiguity arose with respect to which state’s penalty should be considered. Id. at 473. After reviewing the legislative history of PS §5-101(g)(3), the Court concluded that the General Assembly intended for PS §5-101(g)(3) to be interpreted such that the conviction’s potential punishment is measured by reference to the penalty under the law of Maryland for a comparable violation. Id. at 474-479.
As explained in Brown, the firearms laws are intended to regulate the current or present possession of regulated firearms. Looking to current Maryland law and the penalties currently in force promotes consistency and equality in the treatment of all persons convicted of the same criminal conduct regardless of where or when the criminal conduct occurred.
Accordingly, the judgment of the circuit court was reversed.
COMMENTARY: McLean also asserted that, because MSP issued and subsequently renewed his handgun carry permit and approved other firearms transactions after the Maryland Gun Violence Act took effect, it would be “fundamentally unfair” at this point to apply the statute differently, as he would then be exposed to “seizure of his property and to criminal liability.”
The fact that MSP apparently approved other firearms transactions even after the Attorney General’s opinion was issued did not preclude correct application of the statute when this permit came up for renewal. Nothing in the record reflected an effort by MSP to void any existing permits and, even if that were the case, there is no reason to believe that McLean would not be given reasonable consideration for the transfer of any regulated firearms in his possession before being subject to any criminal liability.
Nor was it “fundamentally unfair” that McLean’s conviction did not disqualify him from owning a gun until years after his conviction. Gun ownership is not an unconditional right. Williams v. State, —- Md. ——, No. 16, Sept. Term, 2010, slip op. at 14 (filed Jan. 5, 2011). Certain governmental regulations on the possession of firearms are permissible. See District of Columbia v. Heller, 554 U.S. 570, 626-27 (2008). A legislative act to make a conviction that was once not a disqualification into one that is, is “no different than if the Legislature chose to add a new category of offenses to the list of disqualifying crimes — as it did when it added misdemeanors to the class of disqualifying crimes — or otherwise to expand the categories of disqualifications.” 91 Op. Att’y Gen. at 79.
PRACTICE TIPS: In Brown v. Handgun Permit Review Board, 188 Md.App. 455, 473-74 (2009), the Court of Special Appeals noted that the language “a violation classified as a misdemeanor in the State that carries a statutory penalty of more than two years[ ]” could be construed in one of several ways: (1) to refer only to Maryland convictions; (2) to include out-of-State offenses that would be classified as misdemeanors in Maryland that carry a penalty in excess of two years under the law of the state of conviction; or (3) to include out-of-State offenses that would be classified as misdemeanors in Maryland that carry a sentence in excess of two years if committed in Maryland, regardless of the sentence that the other state imposed, and it concluded that the latter interpretation was correct.
BOTTOM LINE: Trial court properly excluded, on the basis of the attorney-client privilege, a psychologist from testifying as an expert witness on behalf of the plaintiff in a civil action when the defendant had previously consulted the psychologist in a related criminal matter.
CASE: Davis v. Petito, No. 468, Sept. Term, 2010 (filed Feb. 28, 2011) (Judges EYLER, D., Zarnoch & Rodowsky (retired, specially assigned)). RecordFax No. 11-0228-03, 52 pages.
FACTS: Joanna Davis and Michael Petito divorced in April 2006. Prior to the absolute divorce, the court granted a limited divorce and gave Davis primary physical custody of the couple’s only child, Sophia, with Petito having overnight visitation with Sophia every other weekend and every other Wednesday. During the relevant time periods, Petito lived some of the time with his parents and some of the time with his girlfriend, Christina Torres. Sophia spent some of her overnight visits with Petito at her paternal grandparents’ house and some at Torres’s house.
In the fall of 2008, Sophia, then almost 5 years old, started acting out when it was time to leave with her father for their scheduled visits. Davis and Petito agreed that she should start seeing a therapist. In October 2008, Sophia started therapy with Donna Leffew, a licensed clinical professional counselor. During her sessions, Sophia disclosed information that caused Leffew to suspect sexual abuse. On Dec. 3, 2008, Leffew made a report of suspected sexual abuse to the Department of Social Services. The local sheriff’s department conducted a separate criminal investigation of the report of suspected sexual abuse. With Petito’s cooperation, the sheriff’s department obtained a search warrant for his parents’ home and for Torres’s home. The search revealed no semen or incriminating forensic evidence in Sophia’s bedroom. Another counselor, following an extended forensic evaluation of Sophia, recommended a finding of indicated child sexual abuse.
On Dec. 22, 2008, Davis filed an emergency complaint for immediate custody of Sophia based on the allegations of abuse. On Dec. 31, 2008, Petito was arrested and charged with a third-degree sex offense. His case later was placed on the stet docket upon the condition that he have no contact with Sophia, aside from court-ordered therapeutic visitation, pending the outcome of the case.
In February 2009, without Petito’s knowledge, Leffew resumed therapy sessions with Sophia. Leffew continued to hold sessions with Sophia until July 15, 2009. The sessions ceased after Petito learned of the therapy and refused to allow it to continue.
In the meantime, in March, 2009, Petito filed a counter-complaint for modification of custody. The case was scheduled for a hearing before a master to take place on Sept. 3, 2009. A scheduling order directed that expert witnesses were to be disclosed within 60 days of trial (by July 6, 2009), and that rebuttal experts were to be disclosed within 15 days thereafter.
One of the witnesses identified by Petito was Kathleen Killeen, Ph.D., whom he had designated as an expert in “clinical psychology, child development, psychopathology and treatment, evaluation and training of child sexual abuse, and forensic interviews with children,” to rebut Leffew’s anticipated testimony and to challenge the investigative techniques used by the interviewers in the case. On July 2, Davis identified several experts, including Leffew, who would testify in her case-in-chief. On July 23, Davis identified Joanna Silberg, Ph.D., a psychologist, as an expert witness who would rebut Killeen’s testimony.
During a deposition five days later, Petito’s lawyer informed Davis’ lawyer that he was planning to challenge Silberg’s designation because Petito and Petito’s criminal defense attorney in the related criminal case previously had spoken to Silberg over the telephone to determine if she would testify on Petito’s behalf in the case. On Aug. 14, 2009, Davis filed a motion in limine asking the court to rule before trial as to whether Silberg could testify. She stated in the motion that Silberg had no recollection of any contact with Petito or his attorney; that Silberg did not maintain records of telephone calls she received in which people sought to retain her as an expert; and that Silberg did not believe it would pose an ethical conflict for her to testify on Davis’s behalf. The court denied the motion.
The case was scheduled for a hearing before a master to take place on Sept. 3, 2009. On that date, the master contacted the trial judge regarding confusion as to whether the trial court had left open the question was to whether Dr. Silbert could testify at trial. In response, the trial judge amended the Aug. 31, 2009, order by interlineation to clearly state that Dr. Silbert was precluded from testifying. The master granted a continuance until Nov. 23, 2009, suggesting that this additional time would allow Davis to retain an alternative rebuttal expert.
Beginning on Nov. 23, 2009, the case was tried to the court over six days in 2009 and 2010. On Feb. 12, 2010, the court issued a memorandum opinion ruling that Davis had failed to prove the allegations of sexual abuse against Petito. The remaining issues were tried for that day. At the conclusion of the second portion of the bifurcated trial, the court issued a second memorandum opinion and an order finding both parents to be fit; ordering that Davis would remain the primary physical custodian; awarding Davis sole legal custody (because the parties’ relationship was too contentious to continue joint custody); and setting forth a schedule of therapeutic and supervised visitation followed by a regular visitation schedule.
After motions to alter or amend were filed by both parties and the court issued an amended judgment, Davis appealed the judgment to the Court of Special Appeals, which affirmed.
LAW: Davis contended that in order for the trial court to properly preclude Silberg from testifying based upon Silberg’s prior contact with Petito and his criminal defense lawyer, the court had to find that: 1) it was objectively reasonable for Petito to believe he and Silberg had entered into a confidential relationship; and 2) that Petito actually had shared confidential information with Silberg. Davis argued that the circuit court had made no such finding, and that there were no facts in evidence that could have supported such a finding.
The Maryland civil cases addressing whether an expert witness consulted by one party can be called to testify by the opposing party have taken a liberal approach, with some cases freely allowing not only such a practice but also the admission of evidence that the expert previously had been retained by the other party.
Davis primarily relied upon Butler-Tulio v. Scroggins, 139 Md.App. 122 (2001), a medical malpractice case in which the court of appeals held that a plastic surgeon from whom the plaintiff had sought medical treatment was permitted to testify as an expert witness for the defense. Butler-Tulio involved a claim by a plaintiff who had cut her wrist on a piece of glass and was operated on by a doctor, Scroggins, the eventual defendant in the action. The plaintiff eventually underwent a second surgery performed by another doctor, who discovered that a micro-surgical suture needle had been left in the plaintiff’s wrist during the first surgery. Two years after the second surgery, the plaintiff consulted with a plastic surgeon regarding continuing weakness and abnormalities in her hand. At the end of the consultation, the plaintiff asked the plastic surgeon if he could support her claim of negligence, and the plastic surgeon told her that the micro-surgical needle left in the plaintiff’s hand during that surgery would have had little, if any, effect on her current condition and that he could not support her claim. Id. The plaintiff sued Scroggins and the hospital for medical negligence.
At trial, the plaintiff called two expert witnesses, and over the plaintiff’s objection, the defendants called the plastic surgeon to testify as an expert. The plastic surgeon testified consistent with the opinion he had given the plaintiff, and also testified that his impression after examining the plaintiff was that she was “hoping for someone or a physician to support her claim of negligence.” Id. at 134. The jury returned a verdict in favor of the defendants. On appeal, the plaintiff argued that the trial court had abused its discretion in permitting the plastic surgeon to testify as an expert witness against her. The appellate court ruled that the trial court had been within its discretion to allow the plastic surgeon to testify and affirmed the trial court’s decision.
Thus, in Butler-Tulio, the initial contact of the plaintiff with the expert in question did not involve the plaintiff’s lawyer, but was arranged by the plaintiff herself as an ordinary doctor’s visit in which, only at the end of the examination, did the plaintiff ask the doctor his opinion about the treatment rendered by the surgeon who had operated upon her previously; and there was no mention by the plaintiff to the doctor about any pending litigation. The evidence was ambiguous as to whether the plaintiff had approached the doctor as a ‘treating physician” and was equally ambiguous as to whether she had approached the doctor as an expert witness. Moreover, the plaintiff gave the doctor a minimal amount of information about her prior surgery. Under the circumstances, the plaintiff could not have had a reasonable expectation that her communications with the doctor were confidential.
Although the present case, like Butler-Tulio, was a civil action, Petito’s initial contact with Silberg, the expert witness at issue, happened in the context of a criminal case, with the contact being made by the criminal defendant (Petito) and his defense counsel. For this reason, the Butler-Tulio decision was not controlling, and Davis’s reliance on the Butler-Tulio decision was misplaced. The Maryland body of case law pertaining to expert witness disqualifications in criminal cases differs markedly from the case law on that issue in civil actions, making criminal cases on the issue more relevant to the matter presented here.
In State v. Pratt, 284 Md. 516 (1979), superseded by statute on other grounds, defense counsel in a murder case retained a psychiatrist to examine the defendant to render an opinion as to whether she was insane when she shot and killed her husband. Criminal agency was not disputed and the outcome of the trial depended upon a jury’s finding on sanity. The psychiatrist opined that the defendant had not been insane at the time of the homicide. At trial, the State attempted to call the psychiatrist as its own witness, and the defendant objected on the ground of attorney-client privilege. The trial court overruled the objection and permitted the State to call the psychiatrist to the stand. On appeal after a finding of sanity and a conviction, the court of special appeals reversed, holding that the defendant’s communications with the psychiatrist were within the scope of the attorney-client privilege. State v. Pratt, 39 Md.App. 442, 446-51 (1978). The court of appeals agreed, holding that the scope of the attorney-client privilege extends to agents whose services are required by counsel for a criminal defendant to properly prepare the client’s case for trial.
Similarly, in the case at bar, Petito’s prior contact with Silberg happened in the course of a criminal case pending against him; it was initiated by Petito and his criminal defense lawyer; they both spoke with Silberg over the telephone; and they both spoke to her about the facts of the case and “her thoughts” with respect to the circumstances of the case. Silberg’s attested lack of memory of this telephone conversation was not proof that it did not take place; and Petito could not have been expected to give a more detailed account of the conversation given that the criminal charges still were pending against him when he and his counsel submitted their affidavits in the domestic case, notwithstanding that they had been placed on the stet docket pending resolution of the modification proceeding, and he had an absolute right to remain silent under the Fifth Amendment. The affidavits established that Petito discussed the facts of the case with Silberg and with his lawyer, together, in the course of attempting to arrange for expert witness testimony with which to defend himself against criminal charges of sexual abuse of his daughter.
The criminal case context of the communications Petito and his criminal defense lawyer had with Silberg made State v. Pratt and other criminal cases highly relevant to the preclusion issue. Those cases stand for the proposition that, just as a criminal defendant would understand that his communication of the facts underlying the charges he faces are confidential under the attorney-client privilege when made to his lawyer, he reasonably would expect that the same disclosure of facts to the expert witness his lawyer is retaining to aid in his defense is confidential. That expectation of confidentiality is no less reasonable, and no different, when the communications with the potential expert witness took place in a retention interview that did not result in retention of the expert.
The attestations in the present case showed that the substance of the defense case was communicated to Silberg, that Silberg conveyed “her thoughts with respect to those circumstances, and her availability as a possible expert witness,” and that she then was not retained as an expert for the defense. For these reasons, the evidence before the trial court when the preclusion ruling was made was sufficient to support a rational conclusion that Petito reasonably would have expected his relationship with Silberg, as defined by the telephone call in which, with his lawyer, he discussed the facts underlying the criminal charges against him, was confidential just as his conversations with his lawyer about those facts were confidential. As such, the trial court did not abuse its discretion or commit legal error in ruling that Silberg could not testify as an expert witness on Davis’s behalf. Had the court applied the two-part test referred to by Davis, its ruling would not have differed.
Accordingly, the judgment of the circuit court was affirmed.
COMMENTARY: Davis next contended that the trial court erred in ruling, on hearsay grounds, that Christy McGurgan, one of Sophia’s therapists, could not testify about statements Sophia made to her during their therapy sessions, which McGurgan interpreted as disclosures of sexual abuse by Petito. Davis argued that Sophia’s statements to McGurgan were admissible under Md. Rule 5-803(b)(4), which is an exception to the rule against hearsay for statements made for purposes of medical treatment or medical diagnosis in contemplation of treatment and describing medical history, or past or present symptoms, pain, or sensation, or the inception or general character of the cause or external sources thereof insofar as reasonably pertinent to treatment or diagnosis in contemplation of treatment. The trial court found that Sophia’s statements to McGurgan did not fall within this hearsay exception because Sophia could not have understood that her statements were being made for those purposes when she made them.
Hearsay is an out-of-court statement offered in evidence for the truth of the matter asserted. Ali v. State, 314 Md. 295, 304 (1988). The hearsay exception at issue covers statements made for the purposes of medical treatment or diagnosis in contemplation of treatment. The hearsay exception for statements made for purposes of medical treatment or diagnosis specifically contemplates the admission of statements describing how the patient incurred the injury for which he is seeking medical care. The exception embraces only statements that are both taken and given in contemplation of medical treatment or medical diagnosis for treatment purposes. Webster v. State, 151 Md.App. 527, 537 (2003). As such, the patient’s subjective intent in making the statement sought to be admitted under the exception is relevant to whether the exception applies.
Here, the trial court concluded that Sophia’s statements to McGurgan about what, if any, sexually abusive acts had transpired between her and her father did not fall within the scope of the hearsay exception at issue because Sophia did not understand that she was making the statements for the purpose of medical treatment or diagnosis in contemplation of medical treatment. In the present case, there was no evidence of any physical symptom or injury suffered by Sophia that a child of a young age would be capable of knowing would need treatment, and there was no evidence of a very brief interval between the onset of any symptom or injury and the visit to the health care provider during which the statement at issue allegedly was made. Moreover, counseling is not a medical intervention that a young child necessarily would recognize as a treatment for an injury or harm, like medical treatment for a swollen and bruised eye or for vaginal bleeding, particularly when nearly a year had passed between the allegedly injurious acts and the therapy. The case that most resembled the instant case was Coates v. State, 175 Md.App. 588 (2007), which involved a child victim of sexual abuse who was almost eight years old when she told a SAFE nurse that the defendant had abused her; in that case, it was held that the trial court had erred in allowing the child’s statements to come into evidence.
For these reasons, Sophia’s statements to McGurgan did not fall within the hearsay exception for statements made for the purpose of medical diagnosis and treatment, and the trial court properly excluded these statements.
PRACTICE TIPS: The court may award to either party the costs and counsel fees that are just and proper under all the circumstances in any case in which a person applied for a decree or modification of a decree concerning the custody, support, or visitation of a child of the parties. Before a court may award fees, the court must consider a number of factors, including the financial status of each party, the needs of each party, and whether there was substantial justification for bringing, maintaining, or defending the proceeding.
Denial of coverage based on geographic designation
BOTTOM LINE: The decision of the Insurance Commissioner, that insurance company’s decision to cease writing new property policies in certain catastrophe-prone areas did not violate Maryland law, was properly affirmed because it was supported by substantial evidence and was not arbitrary or unreasonable.
CASE: People’s Insurance Counsel Division v. Allstate Insurance Company, No. 1949, Sept. Term, 2009 (filed March 1, 2011) (Judges Eyler, J., Hotten & MOYLAN (retired, specially assigned)). Record Fax No. 11-0301-00, 48 pages.
FACTS: On Dec. 4, 2006, Allstate Insurance Company and Allstate Indemnity Company advised the Maryland Insurance Administration (MIA) that it intended to cease writing new property insurance policies in “certain catastrophe-prone areas” in Maryland effective Jan. 1, 2007. Allstate believed that certain coastal areas bordering the Atlantic Ocean and the Chesapeake Bay presented an unusually high risk of loss in the event of a catastrophic hurricane.
After an extensive six-month review, this filing of its intent to stop writing new property insurance, submitted pursuant to IN §19-107, was approved by the Maryland Insurance Commissioner.
The People’s Insurance Counsel Division requested a hearing before the MIA regarding Allstate’s filing. Associate Deputy Commissioner Thomas Raimondi determined that the Division had standing to request the hearing, that Allstate had the burden of persuasion, and that Allstate had sufficiently demonstrated that its filing satisfied IN §§19-107 and 27-501.
The Division filed a petition for judicial review of the Commissioner’s order in the circuit court. The circuit court dismissed the petition for lack of standing. The Court of Appeals reversed the circuit court’s order, holding that the Division had standing to seek judicial review, and remanded the case for further proceedings. On remand, the circuit court denied the Division’s petition and affirmed the Commissioner’s final order.
The Division appealed to the Court of Special Appeals, which affirmed.
LAW: “An insurer may not refuse to issue or renew a contract of motor vehicle insurance, property insurance, or casualty insurance solely because the subject of the risk or the applicants or insured’s address is located in a certain geographic area of the State unless: (1) at least 60 days before the refusal, the insurer has filed with the Commissioner a written statement designating the geographic area; and (2) the designation has an objective basis and is not arbitrary or unreasonable.” IN §19-107(a).
There was no dispute with respect to Allstate’s satisfaction of precondition (1). The only dispute with respect to §19-107(a) was whether Allstate’s designation of the geographic area in which it intended to discontinue writing property insurance had an “objective basis” and was not “arbitrary or unreasonable” within the contemplation of subsection (a)(2).
In 1970, the Legislature undertook to curb discriminatory practices in insurance underwriting. Section 61A was amended by Chapter 746 of the Acts of 1973, at which time it took essentially its present form. The coverage of the section was expanded so as to include property and casualty insurance as well as motor vehicle insurance. The section was also amended to provide that the “designated geographic area” in which the insurer would “decline to issue or renew contracts of … insurance” must have “an objective basis and shall not be arbitrary or unreasonable.”
Within the contemplation of §19-107, the “arbitrary or unreasonable” test is not to be applied to the fiscal wisdom or business acumen of the insurance company in discontinuing to write or renew insurance but only to its “designated geographic area.” It is simply the mapping function that must have an objective basis and must not be arbitrary or unreasonable. That particular concern is not with “what,” but with “where.”
The “catastrophe-prone” region, designated by Allstate as Hurricane Bands 4, 5, and 6, consisted of Calvert, St. Mary’s, Somerset, Talbot, Wicomico, and Worcester counties, as well as portions of Anne Arundel, Charles, Dorchester, Prince George’s, and Queen Anne’s counties.
According to Allstate, its decision to stop writing new policies in Bands 4, 5, and 6 was based on its significant market share in those bands, and its projections of losses that would result in the event of a catastrophic storm striking Maryland. Allstate made the “business judgment that further growth at this time could jeopardize [the company’s] anticipated long term strength.”
With respect to §19-107(a), the Commissioner, with ample support in the evidence, expressly found that it was undisputed that Allstate’s designation had an “objective basis,” as required by IN §19-107(a)-(2) because it is extremely verifiable by zip code and hurricane band and is not subject to an insurer’s perceptions, feelings, or intentions. See State Dep’t of Assessments & Taxation v. Md.-Nat’l Capital Park & Planning Comm’n, 348 Md. 2, 13-14 (1997). Whether a particular insured will be affected by Allstate’s §19-107 filing can be verified by determining if the property is located within or outside of the zip codes identified by Allstate as part of Bands 4-6.
The final hurdle for Allstate with respect to §19-107 was whether its geographic designation meets the statutory requirement that it not be “arbitrary or unreasonable.” The Commissioner previously has defined the word “arbitrary” to mean: “subject to individual judgment or discretion, and made without adequate determination of principle.” See Berkshire Life Ins. Co. v. Maryland Insurance Administration, 142 Md.App. 628, 671 (2002). See also Blacks Law Dictionary, Sixth Edition.
Allstate’s hurricane bands were developed based on objective and reasonable factors, including modeled hurricane loss data, proximity to water and geographic contiguity. Through its use of the hurricane models, Allstate developed Average Damage Ratios (ADRs) at a zip code level. The higher the ADR, the higher the potential damage the area in the band is likely to sustain in the event of a catastrophic storm.
Zip codes were grouped into hurricane bands based on an analysis of variance in damage ratio data in order to create the most efficient alignment of hurricane bands. Based on input from the MIA, Allstate amended its filing to move four zip codes from Band 4 to Band 3, which was supported by Allstate’s analysis of the ADRs and the within and between variances. Relying on the raw data, Allstate refused to move 17 zip codes out of Band 4 and into Band 3, because the change was not supported based on analysis of the ADRs and the between and within variance analysis.
Because Allstate’s geographic designation was based upon an objective and reasonable fact based grouping of zip codes with the highest ADRs together into hurricane bands, the Commissioner concluded that Allstate complied with the requirements of §19-107.
There was substantial evidence to support the Commissioner’s conclusion that Allstate’s geographic designation of Hurricane Bands 4-6 had adequate factual support and, therefore, was not arbitrary or unreasonable. Thus, with respect to §19-107(a), there was no error.
COMMENTARY: IN §27-501(a) provides: “(1) An insurer or insurance producer may not cancel or refuse to underwrite or renew a particular insurance risk or class of risk for a reason based wholly or partly on race, color, creed, sex, or blindness of an applicant or policyholder or for any arbitrary, capricious, or unfairly discriminatory reason. (2) Except as provided in this section, an insurer or insurance producer may not cancel or refuse to underwrite or renew a particular insurance risk or class of risk except by the application of standards that are reasonably related to the insurer’s economic and business purposes.”
Allstate satisfied subsection (a)(1) posed no problem. The Division’s contention focused exclusively on subsection (a)(2).
In the recodification that produced the present Insurance Article, what is now §27-501(a) was taken, without any substantive change, from what had been Article 48A, §234A. Section 234A went through several amendments, adding various categories to the prohibited discriminatory categories.
In 1974, the General Assembly amended §234A once again. The Legislature, immediately after the words proscribing traditional or historic discriminations, added the provisio: “No insurer, agent or broker may cancel or refuse to underwrite or renew a particular insurance risk or class of risk except by the application of standards which are reasonably related to the insurer’s economic and business purposes.”
St. Paul Fire & Marine Insurance Co. v. Insurance Commissioner, 275 Md. 130 (1975), was the first case to address the effect of the amendment made to §234A in 1974. Faced with past losses and the threat of increasing future losses, St. Paul Fire & Marine announced that “it would cease writing physicians and surgeons professional liability [coverage] in Maryland by Jan. 1, 1975.” Id. at 134. A protesting physician brought the matter before the Commissioner, who ruled that the company “had not met its burden of persuasion to demonstrate that the … refusal to underwrite or renew [was] justified” under §234A. Id. at 135. The circuit court affirmed the Commissioner.
In rejecting the argument that the 1974 amendment to §234A(a) had created a new and broad substantive power in the Commissioner to oversee the business soundness of decisions affecting coverage generally, the Court of Appeals stressed that the amendment did not create an independent section in the Insurance Code but only added a provision to §234A(a) which was historically an anti-discrimination measure.
“In light of the evident purposes of §234A, the words ‘particular insurance risk or class of risk’ mean that the statute applies to decisions aimed at individual persons or classes of persons, but not to decisions, such as the one here, which concern an entire line of insurance. In short, an insurer may determine independently of §234A whether it will underwrite a given line of insurance, but once it elects to do so, it must insure every individual or class of individuals desiring such insurance, or else justify its refusal under §234A.” Id. at 142.
In the present case, no distinction was being made by Allstate between individuals or classes of individuals within Hurricane Bands 4, 5, and 6. Thus, §27-501(a)(2) did not apply to this broad-based business decision by Allstate.
Furthermore, even if §27-501(a)(2) were deemed to apply to Allstate’s decision to stop underwriting new property insurance in Hurricane Bands 4, 5, and 6, Allstate, on the merits, fully satisfied the requirements of the section.
Workers’ Compensation
Jurisdiction
BOTTOM LINE: The Maryland court had jurisdiction over a professional football player’s workers’ compensation claim when he was injured in Maryland while practicing and was employed by a Maryland corporation operating a professional football team that played its home games in the state.
CASE: Pro-Football, Inc. v. Tupa, No. 1839, Sept. Term, 2009 (filed Feb. 28, 2011) (Judges Eyler, ZARNOCH & Rodowsky). RecordFax No. 11-0228-02, 27 pages.
FACTS: Pro Football, Inc., a Maryland corporation, operates the Washington Redskins football team. Thomas Tupa was employed as a punter for the team from 2004 until 2006. In August 2005, while warming up for a Redskins preseason game Tupa sustained an injury to his lower back. Tupa has not played professional football since that time.
In March 2007, Tupa filed a claim with the Maryland Workers’ Compensation Commission, requesting temporary partial disability benefits for the period beginning March 1, 2006. Pro Football asserted that Maryland did not have jurisdiction over Tupa’s claim.
Following a hearing in March 2007, the Commissioner found that Maryland had jurisdiction over Tupa’s claim and ordered Pro Football to pay Tupa compensation for his temporary partial disability and related medical expenses.
Pro Football appealed to the circuit court and requested a jury trial. The circuit court determined as a matter of law that it had jurisdiction over Tupa’s claim. Following the jury trial, the jury found that Tupa had suffered an accidental injury, that his disability was causally connected to that actual injury, and that he was entitled to benefits for the time period from Feb. 1, 2006, to Feb. 28, 2007.
Pro Football appealed to the Court of Special Appeals, which affirmed.
LAW: Pro Football argued that Maryland lacked jurisdiction over Tupa’s workers’ compensation claim because Tupa was not a “covered employee” under §9-203(a)(1) of the Labor and Employment Article.
Under LE §9-203, individuals are generally “covered employees” for purposes of the Workers’ Compensation Act when they are working in Maryland for their employer. Employees are not covered when they are employed “wholly outside of this State.” LE §9-203(c). In this case, it was undisputed that Tupa’s injury occurred while he was working for the Redskins at FedEx Field in Landover, Maryland. He was expected to play eight regular season games and two preseason games in Maryland each year. Therefore, it was clear that Tupa was not employed to do work “wholly outside of” Maryland. See McElroy Truck Lines, Inc. v. Pohopek, 375 Md. 574, 584-85 (2003).
Pro Football argued, however, that Tupa was employed primarily in Virginia and worked in Maryland only intermittently. Where an individual works in Maryland intermittently or temporarily, the employee may be excluded from coverage under LE §9-203(b)(1), which provides that an individual “is not a covered employee while working in this State for an employer only intermittently or temporarily if: (i) the individual and employer make a contract of hire in another state; (ii) neither the individual nor the employer is a resident of this State; (iii) the employer has provided workers’ compensation insurance coverage under a workers’ compensation or similar law of another state to cover the individual while working in this State;
(iv) the other state recognizes the extraterritorial provisions of this title; and (v) the other state similarly exempts covered employees and their employers from its law.” The regular or casual/intermittent nature of an individual’s employment in Maryland is a fact-dependent determination that must be made on a case-by-case basis.
In Hodgson v. Flippo Construction Co., 164 Md.App. 263 (2005), the Court of Appeals identified certain factors relevant to the determination of whether an individual’s employment in a jurisdiction is merely incidental. These factors include where the claimant was hired, whether the employment arrangement contemplated a regular presence in the particular jurisdiction, the nature of the employer’s work, the scope and purpose of the hiring, the duration of the employment, the consistency’ of the claimant’s work in the particular jurisdiction, and representations made by the employer as to where the claimant would be working. Id. at 269. When the employment is transient in nature, such as trucking or traveling sales, the dispositive factor is whether the employment in Maryland is regular when compared to the employment outside of Maryland. McElroy Truck Lines, 375 Md. at 594.
Here, the parties stipulated to a number of facts. It was undisputed that Pro Football, Inc., was a Maryland corporation engaged in the business of operating the Washington Redskins, a franchise in the NFL. It was also uncontested that the Redskins’ principal business was fielding a team to play in NFL games, and that all of the Redskins’ home games were played in Maryland. The parties stipulated that the Redskins employed players for the principal purpose of competing in NFL games, and that Tupa’s injury occurred at FedEx Field in Landover, Maryland. It was undisputed that the Redskins practiced in Virginia, and that practice for players was designed to prepare them to play in games.
Considering these stipulated facts, it was clear that Tupa’s employment in Maryland was regular and not merely intermittent or temporary. Although Tupa was hired in Virginia, the purpose of his employment was to play in professional football games at FedEx Field in Maryland and at various other stadiums around the country. And, while Tupa likely spent more time at the practice facility in Virginia than he spent playing in games at FedEx Field or elsewhere, it was clear that the purpose of Tupa’s employment was to play in games, not to practice. Thus, all of Tupa’s time in Virginia, whether practicing or attending team meetings, was geared toward improving his performance at the games. Tupa’s employment in Maryland was consistent and predictable: eight regular season and two pre-season games every year. Tupa signed a contract obligating him to perform in all of the Redskins’ games for four years, as long as he was physically able to do so. In sum, Tupa was regularly employed in Maryland because he had an ongoing relationship with his employer, a Maryland corporation, for the purpose of playing in football games, more of which took place in Maryland than in any other state. Given that Tupa’s employment in Maryland was regular and not incidental, LE §9-203(b)(1) did not apply.
Even if Tupa’s employment in Maryland had been merely incidental, he would still not be excluded from coverage under the Workers’ Compensation Act, because LE §9-203(b)(1)(ii) requires that neither the individual nor the employer be a resident of this State. Given that Pro Football was incorporated in Maryland and hence domiciled in this state, and that Pro Football conducted most of its revenue-generating activities (i.e., professional football games) in Maryland, Pro Football was clearly a Maryland resident. As such, even if Tupa’s employment in Maryland had been only incidental, the statute would still not apply, and Tupa would not be excluded from coverage under the Maryland Workers’ Compensation Act.
For these reasons, the circuit court finding that Maryland had jurisdiction over Tupa’s workers’ compensation case was correct. Accordingly, the Court of Appeals affirmed the circuit court judgment.
COMMENTARY: Pro Football also claimed that Maryland lacked jurisdiction based on a forum selection clause in Tupa’s employment contract, which provided that any cause of action arising from the parties’ contract would be governed by the law of Virginia, and that Virginia Workers’ Compensation Commission would have exclusive jurisdiction for resolving a workers’ compensation dispute. Pro Football argued that regardless of whether Tupa was covered by the Maryland Worker’s Compensation Act, the forum selection clause in his contract required Tupa to file his claim in Virginia.
There is “a strong presumption in favor of enforcement of freely negotiated contractual choice-of-forum provisions.” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 473 U.S. 614, 631, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985). The Maryland Court of Appeals has identified guidelines regarding the validity of forum selection clauses, holding that: (1) a forum-selection clause is presumptively valid and enforceable and the party resisting it has the burden of demonstrating that it is unreasonable; (2) a court may deny enforcement of such a clause upon a clear showing that, in the particular circumstance, enforcement would be unreasonable; and (3) the clause may be found to be unreasonable if it was induced by fraud or overreaching, if the contractually selected forum is so unfair and inconvenient as, for all practical purposes, to deprive the plaintiff of a remedy or of its day in court, or if enforcement would contravene a strong public policy of the State where the action is filed. Gilman v. Wheat, First Securities, Inc., 345 Md. 361, 378 (1997).
Here, Tupa contended that enforcement of the forum selection clause would contravene a strong public policy of Maryland, as stated by LE §9-104(a)(1).
LE §9-104(a)(1) provides that a covered employee may not by agreement, rule, or regulation, exempt the covered employee or the employer from a duty of the covered employee or the employer under this title, or waive a right of the covered employee or the employer under this title. Any agreement that violates this provision is void. LE §9-104(a)(2). Although Maryland courts have not directly ruled on the issue, several cases have suggested that parties cannot contract to avoid application of Maryland’s workers’ compensation law. In McElroy, the Court of Appeals gave little weight to the employment contract’s forum selection clause in determining that the claimant was covered by the Maryland workers’ compensation statute. See McElroy Truck Lines, Inc. v. Pohopek, 375 Md., n. 2, 594-95. Earlier, in Kacur v. Employers Mutual Company, the Court cited approvingly the opinion that an express agreement between employer and employee that the statute of a named state shall apply “is ineffective either to enlarge the applicability of that state’s statute or to diminish the applicability of the statutes of other states.” Kacur v. Employers Mutual Company, 253 Md. 500, 509 (1969) (quoting 3 Larson, Larson’s Workers’ Compensation, §87.71 (1968)).
Here, the circuit court correctly found that the forum selection clause in Tupa’s contract would contravene Maryland’s public policy, as stated in LE §9-104. See Gilman v. Wheat, First Sec., 345 Md. at 378. Therefore, the circuit court did not err in finding that Maryland had jurisdiction over Tupa’s workers’ compensation claim.
PRACTICE TIPS: Although at least one state specifically excludes professional athletes from eligibility for workers’ compensation by statute, injuries in professional sports are routinely treated as compensable in the great majority of jurisdictions. The Maryland Workers’ Compensation Act specifically provides that compensation may not be denied to an employee because of the degree of risk associated with the employment, and there is no exception for mine workers, members of the militia, or professional athletes.
