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Opinions – 10/15/12: Maryland Court of Special Appeals


Lay testimony

BOTTOM LINE: Where defendant’s friend of 45 years gave testimony identifying defendant at trial, Circuit court properly allowed such lay testimony because it was based on specialized knowledge, it was rationally based, and it was relevant.

CASE: Moreland v. State, No. 1360, Sept. Term 2010 (filed Sept. 26, 2012) (Judges EYLER, D., Kehoe & Raker (retired, specially assigned)). RecordFax No. 12-0926-02, 12 pages.

FACTS: On October 2, 2009, at the Bank of Annapolis in Edgewater, Vadus Traylor, the branch manager saw a man wearing a ski hat and dark sunglasses enter the bank. Ms. Traylor pressed an alarm button because the man looked suspicious. Ms Traylor described the man, later identified as Garrett Moreland, as about 5’9”, stocky, and in his late 30s or early 40s.

A few minutes later, another man, wearing a hat, sunglasses entered the bank. At the time Moreland and the second man entered the bank, the lock on the door to the teller line was broken and a repairman was working on it. As a result, the door was propped open.

Ms. Traylor’s instincts were borne out when Moreland brandished a gun. He paced the lobby floor of the bank while displaying the gun. The second man approached the open teller line door and forced a bank employee and the repairman down on the floor. He then went behind the teller line, where he removed cash from the drawers and stuffed it into a bag.

When the two men exited the branch, Ms. Traylor saw the second man remove his gloves and stuff the money inside his fleece jacket. According to Ms. Traylor, Moreland was not wearing gloves. She stated that the entire event lasted only two minutes and that approximately $15,000 was stolen.

Ms. Traylor gave the police a video recording of the robbery from the bank’s surveillance cameras. At trial, she reviewed images from the video recording and still photographs made from the recording and identified Moreland as the person shown.

A customer and three bank tellers gave similar testimony about the robbery. Each identified Moreland as the man who stayed in the lobby area holding a gun. Each teller gave his height as between 5’8” and 5’9”. This testimony conflicted with the height given on the Moreland’s Motor Vehicle Administration record, which states that he is 5’4”.

Anne Arundel County Police Detective Norval Cooper was the primary investigator. He interviewed witnesses, reviewed the video recorded by the bank’s surveillance cameras, and obtained still photographs from the video recording. Cooper provided the still photographs to a public information officer. About five days after the robbery, Cooper had a telephone conversation with Eric Owens about a possible suspect. As a result of that conversation, Cooper gathered information, including photographs of the Moreland.

Owens testified that he has known Moreland, whom he refers to as Gary, for about 40 years. Owens testified that he had last seen Moreland about four years prior to the trial. According to Owens, Moreland’s appearance had changed during that time. Owens testified that, at the time of trial, Moreland did not look healthy and appeared to have lost about 25 pounds. He stated that Cooper showed him some photographs and the video recording of the bank robbery, and Owens identified the Moreland as one of the robbers.

Moreland was convicted of armed robbery and weapons crimes and was sentenced to concurrent terms of imprisonment with an aggregate of 5 years.

Moreland appealed to the Court of Special Appeals, which affirmed.

LAW: The admissibility of evidence ordinarily is left to the sound discretion of the trial court. Md. Rule 5-104(a); State v. Simms, 420 Md. 705, 724-25 (2011); Myer v. State, 403 Md. 463, 476 (2008). A trial court’s evidentiary ruling will not be disturbed unless “the evidence is plainly inadmissible under a specific rule or principle of law or there is a clear showing of an abuse of discretion.” Decker v. State, 408 Md. 631, 649 (2009) (quoting Merzbacher v. State, 346 Md. 391, 405 (1997)).

A court’s decision is an abuse of discretion when it is “well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable.” Gray v. State, 388 Md. 366, 383 (2005) (quoting Dehn v. Edgecombe, 384 Md. 606, 628 (2005)).

Rule 5-401 defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Generally, relevant evidence is admissible and evidence that is not relevant is not admissible. Md. Rule 5-402.

Moreland contended that Owens’s testimony identifying him on the bank surveillance video and from a photograph taken from the video was irrelevant and also was inadmissible lay opinion testimony under Rule 5-701. That rule provides: “If the witness is not testifying as an expert, the witness’s testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue.”

In Ragland v. State, 385 Md. 706, 717 (2005), the Court of Appeals discussed the type of testimony that historically has been considered to be lay opinion under Fed. R. Evid. 701, which except for minor stylistic differences, is identical to Maryland Rule 5-701. “Lay opinion testimony is testimony that is rationally based on the perception of the witness.” Ragland, 385 Md. at 717.

“The prototypical example of the type of evidence contemplated by the adoption of Rule 701 relates to the appearance of persons or things, identity, the manner of conduct, competency of a person, degrees of light or darkness, sound, size, weight, distance, and an endless number of items that cannot be described factually in words apart from inferences. Other examples of this type of quintessential Rule 701 testimony include identification of an individual, the speed of a vehicle, the mental state or responsibility of another, whether another was healthy, the value of one’s property.” Id. See Asplundh Mfg. Div. v. Benton Harbor Eng’g, 57 F.3d 1190 (3rd Cir. 1995).

The Ragland Court held that “Md. Rules 5-701 and 5-702 prohibit the admission as ‘lay opinion’ of testimony based upon specialized knowledge, skill, experience, training or education.” Id. at 725. The Court recognized that, “by permitting testimony based on specialized knowledge, education, or skill under…Md. Rule 5-701, parties may avoid the notice and discovery requirements of our rules and blur the distinction between the two rules.” Id.

Courts in other jurisdictions agree that a lay witness who has substantial familiarity with the defendant, such as a family member or a person who has had numerous contacts with the defendant, may properly testify as to the identity of the defendant in a surveillance photograph. Moreover, several jurisdictions agree that whether a lay witness’ prior contacts with the defendant are extensive enough to permit a proper identification is a matter of weight for the jury, not admissibility. See e.g. Robinson v. Colorado, 927 P.2d 381 (Colo. 1996).

Here, Owens’ lay opinion testimony was not based on speculation or conjecture, and did not amount to a mere conclusion or inference that the jury was capable of making on its own. Owens had substantial familiarity with Moreland and intimate knowledge of his appearance before the robbery. That long-term relationship made Owens better able to identify Moreland in the video and photographs than the jurors would be. His years of familiarity with Moreland also provided a basis for his testimony that Moreland’s appearance had changed between the time of the robbery and the trial, including that he had lost weight. Owens’ testimony was rationally based and was helpful to the jury for a clear understanding of the change in Moreland’s appearance. Moreover, Owens’ testimony was relevant, as it tended to show that Moreland was the bank robber holding the gun, a central issue in the case.

Accordingly, the judgment of the circuit court was affirmed.

COMMENTARY: Quoting United States v. Jackman, 48 F.3d 1, 5 (1st Cir. 1995), Moreland also contended that “even when the witness is familiar with the defendant, lay opinion testimony concerning the identity of the person depicted in a surveillance photograph is not admissible when the photograph is so hopelessly obscure that the witness is no better-suited than the jury to make the identification.”

That argument was without merit. There was absolutely nothing in the record to suggest that either the video recording or the still photographs made from the recording were obscure.

PRACTICE TIPS: “The intimacy level of the witness’ familiarity with the defendant goes to the weight to be given the witness’ testimony, not the admissibility of such testimony.” Robinson v. Colorado, 927 P.2d 381, 384 (Colo. 1996).


Prior consistent statements

BOTTOM LINE: Trial court properly allowed hearsay statements from victim’s peace order application because, during cross-examination, defense counsel opened the door to the admission of such statements by attempting to impeach victim’s credibility with respect to defendant’s conduct, and contents of the peace order application were prior consistent statements that the prosecution was permitted to introduce to rehabilitate the victim.

CASE: Quansah v. State, No. 2433, Sept. Term 2010 (filed Sept. 26, 2012) (Judges Kehoe, Berger, DAVIS & Arrie (retired, specially assigned)). RecordFax No. 12-0926-04, 32 pages.

FACTS: Martha Kembumbala testified that, in the spring of 2009, she owned and resided at a six-bedroom house located at 3613 Washington Avenue in Baltimore County. In May 2009, she was renting rooms to several individuals, including Edward Quansah, Timothy Allen, and Allen’s girlfriend, Pauline Francois. About three weeks after Quansah moved into her residence in March 2009, Kembumbala and Quansah began dating. Because Quansah became verbally and emotionally abusive, Kembumbala ended the relationship.

Quansah thereafter threatened that if she attempted to evict him, he would burn the house down. Despite these warnings and Quansah’s attempts to continue the relationship, Kembumbala instructed Quansah to move out during the first week of May, but he did not do so.

On May 24, 2009, Kembumbala contacted Quansah’s pastor and twice called 911 for police assistance due to Quansah’s continued presence and threats. When an officer told her that he could not help unless she obtained a peace order, Kembumbala went to district court and obtained an interim peace order late that night. The order prohibited Quansah from contacting Kembumbala, attempting to contact her or entering her property. A police officer served Quansah with the order and escorted him from Kembumbala’s property early the next morning.

Later that day, Kembumbala saw Quansah drive his taxi past the premises where she was employed. When she arrived home, Kembumbala smelled a strong odor of gasoline. Accompanied by Allen and Francois, Kembumbala went outside and discovered that the exterior wall and two windows outside her bedroom had been blackened by fire.

Kembumbala testified that, while she, Allen, and Francois were still outside, she called 911 on her cell phone and simultaneously continued to look around the premises. She heard Francois call out and, when she went to the front of the house, she saw Quansah parked across the street in his taxi. Quansah then grabbed Kembumbala and struck her repeatedly with a steel object, threatening to kill her. Kembumbala heard a gunshot and then saw Quansah enter his taxi.

Officer Zachary Small testified that, when he responded to a 911 call from Kembumbala’s residence, she had several injuries and was visibly upset. Small officer discovered a tire iron nearby.

A fire inspector testified that gasoline had been poured along two window frames and fires intentionally ignited in both locations, but the fires had burned out. A container of gasoline, which Kembumbala explained was used to fuel a lawnmower, was found in the garage on the property. Photos depicting Kembumbala’s injuries, the tire iron and the burned areas of the house were admitted into evidence.

After Officer Small returned to the police station, Quansah came in “to report that he had been assaulted.” Quansah was advised of his Miranda rights and elected to provide his account of the altercation. Quansah told the officer that he was across the street from Kembumbala’s residence when Allen assaulted him and fired shots. Quansah claimed that he then grabbed his tire iron and chased Allen across the street, but that he dropped it and that he did not assault Kembumbala. Quansah was not injured. Allen and Francois, however, confirmed Kembumbala’s account of the arson and the assault.

Quansah was convicted by a jury in the circuit court of second-degree assault and violating a peace order, and acquitted of first-degree assault, arson and arson-related offenses. The court imposed consecutive sentences of ten years for the assault and ninety days for the peace order violation.

Quansah appealed to the Court of Special Appeals, which affirmed.

LAW: Quansah contended that the trial court erred in admitting a portion of the written statement made by Kembumbala in support of her application for the peace order because it was an extrajudicial statement not admissible as a prior consistent statement and, in any event, the prejudicial effect of such evidence outweighed any conceivable probative value.

Among the exceptions to the rule against hearsay is one for a prior consistent statement made by a witness. Maryland Rule 5-802.1 provides that statements previously made by a witness who testifies at the trial or hearing and who is subject to cross-examination concerning the statement are not excluded by the hearsay rule include a statement “that is consistent with the declarant’s testimony, if the statement is offered to rebut an express or implied charge against the declarant of fabrication, or improper influence or motive[.]” This hearsay exception does not apply to statements made by the declarant after his or her alleged motive to fabricate existed, because only “[a] consistent statement that predates the motive is a square rebuttal of the charge that the testimony was contrived as a consequence of that motive.” Holmes v. State, 350 Md. 412, 419 (1998).

When a prior consistent statement is inadmissible under Rule 5-802.1(b), it may nevertheless be admissible as nonhearsay to bolster credibility under Rule 5-616(c)(2), which provides that “[a] witness whose credibility has been attacked may be rehabilitated by…evidence of the witness’s prior statements that are consistent with the witness’ present testimony, when their having been made detracts from the impeachment.” See id. at 426-27. Although it is appropriate for the trial court to give a limiting instruction that the jury may not consider such rehabilitative statements as substantive evidence, the trial court need not do so in the absence of such a request. Id. at 429.

Before trial, the State moved in limine to admit portions of Kembumbala’s written application for the peace order, including a statement that appellant had sexually assaulted her and threatened her. The court denied the motion, explaining that, because Kembumbala wrote the statements, they were not admissible to show either the effect they had on her or Quansah’s motive and intent.

Following Kembumbala’s testimony, the State renewed its application, claiming that the written statements constituted, at that point, prior consistent statements. Defense counsel had questioned Kembumbala as to why she never told anybody about her injuries before she testified at trial. Kembumbala answered that she did mention it in her application for the peace order.

The court found that it was a prior consistent statement, and, where defense counsel had attacked Kembumbala’s credibility based on her having not previously reported her injuries, the court permitted the relevant parts of the peace order application to be introduced into evidence.

A prior consistent statement “is admissible to rehabilitate a witness as long as the fact that the witness has made a consistent statement detracts from the impeachment.” Holmes, 350 Md. at 427. This rule applies when “the defendant’s opening statement and/or cross-examination of a State’s witness has ‘opened the door’ to evidence that is relevant (and now admissible) for the purpose of…rehabilitation[.]” Johnson v. State, 408 Md. 204, 226 (2009). These requirements were met in this instance.

The fact that Kembumbala alleged abuse, and that she did so before the altercation on May 25, detracted from defense counsel’s attempted impeachment. Thus, the statement was admissible under Rule 5-616(c)(2), not for its truth, but to rehabilitate Kembumbala’s credibility on the critical issue of whether, as Quansah claimed, she fabricated her allegations in order to exact revenge on him for ending their romantic and residential relationship. See Holmes, 350 Md. at 429-30.

Accordingly, the judgment of the circuit court was affirmed.

COMMENTARY: Quansah also argued that the trial court erred in imposing separate sentences for assault and violation of a peace order even though both convictions arose from the same conduct. The State contended that the sentences imposed for the separate offenses of second-degree assault and violation of the protective order were based on different behavior because the peace order statute punishes the violation of a court order, whereas assault is a crime against the person.

This argument ignored that the peace order statute, like second-degree assault, punishes unlawful contact with a person and that Quansah’s two sentences punished him for the same “criminal behavior” — the unlawful contact that occurred when he grabbed Kembumbala.

When it is uncertain as to what the Legislature intended, it is necessary to turn to the Rule of Lenity, by the defendant is given the benefit of the doubt. Walker v. State, 53 Md. App. 171, 201 (1982). Here, there is nothing to indicate whether the Legislature intended to authorize multiple punishments for a second-degree assault and a violation of a protective order based on the same assaultive behavior.

Accordingly, Quansah’s ninety-day sentence for violating the peace order should have been merged into his ten-year sentence for second-degree assault. See generally Abeokuto v. State, 391 Md. 289,356 (2006) (“the offense carrying the lesser maximum penalty ordinarily merges into the offense carrying the greater maximum penalty”).

PRACTICE TIPS: Second-degree assault is a statutory crime that encompasses the common law crimes of assault, battery, and assault and battery. See CL §3-203(a). A battery is a touching that is either harmful, unlawful or offensive. Marlin v. State, 192 Md. App. 134, 166, cert. denied, 415 Md. 339 (2010).

Insurance Law

Release of liability

BOTTOM LINE: Circuit court erred in ruling that car accident victim’s claim for uninsured/underinsured benefits was barred by the release that she executed with tortfeasor’s insurance carrier, even though the release purported to release everyone from any and all claims arising from the accident.

CASE: Buckley v. Brethren Mutual Insurance Co., No. 1855, Sept. Term 2010 (filed Sept. 26, 2012) (Judges Woodward & KEHOE) (Judge Eyler, D. dissenting). RecordFax No. 12-0926-07, 45 pages.

FACTS: Ember Buckley was involved in a car accident as a passenger in a vehicle on March 18, 2007. The accident was caused by Harvey Betts, the owner and operator of the vehicle in which Buckley was a passenger.

Betts was covered by a liability insurance policy issued by GEICO, with policy limits of $100,000. On Betts’ behalf, GEICO offered to settle Buckley’s injury claim by paying her the policy limit of $100,000. In return, GEICO requested that Buckley execute “a full and final Release of any and all claims and liens.”

Buckley maintained an automobile insurance policy with Brethren Mutual Insurance Company. The Brethren policy provided Buckley with uninsured/underinsured motorist (UM) benefits in the amount of $300,000.

Buckley’s counsel at the time sent two letters to Brethren to obtain Brethren’s consent to accept the settlement offer issued by GEICO. The letters were received by Karen Kidwell, Brethren’s adjuster assigned to Buckley’s bodily injury claim. In her answers to interrogatories, Kidwell explained that she understood that “Harvey Betts’ automobile policy had insufficient limits to pay damages for Plaintiff’s injuries” and that Buckley’s “medical bills incurred were more than Mr. Betts’ insurance limits.” On October 30, 2007, Kidwell sent a letter confirming that “[w]e will waive any subrogation action against Mr. Betts.”

After receiving this letter, Buckley accepted the settlement offer that GEICO extended on behalf of Betts. In exchange for payment of $100,000, Buckley executed a broad release form with GEICO, which stated, in relevant part: “Ember Buckley…in consideration of $100,000…do…hereby remise, release, and forever discharge Harvey Betts…and all other persons, firms or corporations of and from any and every claim, demand, right or cause of action…in any way growing out of any and all personal injuries and consequences thereof…resulting or to result from an accident that occurred on March 18, 2007.”

After executing the release, Buckley requested payment from Brethren to cover her remaining medical expenses under the UM provision of her insurance policy with Brethren. Brethren, however, refused to pay.

On August 19, 2008, Buckley filed a breach of contract claim in the circuit court, demanding judgment against Brethren for the policy limits of $300,000. Brethren’s original answer to the complaint cited, inter alia, failure to state a claim, contributory negligence and assumption of the risk as possible defenses. After receiving document production from Buckley, including a copy of the release, Brethren filed an amended answer specifically asserting that Buckley’s claim was barred by the release that she executed with GEICO.

Both parties moved for summary judgment concerning the release and its effect on Buckley’s claim against Brethren. Brethren argued that the Release released all claims Buckley may have had against anyone in the world. Buckley argued that the Release only released Betts from liability. Buckley raised an additional argument that Brethren was equitably estopped from asserting the release as a defense because Buckley executed the release in reliance on Brethren’s consent to her doing so

The court entered summary judgment in favor of Brethren, concluding that the release that Buckley executed with GEICO released Betts, GEICO, “and all other persons, firms or corporations…of whatever kind of nature…”

Buckley appealed to the Court of Special Appeals, which reversed.

LAW: This case involved a novel legal issue involving the question of whether a broad release that releases “all other persons, firms or corporations” from liability can immunize an injured insured’s insurance company from issuing a UM payment when §19-511(e) of the Insurance Article expressly states that the injured insured may “execute releases in favor of the liability insurer and its insured without prejudice to any claim the injured person may have against the uninsured motorist insurer.” The dispute was “resolvable on the basis of judicial consideration of three general factors: 1) text; 2) purpose; and 3) consequences.” Town of Oxford v. Koste, 204 Md. App. 578, 585-86 (2012).

Text is the plain language of the relevant provision, typically given its ordinary meaning, Powell v. Breslin, 195 Md. App. 340 (2011), viewed in context, Kaczorowski v. City of Baltimore, 309 Md. 505, 514 (1987), considered in light of the whole statute, In re. Stephen K., 289 Md. 294, 298 (1981), and generally evaluated for ambiguity. Kaczorowski, 309 Md. at 513. Legislative purpose, either apparent from the text or gathered from external sources, often informs, if not controls, our reading of the statute. Kaczorowski, 309 Md. at 515. An examination of interpretive consequences, either as a comparison of the results of each proffered construction, Christian v. State, 62 Md. App. 296, 303 (1985), or as a principle of avoidance of an absurd or unreasonable reading, Kaczorowski, 309 Md. at 513, 516, grounds the court’s interpretation in reality.

Section 19-511 addresses a situation in which the liability insurer of the alleged tortfeasor offers its policy limits to the injured person.” Kritsings v. State Farm Mut. Auto. Ins. Co., 189 Md. App. 367, 378 (2009). Pursuant to §19-511(a), when the liability insurer of the alleged tortfeasor offers its policy limits to the injured person, the injured insured must send a copy of the offer by certified letter to the injured insured’s UM carrier. Within 60 days after receipt of the notice, the UM carrier “shall send to the injured person: (1) written consent to acceptance of the settlement offer and to the execution of releases; or (2) written refusal to consent to acceptance of the settlement offer.” §19-511(b). If the UM carrier refuses to consent to acceptance of the settlement offer, the UM carrier must pay the amount of the settlement offer to the injured person within 30 days following the refusal. If the UM insurer consents to the settlement offer, or otherwise fails to respond to the settlement offer as required by subsections (b) and (c) of §19-511, then the injured insured may accept the settlement offer from the liability insurer and execute a release “in favor of the liability insurer and its insured without prejudice to any claim the injured person may have against the uninsured motorist insurer.” §19-511(e).

Applying the facts of this case to §19-511, it was held that, in the context of §19-511(e), executing a boilerplate, general release in favor of the liability insurer does not relieve the UM carrier from its contractual duty to issue a UM payment to its insured. Three considerations supported this conclusion: (1) the text of the statute; (2) the purpose of the statute; and (3) matters of public policy.

Section 19-511(e) states that the injured person may “execute releases in favor of the liability insurer and its insured without prejudice to any claim the injured person may have against the uninsured motorist insurer.” Simply put, a release in favor of the liability insurer cannot prejudice a claim against the UM insurer. The statutory language supports the position that Buckley’s claim for UM benefits must be allowed.

Brethren argued that the language of §19-511(e) requires an injured person to execute a narrow release only in favor of the liability insurer. Brethren maintained that “in the face of this straightforward statutory settlement procedure, Buckley signed a release far beyond that permitted under §19-511(e).” However, the statute does not say, as Brethren wanted it to, that an injured person, in order to maintain its UM claim, may execute releases only in favor of the liability insurer and its insured. What the statute does say is that an injured person may “execute releases in favor of the liability insurer and its insured without prejudice to any claim the injured person may have against the uninsured motorist insurer.” While the statute clearly provides that the release must include the insured tortfeasor and its insurer, it does not otherwise limit the scope of the release. If Brethren’s interpretation were adopted, it would be required to read the word “only” into the statute, viz., an injured person may “execute releases only in favor of the liability insurer and its insured.”

When dealing with a matter of statutory construction, the “endeavor must be to identify the objective, goal, or purpose of the legislative scheme, and to construe the statute in a way that will advance that purpose, not frustrate it.” Neal v. Fisher, 312 Md. 685, 693 (1988). “[T]he legislative purpose behind adopting motor vehicle regulations that require insurance on vehicles is to promote the established legislative policy in Maryland that seeks to assure that victims of automobile accidents have a guaranteed avenue of financial redress.” Arrow Cab v. Himelstein, 348 Md. 558, 565 (1998). The purpose of the UM statute “is to provide minimum protection for individuals injured by uninsured motorists and should be liberally construed to ensure that innocent victims of motor vehicle collisions are compensated for their injuries.” Erie Ins. Exch. v. Heffernan, 399 Md. 598, 612 (2007). “Consistent with the public policy of affording minimal protection for innocent victims, an insured can purchase a higher amount of uninsured motorist insurance which will become available when the insured’s uninsured motorist coverage, as well as his damages, exceed the liability coverage of the tortfeasor.” Id.

One of the primary reasons for enacting §19-511 “was to provide a remedy to a problem that ha[d] existed in Maryland’s tort system for some time.” Keeney v. Allstate Ins. Co., 130 Md. App. 396, 401 (2000).

Section 19-511 was enacted to remedy the standstill that occurred when an injured insured was not allowed by their uninsured/underinsured motorist carrier to give the liability carrier a full release of their claim. Holding, as Brethren urged, that a full, general release relieves the UM carrier of its obligation to issue a UM payment to its insured, would frustrate the purpose of the statute. The purpose of the UM settlement scheme is to expedite settlement negotiations; not to prolong them.

Finally, §19-511 must be read within the context of Maryland’s strong public policy favoring compensation of those injured by UM drivers. Forbes v. Harleysville Mut. Ins. Co., 322 Md. 689, 697 (1991). “Any provisions of [an] insurance policy which purport to condition, limit or dilute the unqualified uninsured motorist coverage mandated by the statute are void and unenforceable.” Nationwide Mut. Ins. Co. v. Webb, 291 Md. 721, 730 (1981). Thus, although it has been recognized that, in a tort action in Maryland, a release of “all other persons, firms or corporations” generally serves to release other parties from liability arising out of the tort, see Cupidon v. Alexis, 335 Md. 230, 237 (1994), this general rule only applies “in the absence of constitutional, statutory or clear important policy barriers.” Bernstein v. Kapneck, 290 Md. 452, 459 (1981). Such statutory and public policy barriers existed in this case.

Brethren was not a party to the release between GEICO and Buckley and paid no consideration to be released. More importantly, Brethren knew that a release would be executed and knew that it would be executed by Buckley to the benefit of Betts and GEICO pursuant to § 19-511. Brethren was also fully aware that Buckley planned on pursuing her claim under the UM provision of her insurance policy. Once Brethren waived its right to subrogation against Betts, GEICO had no conceivable reason to prevent Buckley from recovering a UM payment from Brethren. We adopt the reasoning set out in Chung, 76 Md. App at 544: to interpret the release as absolving Brethren from liability on its contractual obligation to Buckley would be giving Brethren a gratuitous windfall not remotely contemplated by the parties to the release.

It was held, therefore, that the general release executed between Buckley and GEICO did not relieve Brethren of its contractual and statutory duty to issue a UM payment pursuant to the terms of Buckley’s insurance policy and §19-511.

Accordingly, the judgment of the circuit court was vacated.

COMMENTARY: Even though Brethren could not use the release as a defense to its obligation to issue a UM payment to Buckley, Brethren would still be able to assert defenses of contributory negligence and assumption of the risk. The issue of whether Brethren is deemed to have consented to the settlement offer between Buckley and GEICO dictated the future course of this litigation. The circuit court did not address whether Brethren consented to the settlement with the tortfeasor. Because there may be unresolved factual questions pertaining to the consent issue, the case was remanded for further proceedings.

If it is determined that Brethren consented to the settlement offer, then Brethren cannot thereafter contest tort liability, and on remand, it will not be able to assert defenses of contributory negligence and assumption of the risk. If Brethren is deemed to have not consented to the settlement offer, then Brethren may be able to assert these defenses.

In order to comply with §19-511, after a UM carrier receives notice of a settlement offer from an injured insured, the UM carrier must do one of two things: it must either (1) consent to the settlement offer (and, as a result, waive its right to contest tort liability) or (2) refuse to consent and pay the injured insured the amount of the settlement offer within 30 days of issuing its refusal to consent.

Here, Brethren neither expressly consented to the settlement offer nor did it expressly refuse to consent to the settlement offer. Instead, Buckley sent Brethren a letter explaining that GEICO had offered $100,000 in settlement if Betts was released from liability. Kidwell responded that Brethren would waive any subrogation action against Betts. Conspicuously absent from the response was any indication as to whether Brethren consented to the settlement.

Nevertheless, Buckley was correct to point out that Brethren had represented that it had consented to the settlement in its motion for summary judgment. Moreover, the parties later stipulated that the only liability issue remaining in this breach of contract case was the effect of the release of the entire world executed by Buckley. Thus, the parties had agreed that Brethren gave its consent to GEICO’s settlement offer.

The circuit court did not decide whether Brethren’s reply to Buckley amounted to a consent to the settlement offer in the context of §19-511 or whether Brethren is irrevocably bound by its assertions to the court that it consented to the settlement. Moreover, there may be other arguments relating to the consent issue. These arguments should be asserted before the circuit court on remand.

DISSENT: According to the dissent, the case law is clear that a general release of all persons, firms, or corporations releases all mankind from liability arising out of an incident. That is so for claims against tortfeasors and also for contract claims against insurance companies. Accordingly, the plain and unambiguous language of the Release discharged Buckley’s claim against Brethren.

PRACTICE TIPS: “Under the Maryland uninsured/underinsured motorist statutory provisions, when an insured under an automobile insurance policy has incurred damages as a result of the allegedly tortious driving by an uninsured or underinsured motorist, the insured has the option of initially bringing a contract action against his or her insurer to recover under the policy’s uninsured/underinsured motorist provisions or of initially bringing a tort action against the tortfeasor.” West Am. Ins. Co. v. Popa, 352 Md. 455, 462-63 (1998).


Duty to warn

BOTTOM LINE: Where plaintiff became ill from asbestos exposure after washing her grandfather’s asbestos-laden work clothes over a period of years, defendant that manufactured asbestos-containing construction material owed duty to warn grandfather that members of his household could become contaminated through his exposure to such material at job site.

CASE: Georgia-Pacific, LLC v. Farrar, No. 751, Sept. Term 2010 (filed Sept. 26, 2012) (Judges KEHOE, Watts & Shaw-Geter (specially assigned)). RecordFax No. 12-0926-00, 43 pages.

FACTS: Jocelyn Farrar’s grandfather, Mr. Hentgen, worked as an insulator using products containing asbestos in construction projects from 1925 to the 1970s. Ms. Farrar alleged that Mr. Hentgen was exposed to a toxic Georgia-Pacific product when he worked on the construction of the Forrestal Building in Washington, D.C. She further alleged that this product contributed to her mesothelioma when she washed her grandfather’s work clothes that were covered in asbestos dust.

At trial, evidence that Mr. Hentgen’s clothing contained asbestos from a Georgia-Pacific product was adduced through the testimony of Joseph Galvagna, who worked with Mr. Hentgen at the Forrestal Building. Mr. Hentgen testified that Mr. Hentgen was responsible for installing insulation on pipes. Many other types of tradesmen and craftsmen worked at the site, including steamfitters (the workers who installed the pipes that Mr. Hentgen insulated).

Mr. Galvagna explained that there was much drywall work done at the site. Workers applied coats of drywall cement between the sheets of drywall then sanded the cement after it dried. That sanding created much dust that would blow around. Mr. Galvagna knew the drywall was a Georgia-Pacific product because its containers were labeled with Georgia-Pacific’s name.

There was no indication that Mr. Hentgen ever personally used the Georgia-Pacific Ready-Mix product. However, Mr. Galvagna testified that Mr. Hentgen would often work within a few feet of the drywall workers. When Mr. Hentgen worked around the dust, Mr. Galvanga stated that the dust would settle on Mr. Hentgen’s clothing.

Ms. Farrar lived at her grandparents’ house, where she had various chores, including doing the laundry at least once a week. She specifically remembered shaking her grandfather’s work clothes thoroughly because the dust particles attached to his clothing would stick to her navy blue clothing. After shaking out her grandfather’s work clothing, she remembers breathing in the dust that was removed from the clothing.

Arthur Frank, M.D. testified that asbestos disease is dose related, in that the likelihood of getting the disease increases with increasing amounts of exposure. Based on Ms. Farrar’s medical files and a “fiber burden” analysis that was conducted on the contents of her lungs, Dr. Frank stated that she was exposed to more than background levels of asbestos. He further stated that exposure to asbestos in a household can be the same as workplace levels when people are working with asbestos.

John Maddox, M.D. testified that mesothelioma can be caused by brief, low-dose, intermittent exposures to asbestos. According to Dr. Maddox, visible asbestos dust is a high concentration of asbestos, requiring a concentration of five million particles of asbestos per cubic foot. He stated that the primary way that asbestos is introduced into the home is on the work clothes of asbestos workers. This dust can be present for weeks, months or even years. Dr. Maddox further testified that the risk of developing mesothelioma increases as the dose increases.

In this case a fiber-burden study was conducted on tissue removed from Ms. Farrar’s lung. Dr. Maddox testified that the study showed that her exposure to the type of asbestos used in Georgia-Pacific’s product was medically significant. Dr. Maddox stated that Ms. Farrar’s exposure to Ready-Mix was a contributing factor in the development of her cancer.

In September 2008, Ms. Farrar filed a complaint in the circuit court for, inter alia, negligence, breach of warranty and strict liability, against numerous defendants. The complaint alleged that her mesothelioma was caused by the conduct of various defendants. Georgia-Pacific argued that, as a matter of law, it did not owe a duty to warn household residents of workplace bystanders about asbestos exposure. It subsequently moved for judgment on the issue but this motion was denied by the trial court.

The jury returned a general verdict finding that Ms. Farrar’s exposure to Georgia-Pacific’s product was a substantial factor in causing her injuries. She was awarded damages of approximately $20 million.

Georgia-Pacific appealed to the Court of Special Appeals, which affirmed.

LAW: Georgia-Pacific argued that the trial court erroneously expanded the duty to warn beyond manageable bounds to an indeterminate class of persons by extending the duty to the household member (Ms. Farrar) of a bystander (Mr. Hentgen) of product users (the drywallers). The issue, therefore, was whether Georgia-Pacific owed a duty to Ms. Farrar to warn her of the latent dangers associated with its asbestos product.

The Court of Appeals recognized a framework for analyzing a manufacturer’s duty to warn in Moran v. Faberge, Inc., 273 Md. 538 (1975). In Moran, a products liability action against a cologne manufacturer alleging the negligent failure to warn of concealed dangers, the Court concluded that the manufacturer’s “failure to place a warning on its [cologne bottle] constituted actionable negligence.” Id. at 554. “[I]n the products liability domain a duty to warn is imposed on a manufacturer if the item it produces has an inherent and hidden danger about which the producer knows, or should know, could be a substantial factor in bringing injury to an individual or his property when the manufacturer’s product comes near to or in contact with the elements which are present normally in the environment where the product can reasonably be expected to be brought or used.” Id. at 552.

In Eagle-Picher Industries, Inc. v. Balbos, 326 Md. 179 (1992), the Court of Appeals applied the Moran products liability framework in the context of an asbestos case. With regard to the scope of potential plaintiffs, “the pertinent inquiry is not whether the actual harm was of a particular kind which was expectable. Rather, the question is whether the actual harm fell within a general field of danger which should have been anticipated.” Balbos, 326 Md. at 196.

This doctrine was also applied in another asbestos case in Anchor Packing Co. v. Grimshaw, 115 Md. App. 134, 191 (1997). In the context of a products liability action, “[o]ur case law…makes clear that manufacturers have a duty to warn all individuals in the foreseeable zone of danger.” Id. “The duty of the manufacturer to warn of latent dangers inherent in its product goes beyond the precise use contemplated by the producer and extends to all those which are reasonably foreseeable.” Id. at 192.

In Grimshaw, the plaintiff, who used to wash her father’s work clothes, which allegedly were covered in asbestos dust, became ill as a result of asbestos exposure and was diagnosed with mesothelioma. The jury returned a verdict in favor of the plaintiff. There, “the evidence supported the conclusion that [defendants] could reasonably expect that workers would bring home work clothes covered in asbestos dust and thereby expose their families to harm. This is so because [defendants] knew or should have known that its asbestos-containing insulation product was a hazardous product.” Id.

The same evidence existed in this case. Articles were introduced to prove that Georgia-Pacific knew or should have known of the hazards of airborne asbestos fibers released from the joint compound. “The fact that the ultimate harm suffered was not foreseeable does not preclude liability.” Id. at 193.

The actual harm inflicted on Ms. Farrar fell within a general field of danger which should have been anticipated, and Georgia-Pacific owed her a duty to warn of the latent dangers associated with its asbestos product. Thus, the trial court did not err in denying Georgia-Pacific’s motion for judgment on the question of legal duty.

Accordingly, the judgment of the circuit court was affirmed.

COMMENTARY: Georgia-Pacific argued that Grimshaw is inapposite because its analysis is directly at odds with subsequent decisions holding that a duty did not run to a household member despite the foreseeability of harm.

The case most in line with Georgia-Pacific’s position was Gourdine v. Crews, 405 Md. 722 (2008), which involved Ms. Crews, who was a diabetic taking a combination of insulin medications manufactured by Eli Lilly and Company, while operating her car. 405 Md. at 726. The complaint alleged that Ms. Crews suffered a hypoglycemic reaction and blacked out, causing her to lose control of her car and strike Mr. Gourdine, killing him. Id. at 726, 728. The question before the Court of Appeals was whether Lilly owed a duty to Mr. Gourdine. Mr. Gourdine’s wife argued that it was foreseeable for Lilly that Ms. Crews, by suffering an adverse reaction to the medications, would cause injury and death to third persons while driving, when she had not been adequately warned about the dangers that allegedly were associated with the specified medications, and that such foreseeability created a duty owed to Mr. Gourdine.

The Court of Appeals concluded that Lilly owed no duty to Mr. Gourdine. Id. at 754. “[T]here was no direct connection between Lilly’s warnings, or the alleged lack thereof, and Mr. Gourdine’s injury. In fact, there was no contact between Lilly and Mr. Gourdine whatsoever. To impose the requested duty from Lilly to Mr. Gourdine would expand traditional tort concepts beyond manageable bounds, because such duty could apply to all individuals who could have been affected by Crews after her ingestion of the drugs. Essentially, Lilly would owe a duty to the world, an indeterminate class of people, for which we have resisted the establishment of duties of care.” Id. at 750.

The Gourdine Court concluded, inter alia, that a duty could not be extended to Mr. Gourdine because, such a “duty could apply to all individuals who could have been affected by Crews after her ingestion of the drugs.” For example, if Lilly owed a duty to Mr. Gourdine, then Lilly could potentially be held liable for the tort that any of its users inflicted on any third party after ingesting its medicine. This would open the class of plaintiffs to an indeterminate class of people. Maryland law does not allow this, which is why the Gourdine Court ruled in favor of Lilly. The Court limited the class of plaintiffs to those that had a direct connection with the manufacturer’s product.

Here, by contrast, extending Georgia-Pacific’s duty to Ms. Farrar did not create an indeterminate class of people. Ms. Farrar had physical contact with Georgia-Pacific’s harmful product, and this contact contributed to her mesothelioma. Unlike Gourdine, where the alleged faulty product caused a product user to injure another human being, the injury in the case at bar resulted directly from the inhalation of the product itself. Thus, Gourdine did not preclude Georgia-Pacific from liability in this case.

PRACTICE TIPS: As the Court of Appeals has stated: “Whether the exposure of any given bystander to any particular supplier’s product will be legally sufficient to permit a finding of substantial-factor causation is fact specific to each case. The finding involves the interrelationship between the use of a defendant’s product at the workplace and the activities of the plaintiff at the workplace. This requires an understanding of the physical characteristics of the workplace and of the relationship between the activities of the direct users of the product and the bystander plaintiff. Within that context, the factors to be evaluated include the nature of the product, the frequency of its use, the proximity, in distance and in time, of a plaintiff to the use of a product, and the regularity of the exposure of that plaintiff to the use of that product.” Eagle-Pitcher Indus., Inc. v. Balbos, 326 Md. 179, 210 (1992).