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Senate advances bill to raise damages cap

ANNAPOLIS —The Senate on Thursday gave preliminary approval to legislation that would more than double the liability cap for state, county and local governments for negligent acts that injure people.

Under the two pending bills, the limit on damages would become $500,000 per individual injured. Under current law, state, county and local governments can be held liable only up to $200,000 per person.

The measures would also double, from $500,000 to $1 million, the total amount that a county or local government could be liable to pay for a single claim regardless of the number of claimants. Maryland law imposes no limit on the state’s total liability for a claim brought by multiple claimants.

The bills would also increase from six months to one year after sustaining injury the time in which an individual must notify the county or local government of their intent to sue. Maryland law already provides a one-year notice requirement for claims against the state.

Sen. Robert A. “Bobby” Zirkin, who supports raising the cap, called the current $200,000 limit grossly unfair and said it severely shortchanges people who have been grievously injured or even killed by the negligence of police, bus drivers or other governmental employees. He cited the March 30 decision by the Court of Appeals, Maryland’s top court, upholding a cap-mandated reduction of a jury’s award from $11.5 million to $400,000 to the widow and son of Manuel Espina, who was killed by an off-duty Prince George’s County police officer in 2008.

“That’s our law and there is no discretion,” Zirkin, D-Baltimore County, said during floor debate on the measure. “It is a hard cap. It can be very, very unfair.”

Zirkin, who chairs the Senate Judicial Proceedings Committee, said the $200,000 cap has not been adjusted since it was set by the General Assembly in 1987, despite a sharp increase in the cost of living during the past 28 years.

But Sen. Robert Cassilly, R-Harford, called the current cap a necessary evil that protects taxpayers — who ultimately underwrite the damages awards against the state and localities — and enables the governments to provide “high risk” services — such as police, parkways and parks — without fear of costly damages when accidents inevitably occur.

“We don’t want them pulling back and playing defense,” Cassilly said of governments’ potentially reducing services to avoid increased liability.

The Senate could vote as early as Friday on passage of the two measures, House Bills 113 and 114. Passage in its current Senate form would likely lead to a conference between senators and delegates to hammer out differences in their amended versions of the Maryland Tort Claims Act and Local Government Tort Claims Act.

Earlier this legislative session, the House of Delegates approved versions of the legislation that would raise the cap on state, county and local governments to $300,000 per individual and up to a maximum of $600,000 for a single claim against a county or local government. The House made no change to the notice requirement.

A new cap, if enacted, would apply to claims that arise on or after Oct. 1, 2015.

The state’s insurance trust fund paid an average of $3.7 million annually between fiscal years 2012 and 2014 on claims brought against the state under the Maryland Tort Claims Act, according to the Department of Legislative Services, a research arm of the General Assembly.

DLS provided no estimate regarding payments by counties and localities under the Local Government Tort Claims Act but stated in an analysis of the legislation that increasing the cap “may result in a potential significant increase in expenditures for local governments to litigate an increased volume of LGTCA lawsuits brought as a result of the bill, pay judgments awarded in those cases, and pay increased insurance premiums for coverage of LGTCA claims.

The Senate debate Thursday pitted senators seeking to compensate injured individuals fully against those trying to protect state, county and local governments against high jury awards.

“We represent people,” said Sen. C. Anthony Muse, D-Prince George’s, adding that the legislature should provide “as much [relief] to these families as we can.”

But Sen. Cheryl C. Kagan, D-Montgomery, said a “250 percent” increase in the cap from $200,000 to $500,000 is “not a little amount,” especially for small cities like Garrett Park.

“We need to protect our local governments and our small cities and towns,” Kagan added.

Sen. Jamin B. “Jamie” Raskin, however, said the General Assembly’s goal should be to strike a balance between allowing state and local governments to have “sovereign immunity” from liability — which would leave injured parties with no remedy — and removing the cap on damages, which would do financial harm to the state, localities and taxpayers.

“Justice is a public good,” said Raskin, D-Montgomery. “The answer is somewhere in the middle.”