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Landlord’s insurer seeks to limit exposure in $1.5M judgment

An effort by a Baltimore victim of childhood lead paint exposure to collect on a $1.53 million judgment has moved to federal court, where her former landlord’s insurer seeks a judicial court order that it owes only a prorated portion of the award and her attorney counters that more is owed, as well as post-judgment interest.

Penn National Mutual Insurance Co. brought the financial fight to U.S. District Court in Baltimore, claiming it owes just 32% of Lea Gardner’s award – or the $489,600 it has already paid. Penn National argues it was the landlord’s insurer for only 187 of the 585 days in which Gardner was exposed to the lead paint as an infant and toddler.

Gardner’s attorney has argued that Penn National’s financial obligation is greater and that the insurer’s refusal to add post-judgment interest to what it owes Gardner was “frivolous, without merit” and “done in bad faith,” for which the company should be assessed sanctions under Rule 11 of the Federal Rules of Civil Procedure.

But the judge presiding over Penn National’s request for the 32% order rejected attorney John Amato IV’s motion for sanctions Friday, saying the issue of post-judgment interest has not been raised in district court filings in the case.

Amato is with Goodman, Meagher & Enoch LLP in Baltimore.

“Rule 11(c) authorizes the court to sanction a party for making improper representations to the court,” Chief U.S. District Judge James K. Bredar wrote in a memorandum opinion.

“Since the arguments (counsel for) Gardner condemns as frivolous have not actually been made in any of Penn National’s filings before the court, Rule 11 sanctions are not appropriate,” Bredar added. “Furthermore, at present, the court is in no position to determine what Penn National’s obligations may be in relation to post-judgment interest, as no party has submitted the relevant insurance policy. Therefore, even if Penn National had made in court the arguments that (counsel for) Gardner recites, sanctions would be unwarranted.”

Counsel for former landlord Ronald Fishkind is also disputing Penn National’s argument that it is responsible for only 32% of the $1.53 million judgment against him in Gardner’s case.

Fishkind is represented by Robert L. Siems and Yosef Kuperman of the Law Offices of Robert L. Siems PA in Baltimore.

The federal court has jurisdiction on Penn National’s bid for a declaratory judgment based on the amount in controversy exceeding $75,000 and the diversity of citizenship among the Pennsylvania-based insurer; Gardner, a Marylander; and Fishkind, a Floridian.

The case is Pennsylvania National Mutual Casualty Insurance Co. v. Ronald Fishkind et al., Civil No. JKB-20-947.

The dispute centers on a Baltimore City Circuit Court jury’s January 2019 award of $1 million in economic and $800,000 in noneconomic damages to Gardner for her exposure to flaking and chipping lead-based paint from the date she entered the house as a newborn — Jan. 26, 1997 — until July 1998, which an expert testified caused her cognitive defects in various areas, including attention, intellectual functioning and academic abilities. In September 1998, Gardner was diagnosed with an elevated blood lead level.

The jury’s award was subsequently reduced to $1.53 million due to Maryland’s statutory cap on noneconomic damages.

In its pending district court bid to limit its exposure, Penn National states it provided coverage for the property from Jan. 26, 1997, until Aug. 1, 1997, a period of 187 days – or 32% of the 585 days between Jan. 26, 1997, and Sept. 3, 1998.

Penn National is represented by Marc A. Campsen, of Wright, Constable & Skeen LLP in Baltimore.

Counsel for Penn National, Gardner and Fishkind did not immediately return telephone messages Monday seeking comment on the district court litigation.

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