U.S. Court of Appeals for the 4th Circuit
Consumer Protection; Absent class member: Where 28 U.S.C. § 636(c) provides a magistrate judge with jurisdiction to approve a class action and enter judgment only by consent of the parties, the Fourth Circuit joined every other circuit to consider the issue in holding that absent class members aren’t “parties.” McAdams v. Robinson, Case No. 21-1087 (filed Feb. 10, 2022).
Maryland Court of Appeals
Criminal; Federal practice exception: Where video evidence supported witnesses’ testimony that an individual was acting non-aggressively before being struck by a Baltimore City Police Department officer, the officer’s convictions for second-degree assault and misconduct in office were affirmed. Koushall v. State, No. 13, Sept. Term, 2021 (filed Feb. 3, 2022).
Family Law; Juvenile probation conditions: Where a juvenile court required a 12-year old attend school regularly without suspensions as a condition of probation, that condition was upheld because it reasonably apprised the student of the requirements, allowing a third party to determine compliance did not make the condition vague and the student was protected from arbitrary or capricious punishment. In Re: S.F., No. 10, Sept. Term, 2021 (filed Feb. 3, 2022).
Workers’ Compensation; Benefit offset: Where health care providers treating an injured employee accepted discounted payments for services, the value of the discounts are not a “benefit” that the injured person has “recovered” under the Workers’ Compensation Act. Consequently those amounts are not offset against any recovery the employee would obtain from the underinsured motorist coverage of the auto policy. Westfield Insurance Company v. Michael Gilliam, Misc. No. 4, Sept. Term, 2021 (filed Feb. 8, 2022).
Maryland Court of Special Appeals
Consumer Protection; Debt collection: Where tenants alleged that landlords and debt collection lawyers violated the Maryland Consumer Debt Collection Act, or MCDCA, by filing back-rent suits more than three years after the alleged breach, their suit was improperly dismissed by the circuit court. The complaint plausibly alleged the defendants acted recklessly, which was sufficient to avoid dismissal. Simmons, et al. v. The Maryland Management Company, et. al., No. 1680, Sept. Term 2019 (filed Feb. 4, 2022).
Workers Compensation; Burden of proof: Where Maryland Labor and Employment Article §9-504 requires an employee to provide “definite proof” when seeking recovery for a job-related hernia injury, the term refers to the quality of evidence and does not constitute a standard of proof nor does its inclusion in the statute require the heightened clear and convincing standard. United Parcel Service, et al. v. Strothers, No. 743, Sept. Term 2020 (filed Feb. 4, 2022).
U.S. Court of Appeals for the 4th Circuit
Absent class member
BOTTOM LINE: Where 28 U.S.C. § 636(c) provides a magistrate judge with jurisdiction to approve a class action and enter judgment only by consent of the parties, the Fourth Circuit joined every other circuit to consider the issue in holding that absent class members aren’t “parties.”
CASE: McAdams v. Robinson, Case No. 21-1087 (filed Feb. 10, 2022) (Judges DIAZ, Thacker, Cullen).
FACTS: This case arises from a class action alleging that Nationstar Mortgage LLC violated federal and state consumer-protection laws in servicing the class members’ mortgage loans. Following protracted litigation, Nationstar and the Robinsons negotiated a $3 million settlement. Pia McAdams, a class member, objected to the settlement, arguing that the class notice was insufficient; the settlement was unfair, unreasonable and inadequate; the release was unconstitutionally overbroad and the attorneys’ fee award was improper. A magistrate judge (acting on a referral by the district court) overruled McAdams’s objections.
LAW: The magistrate judge could approve the class action and enter judgment only by consent of the parties. McAdams asserts that “parties” for purposes of 28 U.S.C. § 636(c) include absent class members, like her. This is a question of first impression in this circuit.
But every other circuit to address the issue has concluded that absent class members aren’t parties. This court now joins them, holding that the magistrate judge had jurisdiction to approve the settlement. Because the contemporary, common meaning of “parties” excludes absent class members and the statute lacks signs showing any legislative intent to classify them as such, the court concludes “parties,” as used in § 636, doesn’t include absent class members.
The parties next dispute the court’s standard of review. The Fourth Circuit hasn’t spoken on this question, and other circuits are split. Two circuits review a district court’s finding on the adequacy of class action notice for abuse of discretion. Three others review the issue de novo. But even assuming de novo review is proper, the class notice was adequate.
The magistrate judge approved three types of notice—email, postcard and longform. The settlement administrator emailed notice to class members for whom it had an email address. It also mailed notice to class members for whom it had a physical address. And it searched a national database to update the addresses for those whose postcard notice was returned as undeliverable. Both the email and postcard informed class members that there was a $3,000,000 settlement fund, explained how to file a claim and presented the option to opt-out. They also listed a website and telephone number where class members could get the longform notice.
In sum, the methods of notice here fairly apprised class members of the proceedings as well as their options. Class members had access to information about the total settlement, attorneys’ fees and distribution method. The notices also provided them with the means to find more information if they wanted it. Thus, the notices were adequate.
McAdams next contests the magistrate judge’s finding that the settlement was fair, reasonable and adequate. McAdams doesn’t claim that the magistrate judge failed to address the relevant criteria under Federal Rule of Civil Procedure 23(e)(2)(C) and addressed the factors from In re Jiffy Lube Securities Litigation, 927 F.2d 155 (4th Cir. 1991); nor does she argue that he improperly weighed them. Instead, she complains that the magistrate judge “failed to make a ‘rough estimate’ of what class members would have received had they prevailed at trial.” But this court has never required such an estimate. Even the out-of-circuit cases McAdams cites don’t require an estimate in every case.
In any event, while the magistrate judge didn’t estimate the potential recovery should the case proceed to trial, he found that most class members “probably only had nominal damages.” That’s consistent with the resulting settlement.
McAdams also argues the settlement release is “ambiguous, overbroad, and beyond the permissible scope of release for class action settlements.” The court disagrees. The release is tied to cases arising out of a set action and time frame. Finally, McAdams contends that the magistrate judge abused his discretion by approving the $1,300,000 attorneys’ fee request because: (1) the magistrate judge didn’t comply with Rule 23(h)(3)’s requirement that he “find the facts and state [his] legal conclusions”; (2) the attorneys’ fee award constitutes an unacceptably large portion of the overall award and (3) the “clear sailing” provision is impermissible. All three challenges fail.
Maryland Court of Appeals
Federal practice exception
BOTTOM LINE: Where video evidence supported witnesses’ testimony that an individual was acting non-aggressively before being struck by a Baltimore City Police Department officer, the officer’s convictions for second-degree assault and misconduct in office were affirmed.
CASE: Koushall v. State, No. 13, Sept. Term, 2021 (filed Feb. 3, 2022) (Judges Getty, McDonald, HOTTEN, Booth, Biran, Raker, Wilner).
FACTS: Following a bench trial, Marlon Koushall, an officer with the Baltimore City Police Department, or BCPD, was convicted of second-degree assault and misconduct in office. Both convictions arose from the same underlying incident in which petitioner appeared to punch an unarmed subject in the head within seconds of initial approach.
The circuit court sentenced petitioner to six years’ imprisonment, all suspended but one day of time served, for the second-degree assault conviction with three years of probation with the first year supervised and 100 hours of community service. The circuit court also sentenced petitioner to 10 years’ imprisonment for the misconduct in office conviction, all suspended but one day of time served consecutive to the second-degree assault conviction, with three years of probation with the first year supervised. The Court of Special Appeals affirmed the judgment of the circuit court.
LAW: The common law elements of assault in the second degree of the battery variety are (1) the unlawful, (2) application of force (3) to the person of another. The parties only dispute whether there was legally sufficient evidence to satisfy the element of unlawfulness.
The circuit court considered competing versions of events in determining whether petitioner’s use of force was reasonable under the circumstances. The state presented evidence in the form of witness testimony, video footage and screen shots that demonstrated Sgt. Middleton acting non-aggressively before being punched in the face by petitioner. Petitioner presented opposing testimony that Middleton exhibited an aggressive posture and “assault[ed]” petitioner by pushing him.
Dr. Key, the only expert witness at trial, opined that based on the evidence presented at trial, particularly petitioner’s account, the strike to Middleton’s head was reasonable under the circumstances. On balance, the circuit court found the state’s evidence to be more credible and gave extra weight to security camera footage that corroborated the state’s witnesses’ recollection of events. The record supports the conclusion of the circuit court that the evidence, when viewed in the light most favorable to the state, was sufficient in establishing unreasonable use of force beyond a reasonable doubt. The court accordingly holds there was sufficient evidence to convict petitioner of second-degree assault.
The same analysis also leads to the same conclusion that there was sufficient evidence to sustain the conviction for misconduct in office. Besides evidence of assault, the state presented additional evidence to satisfy the “corrupt behavior” element of misconduct in office. There was testimony that petitioner failed to follow BCPD policies with respect to his body camera and de-escalation. Detective Wiggins testified that petitioner acted as if he had a “vendetta” against Middleton.
Petitioner next argues the sentences should merge because the unlawful use of force element is an essential element of misconduct in office. Maryland recognizes three grounds for merging a defendant’s convictions for sentencing purposes: “(1) the required evidence test; (2) the rule of lenity; and (3) the principle of fundamental fairness.” None of these grounds apply; therefore, the convictions do not merge.
Under the required evidence test, second-degree assault and misconduct in office do not merge because the unlawful use of force needed to establish second-degree assault is not necessary to establish misconduct in office. Next, despite the potential application of the rule of lenity, a review of the comprehensive statutory scheme of the assault statute demonstrates that the General Assembly did not intend for second-degree assault to merge with misconduct in office for sentencing purposes. Finally, the court agrees with the Court of Special Appeals that failure to merge a sentence based on fundamental fairness does not render the sentence illegal.
Judgment of the Court of Special Appeals affirmed.
Juvenile probation conditions
BOTTOM LINE: Where a juvenile court required a 12-year old attend school regularly without suspensions as a condition of probation, that condition was upheld because it reasonably apprised the student of the requirements, allowing a third party to determine compliance did not make the condition vague and the student was protected from arbitrary or capricious punishment.
CASE: In Re: S.F., No. 10, Sept. Term, 2021 (filed Feb. 3, 2022) (Judges Getty, McDonald, HOTTEN, Booth, Biran, Gould) (Judge Watts, dissents).
FACTS: S.F. was charged with second-degree assault and misdemeanor theft in the juvenile court. S.F. entered an Alford plea for each charge. The juvenile magistrate in each case recommended probation. An identical condition of probation for each case was for S.F. to attend school regularly without suspensions.
Counsel for S.F. excepted to the no-suspension condition of probation as impermissibly vague in both cases. The juvenile court denied the exceptions and ordered S.F. to “[a]ttend school regularly without any . . . suspensions. . . .” S.F. noted a timely appeal to the Court of Special Appeals, which affirmed.
LAW: By the time S.F. filed a petition for writ of certiorari, he had successfully completed probation and the juvenile court closed the cases. Given the time it takes to resolve an appeal before the Court of Special Appeals and come before this court, it is likely that many no-suspension conditions for probation will evade review. This issue also concerns a matter of public importance. Amid ongoing efforts throughout state and local government to reform student disciplinary policies and procedures, this case could assist juvenile courts in assessing whether a suspension policy is impermissibly vague, thereby subjecting a student to arbitrary or capricious punishment. The court exercises its discretion to not dismiss the case for mootness.
The juvenile court did not abuse its discretion by ordering no school suspensions as a condition of probation. The no-suspension condition of probation reasonably apprised S.F. of “what is required of him” under the circumstances. The juvenile magistrate was aware of the facts and circumstances of S.F.’s case and imposed a no-suspension condition of probation to keep S.F. from further and repeated disciplinary problems at school. The no-suspension condition provided an easily understandable expression of the “standard of conduct required” for a middle school student.
This court’s previous cases have demonstrated that allowing a third party, such as a school administrator in this case, to take action that determines compliance with the condition of probation does not make the condition vague. While the no-suspension condition may have been general, because it left enumerating the specific suspension-worthy behaviors to Fredrick County Public Schools, or FCPS, it was not “too vague, indefinite, and uncertain to be given any constriction or application.” FCPS’ code of conduct is detailed and prescriptive in defining suspension-worthy behavior. The discretion built into the FCPS code of conduct regarding when a teacher or school administrator institutes discipline does not make the no-suspension condition of probation vague.
S.F. cites several cases from California for the proposition that conditions of probation are vague when third parties have discretion in assessing compliance. The cases cited by S.F. are distinguishable based on whether the condition of probation provides advance notice of what behavior is required by the probationer, and therefore do not support the proposition that permitting a third party to determine compliance with a condition of probation necessarily renders the condition vague.
Finally, assuming S.F., or another similarly situated student, was suspended, there are two layers of procedural safeguards designed to protect against arbitrary or capricious punishment. First, when a third-party informs a probation officer that a condition of probation has been violated, the probation officer is not automatically and immediately bound to report the purported violation to the juvenile court. Second, once the juvenile court is made aware of a purported violation and has docketed proceedings against probationer, the state has the burden in establishing, by a preponderance of evidence, that a violation of a condition of probation has occurred.
Judgment of the Court of Special Appeals affirmed.
DISSENT: I would reverse the judgment of the Court of Special Appeals and hold that a condition of probation in juvenile court indicating that a child may have no suspensions is impermissible because the condition fails to provide a juvenile with adequate notice of the conduct that will result in a violation of probation.
BOTTOM LINE: Where health care providers treating an injured employee accepted discounted payments for services, the value of the discounts are not a “benefit” that the injured person has “recovered” under the Workers’ Compensation Act. Consequently those amounts are not offset against any recovery the employee would obtain from the underinsured motorist coverage of the auto policy.
CASE: Westfield Insurance Company v. Michael Gilliam, Misc. No. 4, Sept. Term, 2021 (filed Feb. 8, 2022) (Judges Getty, MCDONALD, Watts, Hotten, Booth, Biran, Gould).
FACTS: Michael Gilliam was injured while driving in the course of his employment. He received payments from his employer’s workers’ compensation insurer and the other driver’s liability insurer, and now seeks to recover, from the insurance policy covering the vehicle he was driving (issued by Westfield Insurance Co.), the amounts by which the other driver was underinsured. The health care providers who treated his injuries had generated bills in face amounts greater than the amounts set by the Workers’ Compensation Commission, but (as required by Maryland law) accepted payments at those lower amounts in full satisfaction for their services.
The question asked by the federal district court via a certified question is whether the difference between the amount of those bills – or perhaps more precisely, the fair and reasonable value of those providers’ services – and the payments made by the workers’ compensation insurer constitutes a “benefit” that the injured person has “recovered” under the Workers’ Compensation Act that is to be offset against any recovery the person would obtain from the underinsured motorist coverage of the auto policy.
LAW: Under Maryland Code, Insurance Article, §19-513(e), coverage for accidents caused by underinsured motorists, or “UIM” coverage, “shall be reduced to the extent that the recipient has recovered benefits under the workers’ compensation laws of a state or the federal government for which the provider of the workers’ compensation benefits has not been reimbursed.” The key phrase in the statute for our purposes is, of course, “workers’ compensation benefits.” In Mr. Gilliam’s view, the phrase is limited to money paid to a workers’ compensation claimant or on the claimant’s behalf. In Westfield’s view, the phrase can include a discount of an expense when the claimant enjoys the discount as a result of the workers’ compensation law.
The statutes governing UM/UIM coverage – of which §19-513(e) is part – do not define that phrase. More broadly, the state insurance law does not define “workers’ compensation benefit” specifically or the term “benefit” generally, although the latter word is used throughout the Insurance Article. Nor does the workers’ compensation law itself have an applicable general definition of “benefit,” although that term appears frequently in that statute.
However, statutory interpretation does not occur in the silo of a single word; the context of a word or phrase in a statute, and other language that relates to the word or phrase, is critical to understanding its meaning. In the context of §19-513(e) the offset provided by that statute is against “benefits payable” under UIM coverage (and certain other coverages) – i.e., a sum of money. The “workers’ compensation benefit” that comprises the offset thus must be expressible as a monetary amount for the offset to make sense.
There is no reference in the workers’ compensation law to “write-downs” or discounts of medical bills – much less any characterization of such a thing as a “benefit” under that law. Moreover, it is impossible for Mr. Gilliam to “reimburse” the workers’ compensation insurer for an amount it never paid – i.e., the $125,030.18 difference between what the health care providers billed and what they accepted as full payment for their services. The face amount of a bill generated by a provider simply has no role under the workers’ compensation law governing medical benefits.
The fact that a “reimbursement” cannot occur – even if Mr. Gilliam for some reason decided to make a voluntary payment of that amount to the workers’ compensation insurer – indicates that it is not a “workers’ compensation benefit” for purposes of §19- 513(e). Westfield’s interpretation of “workers’ compensation benefit” to include a discounted portion of a health care provider’s fee thus does not comport with the statutory scheme. The legislative history of the statute confirms that the phrase “workers’ compensation benefit” does not include the amount by which the face amount of a health care provider’s bill may differ from the charge allowed by the fee guide.
The federal district court has asked whether a positive difference between (1) the fair and reasonable value of health care services made necessary by an automobile accident and (2) the amount paid by a workers’ compensation insurer in full satisfaction for those services (for which the workers’ compensation insurer has not been reimbursed) is, for purposes of the offset against underinsured motorist benefits under §19-513(e), a “benefit” recovered by the injured person under the workers’ compensation law. The answer to that question is “no.”
Maryland Court of Special Appeals
BOTTOM LINE: Where tenants alleged that landlords and debt collection lawyers violated the Maryland Consumer Debt Collection Act, or MCDCA, by filing back-rent suits more than three years after the alleged breach, their suit was improperly dismissed by the circuit court. The complaint plausibly alleged the defendants acted recklessly, which was sufficient to avoid dismissal.
CASE: Simmons, et al. v. The Maryland Management Company, et. al., No. 1680, Sept. Term 2019 (filed Feb. 4, 2022) (Judges Graeff, Berger, EYLER).
FACTS: The appellants once rented Maryland residential properties. Some of the appellees are landlords or property managers while others are lawyers, law firms and the collection agency employer of one of the lawyers who sued each tenant for back rent. Those lawsuits all were brought more than three years after the tenants breached their leases. Although the limitations period for an action for back rent on a residential lease is three years, the leases governing the tenancies included a clause that purported to apply a 12-year limitations period to causes of action arising from them.
The tenants filed a putative class action against the landlords and the lawyers, alleging that the clauses were invalid and unenforceable and that the actions were time-barred. They further alleged that by including the clauses in the leases and acting to enforce them, the appellees violated various provisions of Maryland law. The circuit court dismissed all claims.
LAW: In Smith v. Wakefield, 462 Md. 713 (2019), the Court of Appeals held that the three-year period of limitations that applies to a back-rent action under a residential lease is not subject to waiver. Five days after the opinion was filed, two of the appellants filed a putative class action. The circuit court held that Smith effected a change in the law and therefore the holdings in Smith only applied prospectively.
While this appeal was pending, the Court of Appeals filed its opinion in Chavis v. Blibaum, in which it interpreted Commercial Law § 14-202(8), on which the tenants base their MCDCA claim. It is now clear from Chavis that the prospective/retroactive distinction drawn by the parties and the circuit court is not the correct analysis for deciding whether the tenants have stated claims for which relief may be granted under § 14-202(8) of the MCDCA.
Instead, with respect to the tenants’ MCDCA claim, to prove that the landlords and lawyers acted or attempted to claim, threaten or enforce the right to sue for back rent with knowledge that the right did not exist because the debt was time-barred, the tenants must produce evidence that the landlords and lawyers made a mistake of law and did so recklessly. The allegations in the third amended complaint meet that challenge.
A violation of the MCDCA is an unfair, abusive or deceptive trade practice under the Maryland Consumer Protection Act, or MCPA. Accordingly, for the same reasons the circuit court erred in dismissing the MCDCA claim, it erred in dismissing the tenants’ per se MCPA claim. Further, the allegations of misrepresentations in the leases and the lawsuits are sufficient to support a claim for an independent violation of the MPCA.
The circuit court also dismissed the tenants’ claim against the landlords under Real Property § 8-208 on the theory that Smith marked a change in the law and therefore only applies prospectively. Because that analysis was incorrect, and because the tenants alleged facts that, if backed by evidence, could support a jury finding that the landlords violated the anti-waiver provision, this count should not have been dismissed.
The tenants also sought declaratory and injunctive relief for alleged violations of Courts and Judicial Proceedings Article § 5-1202(a), which, they claimed, stripped the district court of jurisdiction over the back-rent actions brought there, rendering the judgments entered by the district court void. The court holds that § 5-1202(a) does not divest any Maryland court of its otherwise-existing fundamental jurisdiction over time-barred claims for back rent.
The question remains, however, whether the tenants still may obtain an injunction directing the landlords and lawyers to disgorge monies received as a consequence of the suits and prohibiting them from enforcing the judgments they obtained that have not been executed upon. The court finds that they may. Finally, the circuit court erred when it dismissed the appellants’ request for a declaration that the clauses purporting to extend the limitations period to 12 years “are contrary to Maryland law and are unenforceable in any court.”
Judgment of the Circuit Court for Baltimore City vacated.
Burden of proof
BOTTOM LINE: Where Maryland Labor and Employment Article §9-504 requires an employee to provide “definite proof” when seeking recovery for a job-related hernia injury, the term refers to the quality of evidence and does not constitute a standard of proof nor does its inclusion in the statute require the heightened clear and convincing standard.
CASE: United Parcel Service, et al. v. Strothers, No. 743, Sept. Term 2020 (filed Feb. 4, 2022) (Judges Arthur, SHAW, Harrell).
FACTS: David Strothers filed a claim against United Parcel Service and Liberty Mutual Insurance, seeking compensation after he developed a hernia during the course of his employment. The Maryland Workers’ Compensation Commission found that Strothers sustained a compensable accidental injury arising out of and in the course of his employment; that the hernia was the result of the aforesaid accidental injury and that he was temporarily totally disabled from Sept. 20, 2019, to Jan. 21, 2020.
Appellants then filed a request for rehearing with the commission, which was denied. Following an “on-the-record” judicial review hearing, the circuit court affirmed the commission’s decision.
LAW: Maryland Labor and Employment Article §9-504 states “an employer shall provide compensation in accordance with this title to a covered employee for a hernia caused by an accidental personal injury or by a strain arising out of and in the course of employment if: (1) the covered employee provides definite proof that satisfies the Commission that . . .”.
The term “definite proof” is distinct from language used for accidental injury claims under the Workers’ Compensation Act and it is found solely in the section related to hernia claims. No explanation of the term is provided in the statute. Appellants assert the term “definite proof,” as used in the statute, requires analysis under the clear and convincing standard.
In the court’s view, the term “definite proof” is proof that is certain, not ambiguous, obscure or speculative and it refers to the type of evidence needed to sustain a claim. The statute does not expressly or implicitly equate definite proof with any standard of proof, and the court has found no statutory authority that specifies that “definite proof” is a substitute for the clear and convincing standard. If the Maryland legislature had wanted to heighten the standard of proof for hernia compensation, they would have done so expressly.
Additionally a treatise on Maryland workers’ compensation law does not characterize “definite proof” as a higher standard of proof. Likewise, this court’s review of other states that have similar hernia workers’ compensation statutes did not confirm that “definite proof” is a higher standard of proof. The statutes of 12 other states include the terms “definite proof” or “definitely proven” as it relates to hernia claims. They, like Maryland, do not define the phrases, neither are the terms recognized as a standard of proof by case law or other statutory treatment.
The court holds the language of the statute is clear, the term “definite proof” refers to the quality of evidence and does not constitute a standard of proof nor does its inclusion in the statute require the heightened clear and convincing standard. The legislative history and case law confirm that the term was included in the statute in response to the need to ensure that compensation for hernias is based on testimony and evidence, most often medical evidence, that substantiates a worker’s claim.
Appellants next contend that Strothers failed to satisfy the requirements of §9-504, which require that definite proof be offered that the hernia did not exist prior to the work accident. Appellants argue that Dr. Macht’s opinion “to a reasonable degree of medical certainty” and Dr. Kravitz’s opinion that the hernia was “more likely than not” caused by the September 2019 injury were not sufficient. The court disagrees.
Finally, §9-504 states: “as a result of the accidental personal injury or strain, a preexisting hernia has [to] become so aggravated, incarcerated, or strangulated that an immediate operation is needed.” Appellants argue that appellee’s hernia repair surgery was not “immediate” because it occurred 59 days after the accident.
Under the circumstances in this case, where the surgery was performed 59 days later because of difficulties in finding a surgeon, insurance coverage and conflicts in the surgeon’s scheduled operation, the court holds that the medical records supported the contention that the surgery was needed “urgently.” Thus, the requirement of immediacy was satisfied.
Judgment of the Circuit Court for Howard County affirmed.