Friday, June 26, 2015

Maryland Court fees set to increase July 1, 2015

New Maryland Court Cost Schedules Effective July 1, 2015

Pursuant to Chapter 488 of the 2015 Laws of Maryland, effective July 1, 2015, the cost to file proceedings in Maryland courts will increase, making it just a bit more expensive to walk your civil case through the courthouse doors. Click here to find a complete schedule of fees on the official Maryland courts website.

The Pure Bill of Discovery- when the court makes you an offer that cannot be refused.

News stories about Government intrusions into your private spaces are all over the television and on-line media. But did you know that Maryland has a long, long tradition of permitting private parties to intrude on your privacy in their quest for potential evidence? It is called the "Pure Bill of Discovery," and is described in detail by the Maryland Court of Special Appeals in Johnson v. Franklin, decided May 29, 2015.
It is a mechanism for private litigants to find and preserve facts and data for use in a lawsuit. It doesn't matter that the claim may not be directed at you, it matters only that you have information needed by the person asserting that claim against others. And in this case, it also involved minor non-destructive testing of the property.

This case involved the forced lead paint testing of a home no longer owned by the target defendant, and no longer inhabited by the potential plaintiff--it was owned by a third-person with no attachment to the claim.  The property owner ignored requests to lead test, and then ignored formal discovery requests. But in the end, was ordered to give way and make the property available.

So, it's not just the Government that might force its way into your living spaces, I might pay you a visit, too!

What's on the stove for dinner?

Monday, June 15, 2015

Insurer wall of denial falls.

Commercial construction projects are dangerous, especially in cities. General contractors routinely require that subcontractors purchase insurance policies covering the general contractor and owner as "additional insureds." And so, if a subcontractor does damage that triggers a lawsuit naming the general or owner, it is the subcontractor's insurance that should hire defense counsel, and later indemnify the claim.

In a perfect world.

In Capital City Real Estate, LLC v. Certain Underwriters at Lloyds of London, reported June 10, 2015, the United States Court of Appeals for the Fourth Circuit reversed Maryland federal judge Marvin Garbis' trial court decision to excuse the insurance company from the duty to defend the general contractor.

Capital City acted as its own general contractor in the renovation of a brick building in D. C., sharing a common wall with its neighbor.  Capital City subcontracted with another company for masonry work on and around the common wall. As a result of the subcontractor's work the common brick wall collapsed.

Welcome to the not-so-perfect world.

57 Bryant Steet in 2013

Capital City had required the masonry contractor to purchase the usual insurance policy, with the usual "additional insured" endorsement. However, when Capital City was sued by the neighboring landowner the insurance company denied the claim and refused to pay for a lawyer to defend Capital City. The insurance company denied the claim because, it argued, the neighbor's lawsuit alleged that only Capital City was negligent. The insurance company believed that the "additional insured" endorsement only reached conduct of the mason subcontractor for which Capital City was "vicariously liable."

Yes, it made me smile, too. (you are smiling, right?)

Vicarious liability is a limit on general liability.  It would mean that the subcontractor could have triggered certain damage on the project for which the general contractor would have no responsibility. Imagine for a moment that your employee accidentally trips a customer in your store, and the customer breaks a leg. You, as the employer, are vicariously responsible for the employee's actions.  Now imagine the same employee goes home and trips someone in  his own house, and that person breaks a leg. As the employer, you are not vicariously responsible for that person's broken leg. On the construction project, the insurance company argued that the general contractor was only covered for a narrow range of things performed by the subcontractor.

And the trial court accepted the argument and granted the insurance company summary judgment (a motion granted before a trial, based on the evidence then known and the applicable law). But the U.S. Court of Appeals rejected the argument.

Insurance contracts are not construed against an insurance company unless they are ambiguous. And where the endorsement in this case did not contain the extreme limitation of language relied upon by the insurer, the appellate court ruled that most any action on the job site by the subcontractor resulting in a lawsuit would trigger coverage for the general contractor. And that means that the insurance company must pay for the general contractor's trial lawyer.

That is why you purchase insurance, and that is why it is useful to have your project documents reviewed by counsel before an accident. You can always count on the insurer to construe the contract language as narrowly as possible in order to limit or deny your coverage.

Thursday, June 11, 2015

Life is like a balloon...let go to rise up.

This video triggered discussion in our office about probable cause and proof of a crime. If the balloons are never recovered, what could be charged?  What could be proven "beyond a reasonable doubt?"  The cops firing of his weapon into the air was certainly unreasonable in this circumstance. In any event, this is a clever fellow. I'd call him a perp, or a suspect, but what the heck was attached to the balloon?

Friday, June 5, 2015

Bees on your boat?

We maritime lawyers know all about "reasonable care," and the duties owed by a boat operator to his passengers. And so I wrote this piece for a local boating e-magazine about a recent outing with a friend.

It's a stinger.

Thursday, June 4, 2015

Snakes in the house you just bought?

An Annapolis area couple is suing prior owners and real estate agents for failure to disclose a snake infestation.  Imagine watching a four foot rat snake climb the basement steps toward YOUR kitchen.  Gross.

The case raises interesting and common issues about what actual knowledge must be disclosed in the real estate transaction by the sellers and agents to the buyers.  And it raises questions about whether inspection contingencies or "as is" provisions allow the sellers and agents to keep their mouths shut about known snake infestations.

This house had a long and storied history. And at least one prior family had fled the house for the size and quantity of snakes. The television news video made me cringe!

What's the lesson here?  If you are buying property on or near the water, perhaps your inspection contingency should include some language pertaining to snakes and other water based vermin!