Must I pay the real estate broker?

You've heard the story, and it goes like this-- "I had to back out of a real estate contract to sell my property, and now the broker is demanding that he get paid, what do I do?"

If you can't run to a phone and call us, here's the essential rule--a Maryland real estate broker is entitled to a commission upon his (or her) good faith procurement of a purchaser who becomes bound by a valid contract of sale. So, if the broker brings you a buyer, and the buyer signs, and the contract is now "live" and enforceable...you are on the hook to pay the broker, even if you never settle on that contract!

And as a general rule, especially in a very tight market, this is fair.  After all, most of the brokers I have met work pretty hard, and sacrifice quite a bit to make their deals work.

And it is not the broker's "fault" if you or the buyer cancel the deal, or one party defaults and refuses to close the deal.  In fact, this fact pattern describes at least six cases we've had in the last year.

You can avoid this result, of course, with the help of a lawyer.  You see, the statute is merely a legislative rule of construction.  It exists to supply a term of a contract that you and the other party simply forgot to include in the document, "when does the broker earn a fee?"

Our practice is to advise including contract terms that modify the default setting of the statute. You may agree that the broker's commission should only be paid from "proceeds of sale." That means you must settle on the deal before the broker is entitled to a fee. This also provides you with one more person motivated to help the deal along to completion!

Don't get caught by surprise! Read everything, and then have it all reviewed by a lawyer--before you sign!

Visit the Young & Valkenet website.

Pitbulls need a better lobbyist in Annapolis!

Since the Maryland Court of Appeals decision branding the breed "inherently dangerous," public pressure appeared to be mounting for our state politicians to overturn the decision through legislative fiat. That effort has failed, as reported by the Baltimore Sun on August 15th.

The State Senate drafted a bill that would have imposed strict liability for ALL breeds, from your infirm corgi to your neighbor's musclebound rottweiler. If the senate bill prevailed, the shelters may well have been full of all breeds of dogs, as they were abandoned by their apartment dwelling owners.  Want more? Fetch SB 2.here.

But the State House took a different tack.  It drafted a bill that would have preserved most of the common law, and eliminated common law defenses in limited circumstances.  The draft sought to preserve most of Maryland's "one bite" law.  In a reading mood? Chew on this copy of HB 1804.

But in a special legislative session that was called to address casino gambling, and the State's growing thirst for gambling income, the dogs were shooed off the legislative couch and sent outside.

Expect to see this issue return when the legislature returns in January 2013. Fido will have to live with the uncertainty, until then.

Of course, there is no legislation that protects the poor slob who gets mauled to death by his own Pit Bull, as was reported on July 11, 2012, in Ohio. Poor Mr. Brown was a dialysis patient who was attacked by his own beloved pooch while hooked to his dialysis machine....in the safety and sanctity of his own home!  After the attack, he remained conscious long enough to call the police, but, alas:

"The paramedics could not get to this individual, they needed the dog removed. It took our officer about 10 minutes to respond. By the time he had gotten there police had already shot the dog so the paramedics could get to the victim," ...Lt. Bardeau with Cincinnati Police say they hadn't received any complaints about the dog.

Ironically, Ohio repealed it's own breed-specific legislation three months ago. Perhaps Mr. Brown's dog felt empowered?

On July 5, 2012, a Canadian study reported that breed specific Pit Bull bans correlated with fewer hospitalizations of dog bit victims.Visit this summary as additional food for thought.

On August 27, 2012, the Baltimore Sun reported a dog attack at the nearby Waverly Market, an open air market near the former site of Baltimore's Memorial Stadium. I spent years visiting this market, and know well the restriction on dogs. This story reports on the dog left chained to a parking meter that broke free to maul a 20 year old woman.  And it was a Rottweiler, and not a Pitbull.

A distinction without a difference, in my book, as they are both musclebound jaws with eyes and blood lust.  But it should make a difference to our legislators and the Maryland Court of Appeals- the problem extends beyond Pit Bulls.

Chew on that.

Visit the Young & Valkenet website

 

You may still end up in debtor's prison

On a recent trip to Williamsburg, I spent some time in the ancient "gaol," where poor folks might have ended up for failure to pay their bills. Here's an excerpt of their history:

The only offense for which long-term imprisonment was common was debt, though this presented a paradox. Wealthy debtors who had money but refused to pay might be persuaded by the prospect of imprisonment to settle their obligations.

Locking up the poor, though, guaranteed they could never earn the money they owed, and this struck many as absurd. The New York legislature said in 1732 that "many poor persons may be imprisoned a long time for very small sums of money … to the ruin of their families, great damage to the public who are in Christian charity obliged to provide for them and their families … and without any real benefit to their creditors." Yet only in the 1830s did the United States begin to abolish debtors' prisons.

I spent just a few minutes in the jail cells (partly because my wife and traveling companions closed the door and held it shut!), and it was not fun. I was alone in a cell built for 8, but which often held up to 25, with no provisions for personal comfort or privacy.

But you can still be jailed for your unpaid debts!  The "debtor's prison" may have been officially abolished, but that doesn't mean you won't end up in jail after being sued for unpaid bills. Don't appear for trial or the post-trial examination, and you can be arrested--it won't matter if you owe $500 or $5,000 dollars! And see what this Alabama judge had to say on the subject of "private prisons." 

If you've been sued, it goes without saying that you MUST seek guidance of counsel to negotiate with your creditor, counter-sue them, or help you navigate through a bankruptcy. It is not necessarily your inability to pay that will get you jailed, it is your refusal or failure to participate in the judicial process, which will grind you to a pulp if you simply ignore that judicial summons.

[Update: check out this August 19, 2012 report, from St. Louis, that describes how Missouri folk are being imprisoned for days, for debts as small as $400-500!]

And even after the conclusion of the judicial process, including bankruptcy, you can still be haunted by old debt that remains on your credit reports. I've had so many questions about errors in client credit reports which cause disruption in their lives, I am sharing the publicly available information that will allow most folks a "do-it-yourself" remedy to ghost entries.

Once a debt has been written off and a 1099C has been issued, the debt can't be collected. Errors on your credit report must be corrected by the credit reporting agencies according to the Fair Credit Reporting Act.

Collect a copy of the 1099C and any other relevant information and submit this information to the credit reporting agencies with a request to correct your credit report. Inaccurate, incomplete or unverifiable information must be removed or corrected, usually within 30 days. However, a reporting agency may continue to report information it has verified as accurate.

Visit the Federal Trade Commission for a good summary of the process on the official government website. Check it out!

Call us, if you need help.

Visit the Young & Valkenet website.

When playgrounds attack!

In 2010, Mr. Griffith and his eight year old son, Christian, wanted nothing more than a bit of "family time." The Mount Tabor Park vintage wooden slide seemed just the thing. A forty foot ramp of highly polished maple marks this as a real throwback amusement. It's like an elevated bowling alley!

Folks enjoy this slide on burlap, towels, or even wax paper.  Hardy souls just travel down by the seat of their pants.

Looks fun, doesn't it? Little Christian Griffith was impaled by an 8-121 inch wooden splinter...in his belly.  Not exactly the fun filled afternoon his father envisioned.

A lawsuit was filed in the Circuit Court for Frederick County against the church that owns the slide, alleging a history of injuries due to splintered wood.  Young Christian sought $500,000 in damages.
On July 20, 2012, the parties settled the case for $60,000. While the church denied liability, I am sure that the potential proof of prior incidents created enough of a risk that the church's insurance company decided to pony up some money.

Remember, even churches carry liability insurance.  And even churches are responsible to avoid creating hidden dangers for you and your children.

When you or a member of the family is seriously injured on property owned by others, there is a series of questions that must be answered before you can sue.  For instance, were you legally on the property? And if not, was it reasonable for the owner to know that you would be on his property because some condition attracted you or your child?  Was the condition hidden, or latent? Or, was it so apparent that you should have known better? In the end, every owner must take reasonable steps to prevent harm to folks legally on their property. Where a public amusement is maintained, the duty is even a bit higher.

So, after the injuries are tended, and you or your loved one is on the mend, talk to a lawyer. We have handled many cases of serious personal injury over the last 25 years.

Visit the Young & Valkenet website.

Don't Skype yourself to jail!

The Washington Post reports that since Microsoft purchased Skype, the service has been modified to make it friendlier to intrusions by law enforcement.

"Lets Skype" is not protection from disclosure and prosecution for you and your clients.

Follow the link to read the full article.

Washington Post Skype Article

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Common legal questions answered in real time.

Dead is not forgotten- chasing the defunct corporation.

For my clients who need to chase down defunct corporations, the Maryland Court of Special Appeals just issued a nifty little opinion. On June 28, 2012, the COSA published Thomas v. Rowhouses, Inc., No 2102, Sept. Term, 2010.

And by "defunct," I mean companies that no longer exist because of forfeit charters, dissolution, and the existence or location of past directors is not known. This is a frequent problem with old deeds of trust and judgment liens that remain in the court and land records. These old ghosts mess up home and business sales, refinancings and other transactions, every day. It also involves small companies, with one or two directors, who go forfeit, but continue to do business and incur business liabilities (perhaps to someone like you?).

Tracking down these entities to complete the Constitutionally required service of process can take months, and costs our clients a lot of money. It can require hiring investigators, and even staking out homes and business offices. Sleuthing out a dead corporation for service can make even a routine default judgment pretty costly.

Judge Robert Zarnoch does a very nice job summarizing several procedural rules, and statutes, leading to the conclusion that service on the Maryland State Department of Assessments and Taxation is available as a last resort.

The case involves claims against former property owners for lead paint poisoning, but the discussion about serving process on a defunct corporation will apply to any other type of case, too.

What to take away from the case:

• Be thorough, and request permission for alternate service on the SDAT only after all traditional and required methods of service have been exhausted.
• Service on a former corporate director that has since died cannot be made on the dead person's estate. 
• Start your lawsuit as soon as you reasonably suspect you have a claim. Filing suit early will toll, or stop, the running of the statute of limitation, and will give you time to perfect service or alternate service on the corporation.

So, don't think your case is over just because your target is a defunct company. Who can we find for you?

Visit the Young & Valkenet website.

A white knuckle morning.

This morning's rising sun felt warm on my face, but it could not ease my growing apprehension. To my immediate left, a middle aged man stared intently over his bifocals at his glowing computer screen. His focus unnerved me as he appeared oblivious to all other objects within his immediate area.  And to my immediate right, a young lady gestured forcefully with her left arm as her right hand pressed a cell phone against her right ear. Whatever she was saying, I was happy not to be on the other end of that particular phone call.  In front of me, an elderly gentleman struggled to read a small folded newspaper. He paid no heed to the young lady, me, or Mr. Computer Screen. He appeared to fumble with a pencil or pen.

All of this terrified me.

You see, I was in my truck, traveling south on Route 95 at 65 MPH at the time. These folks were my fellow travelers, guiding their own 2000 pound vehicles toward points south of Baltimore.  Only thirty minutes earlier, I had kissed my wife goodbye, and whined a bit about being late for court.  But at that moment, I was not as concerned about getting to the circuit court in Rockville on time as I was about getting home--ever. 

As long as these nuts are on the road, I'm going to buy a larger truck.

A whole bunch of these folks are going to be in serious auto accidents,while they are reading, calling, texting and doing all manner of things when they should be DRIVING.  And many of these accidents will occur with other drivers who are also reading, calling texting and doing all manner of non-driving things.  Who wins in court?

Maryland is a jurisdiction where the plaintiff's contributory negligence, however slight, bars recovery. But did you know that Maryland is in the very, very small minority of states with this rule?  Look at this little group:

Alabama		Alabama Power Co. v. Schotz, 215 So.2d 447 (Ala. 1968).
DC		Wingfield v. People's Drug Store, 379 A.2d 685 (D.C. 1994).
Maryland		Board of County Comm'r of Garrett County v Bell Atlantic, 695 A.2d 171 (Md. 1997).
North Carolina		N.C.G.S.A § 99B-4(3).
Virginia		Baskett v. Banks, 45 S.E.2d 173 (Va. 1947).

The great majority of our United States applies comparative negligence, where recovery by the injured plaintiff is reduced or prohibited based on the percentage of fault attributed to the plaintiff.

So, if my happily distracted fellow travelers have an accident in states other than the five southern states listed, they may still recover.  But if their extra-curricular activities contribute to their accident, in any way, they get nothing in Maryland.

As if you need another reason not to drive distracted.

Visit the Young & Valkenet website.

MERS survives another round in California, to fight again.

Like a punch drunk fighter staggering through another round in the ring, the Mortgage Electronic Registration System, or "MERS," has survived another court challenge to it's ability to make mortgage assignments on behalf of various lenders.

On May 17, 2012, the Court of Appeals for the State of California decided Herrera v. Federal National Mortgage Association, a case where a homeowner tried to invalidate a foreclosure by arguing MERS had no authority to make various assignments of recorded deeds of trust, and that this failure invalidated the current note holder's attempt to foreclose.

I've shared my thoughts, before, on why the popular attacks on MERS won't gain traction in Maryland's courts, since the Maryland Court of Appeals decision in Anderson v. Burson. But I have found one snippet within the Herrera opinion that is worth a moment of thought (and then you can get back to surfing Youtube videos of "Simon' Cat"--hilarious, by the way), and it is here (and the court's internal reference to" Fontenot" is to a prior case involving similar claims against MERS):

Furthermore, since the assignment of the debt (the promissory note), as opposed to the security (the DOT), commonly is not recorded, the lender could have assigned the note to the beneficiary in an unrecorded document not disclosed to plaintiffs. ... This is why in Fontenot the court rejected the plaintiff's claim to set aside the foreclosure as void based solely on the alleged invalidity of the MERS assignment of the note and DOT. The Fontenot court stated: "plaintiff was required to allege that [the bank] did not receive a valid assignment of the debt in any manner. Plaintiff rests her argument on the documents in the public record, but assignments of debt, as opposed to assignments of the security interest incident to the debt, are commonly not recorded. The lender could readily have assigned the promissory note to [the bank] in an unrecorded document that was not disclosed to plaintiff. 

 And there it is. This is the core of Marylands' Anderson v. Burson analysis. And it highlights the threshold issue in any case involving an attack on the lender's standing to foreclose, transfer servicing rights, file proofs of claim in bankruptcy, etc.--does the entity attempting to enforce any term in the debt or security instrument have rights in the unrecorded note?  And that means phsycial possession with a contractual right to enforce.

And this leads to another thought. Avoid the forensic loan audit scam. There is nothing in the generic 20 page "audit report" you purchase from these charlatans that will undercut the law.  If the entity enforcing the lien instrument has physical possession of the note, and has the contractual right to enforce it's terms, gaps in the chain of assignments just don't matter.  Save your money.

Baltimore County property tax scam

The Baltimore County Police and tax office report a growing scam, where you might receive a phone call from someone pretending to be a county employee. The caller will tell you that your property taxes are delinquent, and that a sheriff may be dispatched to your home if you don't pony up.

Follow the link to the official Baltimore County press release. Here are some points from the release:

• Never give personal or banking information (account and routing numbers) over the phone.
• Attempt to verify the identity of unknown callers, and if possible obtain a callback number. Remember, the phone number could be linked to a fraudulent location.
• Never mail currency or checks to an unknown business or person(s).
• Alert a close family member/friend and call police if the call appears to be suspicious.
• Call the Baltimore County Taxpayer Services Section at 410-887-2404 if you have questions about your property taxes.
• Call 911 immediately if a suspicious person comes to your door claiming to be a Baltimore County official collecting property taxes. Baltimore County does not make home visits to collect taxes.

And here is the link to the County's official website, and it's instructions on how to pay your taxes. 

Cab Karma

I spent a relentlessly hot, sticky, muggy, sweaty, uncomfortable day in D.C., earlier this week. Or, as the native Washingtonians call it, "Tuesday." The three digit heat index and high humidity turned my pressed suit into a wet nap, with buttons.

I don't normally dwell on heat and humidity, because it just makes it worse. But as I sloshed along K Street (probably while leaving a long, wet trail, like a slug), I found myself counting the multiple layers of cloth and silk encasing and insulating my ample neck.  At least they are absorbent.

I also contemplated that if the voice-over in "Field of Dreams" implored Kevin Costner to "build it and they will come," what was Pierre L'Enfant listening too?  Likely a voice that intoned "build it and they will drown in their own juices." It's a myth, I know, that D.C. was constructed in a swamp. But it's been a persistent  myth.

A recent piece from John Kelly, of the Washington Post debunks the myth of D.C. as swamp (I've added my own links that did not appear in the original article, with apologies to Mr. Kelly). It's a Washington Post story, citing a Washington based scholar, and it's in writing, so it must be true. Here it is:

Some historians say that, contrary to popular belief, Washington had no swamps. Don Hawkins isn’t one of them. He studied maps and surveys from the late 18th century and determined that there was some swampy land — a whopping 1 percent of the total area that Pierre L’Enfant was charged with designing.

Don says there were swamps (defined as wetlands with trees) at the edge of the Anacostia, at Tiber Creek (today’s Constitution Avenue), around what became the National Gallery, and at Swampoodle, the Irish neighborhood near today’s Gonzaga High School. That’s just a fraction of the capital. No great reclamation project was needed to create buildable land.

In other words, it’s a gross exaggeration to say that Washington was “built on a swamp.”
“I think it has survived because it’s such a useful analogy for the way Congress works,” Don said.

 But in my sodden state, I was absolutely certain that L'Enfant had gazed over thousands of acres of wetlands, laughed into his sleeve, and declared "THIS will be a fitting home for the swamp of democracy." I cursed L'Enfant and expected that the coming negotiations at my next appointment would be quite sharp, partly because all manner of kindness was leaking out of me.

I needed a taxi cab.

I didn't have any cash.

I'd already ducked in and out of one cab, after reading the sticker on the back of a headrest, "cash only."

Damn you, L'Enfant.

I approached a bright blue taxicab, a modern Prius, parked in the shade as it's operator polished the door handles and wiped the windshield, much as I continued to wipe the drippings from the inside of my sunglasses. The cabbie was an elderly Indian fellow, dressed neatly in 70's era business casual, and not looking the least bit uncomfortable in the heat.  He acknowledged my greeting with a slight head nod, and he nodded again to confirm my understanding that he was "in service." In heavily accented english, he said that his shift was just beginning, and that I would be his first customer.  Oh joy!  I was headily anticipating the conditioned air that was about to caress me.  And I  hopped in to the back seat.

"Cash only."

Damn you, L'Enfant!

I apologized for the misunderstanding, wished him a good shift, and returned to my trail of tears. I'd shuffled about 20 feet down the sidewalk when the cabbie called out for me to come back. Very odd.  But I turned and walked back, thinking that perhaps he had found his credit card reader, or maybe even his "Square" device for iPhone (a stretch, I know, but he did operate a Prius, so forgive my first world rationalization).

The cabbie gestured toward the car door and told me to get in-- he would take me to my destination--free of charge.  For a moment, the shock of this kindness almost knocked the Baltimore lawyer right out of me.

As we drove, he gave me a quick rundown on his belief in Karma, and how this gesture would surely guide him to a profitable and safe shift. I offered to visit a cash machine, if he'd wait at the curb, but he refused.  He even insisted that he drive around the block to get me closer to the front door of my destination, without having to cross the street.

That fellow's singular kindness reinvigorated me. I wrung myself out, and finished the last of the day's meetings in a much better state of mind, making a productive and amicable deal with opposing counsel. On the train ride home I made a note to accept another MVLS case when I returned to the office.

Pay it forward.

If you want to be a seaman, get in the boat!

This weekend is a big celebration of the 200th Anniversary of the War of 1812, here in Baltimore. It's a regular "Sailabration," with ships from all over, and lot's of self important people "speechifying" down and around Fort McHenry. All this fuss put me in a nautical mood, and I have always enjoyed maritime law more than any other area of my practice, so what better way to celebrate all those boats downtown than a few lines about some maritime law?

The Maryland Court of Special Appeals took a rare cruise into maritime law, launching the Dize v. Association of Maryland Pilots decision into the big pond of state court case law. Mr. Dize contracted silicosis of the lungs after his employer assigned him to sandblast the hull of a pilot boat owned by the Association of Maryland Pilots. To recover for his injuries from his employer, Mr. Dize sued in the Baltimore City Circuit Court (just a stone's throw from the Inner Harbor and the Chesapeake Bay). He lost on motion in the trial court, and he lost again, on appeal.

Now, it's not unusual for an injured worker to seek recompense from the boss. What is unusual in this case was Mr. Dize choosing to call him self a "Jones Act seaman," rather than a "longshorman," or just a regular 'ole "employee."  There's a difference, you see. He was seeking classification that has traditionally been granted our most imperiled maritime workers, a classification that would not have capped his recovery the way regular joes are limited by state or federal worker's compensation acts (you've heard the stories of scheduled injuries, and "what's a finger worth" after a dismemberment). The Jones Act seaman sues his employer for negligence, without the limitations of any scheduled recovery.  AND he gets to claim a daily stipend, called "maintenance and cure" even before he's won the case.  AND some contributory negligence on the part of the injured employee only reduces his recovery, it is not a complete bar, like it is in Maryland state law (at a recent Law Club meeting, I learned that Maryland is now in the minority of states where any amount of contributory negligence is a complete bar to recovery..that's another post for another day).

The federal "longshoreman," like the state worker, has limited recovery under the federal Longshore and Harborworker's Compensation Act. So, it's good to be a Jones Act seaman. I've litigated in all three areas, and Jones Act cases are, by far, the most fun (excluding the injured fellow, who usually would rather not be involved). I've learned so much cool stuff from crawling around vessels, including freighters, container ships, tugs, pilot boats, crab boats, and container cranes in Jones Act cases.

About 100 years ago, Congress created the Jones Act to protect the brave folks plying the high seas to bring us all those foreign goods we so deserve, called the Jones Act. This gave special protection to seafaring men and women injured in the service of our merchant fleet. After all, where would we be without our vanilla beans from Madagascar, or french wines, or bat guano from South America (really, look it up...Baltimore's port was built on this stuff!  In 1887, one island near the Dominican Republic shipped 462,000 tons of the stuff scraped out of 22 caves! And if you don't believe me, look at these 1899 log books, showing large tonnages of the stuff dropping on Baltimore's docks.) These guys deserve special protection.  After all, here's just a partial list of the bad stuff that can happen,compiled by another maritime lawyer:

• Loss of footing. Surfaces on any vessel may become slick due to exposure to ocean spray, rain, humidity or wet lines hauled aboard. When the ship is not properly equipped with non-slip surfacing that is maintained, these areas present a fall hazard that can and often do result in serious injury.
• Nets, lines and rigging. Rope, when not properly handled, is extremely dangerous. Feet and limbs can become entangled causing a fall or worse.
• Shifting cargo. When cargo is not properly secured, the movement of the ship can cause it to shift, creating the potential for a seaman to be struck or crushed.
• Lack of adequate railing. All stairwells and even some walkways require railing in order to allow workers to safely navigate them in high seas.
• Fall from height. Most vessels and offshore platforms have multiple stories. Improper railing, inadequate flooring or lack of safety measures such as improperly secured harnesses can result in a nasty fall.
• Fires and explosions. Ships and offshore drilling platforms require some heavy machinery to function; when sparks ignite, especially when combined with the occasional gas leak, workers can be burned by flame.
• Chemical burns. Contact with harsh chemicals due to improper training, incorrect storage or spills can cause serious and painful burns.
• Overexertion. Everyone has an idea of the limits of his or her own strength. Seamen are regularly asked to perform tasks that push those limits. When tasks go beyond the limits of physical endurance or strength, muscular and skeletal injuries can occur that may permanently damage a seaman’s ability to make a living.
• Decompression illness (DCI). Commercial divers execute extremely technical dives at extreme depths. These dives must be planned and executed exactly in order to avoid DCI (or “the bends”). When equipment fails or planning goes awry, divers are put in serious danger.
• Struck by a falling object. Cranes move large loads around barges, vessels and platforms. When cranes collapse or loads are improperly secured, workers on the deck below are in serious danger of being struck by the falling cargo.
• Malfunctioning equipment. Be it large machinery such as engines, cranes or drills, or hand held power tools such as saws or blowtorches, every maritime company has an obligation to ensure equipment stays in good working condition and that all workers are trained on its proper use. When machinery malfunctions, injuries ranging from cuts or burns to amputations may result.
• Improper supervision of loading and unloading. Longshoremen do much of the roll on/roll off operations, but seamen may assist in the process. High vehicular traffic and the coordination of the movement of large loads and containers create a number of dangers including being struck by a vehicle or load. These operations must be well supervised and coordinated in order to protect workers who are focused on a specific task.
• Electrocution. Exposed wiring, improper insulation and wet surfaces can lead to electrocution ranging from mild to severe.
• Radiation. Sealed and unsealed radioactive substances have a myriad of uses such as in cementing operations and density gauges. Exposure to an excessive amount of radiation can lead to radiation sickness, a serious condition requiring medical attention.
• Scaffolding collapse. When incorrectly constructed, scaffolding may collapse, causing injury to those upon and around the scaffold. Either a fall from great height or being struck by falling objects can lead to injury or death.
• Release of hydrocarbons. Hydrocarbon release can happen in liquid or gas form, both of which create explosion and fire hazards due to their flammable nature. Hydrocarbon inhalation can also cause pulmonary and neurological injury.
• Vessel collision. The seas are a busy place and vessels will on occasion collide. This presents a danger to seamen whether through the force of the impact or resultant complications such as fires or chemical spills.
• Getting caught in equipment. Winches are a good example of this potential hazard, as the winch drum can potentially snag body parts that get too close. Tasks that involve dangerous interaction with equipment or a lack of safety training, protocol and tools can lead to serious injury such as broken bones, soft tissue injuries or amputation.
• Improperly inspected enclosed spaces. Oxygen deficiency or flammable or toxic atmosphere can all occur in enclosed spaces aboard vessels. Before working in these areas, they must be inspected to ensure that the workers are not in danger.
• Falling overboard. A fall overboard can cause serious injury or death. The impact of the water is sometimes enough to render a person unconscious, leading to drowning. Non-fatal complications could arise from the fall including concussion, broken bones, spinal injury and hypothermia, not to mention the accompanying mental anguish.

This partial list should make it obvious why Congress gave these folks the right to sue their employer in negligence, if they could demonstrate their "seaman" status.  It is dangerous work.

But Admiralty and Maritime lawyers know all that, it's old hat. It's the fact that this decision boiled up out of the depths of Baltimore's Circuit Court that makes it interesting to me. You see, maritime cases are mostly filed in the United States District Courts. Jurisdiction over most anything dealing with international trade and commerce has drifted to the federal courts....except for the really cool "savings to suitor's" clause in the United States Constitution that guarantees certain claims for injury can still be brought in state court, at the sole election of the injured employee. It's rather empowering for the little guy. And where every other state court case that has related federal claims can be "removed" to federal court, the Jones Act case cannot. Chalk one up for the injured guy's forum selection.

And to make Mr. Dize's case even cooler, the Maryland Court of Special Appeals took some time to analyze U.S.Supreme Court law about what constitutes a "seaman." In a court that is normally swamped with criminal appeals of right from the entire state's trial court system, the law clerks must have been fighting over this one.

So what's the case hold?  Does it matter? Well, if you're injured while working on, or in support of a vessel, it sure does.  Maryland clearly adopted the Supreme Court's 30% rule, as described in Chandris v. Latsis.  That means roughly 1/3 of your time must be spent working on the boat if you want to earn Jones Act seaman status. The Supremes marked this off as a "rule of thumb," but anyone claiming status who spends less than 30% of his work time on the boat has to show a darn good reason to depart from this percentage.  One example that might work (it didn't for Mr. Dize) is the desk employee newly transfered to a vessel who is injured almost immediately in his new duties. He would not be able to demonstrate his Jones Act status using the 30% rule, but the nature of his recent assignment might save him from strict application of the rule.

And now I really want that Grady White I've been day dreaming about!  See you on the Bay!

Of Canada, Facebook, and Bears escalating war on society.

A few words about Canada, Faceook, and Bears.

Last year, I wrote a bit about Facebook evidence, and new Maryland Court of Appeals standards for using social media evidence.  Here's something of interest from a personal injury lawyer, in Canada, about use of Facebook evidence in Canada.

And the bears in Canada don't give a hoot about Facebook, or lawyers, and will attack anyone, even a guy chilling in his hot tub.

 

 

 

UPDATED: August 27, 2012--And it just gets worse!  This poor slob was hiking in the Denali State Park, in Alaska, when he was mauled to death by a grizzly.  The horror! it is reported that he snapped photos of the bear just eight minutes before the attack. And how about this 2000 item, describing how "this was not an attack, the bear ate him."

 

UPDATED: October 5, 2012-- Tech Saavy black bear snatches iPad from picnic site. And feeding bears will lead to their execution by the authorities in New York , Montana, and in Connecticut. In Florida, the bears are commiting suicide by cop! And don't forget to the annual "Virginia Harvest!"

 

UPDATED: October 8, 2012-- Black Bears stake their claim to the lobby of a New Mexico ski resort, seeking something tender to chew!

 

UPDATED: October 13, 2012-- Bears are now interfering with our children's education by blocking test booklet access!

 

 

UPDATE: October 16, 2012- Alaskan man half-eaten by bear.  Chilling. And in Canada (it gets back to our neighbors) a murderer's corpse was dragged out of a car and eaten by a bear (shades of Dexter?) Vigilante bears?



If you want to arbitrate, rely on your own contract!

Labor leader Samuel Gompers had a view of arbitration that I share:

Do I believe in arbitration? I do. but not in arbitration between the lion and the lamb, in which the lamb is in the morning found inside the lion.

The Maryland Court of Special Appeals echoed that sentiment in the recent decision Griggs v. Evans, reported May 2, 2012. The Specials reversed a trial court decision to compel arbitration between a credit life insurance company and the widow of it's insured, Helen Griggs.  Mr. Griggs expired from lung cancer, and...surprise...the credit life insurance company denied Widow Griggs' claim for the $150,000 benefit.

Which does remind me that I thoroughly enjoyed Matt Damon in Grisham's The Rainmaker, where Matt plays first year lawyer Rudy Baylor, suing a health insurance company for failing to pay for necessary treatement, which leads to the death of Rudy's client. The cross-examination of Great Benefit's CEO, Wilfred Keeley, played by Roy Scheider, and his interpretation of a policy manual that says "deny all claims" when first submitted, is classic. But I digress- Great Benefit is a fictional insurance company, and Matt Damon is not really a lawyer, and Matt's fictional client is not really dead.

But Mr. Griggs is dead.  And Household Life Insurance Company refused to pay. It's not a stretch that Widow Griggs and the Estate of her husband sued for the policy benefit.

They also sued individuals employed by the company. And it was the individuals who moved the trial court for an order compelling arbitration. Now, the key fact is that the arbitration clause was nowhere to be found in the insurance contract between Widow Griggs, her husband and Household.  The arbitration clause resides only in the financing agreement, with Beneficial Mortgage--a separate company.

Imagine that, the employees of Company A sought to impose on Widow Griggs the arbitration clause found in the loan documents between Widow Griggs and Company B.  And the trial court bought it. As I read these facts, I could just envision the court's panel of jurists during oral argument, leaning back, arms folded, and eyes closed, knowing their opinion was already typed and awaiting signature on their desks. A no-brainer.

I do a fair amount of arbitration for individuals and companies. I advise clients regularly that disputes arising out of contracts, and reasonably related to the subject matter of those contracts often gets caught up in the broadly construed web of a standard arbitration clause.

But such was definitely not the case for Widow Griggs.  The appellate court found that the credit life insurer was bound by it's singular contract.  It could not reach out and "borrow" Beneficial Mortgage's arbitration clause. The case has been sent back to the trial court.

Enter Matt Damon, as insurance company hunter Rudy Baylor?

Court bites dog?

George Carlin observed that "dogs lead a nice life, you never see a dog with a wristwatch." But Maryland's Pitbull population is on the clock, now, after the highest court branded it an "inherently dangerous breed" and thus triggered a series of commercial decisions that just may operate to bar Pitbulls from many rental or owner-occupied communities.

It's right here, in Tracey v. Soslesky, an April 26, 2012 decision from Maryland's highest court, the Court of Appeals. The gory facts and dog bite stats are there, going back to 1916. it's worth a read.

Until now, Maryland was a "one bite" state.  A dog (the individual pooch, and not the entire breed) was presumed to be warm and cuddly until it's actions demonstrated otherwise.  It was the classic "don't bite, don't tell" policy. And after one act of aggression toward humans, the dog earned a label, and it's owner became fully noticed of the animal's violent tendancy. From that point, the owner bears liability for the consequences of that dog's future violent conduct, be it a nip on the butt of the a neighborhood boy on a bike (I got skinned knees, and a new pair of pants), four holes in the back of the thigh (but I still love my neighbor, and he voluntarily put the dog down since he'd already been sued the prior year by a jogger who was chewed by the dog's mate--the man didn't want to hinder his dog's zest for life with training, leashes or muzzles--and now it's dead), or the severed sword hand of a rival knight from House Lannister (OK, that's a fictional Dire Wolf from Game of Thrones).
With this decision, the Pitbull (the entire breed, including half-breeds, and not individual pups) has been singled out as prone to bite. Always. No questions. No exceptions. Expect it. Plan for it. Better yet, buy a pet rock.
And please note that I make reference to the animal as "it."  I do enjoy canines- I've owned them, loved them, and been bowled over, slobbered upon and licked within an inch of my life by them--but I don't imbue them with humanity, no more than I would make reference to my dining room chairs as "him" and "her," and they have dinner with me, every night. I say this because much of the public debate surrounding this decision is unnecessarily ratcheted up several notches, well into the "shrill" range (you need a dog's sense of hearing to discern some of it),  because the domesticated animal is deemed "family" by so many. My dear wife has even referred to us as ourown dog/cat's "parents," which is always a nice seque into a lively discussion at my house--usually with the dear animal on my lap or reclining at my feet. They can keep me warm, but I'm not sending them to college. And most everything that can scratch and claw has been pulled or trimmed off of them, and any and all baby making equipment has been neutralized.  (Wow, perhaps we should treat our kids more like pets? hmmmm.)
On one law listserve, the on-line debate generated over 50 long, strident, and sometimes nasty posts on the subject of "dog prejudice" in a two hour period. One post captures the core issue, and it's not about prejudice against a species, or a breed, or even a preference not to lose a limb while jogging in the park.  The core issue is the civility or lack of civility of the property owner.  Attorney Michael Gross, of Silver Spring put it best, and I am pleased to share his well considered words, here:

I do not suggest that anyone should lack the liberty to own any particular breed of dog; provided that they raise it in an appropriate manner.  What I was more interested in is the state of mind of the owner.  I am wondering whether owning such an animal reflects a sort of disrespect of others, or as it may be put, bad manners.

Are we becoming an uncivilized civilization?  At the risk of setting myself up as an example; when I was growing up it became clear that I should never cut my lawn on the weekend before noon, lest I impose on my neighbors’ peace and quiet.  I should not turn the volume on my car stereo up to maximum and roll down my windows in stopped traffic.  I should never take the last of any item on the store shelf if I didn't really need it.  Turning more towards the legal, I was trained never to serve discovery for the major purpose of being burdensome, nor engage in motions practice for the same purpose. (The point here is not to quibble over the permissible extent of discovery or motions, let's move on.)It would seem to me that owning a dog which is, rightfully or wrongfully, perceived as a danger by others, is simply bad manners.  (Those in fear of personal injury by intruders in the night get a pass here.)  Are we as a society so concerned about rights, that we have lost touch with an ethic that suggests we take the interests of others into account in exercising those rights?

I read this opinion dispassionately, as a property owner. Or, as someone who must advise other property owners on the risk of owning or maintaining a particular bit of property in their house, apartment, condo, business, or public place.  It also informs me that there are certain places I will not bike, walk or jog, or let a small child roam.
If the decision stands (and there is a move to overturn the decision by legislative fiat- imagine if the same vigor was directed at decisions adverse to civil rights, defendant's rights, and other decisions that restrict or denigrate the quality of human life!), landlords may further restrict their pet policies in residential and commercial leases.  And if the landlords won't, they may be compelled by their general liability carriers. The same goes for homeowner and condo associations, and commercial landlords. 
With this decision, what's to stop any forward thinking town in Maryland from just outlawing Pitbulls within their corporate limits for the protection of it's residents? Is that toothy-muscle-on-a-leash that is straining to take in the delicious aroma of your toddler-in-a-carriage  any less dangerous than the cancerous second hand smoke our government has largely outlawed? Why not! According to the Court of Appeals, we are all on notice. The Pitbull is prone to bite. Always. No questions. No exceptions. Expect it. Plan for it.
UPDATE-MAY 14, 2012- House Bill 1808 was introduced to make dog bite liability in Maryland conditioned on whether the person being sued was "responsible" for exercising control over the canine property, and was negligent in exercising that control. The Bill was introduced during the Special Session intended to address the budget.  It is very unlikely that this Bill will pass through the committee process during the Special Session. It may well arise, again, when the Legislature reconvenes.

The Bill is sponsored by Delegates Cardin, Bromwell, Carr, Feldman, Frush, Guzzone, Haddaway-Riccio, Hogan, Kipke, Luedtke, A. Miller, Morhaim, Reznik, Stocksdale and F. Turner.  Have an opinion?  Let'em know!  Perhaps bark once for "yea," and twice for "nay."

I don't think the language of this brief provision will effectively overturn the Court of Appeals case, since it does not address the judicial finding that Pitbulls are "inherently dangerous."  Calling the standard of care "negligence," alone, won't lessen the standard of care, much, if at all.
Woof, woof.
Post Script June 15, 2012:  This continued reporting on Pit Bull attacks is sure to keep the kettle boiling.  Here's today's "death of a child" report from California--3 Pitbulls + 1 young child= death.
UPDATE- July 15, 2012-The Court's ruling has been stayed, pending further decision on a motion to reconsider, filed in the Court of Appeals. The ABAJournal has a nice summary of the current status, here. So, buy Fido dog food for a few more weeks, at least.

Update- August 6, 2012- The American Bar Association House of Delegates has authorized a resolution urging passage of "breed neutral" laws concerning Pit Bulls. Here is a summary and link to the resolution. Of particular interestis citation to the Ohio legislature, and it's repeal of a law that was  directed at Pit Bulls, as a distinct threat.

Social media as alternate service, or how to poke someone with your subpoena.

The British and Australian courts have embraced Facebook and Twitter as legitimate alternate means to serve court orders and legal process. I found this 2008  article in the Sydney Morning Herald reports that the Supreme Court of the Australian Capital Territory permitted service of a notice of default through Facebook.

In 2009, a British litigant who complained about anonymous Twitter posts was permitted by the High Court to serve an injunction by posting a message to the site, with a hyperlink to the full court order. The complainant sought relief from "mildly objectional" posts to an anonymous twitter account.

In 2011, another British litigant was permitted to serve process for post-judgment discovery through Facebook. The Telegraph reported that alternate attempts to contact the judgment debtors had been attempted, and were unsuccesful.

On February 21, 2012, AmLaw Daily reported the most recent British court order permitting alternate service of post-judgment process on a judgment debtor.

But resist the urge to "poke" your witnesses and opposing parties, just yet. I don't see any immediate prospect of Maryland courts permitting such relaxed attempts at service of legal process.

It appears that Australian and British law allows delivery of formal court documents by several different means including fax or e-mail. The move to Facebook and Twitter notices and delivery was thus a natural extension of already relaxed court procedure. I don't see a time in the near future when this will be possible, in Maryland.
Here, in the land of pleasant living, the practice of law is burdened with that pesky notion of "constitutional due process." Our kissing cousins across the pond are not so burdened. Our own court rules demand that legal process be personally served on the defendant or responding party. Whether by certified mail, or the traditional knock-on-the-door-hand-delivery, due process requires  certain guarantees that a party receives formal notice of a proceeding before the court can exercise jurisdiction, or impose it's orders that someone refrain from,  or engage in, specified actions.
[UPDATE:  Over the four days since I first posted this comment, I've been chatting this Facebook issue over with a friend who teaches at an area law school. Our discussions centered on a Maryland Rule that permits a third tier of court ordered alternate service, as follows:

When proof is made by affidavit that good faith efforts to serve the defendant... have not succeeded and that service... [by regular mail to the home, or on others residing at the home or at the place of employment] is inapplicable or impracticable, the court may order any other means of service that it deems appropriate in the circumstances and reasonably calculated to give actual notice.

And so, I am left to concede that Facebook as a means of alternate service is, indeed, a possibility in Maryland civil cases. But only as a third-tier choice, after actual "in hand" service is attempted, and after proof of evasion, and even after additional attempts to send regular mail to the home or job site of the defendant.  Facebook and Twitter may fall within the category of "posting on the courthouse door." I now return you to the previously written prose.]

In many cases, affecting proper service can as difficult as trying the case. Here are some of the lengths we've gone to formally invite a defendant to the party, or to serve legal process:

• Our process server posed as an autograph seeker to lay a summons in the hands of a popular NFL player as he left a conference room in Las Vegas.
• Our "Tony Soprano" look-a-like stood at the end of the defendant's driveway, as he walked out at dawn to pick up his newspaper.
• Our client convened a meeting with the defendant in a New York City boardroom while process servers spanned three states to serve summonses and pre-judgment attachments on financial institutions and relatives joined in the fraud. The joy was in describing what was happening to the defendant, as it happened in real time.
• And when I was a much younger lawyer, it was a thrill to travel with the federal marshal to serve process on a foreign vessel in the harbor, directing that it not leave port pending further order of court.
• I once entered an arbitration session, only to see that one of the participants was an individual I was trying to serve with a writ, in another case. I excused myself, called the process server, and participated in the arbitration until the process server arrived and delivered the summons as we exited the room.
• We once persuaded an absconding defendant to return from an "urgent" trip to Nigeria by freezing several of his bank accounts, here in Maryland. No cash, no trip. He returned within a few days of the judge's order.

And the list goes on.  At the moment, we are pressing a motion in federal court to compel the United States Post Office to reveal forwarding address information on a defendant. And we are also working to serve an ex-pat defendant in the Co-ooperative Republic of Guyana. (don't worry, I had to look it up, too.)

Whether we are pursuing a wrongful injury case, a case for property damage, fraud, maritime cargo loss, or real property rights, nothing can be done in the court until the defendant is properly served. But I am left to wonder if we will soon submit affidavits of evasion to the court, asking that we be permitted to post to a known person's Facebook or Twitter account.

So, who do you want to serve? Let's start the hunt.

Check, Please! A good bartender won't libel you.

The February 13, 2012 Orange County Weekly blog reported the story of a federal court settlement favoring a restaurant patron discriminated against because of his race. I came across the story after it was picked up by the New York Daily News, and MSNBC.

The Orange County site, and the New York Daily News have the most complete fact recitation. In short, this poor guy did nothing but show up, order food, and pay his bill on frequent visits to the same establishment. Employees took to annotating his bar tab and food bills with racially charged epithets, names and descriptions. One of the sites even includes the copy of one offensive receipt.

Take a moment and breeze through the complaint in this case, captioned as Mark McHenry v CDM Restaurant, Inc., d/b/a Landmark Steakhouse, in the United States District Court, Central District of California, #CV11-02636 JHN.

The case was settled on February 2, 2012, one month before trial, after the Plaintiff's lawyers uncovered over a dozen other instances of such discriminatory behavior. This was after attempts by the Defendants to bar discovery into approximately 167,000 other receipts for evidence of widespread discriminatory behavior. Magistrate Judge Victor B. Kenton permitted the discovery.

This case resonates with me because of a case we recently resolved in favor of a similarly situated person.

Our client was the butt of e-mailed jokes circulated behind his back in the workplace. The e-mails consisted of pornographic images with the client's name, and the name of his wife, superimposed on the images. One of the images made reference to his wife's disability.

Like Mr. McHenry, our Maryland plaintiff was the object of "libel per se." This is a form of defamation, where something awful is said about you which changes how others percieve you, in a negative way. Where the conduct is so horrible that reasonable minds cannot differ on it's defamatory intent and effect, the plaintiff can recover even where there is not evidence that the horrible conduct caused medical damage (such as a need for counseling, or inabililty to perform at work).

And like Mr. McHenry, our case settled when we pushed the employer for discovery into all e-mail files circulated throughout the company which could have contained similar libelous material.

The immediate benefit of these cases is obvious: the injured persons get money as compensation for their shoddy treatment.  The longer term benefit is that the defendants will change their behavior. In my case, the board meeting where the lawsuit and offending employees were discussed was described to me as "the first five minutes of Saving Private Ryan."  I believe it. And they deserved it!

So, be vigilant, be fair, and show some respect to your fellow man. If not, me or some other member of the bar may just sit across the table someday, at your deposition!

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