Maryland Accident Law Blog

Business Use Exceptions in Auto Liability Policies Under Maryland Law Reviewed by Federal Appellate Court: Forkwar v. Empire Fire and Marine Ins. Co.

November 12, 2012 | Lebowitz & Mzhen

After obtaining a verdict in a car accident lawsuit, the plaintiff sought to enforce the judgment against the defendant’s insurer. The insurance company successfully argued that the “business use” exception barred coverage of the plaintiff’s claim, as the defendant was operating his vehicle in the course of his work at the time of the accident. The court in the original lawsuit had found that the doctrine of respondeat superior, which holds an employer liable for certain acts of an employee, did not apply to the defendant’s employer. The court in the present case, Forkwar v. Empire Fire and Marine Ins. Co., nevertheless found that the business use exception applied. The case highlights an important challenge for Maryland plaintiffs who may obtain a verdict, but might have difficulty enforcing it.

The plaintiff, Augustine Forkwar, was involved in an automobile accident during the early morning of November 26, 2004 with Hameed Mahdi. Mahdi was an independent contractor of J&J Logistics. He owned his vehicle but leased it to J&J. At the time of the accident, he was on his way to a job for J&J when he stopped to get something to eat. Empire Fire & Marine Insurance Company had issued a commercial auto insurance policy to Mahdi, but it asserted that it was not obligated to defend or indemnify Mahdi under the policy’s business use exception.

Forkwar sued Mahdi and J&J in October 2006, alleging negligence against Mahdi and respondeat superior liability against J&J. Forkwar reportedly made no attempt to prove liability against J&J, and she did not oppose its motion for judgment as a matter of law in the middle of trial. The jury entered a judgment against Mahdi, who was a no-show at trial, for over $180,000. Forkwar then filed suit against Empire for indemnification. Empire removed the case to federal court and moved for summary judgment based on the business use exception. The district court granted the motion, and Forward appealed to the Fourth Circuit.

Denial of Death Benefits Upheld by Court Because Decedent’s Intoxicated State Excluded Him from Coverage: Fitzgerald v. Colonial Life & Accident Ins. Co.

November 5, 2012 | Lebowitz & Mzhen

The wife of a man who fell off a pier and drowned filed suit against an insurance company after it refused coverage for accidental death and dismemberment benefits. The insurance company cited an exclusion for accidents involving a presumption of the influence of alcohol. A federal judge ruled in Fitzgerald v. Colonial Life & Accident Ins. Co. that the exclusion applied to the decedent. It found that the decedent’s blood alcohol content exceeded Maryland’s legal limit for intoxication, and that the decedent’s own negligence contributed to his death.

The decedent, Jeffrey Fitzgerald, had been drinking during the evening of September 19, 2009 at a marina in Edgewater, Maryland. According to witness statements, Fitzgerald was observed carrying a forty-two-inch television to a boat docked at the pier. He apparently fell into the water, and his body was found later in fifteen to twenty feet of water about twenty feet away from the pier. The autopsy concluded that drowning was the sole cause of death. A toxicology test performed several hours after his death found a blood alcohol level between 0.27 and 0.31 percent, between three and four times the legal limit in the state of Maryland.

Fitzgerald had a term life insurance policy issued by Colonial Life & Accident Insurance Company that named his wife, Lynette Fitzgerald, as beneficiary. She filed a claim for benefits. After reviewing the police report and other documents, Colonial agreed to pay the full $100,000 under the policy certificate, but concluded that she was not entitled to accidental death and dismemberment benefits. Colonial cited an exclusion in the policy certificate for accidental losses related to illegal drug use or a blood alcohol percentage that would cause a presumption, under Maryland law, that the person was under the influence of alcohol. Maryland’s legal limit for driving under the influence offenses is 0.08 percent.

Court Denies Motion to Dismiss Brought by Manufacturer of Four Loko in Putative Class Action Lawsuit: Yourth v. Phusion Projects, LLC

October 24, 2012 | Lebowitz & Mzhen

A federal judge in New York denied Phusion Projects’ motion to dismiss a putative class action lawsuit alleging damages caused by its product, the energy drink Four Loko. The lawsuit, Yourth v. Phusion Projects, LLC, alleges that the company failed to warn consumers of potential negative effects of the beverage’s allegedly high levels of both caffeine and alcohol. Phusion argued that the plaintiff’s claim was moot because of a settlement offer the company made, and that federal law preempted the plaintiff’s state law claims. The court rejected the defendant’s arguments and denied its motion.

Four Loko is a beverage containing both caffeine and alcohol, marketed to young adults as an “energy drink.” The plaintiff, Jeremiah Yourth, alleges in his amended complaint that a typical unit of Four Loko, which is sold in 23.5-ounce cans, potentially has the same effect as six beers and two cups of coffee. Because of its composition, the beverage can allegedly mask the effects of alcohol consumption and thereby cause injury. According to the plaintiff, Phusion did not disclose the potential harm of its beverage to consumers.

The plaintiff did not assert any personal injuries in his complaint, but rather violations of New York’s deceptive business practices law, false advertising, and unjust enrichment. He alleges that he purchased multiple Four Loko beverages in reliance on the company’s marketing and labeling, and that this gives him standing as a consumer to bring suit. His damages consisted of economic injuries sustained by his purchase of the beverages at what he called a “price premium,” when the products were in reality worthless. Had he known the alleged reality of Four Loko’s health effects, he claims that he would not have purchased the product. He asserts grounds for certification as a class action under the Federal Rules of Civil Procedure, although at the time of the defendant’s motion to dismiss, he had not moved for class certification. The amended complaint requests restitution and other damages for the plaintiff and the class members.

Res Ipsa Loquitur Argument Rejected in Maryland Bus Accident Lawsuit: District of Columbia v. Singleton

October 17, 2012 | Lebowitz & Mzhen

A man and his son sued the District of Columbia for injuries sustained in a bus accident in Prince George’s County, Maryland. The lawsuit asserted vicarious liability against the District for the alleged negligence of its employee, the bus driver. The Court of Appeals of Maryland affirmed the trial court’s judgment for the defendant in District of Columbia v. Singleton, 41 A.3d 717 (Md. 2012), finding that the plaintiffs did not produce sufficient evidence to support a theory of res ipsa loquitur.

The accident occurred on June 20, 2008, when Wayne Singleton and his two sons, ages six and eight, were passengers on a bus for a day trip to the Six Flags amusement park, sponsored by the District’s Department of Parks and Recreation. On the return trip to DC, the bus apparently went off the road and crashed into a tree. Singleton and his eight year-old son, Jaron, sustained injuries in the crash. Singleton was asleep when the bus went off the road, allegedly waking up while it was “airborne,” and Jaron had no memory of the accident. Both suffered minor injuries.

Singleton filed suit against the District in January 2009 on his own behalf and on behalf of Jaron. Because neither plaintiff had personal knowledge of the circumstances of the accident, they relied on the theory of res ipsa loquitur. This translates literally as “the thing speaks for itself.”

Children Risk Serious Injury from Recreational Trampoline Use, Pediatricians Say

October 8, 2012 | Lebowitz & Mzhen

Recreational trampolines, particularly the kind found in backyards, pose a serious risk of injury to children, according to a paper published by the American Academy of Pediatrics (AAP) this month. The AAP has long advocated against the recreational use of trampolines, citing the high risk of fractures, spinal cord injuries, and traumatic brain injuries. Other medical associations and the federal government have also noted the hazards of trampolines.

Trampoline use in the home environment remains a popular activity for children and teenagers, despite repeated warnings from the AAP and other groups. The Council on Sports Medicine and Fitness, part of the AAP, reported on the risks of trampoline use in the October issue of the AAP’s official journal, Pediatrics. It estimates that around 100,000 trampoline-related injuries occur every year, and that in every year since 2005, they have been responsible for three to four thousand hospitalizations and deaths. This actually represents a decrease in the annual injury rate, which reportedly peaked at the same time as trampoline sales in 2004. The American Academy of Orthopaedic Surgeons (AAOS) has also noted a direct correlation between the popularity of recreational trampolines and injury rates.

The original purpose of the modern trampoline was athletic training, not recreation, according to the patent obtained in 1945 by competitive gymnast George Nissen. His patent was for a “tumbling device” he intended to use to train gymnasts and acrobats. It later found a use in military aviation training. Recreational trampolines appeared once manufacturers were able to create frames that consumers could assemble at home. The AAP, the AAOS, and the U.S. Consumer Product Safety Commission (CPSC) all warn of the dangers inherent in trampoline use. Manufacturers have added safety features in recent years, including padding for trampoline frames and nets to prevent users from falling off the sides, but the AAP reports that these measures have not shown any significant impact on the injury rate.

Maryland Law Requires Medical Malpractice Plaintiff to File the Claim With the State Before Filing Suit – Haskins v. Washington Adventist Hospital, Inc.

October 2, 2012 | Lebowitz & Mzhen

The U.S. District Court for the District of Maryland granted a defendant hospital’s motion to dismiss a medical malpractice lawsuit, Haskins v. Washington Adventist Hospital, Inc. A woman filed suit as administrator of her late husband’s estate, alleging that inadequate care by hospital personnel caused his death. The court held that she did not comply with the Maryland Health Care Claims Act (MHCCA), which requires plaintiffs to file a claim with a state agency as a condition of filing a lawsuit. It dismissed the suit without prejudice, meaning she is permitted to re-file.

The decedent, Virginia resident Ernest Haskins, checked in to Washington Adventist Hospital (the “Hospital”) in Takoma Park, Maryland on April 9, 2010. He was there to receive treatment, including surgery, for a spinal fracture and metastatic multiple myeoloma cancer of the spine. He allegedly contracted a MRSA infection (methicillin-resistant Staphylococcus aureus) due to the nursing staff’s failure to follow standard of care procedures. MRSA is a bacterial infection that is resistant to common antibiotic treatments. It is usually spread by skin-to-skin contact. Because of the infection and its risk of contagion, Haskins was initially unable to find a nursing home willing to accept him.

Haskins also suffered stage II sacral decubitus ulcers, commonly known as bedsores, during his stay at the Hospital, causing him severe pain and discomfort. After several months in the Hospital, a nursing home in Richmond, Virginia agreed to admit Haskins. A third-party ambulance transferred him there, a five-hour trip over 129 miles. The Hospital allegedly failed to provide the ambulance crew with a full account of the severity of Haskins’ condition, including the bedsores. Haskins’ bedsores therefore went untreated until he arrived in Richmond. He required surgery at Virginia Commonwealth University Hospital on July 2, and he died shortly afterwards.

Maryland Supreme Court Reconsiders Contributory Negligence Doctrine

September 23, 2012 | Lebowitz & Mzhen

An injury caused by a collapsed soccer goal has led the Maryland Supreme Court to reconsider the state’s longstanding doctrine of contributory negligence. Four states and the District of Columbia still follow this doctrine, which holds that plaintiffs may not recover damages in a lawsuit if their own negligence contributed to the accident or loss in any way, no matter how minimal. In Coleman v. Soccer Assoc. of Columbia, et al (Md., Sept. Term 2012, No. 9), the state Supreme Court is considering whether it should follow most U.S. states in adopting the doctrine of comparative negligence. This legal doctrine allows a plaintiff to recover, but reduces damages based on an apportionment of the plaintiff’s negligence.

Kyle Coleman, twenty years-old at the time, was attending a soccer practice at Lime-Kiln Middle School in Fulton, Maryland in 2008. As he went to retrieve a ball from the goal, he grabbed the crossbar. This apparently caused the crossbar to collapse, hitting Coleman in the face and crushing several ocular bones. He now has three titanium plates in his skull.

Coleman sued the Soccer Association of Columbia, which was responsible for the practice where his injury occurred. He alleged that it breached its duty to maintain the goal properly. A jury found that the association was negligent in failing to secure the goal, but it also found that Coleman was partly negligent. The contributory negligence doctrine therefore barred him from relief.

Man Sentenced to More than Two Years in Prison for Fatal Drunk Driving Crash

September 18, 2012 | Lebowitz & Mzhen

After pleading guilty to charges of drunk driving, a Vermont man received a two-and-a-half-year prison sentence in late August. One passenger died in the automobile accident that led to the criminal charges, in which the man was allegedly driving with more than twice the legal blood alcohol level.

The accident occurred at about 1:00 a.m. on October 2, 2011, when a car driven by 23 year-old Derek Seber, a Maryland resident attending Norwich University, ran off a road in Northfield, Vermont and crashed into the trees. Witnesses said they saw a car speed past them at fifty to sixty miles per hour. The posted speed limit at the turn where the crash occurred was thirty-five miles per hour. The car, an Acura 4S sedan, was carrying seven passengers in addition to Seber. A passenger in the front seat, an eighteen year-old Norwich freshman, was sitting in another passenger’s lap with no seatbelt. She sustained fatal injuries in the crash. Three other passengers suffered critical injuries.

NTSB Investigates Maryland Freight Train Derailment that Killed Two

September 13, 2012 | Lebowitz & Mzhen

The National Transportation Safety Board (NTSB) is investigating the derailment of a freight train, which occurred in Ellicott City, Maryland on the night of Monday, August 20, 2012. Two teenagers who were sitting near the tracks died as a result of the derailment. The accident left train cars and coal strewn over a wide area. A preliminary report from the NTSB describes the basic timeline of the derailment, but the actual cause may not be known for some time.

According to the NTSB’s preliminary report, an eastbound freight train, operated by CSX Transportation and traveling on the CSX Old Main Line Subdivision through Ellicott City, derailed at about 11:56 p.m. on August 20. The train consisted of two locomotives and eighty freight cars carrying coal, traveling at the maximum approved speed of twenty-five miles per hour. The twenty-one lead cars derailed. Six of those cars fell about fifteen feet from the railroad bridge into a public parking area on the north side of the track. The other fifteen cars overturned and spilled their cargo. Witnesses said the coal on the ground was up to a foot deep.

Maryland Court of Special Appeals Dismisses Medical Malpractice Case Due to Lack of Qualified Expert

September 1, 2012 | Lebowitz & Mzhen

A trial court dismissed a man’s medical malpractice suit against three doctors, ruling that he did not file a certificate of qualified expert (“Certificate”) that comported with state law. The plaintiff in Hinebaugh v. Garrett County Memorial Hospital, et al appealed on both the substance of the dismissal and on the question of whether the court could dismiss the suit before the parties had conducted any discovery. The Maryland Court of Special Appeals affirmed the dismissal, finding that the plaintiff’s Certificate was inadequate, and that formal discovery was not necessary for the plaintiff to meet the statutory requirements for qualifying an expert witness.

The plaintiff sustained injuries to his left cheek and jaw on August 12, 2006 after being hit in the face when he was a 22 year-old inmate in a local jail. He was first seen by Dr. P. Daniel Miller, an osteopath practicing family medicine, who ordered simple x-rays of his facial bones. Dr. Miller and two radiologists, Drs. H. Stan Lambert and James K. Benjamin, examined the x-rays and reportedly found no “radiographic abnormalities.”

After the plaintiff was released from jail, he went to a different doctor on August 27. That doctor ordered a maxillofacial CT scan and found a “left supraorbital fracture with displacement.” He referred the plaintiff to an Oral and Maxillofacial Surgeon (OMS). The plaintiff eventually underwent surgery on his cheek and jaw.

The plaintiff filed a claim in the state’s Health Care ADR Office in August 2009 against Drs. Miller, Lambert, and Benjamin. He alleged various breaches of the doctors’ standards of care, including failure to order a CT scan or consult with specialists. He claimed that these breaches caused him to need “extensive intrusive surgical procedures” and sought compensation for medical expenses, past and future lost wages, and pain and suffering. The plaintiff filed a Certificate and a report by John Mitcherling, D.D.S., identifying him as an OMS specialist with at least five years’ clinical experience similar to that of the three respondent doctors. Dr. Mitcherling stated an opinion that the doctors had breached various standards of care by failing to perform certain diagnostic tests.