STATE LAW SUMMARY Overview of the State of Maryland Updated 2013

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1 STATE LAW SUMMARY Overview of the State of Maryland Updated 2013 Preparer: Andrew T. Stephenson, Esq. Franklin & Prokopik, P.C. Baltimore, Maryland Table of Contents Overview of the Maryland Court System A. Trial Courts B. Appellate Courts Procedural A. Venue B. Statute of Limitations C. Time for Filing an Answer D. Dismissal Re-Filing of Suit Liability A. Negligence B. Negligence Defenses C. Gross Negligence, Recklessness, Willful and Wanton Conduct D. Negligent Hiring and Retention E. Negligent Entrustment F. Dram Shop G. Joint and Several Liability H. Wrongful Death and/or Survival Actions I. Vicarious Liability J. Exclusivity of Workers Compensation Damages A. Statutory Caps on Damages B. Compensatory Damages for Bodily Injury C. Collateral Source D. Pre-Judgment / Post Judgment Interest E. Damages for Emotional Distress F. Wrongful Death and/or Survival Action Damages G. Punitive Damages H. Diminution in Value of Damaged Vehicle I. Loss of Use of Motor Vehicle

2 Evidentiary Issues A. Preventability Determination B. Traffic Citation from Accident C. Failure to Wear a Seat Belt D. Failure of Motorcyclist to Wear a Helmet E. Evidence of Alcohol or Drug Intoxication F. Testimony of Investigating Police Officer G. Expert Testimony H. Collateral Source I. Recorded Statements J. Prior Convictions K. Driving History L. Fatigue M. Spoliation Settlement A. Offer of Judgment B. Liens C. Minor Settlement D. Negotiating Directly With Attorneys E. Confidentiality Agreements F. Releases G. Voidable Releases Transportation Law A. State DOT Regulatory Requirements B. State Speed Limits C. Overview of State CDL Requirements Insurance Issues A. State Minimum Limits of Financial Responsibility B. Uninsured Motorist Coverage C. No Fault Insurance D. Disclosure of Limits and Layers of Coverage E. Unfair Claims Practices F. Bad Faith Claims G. Coverage - Duty of Insured H. Fellow Employee Exclusions Overview of the State of Maryland Court System A. Trial Courts The Maryland District Court system is a court where smaller claims are heard by a judge, with no jury trials allowed. There are two separate jurisdictions within the District Court system, the first being small claims court, which is for all claims up to and

3 including $5,000.00, and the second being non-small claims, for all claims above $5, and up to and including $30, See Md. Code Ann., Cts. & Jud. Proc The maximum award in all small claims District Court cases is $5,000.00, or the amount demanded in the Complaint, whichever is less; and the maximum award in all non-small claims District Court cases is $30,000.00, or the amount demanded in the Complaint, whichever is less. The District Courts do not have jurisdiction to render a declaratory judgment. See Md. Code Ann., Cts. & Jud. Proc (c). In District Court cases where more than $15, is demanded in the Complaint, either party may pray a jury trial thereby promoting the action to the Circuit Court. District Court is specifically designed to be a streamlined, cost-effective forum to efficiently dispose of smaller claims, with no need for expert witnesses, extremely limited discovery and relaxed rules of evidence. There is absolutely no discovery allowed in small claims District Court cases, and the trial of a small claim action is conducted in an informal manner and the rules of evidence generally do not apply. See Md. Rule For all non-small claims cases, discovery is generally limited to only fifteen (15) interrogatories. No depositions are allowed without order of court, and such orders are extremely rare. In addition, live experts generally do not testify, but a party can introduce copies of medical and other reports by simply giving notice to the court within sixty (60) days of trial. For more information on the Maryland District Court system please log onto The Maryland Circuit Courts are the highest common law and equity courts of record exercising original jurisdiction within the State and the only state forum where jury trials are permitted. The Circuit Courts also decide appeals from the District Court, from the orphans' courts in some instances, and from certain administrative agencies. In a civil action in which the amount in controversy exceeds $15,000.00, exclusive of attorney's fees, if attorney's fees are recoverable by law or contract, a party may demand a jury trial pursuant to the Maryland Rules. See Md Code Ann., Cts. & Jud. Proc (e)(1). In a civil action in which a jury trial is permitted, the jury consists of six (6) jurors. See Md. Code Ann., Cts. & Jud. Proc., A unanimous decision is required. Full discovery is allowed in Circuit Court, including thirty (30) interrogatories per party, thirty (30) requests for production of documents and requests for admission of facts. The depositions of both parties and non-parties is allowed, in addition to the use of experts witnesses and independent medical examinations. For more information on Maryland s Circuit Courts please log onto Both the juries in Baltimore City, and especially Prince George s County, have a reputation for awarding generous plaintiffs verdicts. Other jurisdictions are known to be more conservative. These include Anne Arundel, Montgomery, Charles, Baltimore, Harford, and Howard Counties. Baltimore County is physically the largest jurisdiction in Maryland, and given its size, has greatly varying demographics which makes it difficult to determinatively describe as either conservative or liberal.

4 B. Appellate Courts The Court of Special Appeals is Maryland s intermediate appellate court, which was created in 1966 in response to a rapidly growing caseload in the Court of Appeals. The Court of Special Appeals has exclusive initial appellate jurisdiction over any reviewable judgment, decree, order, or other action of, and generally hears cases appealed directly from the Circuit Court and Orphans Courts, unless otherwise provided by law. The judges of the Court are empowered to sit in panels of three. A hearing or rehearing before the Court en banc may be ordered in any case by a majority of the incumbent judges. To manage civil cases, the Court uses prehearing conferences by which panels of judges attempt to identify those cases suitable for resolution by the parties. As stipulated in Maryland Rule 8-206(a), those appeals either are scheduled for prehearing conference or proceed through the regular appellate process. The prehearing conference may result in settlement of the case, limitation of the issues, remand for additional trial court action or other disposition. An information report or summarization of the case below and the action taken by the trial court is filed in each case when an appeal has been noted, in order to allow for determination as to a prehearing The Maryland District Court system is a court where smaller claims are heard by a judge, with no jury trials allowed. There are two separate jurisdictions within the District Court system, the first being small claims court, which is for all claims up to and including $5,000.00, and the second being non-small claims, for all claims above $5, and up to and including $30, See Md. Code Ann., Cts. & Jud. Proc The maximum award in all small claims District Court cases is $5,000.00, or the amount demanded in the Complaint, whichever is less; and the maximum award in all non-small claims District Court cases is $30,000.00, or the amount demanded in the Complaint, whichever is less. The District Courts do not have jurisdiction to render a declaratory judgment. See Md. Code Ann., Cts. & Jud. Proc (c). In District Court cases where more than $15, is demanded in the Complaint, either party may pray a jury trial thereby promoting the action to the Circuit Court. The Court of Appeals is the highest tribunal in the State of Maryland and is composed of seven judges. Since 1975, the Court of Appeals has heard cases almost exclusively by way of certiorari, a discretionary review process. As a result, the Court's formerly excessive workload has been reduced to a more manageable level, thus allowing the Court to devote more time to the most important and far-reaching issues. A party generally may file a petition for certiorari for review of any case or proceeding pending in, or decided by, the Court of Special Appeals upon appeal from the Circuit Court. The Court of Appeals grants those petitions it feels are desirable and in the public interest. The Court also may review cases on writ of certiorari issued on the Court's own motion. The Court of Appeals conducts a monthly review of appellants briefs from cases pending in the Court of Special Appeals in an effort to identify cases suitable for consideration by the higher court. Certiorari also may be granted in cases that have been appealed to a Circuit Court from the District Court after the initial appeal has been heard in the Circuit Court, in order to obtain uniformity of decisions or where special circumstances make certiorari desirable and in the public interest. For more information on the Court of Appeals please log on to

5 Procedural A. Venue A civil action shall be brought in a county where the defendant resides, carries on a regular business, is employed, or habitually engages in a vocation. Additionally, a corporation may also be sued where it maintains its principal offices in the State. If there is more than one defendant, and there is no single venue applicable to all defendants, all may be sued in a county in which any one of them could be sued, or in the county where the cause of action arose. See Md. Code Ann., Cts. & Jud. Proc., Section provides additional venues for certain situations including, but not limited to: 1) actions against a corporation which has no principal place of business in the State - where the plaintiff resides; and 2) tort actions based on negligence - where the cause of action arose. See Md. Code Ann., Cts. & Jud. Proc., B. Statute of Limitations The statue of limitations for tort and contract cases in Maryland is generally 3 years. There are acceptions which can be found in case law, which have to do with notice of the tort or breach of contract. C. Time for Filing An Answer District Court. The general time for filing a response in District Court is 15 days from the date in which the defendant was served. In the event that the defendant was served outside of the state, they have 60 days to respond. There are other exceptions to these general rules which can be found in Maryland Rule Circuit Court. The general time for filing a response in Circuit Court is 30 days from the date on which the defendant was served. In the event that the defendant was served outside of the state, they have 60 days to respond. There are other exeptions to these general rules which can be found in Maryland Rule D. Dismissal Re-Filing of Suit If a suit is filed, it can be dismissed without prejudice at any time by the plaintiff, prior to the filing of a responsive pleading by another party. In the event that another party files a response to the initial pleading (usually a complaint), the suit can only be dismissed without prejudice with leave of the court. The plaintiff has the ability to dismiss their suit at any time with prejudice. Liability A. Negligence Negligence is defined as a wrongful act or omission of a duty by the defendant and damage or loss to the plaintiff as a consequence of the defendant s wrongful act or omission. Maryland recognizes the rule of contributory negligence which is extremely rare in the United States. If a plaintiff is found to have contributed in any way to the plaintiff's injuries, the plaintiff may not recover. In theory, if the defendant's negligence is 99.99% of the total negligence comprising the incident, and the plaintiff's negligence is 0.01%, then the plaintiff is not entitled to a recovery. A child is held to the same degree

6 of care as an adult, with the possible exception of children of young and tender age who are held to the standard of conduct of a reasonable child of the same age, experience, and intelligence as the plaintiff child. B. Negligence Defenses Contributory Negligence. Maryland recognizes the rule of contributory negligence. If the defendant s primary negligence is established, the burden then shifts to the defendant to prove contributory negligence. If a plaintiff is found to have been in any way negligent then he or she will be completely barred from recovery. Assumption of the Risk. When a plaintiff is aware of the risk associated with their actions and willingly decides to take the risk, knowing the dangers of their actions, they are barred from recovering damages for those actions. Last Clear Chance. When a defendant is negligent, the plaintiff is contributorily negligent and the plaintiff makes "a showing of something new or sequential, which affords the defendant a fresh opportunity (of which he fails to avail himself) to avert the consequences of his original negligence." Nationwide Mutual insurance. v. Anderson, 160 Md. App. 348, 356 (1995). Unavoidable accident. Maryland does not recognize unavoidable accident as a separate defense in a motor claim. As a consequence, a party arguing unavoidable accident is not entitled to a jury instruction explaining the defense. Acts in Emergencies. A sudden and real emergency may excuse an otherwise negligent driver's conduct where the trier of fact finds that choices made by the driver are the same as those that would be made by a reasonably prudent driver under the same circumstances. The sudden emergency instruction (to the jury) is not available to a defendant whose negligence created the emergency. In Maryland, the question of whether or not conduct is excused by a sudden emergency is in all but the rarest of cases, a question for the jury. C. Gross Negligence, Recklessness, Willful and Wanton Conduct Gross negligence in the context of a motor vehicle tort such as the instant case must be decided on the facts and circumstances of each individual case and is generally a subjective determination to be made by the fact finder. Reckless, willful and wanton conducts are forms of gross negligence. They do not have specific definitions under Maryland law, but are instead evaluated by the facts of each case, based on previous case law and the opinion of the finder of fact or judge. D. Negligent Hiring and Retention In order to establish a claim for negligent hiring or retention, a plaintiff must prove that the employer of the individual who committed the allegedly tortious act owed a duty to the plaintiff, that the employer breached that duty, that there was a causal relationship between the harm suffered and the breach of the employer s duty, and that the plaintiff suffered damages. Where an employee is expected to come into contact with the

7 public, the employer must make some reasonable inquiry before hiring or retaining the employee to ascertain his fitness, or the employer must otherwise have some basis for believing that he can rely on the employee. There is common law authority to support the dismissal of such claims when the issue of agency is admitted. E. Negligent Entrustment An employer is subject to liability when he/she allows an employee to use a vehicle, or other chattel, when the employer knows or has reason to know that because of the employee s youth, inexperience, or otherwise, the employee may use the vehicle or chattel in a manner involving unreasonable risk of physical harm to himself and others. F. Dram Shop Maryland does not recognize a cause of action against a licensed vendor for furnishing alcoholic beverages to one who thereafter negligently injures a third party. A tavern owner is not liable for injuries to patrons when the owner serves an obviously intoxicated patron alcoholic beverages. G. Joint and Several Liability Maryland follows joint and several liability. Accordingly, if more than one defendant is found to have been negligent, they would both (or all) be held jointly and severally liable. Each liable defendant would thus be responsible for paying the entire verdict awarded in favor of any plaintiff. H. Wrongful Death and/or Survival Actions A wrongful death action is brought by certain relatives of a decedent and seeks recovery for their loss as a result of the death of the decedent. The focus on this type of action is not on the damages incurred by the decedent, but on the loss incurred by the plaintiff or plaintiffs. Maryland s Wrongful Death Act is codified in Sections through of the Courts & Judicial Proceedings Article of the Annotated Code of Maryland. Plaintiffs in a wrongful death action. Maryland s Wrongful Death Act provides for two distinct classes of plaintiffs, referred to as primary beneficiaries and secondary beneficiaries. The primary beneficiaries for a wrongful death action are the spouse, parent, or child of a deceased person. See Md. Code Ann., Cts. & Jud. Proc., 3-904(a). Secondary beneficiaries are defined as "any person related to the deceased person by blood or marriage who was wholly dependent upon the deceased" and "substantially dependent" upon the deceased and are included in the secondary class of beneficiaries under the statute. See Md. Code Ann., Cts. & Jud. Proc., 3-904(b). Secondary beneficiaries may only recover if there are no qualified primary beneficiaries. Child is defined under Md. Code Ann., Cts. & Jud. Proc., 3-901(b) as a legitimate or an illegitimate child. The age of the individual child is of no consequence to the classification of primary or secondary beneficiary. A parent may not be a beneficiary in a wrongful death action for the death of a child of the parent if the parent is convicted of, or has committed, child abuse, incest, rape, or

8 any other sexual offense, and the other parent of the child is the victim of the crime or act and the other parent of the child is a child of the parent. Cts. & Jud. Proc., 3-904(a)(2). Maryland does not recognize the loss of a substantial chance of survival as a measure of damages or as a separate tort. Survival Actions. In a survival action, damages are measured in terms of the harm to the victim whereas in a wrongful death action, damages are measured in terms of the harm to others from the loss of the victim. A survival action is, therefore, brought on behalf of the decedent by the personal representative of the estate of the decedent. In this action, the personal representative seeks recovery for the injuries suffered by the decedent. I. Vicarious Liability An employer may be held responsible for the torts of his/her employee under three distinct theories: respondeat superior, negligent hiring and retention, and negligent entrustment. Respondeat Superior. Under this doctrine, an employer may be held vicariously liable for tortious acts committed by an employee, as long as those acts are within the scope of the employment. With respect to the use of motor vehicles, the "right to control" concept controls. The doctrine may only be invoked when an employer has either "expressly or impliedly, authorized the [servant] to use his personal vehicle in the execution of his duties, and the employee is in fact engaged in such endeavors at the time of the accident." Negligent hiring and retention and negligent entrustment are discussed above in detail. J. Exclusivity of Workers Compensation Maryland's Workers' Compensation Act. The Act gives an injured worker and their dependents a no-fault remedy against their employer. The employee is not required to prove that anyone was negligent. They are entitled to receive certain forms of compensation, or benefits, for accidental injuries arising out of and in the course of employment. In exchange for this no-fault remedy against the employer, the employee is limited to recover only compensation and medical expenses set forth in strict schedules, and cannot sue the employer in a negligence action, since the workers' compensation remedy is an exclusive remedy. Damages A. Statutory Caps on Damages There is no cap on economic damages (medical bills, lost wages, property damages) or punitive damages. Non-economic damages (pain and suffering) are capped at $350,000 for bodily injuries sustained in causes of action accruing between July 1, 1986 and September 30, The cap increased to $500,000 for actions arising on or after October 1, See Md.

9 Code Ann., Cts. & Jud. Proc., The cap is automatically increased annually by $15,000 on October 1 of each year. The increased cap applies to causes of action accruing between October 1 of that year and September 30 of the following year inclusive. See Md. Code Ann., Cts. & Jud. Proc., (b)(2)(ii). The cap increased to $770,000 on October 1, A single cap applies to both the individual personal injury claim and the loss of consortium claim, and is not aggregated. See Oaks v. Connors, 339 Md. 24, 660 A.2d 423 (1995). In wrongful death cases, the total maximum award of noneconomic damages for two or more eligible claimants arising out of one death is 150% of the cap regardless of the number of claimants or beneficiaries. See Md. Code Ann., Cts. & Jud. Proc., (b)(3)(ii). Juries are not made aware of the caps on non-economic damages, and if an award for non-economic damages is made in excess of the cap, the Court will automatically reduce the amount of the award. The Maryland Appellate Courts have found the cap on non-economic damages constitutionally valid and enforceable. See DRD Pool Service, Inc. v. Freed, 416 Md. 46 (2010). B. Compensatory Damages for Bodily Injury Economic damages are based upon the actual expense incurred or loss of value of those items or services. For example, the Maryland Pattern Jury Instructions specifically instruct jurors to consider past and future medical expenses, past and future loss of wages or earning capacity. With respect to non-economic damages, juries are instructed to consider the pain, suffering, pre-impact fright, inconvenience, physical impairment, disfigurement, loss of consortium, or other nonpecuniary injuries. C. Collateral Source In a strict tort action, there is no set-off for monies obtained through collateral sources. The collateral source rule allows admission of collateral source payments only if there is a preliminary showing of malingering or exaggeration of injury. Evidence as to collateral payments is inadmissible in the absence of evidence of malingering or exaggeration or where the real purpose of the evidence offered as to collateral sources is the mitigation of liability for damages of the defendant. D. Pre-Judgment/Post judgment Interest Generally pre-judgment interest is not recoverable absent agreement (i.e., provided in a contract) or if the sum sued for is a liquid (i.e., determinable) amount. However, interest on automobile liability claims (at the rate of not more than 10% per annum may be awarded from a time not earlier than the time the action was filed) can be awarded if the court finds that the defendant caused unnecessary delay in having the action ready or set for trial. A delay caused by the defendant's insurer or counsel is deemed an unnecessary delay caused by the defendant. See Md. Code Ann., Courts & Jud. Proc

10 Post-judgment interest is collectible at the legal rate of 10% per annum on the amount of the judgment. See Md. Code Ann., Cts. & Jud. Proc E. Damages for Emotional Distress Generally, Maryland does not recognize negligent infliction of emotional distress as an independent tort. (Maryland does recognize emotional distress as an element of damages to the extent proven in a negligence action). No state law cases have addressed the zone of danger, but the U.S. District Court for the District of Maryland found that there can be no recovery for negligent infliction of mental distress upon a bystander who is in a place of safety even under the most compelling set of facts. Intentional infliction of emotional distress applies under only the most compelling circumstances, requiring intentional or reckless conduct, extreme and outrageous conduct, and a proximate causal connection between the conduct and the severe distress. F. Wrongful Death and/or Survival Action Damages A wrongful death action is brought by certain relatives of a decedent and seeks recovery for their loss as a result of the death of the decedent. The focus on this type of action is not on the damages incurred by the decedent, but on the loss incurred by the plaintiff or plaintiffs. Maryland s Wrongful Death Act is codified in Sections through of the Courts & Judicial Proceedings Article of the Annotated Code of Maryland. Maryland s Wrongful Death Act provides for two distinct classes of plaintiffs, referred to as primary beneficiaries and secondary beneficiaries. The primary beneficiaries for a wrongful death action are the spouse, parent, or child of a deceased person. See Md. Code Ann., Cts. & Jud. Proc., 3-904(a). Secondary beneficiaries are defined as "any person related to the deceased person by blood or marriage who was wholly dependent upon the deceased" and "substantially dependent" upon the deceased and are included in the secondary class of beneficiaries under the statute. See Md. Code Ann., Cts. & Jud. Proc., 3-904(b). Secondary beneficiaries may only recover if there are no qualified primary beneficiaries. Child is defined under Md. Code Ann., Cts. & Jud. Proc., 3-901(b) as a legitimate or an illegitimate child. The age of the individual child is of no consequence to the classification of primary or secondary beneficiary. A parent may not be a beneficiary in a wrongful death action for the death of a child of the parent if the parent is convicted of, or has committed, child abuse, incest, rape, or any other sexual offense, and the other parent of the child is the victim of the crime or act and the other parent of the child is a child of the parent. Cts. & Jud. Proc., 3-904(a)(2). In wrongful death cases, the total maximum award of noneconomic damages for two or more eligible claimants arising out of one death is 150% of the cap regardless of the

11 number of claimants or beneficiaries. See Md. Code Ann., Cts. & Jud. Proc., (b)(3)(ii). Any defense which would have barred suit or recovery by the deceased also bars recovery by a wrongful death plaintiff, e.g., assumption of the risk or contributory negligence by the decedent. See Section 4. of this profile, Defenses to Claims. A wrongful death action must be filed within three years from the date of death. Pecuniary damages are designed to compensate for the loss of economic benefit which the plaintiff might reasonably have expected to receive from the decedent in the form of support, services or contributions during the remainder of the decedent's lifetime if he/she had not died. Non-economic (solatium damages) are recoverable by the spouse, minor child or parent, of a minor child. Damages may include compensation for mental anguish, emotional pain and suffering, loss of society, companionship, comfort, protection, marital care, parental care, filial care, attention, advice, counsel, training, guidance or education where applicable. See Md. Code Ann., Cts. & Jud. Proc., 3-904(d). Solatium damages for the death of a minor child are not limited to the period of time when the child would have reached maturity. The Maryland cap on non-economic damages applies to causes of action for wrongful death arising after October 1, In a wrongful death action in which there are two or more claimants or beneficiaries, an award of non-economic damages may not exceed 150% of the applicable limitation regardless of the number of beneficiaries who share in the award. See Md. Code Ann., Cts. & Jud. Proc., (b)(3)(ii). Maryland does not recognize the loss of a substantial chance of survival as a measure of damages or as a separate tort. Survival Actions In a survival action, damages are measured in terms of the harm to the victim whereas in a wrongful death action, damages are measured in terms of the harm to others from the loss of the victim. A survival action is, therefore, brought on behalf of the decedent by the personal representative of the estate of the decedent. In this action, the personal representative seeks recovery for the injuries suffered by the decedent. Economic damages which are recoverable include the decedent s lost wages and medical expenses incurred between the time of injury and death, in addition to funeral expenses of up to $10,000. See Md. Code Ann., Estates & Trusts, 8-106(b). Non-economic damages recoverable include compensation for the pain and suffering endured by the decedent after the injury and before his/her death including compensation for such emotional distress and mental anguish as are capable of objective determination for pre-impact fright. Damages recovered become assets of the estate. Any defense which

12 would have barred suit or recovery by the deceased also bars recovery by survival action. The Maryland cap on non-economic damages applies to survival actions. G. Punitive Damages To support an award of punitive damages, there must be at least a nominal award of compensatory damages. Punitive damages are not available in most Maryland automobile accident claims. H. Diminution in Value of Damaged Vehicle Maryland recognizes awarding damages for diminution of value in addition to cost to repair damages. The combined total, however, can not be greater than the diminution value of the car prior to the accident. Expert testimony is typically needed to prove diminution in value, and defendants are entitled to challenge expert testimony based on lack of a sound methodology and basis. The standard limitation to bringing a claim for diminution in value is three years from the date when the property damage occurred. I. Loss of Use of Motor Vehicle Fair market value for the replacement of a similar vehicle, restricted to such reasonable period as the evidence shows plaintiff was actually deprived of the use of the vehicle as a result of the accident. Actual damages must be shown; i.e., the plaintiff must prove that he incurred a loss as a result of the deprivation of use. In a commercial context, loss of use may include a claim for lost profits, if it can be established that a replacement or substitute was not available and that a plaintiff can demonstrate with reasonable certainty that profits were lost as a result of the accident. Evidentiary Issues A. Preventability Determination There is no Maryland case law on point regarding preventability determinations. Preventability determinations are not based on the same standard of proof which is required to show a breach of duty, and are not likely to be admitted, based on several arguments. Preventability determinations are subsequent remedial measures, which are not admissible under Rule Preventability determinations are lay opinions, based on hearsay. Finally, preventability determinations are part of the critical self-analysis doctrine. B. Traffic Citation from Accident It is well established in Maryland that a guilty plea entered in traffic court is admissible in a subsequent civil suit arising from the same occurrence. However, only a guilty plea entered in court is so admissible. If the accused/civil defendant pays a fine in lieu of appearing in Court or pleads innocent and is then convicted, it is not admissible. C. Failure to Wear a Seat Belt Maryland law requires the operator of a vehicle and any occupant under 16 years old to use a seat belt or a child safety seat. See Md. Code Ann, Transportation (b). Any person over 16 years old must be restrained by a seat belt if travelling in the front seat or next to a door. See Md. Code Ann., Transportation (c). However, the

13 same law expressly prohibits an individual s failure to use a seat belt from being considered evidence of negligence, contributory negligence, or to limit damages. See Md. Code Ann., Transportation (h). D. Failure of Motorcyclist to Wear a Helmet Maryland law requires the operator and riders of a motorcycle to wear protective headgear. See Md. Code Ann, Transportation However, the same law expressly prohibits an individual s failure to wear protective headgear from being considered evidence of negligence, contributory negligence, or to limit damages. See Md. Code Ann., Transportation (e). E. Evidence of Alcohol or Drug Intoxication Evidence of drug and alcohol intoxication is admissible. The intoxication must be shown by a measurement, such as BAC, and must be supported by expert testimony. Proximate causation must be proven. Possession of illegal narcotics is not admissible if there is no scientific evidence of actual intoxication. F. Testimony of Investigating Police Officer Investigating police officers are not permitted to testify outside of their personal knowledge. Officers can be qualified as experts under certain circumstances, particularly accident reconstruction, assuming that all Daubert requirements are met. G. Expert Testimony Maryland follows the Daubert rule with regard to qualification and testimony of experts. H. Collateral Source In a strict tort action, there is no set-off for monies obtained through collateral sources. The collateral source rule allows admission of collateral source payments only if there is a preliminary showing of malingering or exaggeration of injury. Evidence as to collateral payments is inadmissible in the absence of evidence of malingering or exaggeration or where the real purpose of the evidence offered as to collateral sources is the mitigation of liability for damages of the defendant. I. Recorded Statements Generally, a recorded statement is admissible for impeachment purposes under Maryland Rule It is also admissible as substantive evidence of an admission if it is made by a party opponent. The proper foundation for the authentication of the document should be laid, most likely by the person that took the statement. An argument can be made that the statement is self-authenticating under Maryland Rule 5-902(a)(11), if certified. J. Prior Convictions Rule states that evidence that a witness has been convicted of a crime shall be admitted if elicited from the witness or established by public records during the witness testimony if the crime was an infamous crime or a crime related to the witness credibility and the court determines that the probative value of the prior conviction

14 outweighs the danger of unfair prejudice to the witness or the objecting party. All convictions older than 15 years are inadmissible. K. Driving History A driver s MVR or accident history may be admissible in the context of a negligent hiring or training claim. However, we have had success having those claims dismissed when agency is conceded. In simple negligence cases, it is unlikely that evidence or examination of prior offenses or accidents will be admissible because of the risk the jury would draw the inadmissible inference that past negligence is evidence of current negligence. See Houlihan v. McCall, 197 Md. 130, 78 A.2d 661 (Md. 1951).There is no case law in Maryland directly dealing with hours of service violations. If a hours of service violation could be proven, expert testimony would be required to establish causation with regard to the accident. L. Fatigue There is no case law in Maryland directly dealing with hours of service violations. If a hours of service violation could be proven, expert testimony would be required to establish causation with regard to the accident. M. Spoliation There is no explicit duty in the Rules or Maryland law to preserve evidence in the civil context. The destruction, alteration or failure to preserve evidence by a party gives rise to inference or presumption unfavorable to the spoliator, the nature of the inference being dependent upon the intent or motivation of the party. See Anderson v. Litzenberg, 694 A.2d 1150 (Md. 1997). The jury will be instructed that if they find the intent was to conceal the evidence, the destruction or failure to preserve the evidence must be inferred to indicate that the party believed that his or her case is weak and that he or she would not prevail if the evidence was preserved. If the jury finds that the destruction or failure to preserve the evidence was negligent, the jury may, but is not required to, infer that the evidence, if preserved, would have been unfavorable to that party. If raised during discovery, destruction of evidence can be addressed and sanctioned through the discovery rules, specifically Maryland Rule Maryland does not recognize a separate action for spoliation. Settlement A. Offer of Judgment With the exception of suits involving claims of medical malpractice, Maryland does not have an Offer of Judgment provision. Therefore, in the event that the judgment obtained is less than the offer made, a party is not entitled to the costs incurred after making the offer. B. Liens There are no statutory lien provisions for individual medical providers. There is no common law lien afforded to a medical provider who renders care to an injured person. However, the Maryland Code contains lien provisions for care rendered by hospitals.

15 Section of the Commercial Law Article of the Annotated Code of Maryland provides that if any person makes any payment to the patient, his attorney, heirs, or personal representative as compensation for the injuries, without paying the hospital the amount of the lien or as much of the lien as may be satisfied by any money due under any final judgment or under any compromise or settlement agreement after paying the amount of any prior lien, he is liable to the hospital for a period of one year from the date of making payment to the patient. A workers compensation carrier has a statutory lien against any recovery made by the injured worker against a third party. If the worker settles a third party claim without notification or approval of the employer/insurer, the employer/insurer would receive a credit equal to any prejudice it could demonstrate it suffered as a result of the unauthorized settlement. C. Minor Settlement The parent, guardian or fiduciary of a minor is eligible to bring suit on behalf of the minor, as the next friend of the minor. A guardian may be court appointed or designated by a minor who is at least sixteen years old and, in the opinion of the court, has sufficient mental capacity to make an intelligent choice at the time the minor executes the designation. See Md. Code Ann., Est. & Trusts , , (p). Parents are the natural guardians of their children and therefore can file suit on behalf of their children. See Md. Code Ann., Est. & Trusts However, if the next friend is not a parent or person in loco parentis of the child, the settlement is not effective unless approved by the parent or other person responsible for the child. See Md. Code Ann., Est. & Trusts (b). If both parents are dead, and there is no person responsible for the care and custody of the child, the settlement is not effective unless approved by the court in which the suit is brought. See Md. Code Ann., Est. & Trusts, (b). Court approval requires a written application by the next friend, under oath, stating the facts of the case, and why the settlement is in the best interest of the child. See Md. Rule. D. Negotiating Directly With Attorneys There are no provisions in Maryland prohibiting claims representatives from negotiating directly with a plaintiff s attorney after suit is filed. E. Confidentiality Agreements There is no specific bar to confidentiality agreements under Maryland law. Maryland Courts support the principles of freedom contract, where parties have a broad right to construct terms of contracts they enter into as they wish, providing the contract is neither illegal nor contrary to public policy. See Willard Packaging Co., Inc. v. Javier, 169 Md. App. 109 (2006). Typically confidentiality agreements are enforced by liquidated damages provisions, which provide a fixed measure of compensation if there is a breach of the agreement. These provisions are enforceable if the sum agreed upon is a reasonable forecast of the just and fair compensation for the harm that would result by a breach of the contract

16 and the resultant injury is difficult to estimate accurately or actual damage could not easily be ascertained. F. Releases Unless the document specifically provides for release of all tortfeasors, a release discharges the obligations of only the party to the release. A release which provides for release of all other persons, firms and corporations, discharges all other tortfeasors, even if unnamed in the document. Releases which clearly release all claims against a named tortfeasor, but are silent as to other tortfeasors, do NOT constitute a release as to joint tortfeasors. Joint tortfeasor liability is governed by the Uniform Contribution Among Tortfeasors Act, Md. Code Ann. Cts. & Jud. Proc., et seq. The statute provides for a reduction in the total claim of the injured party by the greater of either the consideration paid upon release, or the amount or ratio/proportion provided for in the release agreement. A joint tortfeasor may totally avoid the common law joint and several liability rule by settling with the plaintiff under a release in terms of the Uniform Act. Any right of contribution a non-releasing tortfeasor may have may be extinguished under the Uniform Act, if the release is given before that non-releasing tortfeasor s right to contribution has accrued and the release provides for a reduction of the injured party s damages recoverable against all other tortfeasors. There is no specific requirement that a release be translated into the language of the releaser. Generally, Maryland law presumes that a person knows the contents of a document that he executes and understands at least the literal meaning of its terms. Any person who signs a contract is presumed to know its terms and consents to be bound by them [n]or does the fact that the rules were in [a foreign language] preclude enforcement of the contract, the duty to read principle, because the signing party has an obligation to ensure he understands the contract. In fact, a blind or illiterate party (or simply one unfamiliar with contract language who signs the contract without learning of its contents would be bound. If a party does not read the agreement before he or she signs it, then that party had no one to blame but themselves; [the Maryland Court of Appeals is] loath to rescind a conspicuous agreement that was signed by a party whom now, for whatever reason, does not desire to fulfill that agreement. There is no requirement that a release be notarized under Maryland law. G. Voidable Releases Any release signed by an injured individual for damages resulting from a tort, within thirty (30) days of the infliction of the injury, is voidable at the option of the injured person, within sixty (60) days of signing the release, so long as they are not represented by counsel at the time of signing the release. Notice voiding the release must be in writing, accompanied with the return of any money paid, in which case the release is void from the date of mailing. Transportation Law A. State DOT Regulatory Requirements

17 The Maryland Vehicle Law may be accessed on-line at the Maryland Division of State Documents. To navigate: Go to click Annotated Code of Maryland. This will open the Maryland General Assembly s website. Scroll down page to Maryland Statutes. Click Statute Text link. Enter Article Transportation by typing or selecting pull down menu Click Submit Query button Enter Section by typing or selecting pull down menu Click Submit Query button You must select each section to view. The following titles are of particular interest for motor carriers and drivers: Title 11 (Definitions) Title 22 (Vehicle equipment) Title 13 (Vehicle registration) Title 23 (Vehicle inspections) Title 16 (Driver licensing) Title 24 (Vehicle size and weight) Title 21 (Rules of the road) Title 25 (Commercial motor vehicles) B. State Speed Limits Speed limits for various streets and highways are set by Maryland vehicle law. They are posted on or near most roads and highways within the state. In many instances, these statutory limits do not account for actual highway and traffic conditions and must be changed for the safe and efficient movement of traffic. Thus, the law provides that these limits can be raised or lowered at the states discretion. C. Overview of State CDL Requirements The prerequisites for obtaining a CDL license in Maryland are: (1) own a standard class driver license; (2) provide identification that establishes your age and the fact that you are a United States citizen or have other legal status to be within the United States; (3) Provide two forms of documentation that prove your residency in the state of Maryland. Written Test. Tests are administered on a walk-in basis at full-service MVA offices. You are only required to endure one general knowledge test, and passing it will earn you a CDL learner's permit and enable you to move to the next phase. Skills Test. The skills test is divided into three sections. Each is timed and closely scored. The sections are: (1) Pre-Trip Inspection, (2) Basic Skills and Maneuvering, and (3) On-Road Test. Insurance Issues A. State Minimum Limits of Financial Responsibility As at 10/1/11 increased to $30, per person, $60, per occurrence (from previous minimum limits of $20,000/$40,000). Property damage minimum of $15, remains the same.

18 B. Uninsured Motorist Coverage UM/UIM limits can be reduced but cannot be completely avoided, the maximum reduction being to state minimum limits. Unless otherwise waived or provided for in a commercial policy, UM/UIM limits will be the same as the applicable liability limits.(um/uim limits in a personal auto policy must be affirmatively waived to be less than the liability limits; in a commercial auto policy UM/UIM limits can be reduced either by waiver or if the policy provides UM/UIM limits less than the liability limits will be enforceable). In order for UM/UIM to be applicable the insurer of the underlying tort-feasor must offer policy limits to the injured claimant. The injured claimant must mail the settlement offer to the UM/UIM carrier by certified mail. The UM/UIM carrier must respond within 60 days, either agreeing to the settlement by and release of the underlying tort-feasor or declining the settlement. In the former event, the UM/UIM carrier waives its right of subrogation to seek to recover from the underlying tort-feasor and/or its insured, any UM/UIM payments. In agreeing to the underlying settlement the UM/UIM carrier also gives us the right to defend as to liability and the UM/UIM matter will proceed as to damages only. If the UM/UIM carrier declines the underlying settlement in order to subrogate and/or defend as to liability then it must pay the amount of the policy limits settlement, which will never be recoverable. The UM/UIM carrier gets a credit for the policy limit settlement by the insurer of the underlying tort-feasor and for any workers compensation actually paid to the insured claimant. Stacking is technically not possible. The policy covering the vehicle occupied by the injured claimaint is primary. However, if the damages incurred exceed the UM/UIM limits for that policy and there is another policy with higher UM/UIM limits also covering the injured claimant, that difference between the higher limits on the second policy may be implicated. C. No Fault Insurance There is mandatory Personal Injury Protection ( PIP ) with a minimum limit of $2, PIP can be completely waived by an affirmative waiver by the insured, which must be on the correct approved form, with proper notices, the terms of all of which have to be complied with precisely. Any deviation, however small may likely void any waiver. Only certain persons can be waived from PIP being the first named insured; any person living in the household of the insured who is over sixteen years of age; and any driver listed on the policy. The PIP carrier gets a credit for workers compensation actually paid. D. Disclosure of Limits and Layers of Coverage

19 Maryland law changed in October 2011 so that now if a claimant sends certain specified information as to the occurrence and claimed injuries and damages an insurer must disclose policy limits. The law is silent as to whether layers need to be disclosed, but arguably would include all available insurance and at the very least if the information as to claimed injuries and damages would conceivably implicate a given layer of coverage would presumably have to be disclosed to that layer. E. Unfair Claims Practices Maryland law does not recognize a specific cause of action for unfair claims practices. The Maryland Insurance Administration will generally administer such complaints and could potentially sanction an insurer. Conceivably a claim for unfair claim practices could generally be encompassed in Maryland s consumer protection laws, providing potential private causes of action for unfair and deceptive trade practices although these more commonly deal with the procurement of insurance and underwriting on an application being made than claims made after an occurrence. F. Bad Faith Claims Effective October 1, 2007, Maryland enacted new legislation providing that an insured could seek administrative or judicial relief for unfair claim settlement practice and it is a violation of Maryland law for an insurer to fail to act in good faith in settling a first-party claim under a policy of property and casualty insurance. See Md. Code Ann., Ins Good faith is defined as an informed judgment based on honesty and diligence supported by evidence the insurer knew or should have known at the time the insurer made a decision on a claim. Md. Code Ann., Ins (a). An insurer may not, however, be found to have failed to act in good faith solely on the basis of delay in determining coverage or the extent of payment to which the insured is entitled, if the insurer acted within the time period specified by statute or regulation for investigation of a claim by an insurer. See Md. Code Ann., Ins (2)(e)(ii)(3). In addition to creating civil and Administrative remedies, the new law also permits the Insurance Commissioner to impose a penalty on an insurer up to $125, for certain failures to act in good faith. The Commissioner may also require restitution to an insured for actual damages, expenses and litigation costs, including attorneys fees and interest. Md. Ins. Code Ann Generally, no action by the injured party may lie against a third party insurance carrier for failure to pay a third party claim. The third party must obtain judgment against the insured, and then may seek payment of the judgment as an attachment or via a valid assignment of rights under the policy. Generally, a claimant has no direct cause of action against an insurer for sums in excess of the policy limit, absent "explicit authorization." An insurer owes no duty to a claimant to settle a claim; such obligations run only to the insured. Maryland recognizes a cause of action brought in tort for bad faith refusal to settle a claim within policy limits. An insurer does not have an absolute duty to settle a claim within policy limits, although it may not refuse to do so in bad faith.

20 G. Coverage Duty of Insured The duty to defend is separate from and broader than the duty to indemnify. The duty to defend is triggered if the allegations in the complaint raise the potentiality that the claim may be covered by the policy. Any doubt as to whether there is a potentiality of coverage under an insurance policy will be resolved in favor of the insured. Once there is a potentiality of coverage, the insurer is obligated to defend the entire suit until such time, if ever, that the claims have been limited to ones outside the policy coverage. If an insurer refuses to defend on behalf of the insured, the insured is liable for damages incurred by the insured as a result of the insurer's breach of its obligation to defend. These damages generally include the amount of judgment or settlement, the costs of litigation, and attorney's fees. There may be a duty to defend before receiving notice of the suit in certain circumstances. H. Fellow Employee Exclusions A provision in a policy of insurance seeking to completely exclude insurance for the alleged negligence of a fellow employee is void as against public policy. However, such a provision will be enforced where the exclusion merely seeks to reduce liability limits to no less than state minimum limits for the negligence of a fellow employee.