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  • December 20, 2023

FSB BRINGS CERTIORARI PETITION ON CONSTRUCTION ISSUE OF FIRST IMPRESSION

Ferguson, Schetelich & Ballew is seeking review from the Supreme Court of Maryland on an open issue impacting the construction industry throughout the State.  This question of first impression concerns the contractual waiver of subrogation in construction contracts. Construction contracts are a unique subset of general contract law, and they govern the complex relationship between the property owner, the general contractor, the subcontractors, and the suppliers – and the insurance companies that write the policies that protect each one. Those contracts often contain clauses waiving subrogation, meaning that they restrict whether an insurance company that pays a loss can seek…

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  • August 14, 2023

FSB WINS UNANIMOUS AFFIRMATION OF DISMISSAL IN ALCOHOL RELATED DEATH CASE

On August 8, 2023, a unanimous panel of the Appellate Court of Maryland affirmed the dismissal of a Complaint arising from an alcohol related automobile accident.  The case (Willett v. Ape Hangers, LLC) had been brought against Ape Hanger’s Bar & Grill in Charles County.  The allegations of the complaint were that Wayne Willett, Jr. had been served alcohol at the bar after he was intoxicated, drove home, and died in a single car crash.  The Circuit Court had granted a motion to dismiss. The case was unusual because of the theory advanced by the plaintiffs, based on premises liability. …

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  • June 6, 2022

FSB WINS CERTIFIED QUESTION DECIDED BY MARYLAND COURT OF APPEALS

In a case argued by Peter Basile, the Maryland Court of Appeals has decided a novel question of insurance law.  In a unanimous decision, the Court agreed with the position advanced by Mr. Basile as to the interplay between workers’ compensation insurance and uninsured/underinsured motorist coverage. The case decided by the Court of Appeals is Westfield Insurance Company v. Michael Gilliam.  Mr. Gilliam was injured in an automobile accident and sustained injuries that resulted in almost $243,000 in medical bills. Mr. Gilliam filed a workers’ compensation claim. The workers’ compensation carrier paid approximately $118,000 to satisfy his bills under the…

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  • March 30, 2022

Waiver of Liability Clauses in Pennsylvania Contracts

Businesses, charitable organizations, and places of public accommodation often look to limit legal liability by exculpatory clauses, which are waivers of negligence claims. Pennsylvania law recognizes such exculpatory clauses if three conditions are met: The exculpatory clause must not contravene public policy; The contract must be between persons relating to their own private affairs; and Each party must be a free bargaining agent to the agreement so that the contract is not an adhesion contract. McDonald v. Whitewater Challengers, Inc., 2015 PA Super 104 (Pa. Super. Ct. 2015). In determining the first condition, that is whether the contract violates public…

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  • February 17, 2022

Construction is Chaotic Enough As-is: Do not get nailed for someone else’s mistake

Construction litigation is rife with complexity, usually involving many different parties, including the general contractor, subcontractors, suppliers and installers, and independent contractors.  A plaintiff bringing a claim will want to make sure it has all potentially liable entities involved in the litigation.  This means that often a contractor or supplier is named as a defendant, despite having little involvement in the project, a tenuous connection to the loss, and negligible exposure.   The aim of legal counsel in representing such a defendant is to extract it from the litigation as efficiently and expediently as possible.  The most common ways to…

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  • January 10, 2022

THE IMPORTANCE OF STATUS IN MARYLAND PREMISES LIABILITY CASES

This is the first in a series of articles addressing Maryland premises liability law. Premises liability law controls whether property owners or occupiers (collectively referred to as owners) are liable to persons injured on their premises. Premises liability law is rooted in common law negligence, but unlike other areas of tort law, premises liability law is unique in that the duty owed by a property owner to an injured person requires an assessment of the injured person’s status while on the property. Maryland recognizes the following status classifications: invitee/business invitee, licensee by invitation (social guest), bare licensee, and trespasser.  Invitee/Business…

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  • June 8, 2021

CROWD CONTROL, SAFETY, AND LIABILITY PROTECTION

The reopening of events, restaurants, stores, and the like comes with much joy, anticipation, and excitement.  However, these reopenings necessitate that businesses and facilities refresh their awareness of and attention to their legal obligations.  Premises liability law is an area of tort law that governs when a property owner is liable to a person injured on the property owner’s premises.  Crowd control can be part of that duty of a property owner to protect its patrons. When a crowd of people have been induced to gather on its premises, a proprietor may be liable for any injuries resulting from the…

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  • October 16, 2020

Don’t Forget About Federal Court: Considerations in analyzing removal under diversity jurisdciton

In defending complex civil matters, one important consideration is the question of whether the matter must stay in the state court in which plaintiff filed, or, is there a basis for removal to federal court.  Trying a matter in federal court could present a host of benefits.  They include: a wider and deeper jury pool, avoiding feeling as if the matter is being tried on plaintiff’s “home turf,” and a more predictable application of procedural and substantive rules, authorities, customs, and practices.   The most common basis for seeking removal to federal court is where there is diversity of citizenship…

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  • July 14, 2020

Court of Appeals of Maryland Decides Construction Case of First Impression Agreeing With FSB Argument

On May 26, 2020, the Court of Appeals of Maryland issued an opinion in the case of Gables Construction, Inc. v. Red Coats, Inc. that decided an important issue of first impression under Maryland law.  The question before the Court was whether there is a right to joint tort-feasor contribution where waiver of subrogation (common in construction contracts) bars the third-party defendant’s liability to the injured party.  The Court held that there is no such right, securing a major victory not only for Gables Construction (represented by Ferguson, Schetelich & Ballew), but also for all contractors and architects who operate under—and rely…

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  • June 10, 2020

Fitzgerald v. Bell: The Discovery Rule Does Not Toll the Statute of Limitation for Negotiable Instruments

A recent decision of the Maryland Court of Special Appeals Banks has clarified an important protection for banks and financial institutions regarding checks and other instruments that it honors.   Banks are often named in lawsuits alleging conversion or wrongful payment of checks. The Uniform Commercial Code, as adopted in Maryland, sets out the statutes of limitations that apply to claims on negotiable instruments. See Md. Code Ann., Com. Law § 3-118. The language of the statute suggests that the limitations period begins to run when the check or instrument is presented for payment.   Maryland generally follows the discovery…

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