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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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  • May 26, 2020

How long until the “great unknown” becomes “the new normal”? Navigating Commercial General Liability Insurance in the age of the Covid-19

The novel coronavirus (Covid-19) has and will continue to present novel issues in all facets or our lives.  The insurance arena is no exception.  Questions related to insurance claims, coverage, and defense have already begun to arise in the wake of Covid-19.  As the quickly changing landscape continues to evolve, particularly with communities and businesses beginning to reopen, these insurance related queries and considerations will increase and grow more complex and nuanced.   Businesses need to be aware of potential claims.  These could include allegations that a business negligently failed to protect or to warn third parties against the risks…

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  • March 10, 2020

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

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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  • November 13, 2019

Robert Ferguson, Timothy Dygert Argue Construction Case of First Impression in Maryland Court of Appeals

On November 4, 2019, Robert Ferguson and Timothy Dygert argued a construction case of first impression before the Court of Appeals of Maryland.  The case concerns a critical question of insurance and joint liability that is being watched by contractors, architects, and insurers in the construction industry. The case is Gables Construction, Inc. v. Red Coats, Inc. and concerns a fire in a building under construction that occurred in 2014, and which caused $17.6 million in property damage. Gables Construction (represented by Ferguson, Schetelich & Ballew) was the general contractor.  The construction contract had standard clauses by which the property…

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  • October 11, 2019

New Requirements Concerning Pre-Litigation Discovery of Insurance Policy Limits

For a number of years, Maryland has permitted pre-litigation discovery of insurance policy coverage limits under Md. Code Ann., Cts. & Jud. Proc. § 10-1101, et seq., but only with respect to motor vehicle liability coverage.  As of October 1, 2019, claimants can obtain pre-litigation discovery of insurance information for homeowners’ and renters’ insurance policies as well. Although the scope of the statute has been expanded, there is now a new and significant requirement that Claimants must meet in order to obtain pre-litigation documentation of insurance policy limits.  It is no longer sufficient to simply provide basic information in writing…

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  • September 30, 2019

Flying High? Should Airlines fear judicial efforts to check their autonomy?

Airline travel is a distinctive means of transport, with the ability to move great distances, over varied terrain, in relatively short periods of time.  These characteristics which have made airplane travel atypical amongst transportation options, have also made it unique in the law. Specifically, under the Airline Deregulation Act of 1978 (“ADA”) federal authority preempts State authority, and the individual States are prohibited from regulating matters having a connection with or reference to airline rates, routes, or services.  See, for example, Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992). However, the airlines’ exemption from State law is not…

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  • November 29, 2018

Court Affirms Maryland Legislature’s Balance to the Collateral Source Rule

Historically, Maryland judicial proceedings have been bound by the “collateral source rule;” a rule that permits a tort plaintiff to recover the full value of the cost of treatment, and other economic losses, even to the extent that the value of the treatment, etc. exceeds the associated costs actually paid.  Juries are instructed that they are not to reduce an award for medical expenses and earnings losses based on a belief that the tort plaintiff has or will receive reimbursement or payment from another (collateral) source, such as a health insurance policy or paid sick days from an employer.  Likewise, introduction…

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  • August 2, 2018

Submit to an Examination Under Oath or Lose Coverage

  On June 28th, 2018, the Maryland Court of Special Appeals issued an opinion in Dolan v. Kemper Independence Insurance Company, 218 WL 3199548 (Sept. Term, 2017) in which the appellate court affirmed the circuit court’s judgment in favor of the insurer against an insured who refused to submit to an examination under oath (EUO).   Most insurance policies, including the one at issue, contain policy conditions that require a person seeking coverage to cooperate with the insurer in the investigation, settlement, or defense of any claim or suit. These conditions usually require a person seeking coverage to submit to…

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  • October 3, 2017

Can Parties to a Maryland Contract Shorten the Limitations Period? It Depends…

The short answer to the question of whether parties to a contract can legally shorten the statute of limitations is yes.  However, three factors must be met before a shortened statute of limitations can be enforced: 1) no controlling statute exists to the contrary; 2) the provision is not the result of fraud, duress, or misrepresentation; and 3) the provision is reasonable.   In its recent opinion, Richard and Daphne Ceccone v. Carroll Home Service, LLC, filed July 28, 2017, the Court of Appeals upheld the Court of Special Appeals' decision in College of Notre Dame of Maryland, Inc. v.…

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