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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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  • June 19, 2017

A Party Must Produce Documents in His/Her Control Even if Not in His/Her Possession

Under the Maryland Rules of Civil Procedure, is it acceptable for a party to produce only a portion of the documents requested in discovery because those are all of the documents in his/her possession? Current case law in Maryland says no. It is common practice as part of discovery to propound Requests for Production of Documents on an opposing party. It has also become quite common for the responding party to produce only those documents within his/her possession, claiming no further obligation to obtain and produce others. Such is not the case in Maryland. The presiding case on this issue…

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  • May 26, 2017

Supreme Court Considers Expanding Religious Liberties

The United States Supreme Court seems primed to decide a case that could dramatically alter long-standing jurisprudence concerning the constitutional prohibition against the establishment of religion.   It heard arguments in April 2017 in Trinity Lutheran Church v. Comer, when the questions and comments from the Justices seemed to favor a major decision in favor of religious freedom. Trinity Lutheran Church is in Columbia, Missouri.  It operates a licensed preschool and daycare center on church premises.  The preschool and daycare have an open admission policy, meaning that there is no preference shown based on a family’s religion.  However, the Church sees the…

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  • March 15, 2017

The Mechanism for—and Importance of—Service on Defunct Maryland LLCs in Construction Cases

When defending a general contractor in a construction litigation, you may need to effectuate proper service of a cross-claim or third-party complaint on a potentially responsible subcontractor.  What are your options if the subcontractor is a forfeited limited liability company (“LLC”)? Maryland law treats defunct corporations in a different manner than defunct LLCs.  While a forfeited corporation loses all powers conferred by law[1], a forfeited LLC loses only the right to do business in the State and the right to the use of its name.[2]  The Maryland statute “Contracts with forfeited LLC” states: The forfeiture of the right to do…

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  • March 8, 2017

Maryland Court of Appeals Determines That Driver of a Taxi is not Entitled to PIP Under his Personal Auto Policy

On January 23, 2017, the Maryland Court of Appeals, in a split opinion, determined that the driver of a taxicab who was injured in an accident was not entitled to Personal Injury Protection (“PIP”) benefits under his personal automobile insurance policy, which did not insure the taxicab. The cab driver, Alahassan Bundu-Conteh, was rear-ended by a motor vehicle while driving his taxicab. The taxicab was insured by Amalgamated Insurance Company and carried liability-only coverage, which does not include PIP coverage. PIP coverage is limited no-fault coverage, usually in the amount of $2,500.00, that provides a person insured under a policy…

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