Appellate Decisions Edited by Mark E. Herman
Mark E. Herman, of the Law Office of William G. Koldner, PA of Baltimore is a member of MTLA’s Board of Governors and is a member of its President’s Club as a Supporter. Mr. Herman is certified in trial advocacy by the National Board of Trial Advocates. He is also a member of the Baltimore City Bar Association and is an arbiter/mediator on its Fee Arbitration Committee.
Health
Health Maintenance Organizations – Compensation – pursuant to Maryland code, section 19-701 (F), 19-710 (B) & (O) of the health-general article as well as the general statutory scheme of Maryland’s HMO act, HMO’s may not pursue their members for restitution, re- imbursement, or subrogation after the members have received a financial settle- ment from a third party tortfeasor, any contract to the contrary notwithstand- ing
Victor G. Riemer et al. v. Columbia Medi- cal Plan, Inc., No. 90, September Term 1999, filed March 10, 2000. Opinion by Cathell, J.
Insurance
Contract to procure motor vehicle liabil- ity insurance policy is breached immediately upon insurance agency’s failure to procure the requested policy, and cause of action in contract accrues upon discovery of the breach.
Assuming arguendo that tort claimant, as third-party beneficiary, may bring breach of contract action against insur- ance agency for failure to procure motor vehicle liability insurance policy for its tortfeasor client, the statute of limita- tions begins to run upon discovery of the breach.
No duty in tort exists between insurance agency and non-client third-party ben- eficiary of agreement to procure motor vehicle liability insurance policy.
Charles S. Jones et ux. v. Hyatt Insurance Agency, Inc., et al., No. 67, September Term, 1997, filed December 9, 1999. Opinion by Eldridge, J.
________ Summer 2000
Uninsured Motorist – for purposes of Maryland’s Uninsured Motorist Statute, a carjacker who was neither physically inside nor in control of any motor vehicle at all times during an attempted carjacking of an uninsured vehicle is not an “opera- tor” of the vehicle and victim’s death did not “arise out of the ownership, mainte- nance, or use of the uninsured motor vehicle,” but rather, the carjacker’s assault.
Facts: On the evening of March 20, 1995, sixteen-year-old Catherine Elizabeth Webster went with Robert Beauchamp Saunders and Larry LaPrad, Jr. to a pool hall without her parents’ knowledge or permission. Saunders was driving his uninsured automobile; LaPrad sat in the front passenger seat, and Webster sat in the rear of the car. When they arrived at the pool hall, they discovered it was closed. While still in the car in the parking lot, William D. Stewart ordered them out of the vehicle and showed them a handgun tucked in the waistband of his trousers. Saunders accelerated in an attempt to es- cape, while Stewart fired his gun. One bullet grazed Saunders and two bullets hit Webster in the back of the head. She died the following day. Webster’s parents argued that they are entitled to uninsured motorist benefits because Stewart’s and Saunders’s com- bined actions made them “operators” of the vehicle and that Webster’s death “arose out of the ownership, maintenance, or use of the uninsured vehicle.” The Court found no indication that the Legislature intended for the uninsured motorist provision to cover injuries or death resulting from attempted carjackings of uninsured vehicles. The Court declined to interpret the term “op- erator” to include an assailant who attempts to steal a car, never obtains con- trol of the car, and remains outside the car at all times. The Court also declined to interpret the phrase “arising out of the ownership, maintenance, or use of the uninsured vehicle” to include injuries or death resulting from an attempted carjacking in which the carjacker never obtains control of the car and remains
Trial Reporter
outside the car at all times. Rather, the Court determined that Webster’s injuries and death were the result of an assault.
David Webster, et al. v. Government Em- ployees Insurance Co., No. 6294, September Term 1998, filed December 2, 1999. Opin- ion by Sonner, J.
Torts
Premises Liability – summary judgment. After discussion of matter appropriately considered on summary judgment, held: by working six to seven feet above the ground while standing on a stationary platform that had no guardrails plaintiff did not assume the risk of injury a mat- ter of law.
The procedural issues in this case con- cern which of the following documents the trial court properly could have con- sidered on defendants’ motion for summary judgment: (1) An unsworn statement, written at the time of the acci- dent, by the forklift operator who elevated the decedent (Williams); (2) a transcript of testimony given before the Workers’ Compensation Commission in a previous case, involving the same parties, by de- fendants’ grocery warehouse manager (Kidd). The parties agreed that the trial court properly considered transcripts of deposition testimony given in the instant case by defendants’ maintenance super- visor (Swift) and by defendants’ director of warehousing (Farmer).
The substantive issue in this case is
whether Imbraguglio assumed the risk of his injury as a matter of law. Defendants argued that Imbraguglio knew and appre- ciated the risk as a matter of law because, under ADM Partnership v. Martin, 348 Md. 84, 702 A.2d 730 (1997), this Court identified “falling through unguarded openings” as a risk that anyone of adult age must be taken to appreciate. The plaintiff argued that Imbraguglio could
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