defense of sovereign immunity to the extent of permitting recovery only out of any sum payable on behalf of the HOC by its insurer under applicable liability insurance coverage,’ (citation omitted) that language, not being necessary to the issue to be decided in Jackson, is dictum. Even if it were not dictum, we would overrule it…” (Slip op at p. 17.) In conducting its analysis, the Court of Appeals first
reiterated its long-standing test for ascertaining whether and to what extent governmental immunity is waived. “A legislative waiver of sovereign [or governmental] immunity is ineffective unless specific legislative authority to sue the agency has been given, and unless there are funds available for the satisfaction of the judgment, or power reposed in [an] agency for the raising of funds necessary to satisfy recovery against it.”Katz v. Wash Suburban Sanitary Comm’n, 284 Md. 503, 513, 397 A.2d 1027, ____ (1979). Tere was no dispute between the parties in this case that the first prong of the Katz test had been satisfied. Te real question was whether the second prong was satisfied, and if so, whether there were any limitations on HABC’s waiver of immunity. Te Court of Appeals determined that it was too
expansive in its language when it decided Jackson. In rejecting its previous decision it said:
We depart, however, from our statement in Jackson that the waiver of immunity effected by the statute is
limited by the extent of available commercial insurance coverage. Rather, an examination of the entirety of the housing authorities’ statute leads us to conclude that the statute effects a complete waiver of immunity, including when, as in the present case, there is no commercial insurance coverage to satisfy a judgment. (Slip. Op. at pp. 18-19.) (Emphasis added.)
Te court also stated that its decision was “bolstered”
by the fact that in other circumstances, the legislature has limited a waiver of immunity to a specified amount of mandated insurance coverage and that no such language exists in the housing authorities law. Tey stated “when the General Assembly wishes to limit the waiver of governmental immunity in a given situation; it knows precisely how to do so,” and it did not do so in this case. (Slip. Op. at p. 20) As if the previously quoted language was not enough,
the Court made its holding crystal-clear towards the end of its opinion:
[W]e hold that the General Assembly has waived completely the governmental immunity that Maryland’s housing authorities would otherwise enjoy in tort actions arising out of the authorities’ performance of government functions. As a consequence, under former Article 44A (and absent any other statutory cap), a housing authority sued for tortious conduct arising out of its maintenance or operation of subsidized housing is liable for any judgment against it. To the extent that Jackson declares a different rule, it is hereby disavowed. (Slip. Op. at p. 23.)
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* See website for further details. 26 Trial Reporter / Winter 2010 are two lead-paint cases
currently pending in the Court of Appeals. Te first, Jackson v. Te Dackman Company, et al. (September Term, 2008, No. 131) was argued in May, 2008. Te issue to be decided is the constitutionality of Md. Code Ann., Env. Art., §§ 6-801 through 6-852 [known as Reduction of Lead Risk in Housing Act (the Act)]. Under the Act, landlords are provided with “qualified immunity” from liability for lead- poisoning cases, so long as they have complied with certain property registration and remediation requirements prior to the inception of a tenancy. In other words, so long as a landlord completes certain renovation on a property prior to a tenancy, he or she is immune from liability to a poisoned child even if there are subsequent, post-tenancy, acts of negligence. Te stated purpose of the Act was to increase the availability of housing for low-income families. In Jackson, as in the other cases discussed herein, a minor
Plaintiff alleged that she was exposed to lead and injured as a result of the Defendants’ negligence and violations of the Consumer Protection Act. In this case, in addition to
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