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D.C. Court of Appeals clarifies the method to assign permanent partial disability awards

Jordan Coyne LLP is pleased to announce that Padraic Keane has been advanced to Partner

In Memoriam - James F. Jordan

Virginia Workers’ Compensation:  Injury After Clocking Out

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Recent Case Notes from Jordan Coyne LLP
The materials contained on this web site have been prepared by Jordan Coyne LLP for informational purposes only, and should not be considered as legal advice as to any specific matter or transaction. Readers should consult a knowledgeable attorney, licensed in their home State, for advice. These materials may not reflect the most current legal developments, verdicts or settlements. The descriptions of the resolutions of certain matters should in no way be taken as an indication of future results; litigation is inherently unpredictable.

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Posted by David B. Stratton on 01/06/2011 at 04:51 PM

D.C. Court of Appeals clarifies the method to assign permanent partial disability awards




            Like many other workers’ compensation statutes, the D.C. Workers’ Compensation Act [Act] provides a schedule setting forth the amount of benefits that may be awarded for the permanent disability of certain body members.  D.C. Code § 32-1508(3).  For example, the Act dictates that the loss of an arm results in an award of 234 weeks of compensation benefits.  Partial loss of use of the arm is compensable in a proportionate amount, i.e., a 10% permanent disability of the arm equates to 23.4 weeks of compensation benefits.  Thus, the schedule of disabilities may be seen as a legislative determination of the presumed occupational impact of these permanent disabilities, without requiring proof of actual lost wages in every case.  In contrast, permanent partial disability benefits for non-scheduled members are based upon actual wage loss.  Thus, compensation for injuries to the neck or back is payable at a rate of two-thirds the wage loss for up to 633 weeks.

            Over time, this simple statutory scheme was interpreted in ways that made it difficult to determine whether or not the claimant sustained a scheduled disability, and the extent of the disability sustained. For example, neck injuries frequently cause radiculopathy, i.e., nerve pain radiating down the arm. The courts held that the place of the impairment, not the place of injury, controls for purposes of determining disability. From there, it was argued that some injuries cause impairments in more than one place. In 1999, the Court of Appeals affirmed a decision awarding scheduled benefits for a disability of the arm, plus additional benefits for any wage loss that could be attributed to any “separate and distinct” disability of the shoulder resulting from the same shoulder injury. Morrison v. D.C. DOES, 736 A.2d 223 (D.C. 1991). This generated still more litigation over whether these separate awards should be paid consecutively, or together at the same time.

           The case of M.C. Dean, Inc. v. D.C. Dep’t of Emp’t Servs., 146 A.3d 67 (D.C. 2016) [Dean] provided a vehicle for the Court of Appeals to clarify how Administrative Law Judges should make permanent partial disability awards.  In Dean, the treating physician assigned a 27% whole body impairment as a result of the claimant’s neck and shoulder injuries.  The claimant’s attorney wrote to the physician, explaining that an impairment of the neck and shoulders would not be compensable under the Act because the claimant sustained no wage loss, and asked him to express the impairment as the equivalent impairment of the claimant’s arms.  The physician obliged, assigning a 31% impairment of the left upper extremity and a 16% impairment of the right upper extremity. The physician addressed the impairments of the neck, shoulders, arms, and hands all together, explaining that in his view, “the upper extremity begins at the base of the skull.” 

          The case proceeded to a formal hearing, and the ALJ ultimately assigned a 45% permanent partial disability to the right upper extremity, and a 30% permanent partial disability to the left upper extremity.  The medical impairment ratings were increased by the ALJ to account for the claimant’s testimony about his pain, weakness, and loss of endurance, as well as the impact the injuries had on his ability to engage in personal, social, and occupational activities like playing ball and shopping for groceries. The award amounted to over $130,000 in permanent partial disability benefits, even though the claimant had never sustained any actual wage loss on account of his neck and shoulder injuries. 

            The Court of Appeals identified two problems with this approach.  First, the impairment ratings of Claimant’s arms were assigned based on injuries to his neck and shoulders.  The Court recognized that without a clear line of demarcation, a claimant could choose to collect a scheduled loss award where there is no wage loss, and vice versa. The Court decided that a neck injury could not support an award for an impairment of the arm.  Noting that earlier decisions had held that the shoulder was not part of the arm, the Court remanded the case to the agency to consider whether or not this interpretation of the statute should be reconsidered and allow the arm to be equated with the upper extremity, and include the shoulder.

          The Court also held it was improper to award benefits based on the effect of the injury on the claimant’s ability to engage in personal or social activities.  These awards went beyond the scope of the Act, which is intended to compensate for lost earnings. The Court held that a disability rating should focus on loss of occupational capacity.  The economic disability rating may be different from the medical impairment rating, but any variance should be specifically explained by an analysis of how the impairment affects the ability to work, and not in the abstract.

          On remand from the Court of Appeals, the Compensation Review Board adopted the suggestion to make the shoulder part of the arm for purposes of permanent disability ratings and “jettisoned” the approach taken earlier in MorrisonLawson v M.C. Dean, CRB 14-056 (2017). Following the most recent edition of the AMA Guide, the Board held that entire upper extremity -from the shoulder to the hand- is the arm for purposes of assigning permanent partial disability benefits under the schedule. 

          The Board also rejected the recently emerging trend of ALJs awarding increased disability ratings to account for “personal, social and occupational factors” associated with the injury.  Henceforth, any variation from the medical impairment rating must be based on the statutory allowance for pain, weakness, atrophy, loss of endurance and loss of function, and then only to the extent it can be shown to have an identifiable nexus with the claimant’s wage earning capacity.

          Applying these new standards, Administrative Law Judge Roberson rejected the opinion supplied by Dr. Moskovitz and reduced the permanent partial disability to 12% of the left arm and 3% of the right arm due to the work injury.  This reduction, from a combined disability of 75%, resulted in giving Dean a credit of $148,141 to offset against any future indemnity awarded. Lawson v M.C. Dean, AHD 06-431E (Feb. 27, 2017).

          Dean should have a very favorable impact on future claims. Under this binding precedent, cervical radiculopathy should no longer support a claim for disability of the arm. By the same reasoning, back injuries should not result in a disability of the leg. Non-scheduled injuries will be compensated only on the basis of actual, demonstrated wage loss again. Shoulder injuries are now considered part of the arm, subject to the 234 week limitation on permanent partial disability benefits. And hip injuries should be compensated as part of the leg.

          Perhaps most importantly, ALJ’s will no longer be allowed to increase the disability over the medical impairment ratings to account for the alleged personal or social impact of the injury. Any increase in disability on account of occupational impairment based on the statutorily recognized factors of pain, weakness, atrophy, loss of endurance or function must be directly related to the claimant’s ability to work. This will reduce uncertainty and litigation, making workers’ compensation awards predictable again.

          To discuss the impact of the M.C. Dean case further, please call D. Stephenson Schwinn at 703-246-0900.

Posted by D. Stephenson Schwinn on 05/04/2017 at 07:38 PM
District of ColumbiaWorkers CompensationPermalink

Jordan Coyne LLP is pleased to announce that Padraic Keane has been advanced to Partner

Jordan Coyne LLP is pleased to announce that Padraic Keane has been advanced to Partner.


A member of the Maryland bar since 2002, Padraic was admitted to practice in the District of Columbia in 2006, and Virginia in 2015.  He attended the University of Colorado (B.A. 1999), and received his Juris Doctor, cum laude, from American University in 2002.  Padraic enjoys a diverse practice, handling cases throughout the Washington, D.C. Metropolitan area, Maryland, and Virginia.  His practice focuses on Insurance Defense, Workers' Compensation Defense, Premises Liability Defense, Professional Liability Defense, and Construction Defect Litigation.

Posted by D. Stratton on 02/07/2017 at 03:57 PM
Jordan Coyne LLP newsPermalink

In Memoriam - James F. Jordan

James F. Jordan of Chevy Chase, Maryland, passed away peacefully on November 10, 2016.  Jim was born on February 9, 1933 in Washington, D.C.   He was preceded in death by his parents, John A. Jordan, Sr. and Margaret Ellen Leahan Jordan, his sisters, Mary Margaret Jordan McKeever, Rita Bridgett Jordan Marshall, Joanne Ellen Jordan Barr, Kathleen Elizabeth Jordan Flood, Patricia Rose Jordan Keyser and brother, John A. Jordan, Jr.   Jim attended grade school at Blessed Sacrament and in 1951 graduated from St John’s College.  He entered the United States Marine Corps in 1952.  He graduated from Georgetown University in 1955 and entered the United States Marine Corps Officer Candidate School.  After service with the Marine Corps, Jim was employed by Traveler’s Insurance Company while attending Georgetown University Law School; graduating in 1962.  He joined the law firm of Carr, Bonner, O’Connell, Kaplan, and Scott in 1965.  In 1975, Jim formed the law firm of Jordan, Coyne, and Savits, where he remained until 2013.  In over 50 years as an attorney, Jim tried numerous civil trials and served as an Arbitrator and Civil Mediator in multiple cases. He served as President of The Counsellors 1983-1984 and President of the Bar Association of the District of Columbia 1984-1985. He was awarded the District of Columbia Defense Lawyer of the Year Award in 1994. Through his pro bono work with U.S. Marines, Jim was the recipient of the coveted Military Order of the Iron Mike award in 2000.  He is survived by his wife of over 50 years, Mary Alice Fleming Jordan, his daughter, Kathleen Delaney Jordan Baldino, his granddaughter, Allison Fleming Baldino, and son-in-law, Eric Joseph Baldino.  He is also survived by his brothers, William Ignacious Jordan of Dickerson, Maryland, and Robert Michael Jordan of Phoenix, AZ.  They are the two survivors of the eleven children of his parents, John and Margaret Jordan.   Visitation will take place at Gawler’s Funeral Home, Tuesday, November 15, 2016 from 5-7pm.  A mass of Christian burial will be held at Blessed Sacrament Church in Chevy Chase, Maryland on November 16, 2016 at 11:00 am.  Internment will take place at Arlington Cemetery on a date to be established.  Memorial contributions, if any, may be made in his name to Blessed Sacrament Church in Chevy Chase, Maryland.

Posted by D. Stratton on 11/11/2016 at 07:27 PM
Jordan Coyne LLP newsPermalink

Virginia Workers’ Compensation:  Injury After Clocking Out

In Jones v. The Woodlands, Inc., Jurisdiction Claim No. VA00001035833 (March 29, 2016), the Virginia Workers’ Compensation Commission ruled that an employee injured on the employer’s premises but after he had clocked out was not injured in the course of his employment.  The Commission reversed the Deputy Commissioner’s ruling that the injury was compensable.

The claimant, Robert William Jones, was a nursing assistant for the employer, an assisted living facility.  The claimant clocked out at 7:30 am on the morning of February 18, 2015.  He claimed that he “went straight … on over” to another building on the premises in order to retrieve his paystub from the human resources office.  Paystubs were mailed or emailed to employees and employees were not required to pick up a copy from human resources but the claimant needed to provide a copy in order for his wife to continue to receive disability benefits.  The claimant was reportedly in the human resources office for approximately five minutes obtaining the paystub, and then left, walking to his car in the parking lot.  The claimant slipped and fell on snow and ice and was reportedly discovered around 9:00 am.  He was transported by ambulance to the hospital where he was treated for his injuries.

An employee remains within the course of his employment for “a reasonable period while he winds up his affairs” after clocking out.  Jones, JCN. VA00001035833, at 5.  (citing 1A A. Larson, Workman’s Compensation § 26.10 (1989)).  The Commission looked to the exact sequence of events in order to determine whether the ninety minutes between the time that the claimant clocked out and the time his injury was discovered constituted a reasonable period.  The claimant testified that he walked slowly to the human resources office in order to avoid falling, and arrived “a little before 8:00.”  Id. at 3.  He estimated that, after falling, he lay on the ground for approximately one hour, calling for help before he was discovered.  Id.  Two employees in the human resources office testified that, although the office generally opens at 8:00 am, they did not arrive to open the office until approximately 8:45 am on the morning of February 18, 2015 due to transportation difficulty caused by the snow.  Id.  They testified that the claimant did not arrive at the human resources office until shortly before 9:00 am and that they heard him fall and call for help only moments after he left the human resources office.  Id. at 3 – 4.  The claimant’s inability to explain his whereabouts between the time he clocked out at 7:30 am and his arrival at the human resources office shortly before 9:00 am persuaded the Commission that the claimant had not proven that his injury occurred in the course of his employment.  Id. at 7.

“To establish that an injury occurred ‘in the course of’ employment, the claimant must show ‘that the injury occurred within the period of employment, at a place where the employee was reasonably expected to be, and while he is reasonably fulfilling the duties of his employment doing something reasonably incident to his employment.’”  Id. at 5 (citing Norfolk Cmty Hosp. v. Smith, 33 Va. App. 1, 5, 531 S.E.2d 576, 578 (200)).  An injury that occurs outside the normal time or place of work while an employee is not doing anything to benefit the employer does not occur in the course of employment.  Conner v. Bragg, 303 Va. 204, 208, 123 S.E.2d 393, 396 (1962).  The Commission looked to its decision in McKinney v. Hardee’s, 67 O.I.C. 99 (1988), in deciding that Jones’ injury did not occur in the course of his employment.  .  In McKinney, the claimant clocked out at approximately 11:30 pm on a Thursday and waited in the dining area some amount of time between thirty minutes and two and a half hours for the arrival of her paystub, which she would otherwise have been given the next day, Friday, at the end of her shift.  Id.    The claimant in McKinney was injured when, while waiting for the paystubs to be delivered to the restaurant, she got up to get a drink and slipped on an unknown substance on the floor.  Id.  In some cases, employees are still considered to be in the course of their employment while picking up paychecks or paystubs if the employees are thereby providing some benefit to the employer.  See Decatur v. American Silk Mills, Inc., O.I.C. 137 (1981) (ruling that an employee was in the course of his employment while picking up a paycheck from a plant that had closed); Ali v. Bradlees, I.C. 128-39-27 (June 10, 1988) (ruling that an employee was providing a benefit to the employer while picking up a paycheck that needed to be cashed in store). 

The Commission’s decision in McKinney was based in part on the fact that the claimant was unable to identify the cause of the slippery floor or explain its relation to her employment.  67 O.I.C. 99.  The recent decision in Jones clarifies the string of Commission rulings on employees injured while obtaining paychecks because its decision was based on the amount of time that passed after the claimant clocked out and the purely personal nature of his activities after clocking out.  JCN. VA00001035833, at 7.  The claimant’s ability to identify the specific cause of his fall was not a factor in deciding whether or not the injury occurred within the course of his employment as it was in McKinney.

Posted by Andrew E. Suddarth on 04/15/2016 at 06:21 PM
VirginiaWorkers CompensationPermalink

Eastern District of Virginia rules on school restroom policy regarding transgender students

In G.G. v. Gloucester County School Board, Civil No. 4:15cv54., the U.S. District Court for the Eastern District of Virginia considered whether a school board resolution requiring that the use of male or female restrooms and locker rooms be restricted to those of the corresponding biological gender constituted impermissible sex discrimination.  The Court dismissed a claim by a transgender student that the policy violated Title IX.

 A student identified in court papers as G.G. is biologically female but requested the ability to use male restrooms due to a male gender-identification.  G.G. is a high school student in Gloucester County (VA) Public Schools.  A psychologist diagnosed G.G. with gender dysphoria and recommended that G.G. dress as a male, use a male name, and act in accordance with the male gender identification.  School officials allowed G.G. to use a private restroom in the nurse’s office and to complete physical education coursework through a home-based educational setting.  G.G. claimed that use of a private restroom was stigmatizing and requested permission to use the male restroom.  The school principal authorized use of the male restroom by G.G. in late October 2014 and G.G. used the male restrooms in the school for the next seven weeks triggering an outcry from the parents of other students.

The Gloucester County School Board proposed a resolution (“The Resolution”) for consideration at its November 11, 2014 meeting requiring that the use of male or female restrooms and locker rooms be restricted to those of the corresponding biological gender and further requiring that appropriate private facilities be provided for students with gender identity issues.  The meeting allowed public comment on the matter and the majority of those speaking on the subject supported The Resolution citing concern over the privacy rights of other students and concerns over sexual assault in school restrooms and locker rooms.  The School Board approved The Resolution at its December 9, 2014 meeting by a vote of 6-1, again with considerable public response in support of The Resolution.  Three unisex single-stall restrooms were installed in G.G.’s school prior to the school board vote and on December 10, 2014, the school principal told G.G. that the student’s use of the male restroom was no longer authorized.

 G.G. claimed that use of the three unisex restrooms was isolating and stigmatizing and, on June 11, 2015, filed suit against the Gloucester County School Board (“The School Board”) in the US District Court for the Eastern District of Virginia (Newport News Division) claiming that the policy established by The Resolution constituted gender discrimination in violation of the Fourteenth Amendment (“Equal Protection Clause”) and Title IX.  The Department of Justice filed a Statement of Interest in support of G.G.’s allegation of a Title IX violation.  The School Board filed a Motion to Dismiss and G.G. filed a Motion for Preliminary Injunction to allow the student to use the male restroom until a final judgment on the merits.  Both motions were heard on July 27, 2015.

“Under Title IX, a prima facie case is established by a plaintiff showing (1) that [he or] she was excluded from participation in (or denied the benefits of, or subjected to discrimination in) an educational program; (2)that the program receives federal assistance; and (3) that the exclusion was on the basis of sex.”  Manolov v. Borough of Manhattan Comm. Coll., 952 F. Supp. 2d 522, 532 (S.D.N.Y. 2013) (quoting Murray v. N.Y. Univ. Coll. Of Dentistry, No. 93 Civ. 8771, 1994 WL 533411 at *5 (S.D.N.Y.  Sept. 29, 1994).  Both parties supported their motions by citing to interpretations of Title VII of the Civil Rights Act of 1964, “upon which courts have routinely relied in determining the breadth of Title IX.  See Jennings v. Univ. of N.C., 482 F.3d 686, 695 (4th Cir. 2007).”  The School Board argued that restricting bathroom usage to those corresponding with an individual’s biological sex is not a violation of Title IX because discrimination against transgender individuals is not included in sex discrimination.  Johnston v. Univ. of Pittsburgh, 2015 U.S. Dist. LEXIS 41823 (W.D. Pa. Mar. 31, 2015).

 On September 17, 2015, the Court issued its opinion on the parties’ motions.  The Court dismissed Count II of G.G.’s claim under Title IX, ruling that Department of Education regulations bar the Title IX claim.  Schools are allowed to “provide separate bathroom facilities based upon sex, so long as the bathrooms are comparable.”  34 C.F.R. § 106.33 (“Section 106.33”).  The court determined that Section 106.33 was not arbitrary, capricious or manifestly contrary to the statutory exceptions within Title IX allowing separate living facilities for the sexes.  Therefore, Section 106.33 is controlling.  G.G. did not allege that the unisex single-stall restrooms and female restrooms were incomparable to the male restrooms and therefore failed to state a valid claim under Title IX.

 A Preliminary Injunction requires plaintiffs to present admissible evidence to “demonstrate that (1)they are likely to succeed on the merits; (2) they will likely suffer irreparable harm absent an injunction; (3) the balance of hardships weighs in their favor; and (4) the injunction is in the public interest.” League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 236 (4th Cir. 2014).  The court noted that G.G. failed to identify specific harms that would result in the continued use of female or unisex single-stall restrooms during the pendency of the litigation.  By contrast, bodily privacy is a constitutional right Lee v. Downs, 641 F.2d 117, 119 (4th Cir. 1981), so the School Board policy was designed to protect the constitutional rights of other students.  Therefore, the balance of hardships weighs in favor of the School Board.  Furthermore, G.G. failed to offer evidence of irreparable harm from continued use of the female restrooms or unisex single-stall restrooms.  The Motion for Preliminary Injunction was therefore denied.

 As legal challenges are raised to school policies relating to gender identification issues, school systems may rely on  Section 106.33 and the constitutional right to bodily privacy to support policies establishing comparable but separate restrooms, locker rooms, and living facilities for biological males and biological females regardless of gender identification

Posted by Andrew E. Suddarth on 10/09/2015 at 07:05 PM
School liabilityVirginiaPermalink

Avoiding the Late Payment Penalty

Compensation awarded in an Order must be "paid within 10 days after it becomes due" or a statutorily mandated twenty-percent penalty shall be imposed. D.C. Code § 32-1515.

In Daly v. D.C. Dep't of Empl. Servs., 2015 D.C. App. LEXIS 359, 12-13 (D.C. Aug. 6, 2015), the Court held that payment becomes "due" within ten days of the employer/insurer receiving notice of either OWC's or the Hearings and Adjudication Section's order via certified mail or registered mail, return receipt requested, if that is the method on which the administrative agency decides to serve the party. The Court rejected Claimant’s argument that the ten-day time period began to run when the employer/insurer had "actual notice," i.e. when counsel forwarded a copy of the order via email.

In Orius Telcoms., Inc. v. D.C. Dep't of Empl. Servs., 857 A.2d 1061 (D.C. 2004), the Court held that the term "paid" in this context means money actually received, not the date payment was posted or mailed. Compensation must be received by the Claimant within ten days after the employer/insurer receives the Order to avoid the imposition of the penalty.

For further information concerning the defense of District of Columbia workers' compensation matters, call Jordan Coyne LLP Partner Steve Schwinn, at 703-246-0900.

Posted by D. Stephenson Schwinn on 09/08/2015 at 09:18 PM
District of ColumbiaWorkers CompensationPermalink

D.C. Workers Compensation Act Amended to Provide for Reversion of Third Party Claims

The District of Columbia Workers Compensation Act provides for an automatic assignment of the right to sue a third party to the employer if the person entitled to compensation does not file suit within six months after being awarded compensation in an order. D.C. Code § 32-1535(b). This provision had been applied to bar a worker from filing a civil action for damages against a third party tortfeasor more than six months after being awarded worker’s compensation benefits in an order, even if it operated to shorten the general three year statute of limitations for the worker to file suit. Cunningham v. George Hyman Constr. Co., 603 A.2d 446, 447 (D.C. 1992).

The District of Columbia Council recently amended the Act to allow for a reversion of the right to sue third party liable for the worker’s injury if the employer does not file suit against the third party within 90 days. D.C. Law 20-159, § 2. (Effective February 26, 2015). This amendment applies to causes of action for negligence for which the three-year statute of limitations [generally applicable to negligence claims] has not yet expired. Id. § 3. 

With this amendment, the Council modified the assignment provision to have the right to file suit against the tortfeasor revert back to the injured worker if his employer does not file suit within 90 days.  This change is akin to the Longhore and Harbor Workers’ Compensation Act 33 U.S.C. § 933(b) (1988), as amended by Pub. L. No. 98-426 § 21(a) (1984) ("If the employer fails to commence an action against such third person within ninety days after the cause of action is assigned under this section, the right to bring such action shall revert to the [employee].") and the Maryland Workers’ Compensation Act, where the worker’s right of action is assigned to the employer when the Commission awards compensation benefits, but it reverts back to the worker if suit is not filed within two months after the award. Md. Code, Labor and Employment § 9-902.

Posted by D. Stephenson Schwinn on 09/02/2015 at 01:59 PM
DefensesDistrict of ColumbiaWorkers CompensationPermalink

Indemnification in Maryland

Frequently, when a party asserts a cross- or third-party claim, at least one count will assert that the cross- or third-party plaintiff is entitled to indemnification.  It is almost boilerplate.  However, Maryland law is fairly restrictive on the concept of indemnification, and frequently claims for indemnification are vulnerable to dispositive motions. 

Maryland recognizes that a right to indemnification may arise under three circumstances (or three “modalities,” the term used by the Court of Appeals).  First, indemnification is appropriate where there is express contractual indemnity, which arises where “an indemnitor, by express contract, agrees to reimburse the indemnitee for a liability, loss, or damage that the indemnitee may occur that is within the scope of the indemnity.”  Pulte Home Corp. v. Parex, 403 Md. 367, 381 (2007).  This is relatively straightforward; Maryland recognizes the viability of a contractual provision requiring indemnification.

The second “modality” is indemnification by fact or law, whereby there are “unique special factors demonstrating that the parties intended that the would-be indemnitor bear the ultimate responsibility . . . or where there is a generally recognized special relationship between the parties.”  Pulte Home Corp., 403 Md. at 382.  However, the circumstances under which an implied right of indemnification have been recognized are restrictive.  Unfortunately, there are no Maryland state or federal decisions addressing what specifically constitutes a “generally recognized special relationship.”  The Court of Appeals in Pulte Home Corp. cited to a First Circuit Court of Appeals decision, which in turn cited to § 51 of Prosser on Torts for examples of what might constitute such a “generally recognized special relationship,” which included: where an employer is vicariously liable for the tort of a servant or independent contractor; where an innocent partner is held liable for the acts of another partner; or the owner of an automobile for the conduct of the driver. 

Third, Maryland recognizes equitable, also known as tort-based, indemnification.  However, for equitable indemnification to apply, both the indemnitor and indemnitee must be liable in tort to the original plaintiff.  If the party from whom indemnitee is sought could not be directly liable to the original plaintiff, then this modality is inapplicable.  This equitable indemnification is a recognition of differing levels of fault by multiple tortfeasors, whereby the less culpable tortfeasor may be entitled to indemnification from the “more culpable co-defendant, who is primarily or actively negligent.”  Max v. Camden Yards, LLC v. A.C. Bev., Inc., 172 Md. App. 139, 148 (2006). 

Of course, there are frequently occasions where a cross-claim or third-party claim will contain multiple causes of action.  But where the claim seeks only indemnification, it is worth keeping in mind that the law of indemnification in Maryland is far more restrictive than many would believe, and the cross- or third-party claim may be susceptible to summary judgment, if not a motion to dismiss.  Additionally, keep in mind that Maryland does not allow for indemnification for one’s own sole negligence in construction contracts.  See Md. Code Ann. Cts. & Jud. Proc. § 5-401 (2014); Heat & Power Corp. v. Air Products & Chemicals, Inc., 320 Md. 584, 593 (1990).

Posted by Padraic K. Keane on 08/04/2015 at 05:59 PM

District of Columbia: Duties of Local Counsel

The District of Columbia Court of Appeals has reminded the bar again that when an attorney undertakes to act on behalf of another person, no matter what the circumstances, he invokes upon himself the entire structure of the Code of Professional Responsibility. In re Thomas Fortune Fay, No. 14-BG-7 (D.C. March 19, 2015). 

The Code does not and cannot create two tiers of ethical obligations, one for attorneys acting formally and for gain, and another for those who act for other reasons.

In this case, the attorney had agreed as a favor to file a personal injury suit for another attorney, Joel Chasnoff, who was a member of the Maryland bar.  Mr. Chasnoff's membership in the D.C. bar had been suspended for his failure to pay dues, and therefor he asked the respondent attorney to sign his name to and file a complaint in the case.  The respondent's paralegal and Mr. Chasnoff's secretary filed the complaint in the Superior Court, listing both the respondent and Mr. Chasnoff as attorneys.

Unfortunately, Mr. Chasnoff failed to serve the defendant with the complaint and the case was dismissed about three and a half months later. The respondent attorney received notice of the dismissal, and filed a motion to reinstate the case and for leave to make substituted service, but the motion was denied, and a second motion was also denied.

The client in the civil suit then brought a bar complaint against the respondent attorney.  A Hearing Committee concluded that the attorney had entered into an attorney-client relationship with the complainant, and the Board on Professional Responsibility approved the Committee's findings and recommended that the attorney receive an informal admonition.

On review, the Court found that the attorney had entered into an attorney-client relationship with the plaintiff.  As a starting point, the Court reviewed the basis upon which an attorney admitted to the District of Columbia is explicitly given the title of "officer of the court" and its accompanying duties.

The Court then noted that "the existence of an attorney-client relationship is not solely dependent on a written agreement, payment of fees, or the rendering of legal advice."  The Court reasoned that an attorney's ethical responsibilities exist independently of contractual rights and duties; consequently, the obligations imposed by the Rules arise from the establishment of a fiduciary relationship between attorney and client.  The attorney-client relationship is created usually when the client retains the attorney, but the relationship may also be created by court appointment.  The attorney-client relationship does not rest on the client's view of the matter.  The Court instead considers the totality of the circumstances to determine whether an attorney-client relationship exists.

Here, the attorney had authorized the filing of the complaint with his signature and bar number and later initiated and filed an additional pleading in which he identified himself as the plaintiff's attorney.  As an officer and fiduciary, the respondent attorney represented to the court, through his filings, that an attorney-client relationship existed.

Significantly, the Court noted that like local counsel facilitating the practice of an attorney admitted pro hac vice, the respondent attorney was responsible for the case in the event that Mr. Chasnoff failed to adequately pursue it.  By asserting his bar membership to aid Mr. Chasnoff in presenting the claim, the respondent attorney, like local counsel, assumed the ethical responsibilities and duties as plaintiff's attorney.

The Court agreed with the Board and the Hearing Committee that the respondent attorney couls not now deny his professional relationship with the plaintiff, which he earlier represented to the court as existing.

* * *

This opinion should give D.C. attorneys reason to pause and think before undertaking to serve as local counsel in a case, or before, as here, agreeing as a favor to file a case for an attorney whose D.C bar membership has temporarily lapsed.  A member of the D.C. bar who signs and files a suit in Superior Court under those circumstances is nevertheless responsible for the case in the event the purported lead counsel fails to adequately pursue it. 

To discuss the defense of lawyers' professional responsibility matters, legal malpractice defense, and the legal ethics rules in the District of Columbia, contact John Tremain May of Jordan Coyne LLP at 703-246-0900.


Posted by David B. Stratton on 08/02/2015 at 07:05 PM

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