Virginia Court of Appeals denies workers compensation award during work furlough
In Utility Trailer Manufacturing Company and Liberty Insurance Corporation v. Testerman, No. 1484-10-3 (Va. App. July 12, 2011), the Court considered the issue whether a furlough from work of pre-defined and limited duration, applicable to all manufacturing employees, both those with and without restricted work capacity, justifies an award for lost wages to a worker with restricted capacity, in the absence of evidence demonstrating a causal relationship between that restriction and the wage loss. The Court concluded, with a dissent, that such an award under these circumstances is not authorized by the Act.
Due to a work related injury, the claimant was awarded benefits including permanent partial disability. Subsequently, the claimant resumed his work as an hourly employee on the manufacturing line with the same employer, commensurate with his restricted work capacity.
The employer shut down the manufacturing line for one week and furloughed all employees on that line, including the claimant, during an annual inventory count. The claimant then filed an application for workers compensation benefits for the furlough period. The claimant returned to work following the furlough at his same salary.
The Virginia Workers Compensation Commission awarded the claimant benefits during the furlough, awarding lost wage benefits because claimant's ability to compete economically with co-workers attempting to find work during a lay-off is permanently impaired.
In its analysis of the appeal, the Court of Appeals quoted with approval the statement of the rule by Larson, i.e., "Loss of employment should not be deemed due to disability if a worker without the disability would lose employment or suffer a reduction in earnings under the same economic conditions . . . ." The Court identified five factors to determine whether the same economic conditions applied to all workers:
We find they include: (1) the length of any furlough from work; (2) whether that furlough included all employees, restricted or not, of the same class; (3) the reason for the furlough; (4) whether the term of the furlough was pre-determined by the employer; and (5) whether employees were offered employment at the termination of the furlough. These factors address the fundamental issue in these cases: is any wage loss causally related to the injury?
The appellate court essentially agreed that a furlough of one week is simply of insufficient duration to reasonably conclude that the claimant's ability to obtain other light duty work was the result of his disability. The Court held only that during a furlough a condition precedent for an award to a partially incapacitated employee for lost wages (or diminution in earning power) is a causal relationship between that incapacity and that loss. Claimant did not demonstrate that his lost wages were causally related to his injury.
Posted by David B. Stratton on 07/15/2011 at 02:45 PM
In DCHRA case, Court affirms $1 compensatory damages and $42,677.50 in punitive damages
In Howard University v. Wilkins, Nos. 09-CV-318, 09-CV-319, and 09-CV-544 (D.C. June 30, 2011), the Court affirmed the plaintiff's verdict, in a District of Columbia Human Rights Act action for retaliation, of $1.00 in compensatory damages, and $42,677.50 in punitive damages. The plaintiff had alleged that Howard University had retaliated against her by terminating her employment because of her prior sexual harassment claim.
On appeal, Howard argued, among other things, that the size of the punitive damages award was constitutionally excessive, and that the trial court should have granted its motion for remittitur. The Court reviewed this issue under a de novo standard of review, yet still affirmed.
The jury had answered "yes" to a special interrogatory on the jury verdict form, which had asked, "Do you find by clear and convincing evidence that [Howard's] actions in terminating Ms. Wilkins were undertaken recklessly, maliciously, wantonly, and/or in reckless disregard to Ms. Wilkins' rights under the [DCHRA]?"
The D.C. Court of Appeals reasoned in part that although the Supreme Court has stated that few awards exceeding a single-digit ratio between punitive and compensatory damages will satisfy due process, the Supreme Court has repeatedly declined to impose a bright-line ratio which a puntive damages award cannot exceed. The D.C. Court of Appeals also cited to courts in other jurisdictions which followed the principle that greater ratios may comport with due process when reprehensible conduct results in only a small amount of economic damages.
The Court also considered that a punitive damages award must remain of sufficient size to achieve the twin purposes of punishment and deterrence. The Court observed that had the jury awarded $42,677.50 in compensatory damages, that amount would have seemed entirely reasonable. The Court also noted that if the jury's punitive damages award was reduced to an amount not significantly larger than nine times the actual damages, that would mean that Howard would receive a sanction of little more than ten dollars.
Therefore, the Court concluded that there is no need to disturb the jury's punitive damages award.
The Court also upheld the trial court's award of summary judgment to Howard based on qualified privilege. Interestingly, the plaintiff argued that Howard waived the affirmative defense of qualified privilege by failing to raise it in its answer. The Court of Appeals rejected that contention, pointing to a statement in Howard's motion for summary judgment which it deemed sufficient to raise the affirmative defense of privilege under Rule 8(c). On this point, Howard certainly dodged a bullet, because many courts in this region would probably find waiver of the affirmative defense under these circumstances.
Lastly, the Court found that the trial court did not abuse its discretion in determining that reinstatement of the plaintiff was inappropriate in this case. The trial court found that reinstatement was inappropriate because the plaintiff was on long-term disability at the time Howard retaliated against her, and that lingering animosity between plaintiff and Howard militated against ordering reinstatement.
Posted by David B. Stratton on 07/04/2011 at 05:44 PM
District of Columbia
In Maryland civil actions, admissibility of other crimes, wrongs or acts is governed by Rule 403
Ruffin Hotel Corporation of Maryland, Inc. v. Gasper, changed the common understanding as to the applicability of Rule 404(b) in civil cases. In that case, a hotel employee brought suit against her former employer following her termination. The Complaint contained claims for sexual harassment and retaliatory discharge. Plaintiff claimed that her manager, as well as another co-worker, had both sexually harassed her. Moreover, she claimed that she was fired because she complained to her manager about the harassment by the co-worker. She further alleged that her manager had previously been fired by the same hotel in 2002 for sexual harassment, but was subsequently rehired.
During trial, Plaintiff asked the court to reverse a previous in limine ruling that excluded evidence of what was referred to as the "2002 incident." Although the opinion never explicitly states what the "2002 incident" was, it apparently involved sexual harassment by the manager and was the reason he was originally fired. The court refused the request and gave three reasons why the evidence should be excluded. First, the evidence, even if assumed to be true, was irrelevant and therefore inadmissible under Rule 5-401. Second, the probative value of the evidence was substantially outweighed by the danger of unfair prejudice and the likelihood that its introduction would confuse the issues. Finally, the evidence was inadmissible under Rule 5-404(b) because "the fact that [the manager] did or did not commit an offense in 2002 has nothing to do with his motive or his intent . . . in this particular case."
The Court of Appeals, however, took issue with this last justification. It explicitly held that "Md. Rule 5-404(b) is not applicable to evidence offered in a civil case by either a plaintiff or a defendant." The Court acknowledged that certain prior opinions from the Court of Special Appeals as well as opinions interpreting Federal Rule 404(b) on which the Maryland Rule is derived, have held the opposite. Nevertheless, the Court explained that because the Maryland Rule required "clear and convincing" evidence of other crimes, rather than "only such evidence as would permit the jury to find the existence of the other misconduct," as the federal rule requires, the Maryland Rule should be confined to criminal cases. Such evidence, therefore, is only limited in civil cases by considerations of relevancy under Rule 5-401 and unfair prejudice under Rule 5-403.
Posted by Christopher P. Kellett on 07/01/2011 at 01:02 PM
Landlord loses pitbull injury suit on appeal in Maryland
Solesky v. Tracey seemingly expanded a landowner's potential liability for the damages caused by tenant's pets. That case concerned a landlord's liability for the mauling of a boy by a tenant's pit bull. In 2006, the landlord rented her property to two tenants. The lease included a provision allowing the couple to keep an "American Bulldog Terrier" on the property. The lease further stated that "Tenant shall not keep the pet on the premises if the pet is or becomes vicious or threatening, bites, or attacks any person or other pet, or otherwise is or becomes a nuisance." That lease expired on December 31, 2006.
The landlord and her daughter visited the property the following January to inspect the property and review the proposed new lease. While there, they observed two pit bulls the couple was keeping on the property and the roofless cage in the backyard where the dogs were kept. The new lease was signed that day. It omitted the "vicious or threatening" language and contained two new provisions:
11. Pets: The Lessee is allowed to keep pets that are agreed upon by Lessee and Lessor: 2 pit bull dogs.
13. The Lessee will be civically [sic] and financially responsible for their pets. Should the pet(s) harm anyone, it is the Lessee's financial responsibility to pay for the damage. The Lessor is in NO WAY responsible.
Three months later, one of the dogs escaped its pen and attacked a small boy causing severe injuries. The boy's parents brought suit against the dog's owners and the landlord. At the conclusion of the plaintiffs' case, the landlord moved for judgment. The Court granted the motion, explaining that 1) there was no evidence that the landlord knew the dogs were vicious and 2) there was no provision in the lease that gave the landlord control over any portion of the rental premises.
The Court of Special Appeals vacated the entry of judgment, noting that the evidence, when considered in a light most favorable to the plaintiffs, was sufficient to survive a motion for judgment. First, the court explained that the jury could infer that the landlord knew the dogs were vicious. While the court declined to rule that all pit bulls are vicious, the court pointed out that the landlord observed the dogs during her visit and a neighbor testified that anyone who observed the dogs would have seen their aggressive behavior. Thus, there was a reasonable inference that the landlord had seen the dogs' vicious behavior. Moreover, the jury could also infer knowledge of viciousness because the landlord changed the lease by omitting the prohibition against keeping "vicious or threatening" pets and emphasizing that the landlord was "in NO WAY responsible" for any damages.
Finally, the court ruled that the jury could infer that the landlord had control over the rental premises because "instead of simply trying to disclaim responsibility in the event the dogs attacked anyone, the landlord should have either refused to re-let the premises, or refused to allow the dogs to remain, or required [the tenants] to implement reasonable containment measures to ensure that their pit bulls would not escape the pen or the premises."
on 07/01/2011 at 12:42 AM