Police civil liability: Maryland federal court grants summary judgment in racial profiling case
On February 7, 2012 the U.S. District Court of Maryland issued a memorandum opinion granting summary judgment to the defendant police officers in a civil lawsuit alleging liability for unlawful arrest (allegedly due to racial considerations). Santos v. Frederick County Board of Commissioners, No. L-09-2978 (D. Md. Feb. 7, 2012). On an obviously smaller scale, the case is somewhat of a preview of some of the issues that will be addressed by the Supreme Court when the Court examines an Arizona law that requires police to determine the immigration status of any person they detain who they believe to be in the country illegally.
Roxana Santos, the Plaintiff, was taking a break behind her place of employment when she was approached by two sheriff's deputies. Santos claimed that she never moved from where she was sitting, while the deputies claimed that they decided to approach her because she saw them, gathered her belongings quickly, and moved away. The deputies approached Santos, and asked her what she was doing, and if she had any identification. Santos provided the deputies with her full name, which was used by the deputies to run a warrant check. At that point, Santos produced a Salvadoran identification card. Shortly thereafter, the dispatch contacted the deputies, and advised that Santos was the subject of an Immigration & Customs Enforcement ("ICE") warrant for immediate deportation. While the warrant was being verified with ICE, Santos asked the deputies if she could leave, and they gestured that she was to remain seated. At that point, she got up to leave, but was handcuffed and placed under arrest.
Santos was not deported, and filed suit against the deputies and a variety of other defendants. With respect to the deputies, Santos claimed Unlawful Seizure, Unlawful Arrest, and Violation of the 14th Amendment's guarantee of equal protection (all under 42 U.S.C. § 1983), and conspiracy (under 42 U.S.C. § 1985). Judge Legg granted summary judgment on all counts.
With respect to the claim of unlawful seizure and arrest (under the Fourth Amendment), the court first noted that there are three types of police-citizen interactions, each of which require different levels of justification: arrests, which must be supported by probable cause; brief investigatory stops, which must be supported by reasonable articulable suspicion; and consensual encounters, which require no justification whatsoever. Santos claimed that she had been "seized" as soon as the deputies approached and began to question her; the deputies claimed she had not been seized until she was placed in cuffs. The court took the middle ground, finding that she was seized prior to being cuffed, but after she was initially approached, when the deputy gestured for her to remain sitting, as at that point any reasonable person in Santos' position would not feel free to terminate the encounter with the police.
Based on that determination, Santos was "seized" after the deputies had already been advised of the outstanding ICE warrant-- and as such, they possessed probable cause to detain her at that point. As such, there was no violation of Santos' Fourth Amendment rights.
With respect to Santos' claim that her 14th Amendment rights were violated (on the grounds that the deputies allegedly decided to question her based upon her Latina appearance), the court noted that the deputies had ample neutral evidence on which to seize Santos at the time of the seizure (the outstanding ICE warrant). Santos argued, however, that the Equal Protection Clause may be violated short of a seizure if police target an individual for questioning based on his or her ethnicity, and relied on the case of United States v. Avery, 137 F.3d 343 (6th Cir. 1997), in which the Sixth Circuit held that even a consensual encounter may violate the Equal Protection Clause when initiated solely based on racial considerations. Id. at 353. Judge Legg declined to adopt the Avery position on the issue, on the grounds that under existing law, either a Terry stop or an arrest must serve as the basis for a suit, and under the Avery approach nearly every encounter between the police and a citizen might be actionable based upon the subjective intent of the officer. (Judge Legg notes in his opinion that this focus on the officer's subjective intentions is an area the Supreme Court has attempted to avoid in the past.)
Regardless, the court found that even if Avery was the standard in the Fourth Circuit, Santos' claims would still fail, as Santos failed to offer sufficient evidence, whether direct, circumstantial, or statistical, from which a jury could conclude that the deputies were motivated solely by Santos' ethnicity.
As the claims asserting underlying discriminatory animus failed, the claim for conspiracy was dismissed as well.
Posted by Padraic K. Keane on 02/22/2012 at 09:27 PM
Police Civil Liability
Commercial ambulances not shielded by the Maryland Good Samaritan Act or the Fire and Rescue Act
In Murray v. Transcare Maryland, Inc., No. 1791, Sept. Term 2010 (Feb. 9, 2012), the Court of Special Appeals held that a private for-profit ambulance service is not subject to Maryland’s Good Samaritan Act (Md. Courts and Jud Code Ann. § 5-603) or to the Fire and Rescue Act (§ 5-604). Both statutes are designed to provide immunity to certain individuals and companies that commit negligent torts while providing emergency services.
The facts were as follows: Transcare is a private, for-profit ambulance service. Bryson Murray, a child, was taken to the emergency room at Easton Memorial Hospital with complaints of congestion and trouble breathing. Bryson was intubated and subsequently transported by helicopter to the Pediatric Intensive Care Unit of the University of Maryland Medical System. Chris Barbour, a paramedic employed by Transcare, accompanied Bryson in the helicopter. During the flight, Bryson’s airway became blocked, and he required an oxygen mask. Barbour was unable to timely locate the mask, and Bryson suffered permanent brain damage as a result.
Bryson’s mother filed suit against Transcare, alleging that Barbour failed to exercise reasonable care. Transcare moved for summary judgment, invoking the Good Samaritan Act and the Fire and Rescue Act. After extensive analysis of the statutory language and legislative history, the Court of Special Appeals held that neither statute was applicable. The Good Samaritan Act does not apply to a for-profit company like Transcare because the Act’s protection of corporate entities is limited to volunteer service providers. By contrast, the Act would cover an individual paramedic employed by a commercial ambulance company, and therefore would likely immunize Barbour from personal liability.
Likewise, the court held that Transcare was not protected under the Fire and Rescue Act. That statute only applies to “fire companies” and “rescue companies.” The court held that Transcare was not a rescue company because the primary purpose of an ambulance is to transport the sick, not to save people from danger. The court stated in dicta that since ambulance companies are not defined as “rescue companies” under the Fire and Rescue Act, the Act would not apply even if a tort occurs while an ambulance company is engaged in providing rescue services (e.g. in an emergency situation).
In a separate part of its opinion, the Court of Special Appeals affirmed the trial court’s decision to transfer venue from Baltimore City to Talbot County under the doctrine of forum non conveniens. The Court of Special Appeals held that the trial court did not abuse its discretion because the tort occurred in Talbot County, several witnesses were located in Talbot County, and neither party resided in Baltimore City.
Posted by Raphael J. Cohen on 02/16/2012 at 03:29 PM
Professional liability: 4th Circuit finds insurer required to defend Maryland accounting firm
In Trice, Geary & Myers, LLC v. Camico Mutual Ins. Co., No. 10-1473 (4th Cir. Dec. 22, 2011 (unpublished), an accounting firm appealed the district court's award of summary judgment to their insurer in a declaratory judgment concerning insurance coverage. The 4th Circuit reversed.
The district court had awarded summary judgment to the insurer, finding that it had no duty to defend, on the grounds that all the underlying claims were "in connection with or arising out of" a member of the firm's sale and promotion of annuity plans as an agent or broker of Hartford, and under a Special Exclusion Endorsement, any of the plaintiffs' alleged acts, errors or omissions connected with the plan sales were excluded from coverage.
The 4th Circuit reversed and remanded, on the grounds that the underlying actions alleged that the accounting firm rendered substandard tax and accounting advice. Because these claims raised a potentiality that there is coverage under the professional liability policy, the Court ruled that the insurer's duty to defend was triggered. The Court therefore reversed the district court's award of summary judgment to the insurer, and remanded for further proceedings.
The underlying actions were three actions in which the insured were sued for their alleged recommendation to clients that they create section 412(i) defined benefits plans that would invest in insurance policies written by Hartford Insurance, and informed the clients that the premiums for that insurance would be tax deductible expenditures. These tax deductions were later audited by the IRS and the deductions were disallowed.
The 4th Circuit agreed with the insured's argument that because the insurer's Special Endorsement Exclusion invoked the exclusion for claims "in connection with or arising out of any act, error or omission by any Insured in his/her capacity as an [insurance] agent or broker," the exclusion applies only to claims asserting insurance agent or broker professional liability.
The Court disagreed with the insurer's argument that when the parties to the insurance contract agreed to the "in connection with or arising out of" language in the "Special Exclusion Endorsement", they also agreed that, even if there were several grounds for a claim, coverage would be barred so long as one of the grounds was any insured's having placed or sold an insurance product. Rather, the Court defined the issue as whether the acts, errors, or omissions of the insureds arise out of their capacity as brokers and agents. The Court also disagreed with the insurer's argument that merely "acting" as an agent or broker is itself sufficient to invoke the "Special Exclusion Endorsement." Instead, the Court pointed out that the terms "agent" and "broker" are terms of art under Maryland law, that the burden is on the insurer to prove the applicability of the exclusion, and that the insurer has not proven the principal-agent factors.
The Court also analyzed the complaints in the underlying action, and found that based on an analysis of the four corners of the complaints, contrary to the district court's interpretation, all of the underlying actions asserted that the insureds acted as accountants and tax advisors, and none of them contained allegations which put all of the counts in the underlying actions within the "Special Exclusion Endorsement."
Impact: This decision illustrates that in Maryland, if even a single count of a complaint creates the potentiality of coverage, the insurer must defend the entire complaint, including the counts which fall within policy exclusions. Sometimes it is difficult to determine what causes of action have been plead, depending on how the complaint is written and whether separate causes of action have been set forth in separate counts.
Posted by David B Stratton on 02/06/2012 at 09:21 PM
Allocation of lead paint poisoning liability under Maryland law
In Pennsylvania Nat. Mut. Cas. Ins. Co. v. Roberts, No. 10-1987 (4th Cir. Feb. 3, 2012), the Court considered an insurer's allocation of liability, under Maryland law, for a $850,000 judgment arising from lead paint poisoning, where the insurer's time on the risk was only a fraction of the plaintiff's exposure to lead paint poisoning. The insurer had sought a declaratory judgment that its allocation was no more than 40%, because it had covered its insured for no more than 40% of the time in which the plaintiff was exposed to lead poisoning.
The district court held that the insurer was only responsible for a portion of the judgment, notwithstanding that its insured was held jointly and severally liable for the entire judgment in the state proceeding. The district court reasoned that in lead paint or "continuous trigger" cases like this, Maryland courts determine an insurer's liability through a "pro-rata allocation by "time on the risk." The 4th Circuit affirmed in part and reversed in part.
On appeal, the plaintiff argued that the insurer was responsible for paying the entire $850,000 judgment in light of the joint and several liability of its insured. The plaintiff argued that the insurer contracted to cover the risk of any judgment for bodily injury by promising to "pay those sums that [the insured] becomes legally obligated to pay as damages because of 'bodily injury.'"
The 4th Circuit rejected this argument, because under the policy, the insurer contracted only "to pay those sums that [the insured] becomes legally obligated to pay as damages because of 'bodily injury' . . . To which this insurance applies." By its own terms, the contract does not cover damages that the insured because legally obligated to pay for injuries that occurred outside of the policy period. Not only was the insurer's coverage restricted to the policy period, it was also limited to premises that the insured owned, rented, or occupied. Thus, the insurer could not be liable for injuries that occurred after the insured sold the property.
The 4th Circuit concluded:
In seeking to impose the entire judgment on . . . [the insurer], [the plaintiff] would have us turn a blind eye to these terms and hold an insurance company liable for risks for which it never contracted and for which it never received premiums. We decline to do so.
The 4th Circuit also relied on Maryland precedent which holds that in lead paint or continuous trigger cases like this, Maryland courts engage in a pro rata time-on-the-risk allocation of liability." Under this method of allocation, each insurer is liable for that period of time in was on the risk compared to the entire period during which damages occurred, and losses will be prorated to the insured for period during which it was uninsured.
The Court emphasized that this rule does not reduce the tort defendant's own joint and several liability for the judgment. Rather, the question here was whether the insurer is liable for the entire judgment, and that question could be answered only be reference to the insurance contract and the application of contract law.
The 4th Circuit ultimately ruled that the insure was only liable for 22months/55 months of time-on-the-risk, or 40% of the $850,000 judgment.
Impact: By providing more certainty concerning the allocation of judgments to the tortfeasors' insurance policies, this opinion should permit disputes concerning such allocation to be resolved more easily.
Posted by David B Stratton on 02/05/2012 at 09:33 PM
Lead Paint Poisoning