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In Maryland workers’ compensation claim, employer must show actual prejudice from late notice
In Melody Elste v. ISG Sparrows Point, LLC et al., ___Md. App.___, ___A.2d___(2009), Maryland's intermediate appellate court examined when an employer is "prejudiced" by an employee's failure to provide notice of an accidental injury within ten days of the injury's occurrence as required by Md. Code (2008 Repl. Vol., 2009 Supp.), secs. 9-704 and 9-706 of the Labor and Employment Article. The court determined that prejudice is established when an employer produces concrete evidence that indicates that the employee's failure to provide notice of his or her injury within ten days of the injury's occurrence caused actual harm to the employer's legal interests.
Melody J. Elste twisted her right knee on July 27, 2006 while working a safety shift at ISG Sparrows Point ("Sparrows Point"). Ms. Elste did not report her injury to Sparrows Point until 19 days later, on August 14, 2006, upon returning from a one week camping vacation. On September 9, 2006, Ms. Elste underwent knee surgery and on October 10, 2006, she filed a claim for workers compensation benefits.
The Workers Compensation Commission awarded Ms. Elste temporary total disability benefits. Sparrows Point sought judicial review of the Commission’s award in the Circuit Court for Baltimore City. During the jury trial for the matter, Ms. Elste moved for judgment at the close of Sparrows Point's case, and again at the close of all evidence, arguing that Sparrows Point had produced "no evidence whatsoever" that it was prejudiced by her failure to provide it with notice of her injury within ten days of the injury's occurrence. The circuit court judge denied the motions and the jury concluded that Ms. Elste had not given Sparrows Point timely notice of her injury. Ms. Elste filed a motion for JNOV, which was also denied. An appeal to the Court of Special Appeals ensued.
Before the Court of Special Appeals, Sparrows Point argued that it was prejudiced by Ms. Elste's failure to notify it of her injury within ten days of her accident because it was denied the opportunity to timely investigate the accident and to evaluate Ms. Elste's pre-vacation condition. The Court of Special Appeals rejected these arguments, holding that "an employee’s mere participation in [an] intervening activity, or an employer's inability to conduct an immediate investigation, cannot, by themselves, constitute prejudice." The court emphasized that under secs. 9-704 and 9-706 of the Labor and Employment Article, prejudice is established only when an employer offers specific evidence regarding how an employee's failure to provide notice of an injury harmed the employer's legal interests. The court noted that, in this case, such evidence could have included that a change had occurred in Ms. Elste's condition, the scene of the accident, or the memory of one of the witnesses. Due to the lack of such evidence, the Court of Special Appeals held that the trial court erred in denying Ms. Elste's motion for judgment and her motion for JNOV.
Posted by Mandy Wolfe on 11/02/2009 at 08:29 PM
Maryland •
Workers Compensation •
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Maryland Court of Appeals Holds That Co-Counsel Owes No Tort Duty to Referring Counsel
In Blondell v. Littlepage, No. 16, Sept. Term, 2008 (Md. March 30, 2009), the Court held that a plaintiffs' co-counsel, who advised the clients to settle the medical malpractice claim, owed no tort duty to referring counsel. After the settlement, the referring counsel sued co-counsel, asserting negligence, fraud, breach of fiduciary duty, intentional interference with contract, and breach of contract. Referring counsel alleged that co-counsel had improperly advised the client that there was a meritorious limitations defense in the malpractice action, that referring counsel had delayed in filing suit, and that the client might have a claim against the referring attorney.
The Circuit Court granted summary judgment to the co-counsel on all counts, concluding that co-counsel owed no tort duty to referring counsel, that co-counsel fulfilled her contractual duty under the fee agreement, and that co-counsel as a matter of law could not have interfered with the contract between the plaintiffs and referring counsel because co-counsel was a party to the agreement.
The Maryland Court of Appeals affirmed. Although referring counsel did not style his suit as an attorney malpractice action, the Court found that the same policy considerations underlying the strict privity requirement in a legal malpractice case, apply with equal force here. The Court reasoned that if this type of claim were allowed, the resulting expansion of potential tort claims by non-clients would have a potential effect on an attorney's duty of loyalty to the client. An attorney's preoccupation or concern with potential negligence claims by third parties might result in a diminution in the quality of legal services received by the client as the attorney might weight the client's interests against the attorney's fear of liability to a third party.
Posted by David B. Stratton on 04/05/2009 at 09:46 PM
Legal Malpractice •
Maryland •
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