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Lead Paint Poisoning

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
InsuranceLead Paint PoisoningMarylandPermalink

In Zi'Tashia Jackson, et al, v. The Dackman Company, et al., No. 131, Sept. Term 2008 (Oct. 24, 2011), the Court of Appeals declared that the provisions in the Reduction of Lead Risk in Housing Act (Md. Code Ann. Environment sec. 6-801, et seq.) which grant the owners of certain rental properties, under specified conditions, immunity from personal injury suits based upon a child's or pregnant woman's ingestion of lead were invalid and unconstitutionality under Article 19 of the Maryland Declaration of Rights.

Ms. Jackson, through her mother, filed a lawsuit in the Circuit Court for Baltimore City for negligence and violations of Maryland's Consumer Protection Act claiming that she suffered severe and permanent brain injuries allegedly resulting from her ingestion of lead-based paint at property owned by the defendants. Ms. Jackson was born January 12, 1997 and moved into the defendant's property when she was one year old. Between 1997 and 2000 Ms. Jackson had elevated blood lead levels of 21 ug/dl, 16, ug/dl, 15 ug/dl and 9ug/dl. Her blood lead levels never reached the 25 ug/dl which is the level set forth in sec. 6-828(b) applicable to those years.

Defendant property owners moved for summary judgment on the grounds that they had complied with the Act and were therefore immune from a suit for personal injury under the Act. Plaintiffs opposed the motion on the grounds that the Defendants did not comply with the Act, and even if they did, that various provisions of the Act were unconstitutional under various theories. Ultimately, the Court agreed that the Defendants had complied with the Act and granted summary judgment in Defendants favor.

The Reduction of Lead Risk in Housing Act was enacted in 1994 "to reduce the incidence of childhood lead poisoning, while maintaining the stock of available affordable rental housing." The Court addressed the Act in its entirety but primarily focused on compensation and immunity provisions of the Act and their application.

The Court focused on the Act's alternative remedy to a personal injury suit of a "qualified offer" which is an offer of money by an owner, the owner's agent, or an insurer of the owner, made to a person at risk or to a parent or legal guardian of a person at risk who is a minor (secs. 6-831 through 6-834). A "person at risk" is defined as "a child or a pregnant woman who resides or regularly spends at least 24 hours per week in an affected property" (sec. 6-801(p)). A "qualified offer" is designed to cover some expenses which are incurred on behalf of an affected person at risk. Nevertheless, the maximum amount payable under a qualified offer is only $17,000, and most of this is payable to the providers of medical or other services and not to the person at risk. Under sec. 6-835, the "acceptance of a qualified offer by a person at risk, or by a parent or legal guardian" of a person at risk, "releases all potential liability of the offeror, the offeror's insured or principal." If the qualified offer is rejected, under sec. 6-836 "an owner of an affected property is not liable, for alleged injury or loss caused by ingestion of lead by a person at risk in the affected property." The statutory language dictates that the immunity provisions are intended to be very broad and grant immunity to an owner from personal injury suits if that owner has complied with the Act.

In declaring the immunity provisions to be invalid, the Court relied on Article 19 of the Maryland Declaration of Rights. Article 19 generally protects two rights: (1) a right to a remedy for an jury to one's person or property; (2) a right of access to the courts. Another tenet of Article 19 is that it generally prohibits unreasonable restrictions upon traditional remedies or access to the courts but allows the Legislature to enact reasonable restrictions. Under Article 19 the Court weighed whether the abolition of the common law remedy and substitution of a statutory remedy was reasonable.

The Court opined that immunity granted to defendants under the Act is not a traditional or well-established immunity from personal injury actions and that the substituted remedy under the Act for a permanently brain damaged child, i.e. the maximum of $17,000, is "totally inadequate and unreasonable." The Court noted that the only remedy provided by the Act, in substitution for a personal injury action, is a qualified offer by the property owners which is accepted by a "person at risk, or a parent or legal guardian or a minor who is a person at risk." However, where no qualified offer is made, the plaintiffs have no remedy under the statute.

Since the Act is applied broadly, stating that immunity is "applied to all potential bases of liability for alleged injury of loss to a person caused by the ingestion of lead by a person at risk in an affected property," the Court found that the maximum amount of compensation under a qualified offer is "minuscule" where a child is found to be permanently brain damaged from ingesting lead paint caused by the landlord's negligence. Consequently, the Court found that the remedy which the Act substitutes for a traditional personal injury action results in either no compensation or drastically inadequate compensation.

The Court opined that when no adequate remedy is substituted for the grant of immunity, the statute leaves a negligently injured child without a remedy. Accordingly, the Court held that it cannot "countenance a result that would leave the only innocent victim . . . uncompensated for his or her injuries" and therefore the immunity provisions in the Act or invalid.

Even though the immunity provisions were held to be invalid, the Court found that these provisions were severable from the remainder of the Act. The remaining portions of the Act had a valid purpose and are capable of being executed in accordance with the legislative intent which is to reduce the incidence of childhood lead poisoning, while maintaining the stock of available affordable rental housing.

Posted by Robert D. Anderson, Esq. on 10/31/2011 at 05:39 PM
Lead Paint PoisoningMarylandPermalink

Countering A Plaintiff’s Counsel’s Minimal Expert Witness Disclosures in Lead Paint Litigation
In the Jamal Logan v. LSP Marketing Corp., et al., the Court of Special Appeals upheld the trial court's granting of an order in a lead paint case precluding all but one of plaintiff's 12 experts as a sanction for failure to comply with Md. Rule 2-402(g) (i.e. failing "to state the subject matter, substance of the findings/opinions, and summary of grounds for each opinion; and produce any reports, to which the expert is expected to testify.")

Defendant's interrogatories requested information as to Plaintiff's experts. When Plaintiff did not respond to the interrogatories within the time prescribed, defense counsel made a good faith effort to resolve the dispute. Plaintiff's counsel eventually submitted its answers to interrogatories, but failed to provide any substantive information. Not having received sufficient or satisfactory information, Defendant moved to dismiss/compel. The Court compelled Plaintiffs to supplement their responses, but Plaintiff's counsel again responded vaguely and did not produce any reports. Consequently, Defendant moved for sanctions to exclude the experts or dismiss. The Court precluded all but one expert. As a result, Plaintiff was unable to put on a prima facie case resulting in the Court granting Defendants motion for summary judgment.

This opinion reiterates the expert designation requirement, specifically,

Plaintiff's answers to interrogatories did not comply with Rule 2-402 because he failed to include the substance of the experts' findings and opinions, as well as a summary of the grounds for each expert's opinion. For example, Plaintiff listed Mark Lieberman as a vocational rehabilitation expert who would testify "as to the vocational impact and loss of potential earning capacity of lead paint poisoning on the Plaintiff(s)." Although Plaintiff stated that Lieberman would "base his opinions on a review of the medical records, school records, other expert reports and depositions," Plaintiff did not state how Lieberman believed his earning capacity would be affected. In addition, Plaintiff listed 12 individuals, 10 of whom were located out-of-state, as experts in pediatric lead poisoning, who would "testify to the extent and permanency of the minor Plaintiff?s injuries due to exposure to lead paint." These answers failed to disclose, however, what each expert would opine as to the extent and permanency of the injuries, which might range from 0% to 100%. Plaintiff stated that all 12 experts were expected to "testify to the probable source of the lead exposure," but he did not include what each expert would opine the probable source was, and why the expert expressed this belief. Moreover, the experts were to "testify that exposure to lead-based paint at all of the defendants' subject premises . . . was a substantial factor in the plaintiff's injuries," yet Plaintiff did not state the reasons for their findings. And, Plaintiff stated at the end of each expert designation that a written report "will be provided when available" or "as soon as it becomes available." But none were provided. "Based upon Plaintiff's "boilerplate" expert designations, it was reasonable for the court to infer that the excluded experts' testimonies would be duplicative of Dr. Hurwitz's" (the only properly designated expert).

Also, noteworthy, the Plaintiff argued as a defense that Defendants could have taken the experts' depositions. However, since 10 experts were out of state the Court emphasized the importance of Plaintiff's compliance with Md. Rule 2-402(g) to provide a proper designation so that the Defendant did not have to unnecessarily incur the costs associated with depositions.

Posted by Robert D. Anderson on 01/04/2011 at 03:06 PM
Expert Witness IssuesLead Paint PoisoningMarylandPermalink