E-Alert Case Updates
Maryland General Assembly Wraps Up 2016 Legislative Session
by Caroline E. Willsey & Richard J. Medoff, Esq.
Semmes, Bowen & Semmes (www.semmes.com)
The following summarizes certain legislation passed or defeated in the Maryland General Assembly, which bear relevance to the practice of civil law in the State of Maryland.
Workers’ Compensation – Heart Disease and Hypertension Presumption – State Correctional Officers (Failed)
House Bill 13 (“H.B. 13”) proposed to extend the presumption of compensability under the workers' compensation law to include, under specified conditions, State correctional officers who suffer from heart disease or hypertension resulting in partial or total disability or death. H.B. 13 would also allow State correctional officers who qualify for first tier workers’ compensation benefits to automatically receive second tier benefits. A similar iteration of the bill, known as H.B. 563, previously failed in 2015. H.B. 13 failed after the House Economic Matters Committee took no action.
Civil Actions – Strategic Lawsuits Against Public Participation (Failed)
House Bill 263 (“H.B. 263”) proposed to alter the conditions under which a lawsuit is deemed a strategic lawsuit against public participation (SLAPP lawsuit). H.B. 263, would consider a lawsuit to be a SLAPP lawsuit if it was brought in bad faith to prevent a person from making a statement in furtherance of the person’s right to petition or to free speech under the U.S. Constitution and the Maryland Constitution in connection with a public issue. Specifically, the lawsuit must be brought to prevent a person from making a written or oral statement (1) before a legislative, executive or judicial branch proceeding; (2) in connection with an issue under consideration or review by a legislative, executive, or judicial body; or (3) in a place open to the public. H.B. 263 was amended and passed the House of Delegates on March 11, 2016 with a unanimous vote of 138 - 0, but was defeated in the Senate Judicial Proceedings Committee.
Civil Action – Wrongfully Selling or Furnishing Alcoholic Beverages (Failed)
House Bill 345 (“H.B. 345”) again sought to impose “Dram Shop Liability” in Maryland. Specifically, H.B. 345 would allow a civil action to be brought against an alcoholic beverage licensee or that licensee’s employee who sold or furnished alcoholic beverages to an individual who was under the influence of alcoholic beverages and who subsequently negligently drove or attempted to drive a motor vehicle. A person who brings an action under this proposed law would have to prove, by clear and convincing evidence, the following: (1) that the licensee or its employee knew or reasonably should have known that the individual to whom they were selling alcoholic beverages was under the influence of alcohol; (2) that the licensee or its employee could have reasonably foreseen that the individual might drive or attempt to drive after consuming alcoholic beverages; (3) that after consuming alcoholic beverages the individual negligently drove or attempted to drive a motor vehicle; (3) that the individual’s negligence in driving or attempting to drive proximately caused the damages claimed in the action. Nothing in H.B. 345 would prevent a defendant from asserting assumption of the risk or contributory negligence as a defense. H.B. 345 was withdrawn.
Maryland No-Fault Birth Injury Fund (Failed)
House Bill 377 (“H.B. 377”) and Senate Bill (“S.B. 513”) proposed the establishment of a system for the adjudication of claims involving birth-related neurological injuries. The bill was proposed out of concern for the high medical liability risk and associated costs facing hospitals and health care practitioners. The Maryland No-Fault Birth Injury Fund (the “Fund”) was proposed to stabilize and reduce medical liability risk in order to preserve access to obstetric services in Maryland. The Fund would provide equitable compensation, on a no-fault basis for catastrophic birth-related neurological injuries that result in unusually high costs for custodial care and rehabilitation. Only birth-related injuries occurring after January 1, 2018, would be eligible for compensation from the Fund. Acceptance of compensation from the Fund would replace all other remedies available to the infant and the infant’s parents arising out of the birth-related injury, including claims of emotional distress related to the injury. Nothing in the bill precludes the mother of the injured infant from pursuing a claim for her own physical injury, separate and distinct from the infant’s birth-related neurological injury. If a party in a civil proceeding asserts a claim that involves a birth-related neurological injury, the circuit court, upon motion of a party, may (1) order the allegedly injured party to file a claim with the Fund and (2) dismiss the civil action.
Similar funds exist in Virginia, Florida, and New York. Proponents of this fund argue that it would protect a mother’s access to quality obstetrical care by preserving obstetric practices threatened by medical malpractice litigation. Opponents, however, argue that this fund violates victims’ right to a jury trial and allows health care providers to avoid liability. Despite strong bi-partisan support, H.B. 377/S.B. 513 failed to pass the House and Senate respectively.
Award of Attorney’s Fees and Expenses – Violation of Maryland Constitutional Right (Failed)
House Bill 393 (“H.B. 393”) and Senate Bill 362 (“S.B. 362”) sought to award attorneys’ fees and expenses to a prevailing plaintiff in certain actions seeking to remedy a violation of a Maryland constitutional right. The bill also allowed an award of attorneys’ fees and expenses to a prevailing defendant upon a finding that claim of relief was maintained in bad faith or without substantial justification. Attorneys’ fees, under the bill, may not exceed twenty percent (20%) of a settlement or twenty-five percent (25%) of a judgment. H.B. 393 passed the House by a vote of 87 – 52, but no action was taken by the Senate Judicial Proceedings Committee. S.B. 362 failed to pass in the Senate after no action was taken by the Senate Judicial Proceedings Committee.
Lead Risk Reduction Standards – Maintenance of Exemptions (Failed)
House Bill 396 (“H.B. 396”) proposed to amend Section 6-804 of the Maryland Environmental Law Article to alter the requirements for a property owner to submit a certification to the Maryland Department of the Environment (MDE) in order to maintain exemptions from certain lead-based paint risk reduction standards. Specifically, (1) every five (5) years and within thirty (30) days after receiving a written notice of chipping, peeling, or flaking paint, a property owner must submit to the MDE, a certification by an MDE inspector stating that no exterior paint surface is chipping, peeling or flaking and (2) on the first anniversary of the inspection, and annually thereafter, submit an affidavit affirming that the exterior of the property remains free of chipping, peeling, or flaking paint.
H.B. 396 also provided that on October 1, 2020, any exemption for a multifamily rental dwelling would expire, unless the number of rental dwelling units tested for the inspection report was in accordance with regulations adopted by the MDE on September 29, 2003.
An amended version of H.B. 396 passed the House by a unanimous vote of 135–0. No action was taken in the Senate, and the bill ultimately failed.
Civil Action – Offense Against Vulnerable or Elderly Adult (Failed)
House Bill 495 (“H.B. 495”) proposed to add a new Subtitle to the Courts and Judicial Proceedings Article to create a civil action for damages against any person who commits an offense against vulnerable or elderly adults, as defined under Md. Code Ann., Crim. Law, § 8-801. A conviction under Section 8-801 would not be a prerequisite to establishing civil liability. A victim would be able to recover treble damages, reasonable attorneys’ fees and court costs. H.B. 495 failed after the House Judiciary Committee voted the bill “unfavorable.”
Workers’ Compensation – Permanent Partial Disability Compensation – Reversal of Modification of Award (Failed)
House Bill 504 (“H.B. 504”) and Senate Bill 186 (“S.B. 186”) proposed to amend Section 9–633 of the Labor and Employment Article to specify that, if a workers’ compensation award of permanent partial disability is reversed or modified by the Workers’ Compensation Commission or a court on appeal, the payment of any new compensation awarded must be subject to a credit for compensation previously awarded and paid that is calculated in dollars, rather than calculated in weeks. A similar iteration of the bill, known as S.B. 358, previously failed in 2015. H.B. 504 failed after the House Economic Matters Committee voted the bill “unfavorable.” No action was taken by the Senate Finance Committee on S.B. 186, and the bill failed.
Courts and Judicial Proceedings – Structured Settlements – Transfers and Registration of Structured Settlement Transferees (Passed)
House Bill 535 (“H.B. 535”) and Senate Bill 734 (“S.B. 734”) proposed to regulate transfers of structured settlement rights to ensure that transfers are effectuated on fair and reasonable terms and to protect payees against deceptive practices. H.B. 535 and S.B. 734 would require a transferee to provide the payee, at least ten (10) days before the payee signs the transfer agreement, with a separate disclosure statement in fourteen (14) point boldface type that states the following: (1) the amounts and due dates of the structured settlement payments to be transferred; (2) the aggregate amount of the payments to be transferred; (3) the discounted present value of the payments to be transferred; (4) the amount payable to the payee in exchange for the amounts to be transferred; (5) an itemized listing of commissions, fees and costs to be deducted from the gross amount payable to the payee; (6) the transferee’s best estimate of any attorneys’ fees deductible from the gross amount payable to the payee; (7) the net amount payable to the payee; (8) the discount rate applicable to the transfer; (9) the amount of any penalty payable by the payee in the event of breach of the transfer agreement; (10) a statement that the payee has the right to cancel the transfer agreement, without penalty, at any time before the transfer is authorized by a court.
With regard to the transfer of a structured settlement obtained in resolution of a lead paint case, the transferee must additionally (1) notify the court in its petition for transfer that the payee may be cognitively impaired; (2) attach to the petition a copy of the complaint that was pending at the time the structured settlement was established; and (3) identify any allegations or statements in the complaint that describe the nature, extent, or consequences of the payee’s cognitive injuries. In considering such a petition, the court must consider whether to appoint a guardian ad litem for the payee or to require the payee to be examined by an independent mental health specialist.
H.B. 535 and S.B. 734 also propose to impose extensive application and registration requirements on structured settlement transferees, and require transferees to post a bond. Finally, H.B. 535 and S.B. 734 would allow the Attorney General to suspend or revoke the transferee’s registration and impose a fine upon a finding that the transferee has engaged in prohibited conduct, including but not limited to: (1) paying a fee to induce the referral of a payee to the transferee; (2) offering a gift to the payee or his or her family in connection with the transfer; (3) offering a loan as an inducement to transfer structured settlement payment rights; (4) referring a payee to an attorney for advice regarding the transfer; and (5) communicating with a payee using obscene or grossly abusive language.
H.B. 535 was amended in the House and the Senate and passed both chambers with unanimous votes. S.B. 734 was also amended in the Senate and passed by a vote of 40 – 5 and then passed the House on the last day of the legislative session by a vote of 141 – 0.
Maryland Tort Claims Act – Certain Claim Requirement – Exception (Passed)
House Bill 636 (“H.B. 636”) and Senate Bill 935 (“S.B. 935”) proposed to provide two (2) exceptions to the requirement under the Maryland Tort Claims Act that a claimant submit a claim within one (1) year of the injury to the State Treasurer or its designee. Specifically, the one (1) year limitations period would not apply to claims concerning (1) an alleged discriminatory act, filed in accordance with Md. Code Ann., State Gov., §20-1004, or (2) any other provision of the law that prohibits discrimination or retaliation and requires the claimant to file an administrative charge or complaint before filing the civil action. H.B. 636 was amended in both the House and the Senate and passed both chambers. S.B. 935 failed when it did not make it through the process before Sine Die.
Local Government Tort Claims Act – Notice Requirement – Exception (Passed)
House Bill 637 (“H.B. 637”) and Senate Bill 934 (“S.B. 934”) proposed to provide two (2) exceptions to the notice requirement for a claim under the Local Government Tort Claims Act. Currently, notice must be given, in writing, to the county commissioners or county council of the defendant local government within one (1) year of the injury. The bill proposes to exempt from the notice requirement to claims concerning (1) an alleged discriminatory act, filed in accordance with Md. Code Ann., State Gov., §20-1004, or (2) any other provision of the law that prohibits discrimination or retaliation and requires the claimant to file an administrative charge or complaint before filing the civil action. H.B. 637 was amended in both chambers and passed on the last day of Session. S.B. 934 failed when it did not make it through the process before Sine Die.
Workers’ Compensation - Permanent Partial Disability – Compensation (Failed)
House Bill 693 (“H.B. 693”) and Senate Bill 534 (“S.B. 534”) proposed to amend Section 9–628 of the Labor and Employment Article to decrease the maximum weekly workers’ compensation benefit that a covered employee may receive for a permanent partial disability that lasts for less than 75 weeks from 16.7% of the State average weekly wage ($172 in 2016) to $114. H.B. 693 failed after receiving an unfavorable report from the House Economic Matters Committee. No action was taken by the Senate Finance Committee on S.B. 534, and the bill failed.
Workers’ Compensation - Medical Benefits – Payment of Medical Services and Treatment (Failed)
House Bill 710 (“H.B. 710”) and Senate Bill 258 (“S.B. 258”) proposed to require a health care provider to submit to an employer, within forty-five (45) days of treatment of a covered employee, a bill for and documentation summarizing the medical services provided. H.B. 710/S.B.258 would also prohibit the employer/insurer from being required to pay the bill if it was submitted after the expiration of the forty-five (45) day period unless (1) the health care provider files an application for payment with the Workers’ Compensation Commission within three (3) years from the date of treatment or (2) the Workers’ Compensation Commission finds good cause for the untimely submission. H.B. 710 failed after receiving an unfavorable report from the House Economic Matters Committee. No action was taken by the Senate Finance Committee on S.B. 258, and the bill failed.
Consumer Protection – Asset Recovery for Exploited Seniors Act (Passed)
House Bill 718 (“H.B. 718”) proposed to create a civil cause of action for damages against persons who violate Md. Code Ann., Crim. Law, §8-801. A civil action may be brought by the victim of the offense or the victim’s estate, if the victim is deceased. The plaintiff in such an action may recover (1) damages for property loss or damage and (2) the costs of the action for the use of the Office of the Attorney General. Md. Code Ann., Crim. Law, §8-801 makes it a criminal offense to knowingly and willfully obtain by deception, intimidation, or undue influence the property of an individual that the person knows or reasonably should know is (1) a vulnerable adult or (2) at least sixty-eight (68) years old, with the intent to deprive that individual of the individual’s property. A conviction under Md. Code Ann., Crim. Law, § 8-801 is not required to establish civil liability under H.B. 718. The bill unanimously passed both the House and Senate, was signed by the Governor on April 12, and became Chapter 114.
Consumer Protection – Collection and Sale of Consumer Debt – Restrictions (Failed)
House Bill 783 (“H.B. 783”) proposed to add several restrictions to Section 14-201 of the Commercial Law Article. The proposed restrictions would have prohibited a debt collector from attempting to collect a debt unless the collector possessed verifiable information regarding (1) the ownership of the debt and the collector’s right to collect it, (2) the amount of the debt, and (3) the connection of the debtor to the debt. H.B. 783 also proposed to prohibit an original creditor from selling a debt if (1) the original creditor did not possess the above information required of debt collectors; (2) the debt has been charged off for more than three (3) years; (3) the debtor has not made a payment within the last three (3) years; (4) the debt is the subject of a civil action; (5) the debtor is a member of the U.S. Armed Forces or National Guard; (6) the debtor is deceased; or (7) the debt is subject to a payment plan or payment agreement with the debtor. H.B. 783 also proposed several disclosures that an original creditor must provide both to the debt buyer and the debtor upon sale of the debt. H.B. 783 received an unfavorable report from the House Economic Matters Committee.
Civil Actions – Liability for Personal Injury or Property Damage Caused by Tree (Failed)
House Bill 818 (“H.B. 818”) aimed to make a land owner liable for personal injury or property damages caused to an adjoining property by a tree on the land owner’s property. The land owner would be liable if, under the exercise of reasonable care, the land owner should have (1) disclosed the tree’s defect and the risk associated with it and (2) made the defect reasonably safe by remedial action. H.B. 818 also included a provision requiring homeowners’ insurance policies issued or renewed after October 1, 2016 to provide coverage for such liability. H.B. 818 was withdrawn.
Aggressive Drunk Driving – Punitive Damages (Failed)
House Bill 864 (“H.B. 864”) and Senate Bill (“S.B. 302”) sought to make a person who causes personal injury or wrongful death while operating a vehicle with an alcohol concentration of at least 0.08 grams of alcohol per 100 milliliters of blood or 210 liters of breath liable for punitive damages. In order to be civilly liable, the person who caused the personal injury or wrongful death must also have been convicted, entered a plea of nolo contendere, or received probation before judgment, within the last five (5) years under (1) Md. Code Ann., Transportation, § 21-902, (2) Md. Code Ann., Crim. Law, §§2-503, 2-504, 2-505, 2-506, or 3-211, or (3) a comparable offense under a federal or other state statute. Any complaint for punitive damages under H.B. 864 or S.B. 302 must be proved by clear and convincing evidence and may not be awarded in the absence of compensatory damages. An award of punitive damages may be remitted if it is (1) disproportionate to the award of compensatory damages, or (2) disproportionate to the defendant’s conduct.
A previous iteration of the bill was unsuccessfully introduced as S.B. 605 in 2015. H.B. 864 failed after no action was taken in the House Judiciary Committee. S.B. 302 passed the Senate by a vote of 43 – 1, but no action was taken when it was sent to the House Judiciary Committee.
Civil Actions – Noneconomic Damages – Catastrophic Injury (Failed)
House Bill 869 (“H.B. 869”) and Senate Bill (“S.B.574”) proposed to triple the amount of noneconomic damages a plaintiff could recover in an action for medical malpractice or other civil action for catastrophic injury. Current Maryland law places certain caps on noneconomic damages based on the type of claim at issue. In an action for damages for personal injury or death (excluding medical malpractice), the cap is $830,000 for causes of action arising between October 1, 2016 and October 1, 2017. In a wrongful death action, where there are two (2) or more claimants or beneficiaries, an award of noneconomic damages may not exceed 150% of the applicable cap, regardless of the number of claimants or beneficiaries.
H.B. 869 and S.B. 574 amended the definition of “catastrophic injury” to include (1) death; or (2) permanent impairment constituted by (a) spinal cord injury associated with severe paralysis or incontinence, (b) amputation of an arm, hand foot or leg, (c) severe brain or closed-head injury, (d) blindness, (e) loss of reproductive organs, and (f) major burns.
Previous iterations of H.B. 869 and S.B. 574 were introduced and failed in 2015 as Senate Bill 479, and in 2014 as House Bill 1009 and Senate Bill 789. H.B. 869 failed after the House Judiciary Committee took no action. S.B. 574 likewise failed after the Senate Judicial Proceedings took no action.
Civil Actions – Damage or Loss Related to Property Occurring After Completion of Improvement to Real Property (Failed)
House Bill 877 (“H.B. 877”) and Senate Bill 237 (“S.B. 237”) proposed to amend section 5-108 of the Courts and Judicial Proceedings Article. Currently the law provides that a person may not seek contribution or indemnity for damages incurred when wrongful death, personal injury, or injury to real or personal property resulting from a defective improvement to the property occur more than twenty (20) years after the date of the improvement. The amendment would replace the language “injury to real or personal property” with “damage to or loss of real or personal property.” Both the House and Senate versions of the bill failed in the Judiciary and Judicial Proceedings Committees, respectively, after receiving an unfavorable report.
Workers’ Compensation – Temporary Total Disability Benefits – Credit (Failed)
House Bill 943 (“H.B. 943”) and Senate Bill 257 (“S.B. 257”) proposed to provide a credit to an employer/insurer for compensation paid to a covered employee who is temporarily totally disabled due to an accidental personal injury or occupational disease if (1) medical treatment of the employee is delayed or suspended and (2) the delay or suspension of medical treatment is caused solely by a medical condition, injury, or disease that is not related to the accidental personal injury or occupational disease. The credit will be for compensation paid during the time that medical treatment was delayed or suspended. H.B. 943 failed after receiving an unfavorable report from the House Economic Matters Committee. The Senate version of the bill, S.B. 257 failed in the Senate Finance Committee.
Civil Actions – Liability of Disability Insurer – Failure to Act in Good Faith (Passed)
House Bill 990 (“H.B. 990”) proposed to amend Section 3-1701 of the Courts and Judicial Proceedings Article and Section 27-1001 of the Insurance Article. Under Maryland law, a plaintiff may recover actual damages, expenses, litigation costs and interest in first-party claims filed against certain insurers in civil actions alleging that the insurer failed to act in good faith. H.B. 990 would add “disability insurance” to the types of insurance companies against whom plaintiffs could recover. Currently, actions alleging failure to act in good faith can only be brought against casualty and commercial insurers. H.B. 990 was amended and passed the House of Delegates with a vote of 115 – 18 then passed the Senate on the last day of the session by a vote of 40 – 6.
Workers’ Compensation – Location of Hearings – Claims Filed By Employees of Governmental Agencies (Failed)
House Bill 1053 (“H.B. 1053”) and Senate Bill (“S.B. 174”) proposed to amend Section 9-724 of the Labor and Employment Article to require that the Workers’ Compensation Commission conduct a hearing for a covered employee of a government agency at the regional hearing location nearest the government offices of the county in which the government agency is located. The Commission may hold the hearing at an alternative location only if the covered employee demonstrates, through a detailed medical report, a medical necessity to hold the hearing at an alternative location. H.B. 1053 and S.B. 174 were withdrawn after unfavorable reports by the House Economic Matters Committee and Senate Finance Committee.
Maryland Lead Poisoning Recovery Act (Failed)
House Bill 1154 (“H.B. 1154”) and Senate Bill (“S.B. 951”) proposed to add a new section to the Courts and Judicial Proceedings Article, known collectively as the Maryland Lead Poisoning Recovery Act (the “Act”). The Act would establish that a manufacturer of lead paint is liable, under any legally recognized theory of liability for the presence of lead-based paint in a residential building, including (1) damages for personal injury; (2) damages sustained by the owner of the building to abate or remove lead paint as required by Maryland law; (3) expenses incurred by a property owner to voluntarily abate a building; (4) reasonable future costs associated with testing, removal and abatement; and (5) lost rent.
The Act defines a “manufacturer of lead pigment” as “a person that manufactured or produced lead pigment for the sale or use as a component in paint or a predecessor-in-interest of the person.” The Act specifically excludes from this definition persons (1) who sold lead pigment at retail or wholesale and (2) who applied lead-based paint in a residential building.
The Act also would allow manufacturers of lead pigment to be held liable in class and third-party actions. Failure to join a manufacturer would not constitute failure to join a required party for any purpose. To recover damages for negligence from a manufacturer, a party must prove the following, by a preponderance of the evidence: (1) lead pigment used as a component in lead-based paint was a substantial contributing factor in causing the damages alleged; (2) the manufacturer had a share of the market for lead paint; and (3) the manufacturer breached a legally recognizable duty by manufacturing, producing, or marketing lead pigment intended for use as a component of lead-based paint. To recover damages for strict products liability from a manufacturer, a party must prove the following, by a preponderance of the evidence: (1) the lead pigment was defective when it left the control of the manufacturer; (2) the lead pigment was unreasonably dangerous to the user or consumer or to property; (3) the lead pigment was a proximate cause of the injuries or damage alleged; (4) the seller of lead pigment engaged in the business of manufacturing, producing, marketing or selling lead pigment; and (5) the lead pigment was expected to and did reach the consumer without substantial change in the condition in which the pigment was sold.
The Act proposed the following defenses to any claim brought against a manufacturer of lead pigment: (1) the manufacturer did not manufacture, produce, or market lead pigment during the duration of the existence of the building at issue in the action; (2) the lead pigment did not enter the retail market of the geographical location where the building was located.
The Act also provided for the creation of a Lead Paint Restitution Fund, to be funded by damages received by the State from a judgment against or settlement with a manufacturer of lead pigment. The Lead Pain Restitution Fund would be used primarily to fund the Maryland Department of Environment Lead Poisoning Prevention Program. The Act would go into effect on October 1, 2016.
H.B. 1154 failed to pass when the House Judiciary Committee took no action. S.B. 951 was withdrawn.
State Board of Physicians – Admissibility of Board Records – Workers’ Compensation Commission (Failed)
House Bill 1160 (“H.B. 1160”) and Senate Bill 441 (“S.B. 441”) proposed to add a provision to Section 14-410 of the Health Occupations Article. Currently, evidence of the State Board of Physicians proceedings, records, files, and orders are inadmissible in civil and criminal actions. The new provision would have made the current law inapplicable to proceedings before the Workers’ Compensation Commission. H.B. 1160 failed after the House Economic Matters Committee voted the bill “unfavorable.” No action was taken by the Senate Finance Committee on S.B. 441, and the bill failed.
Courts – Concealment of Public Hazards (Sunshine in Litigation Act) (Failed)
House Bill 1460 (“H.B. 1460”) and Senate Bill (“S.B. 709”), known as the Sunshine in Litigation Act (the “Act”), proposed to prohibit courts from entering orders or judgments that conceals a public hazard or information relating to a public hazard. The Act would also render contract provisions that conceal public hazards unenforceable as contrary to public policy. The Act defines a “public hazard” as “any device, instrument, person, procedure or product, or a condition of a device, an instrument, a person, a procedure or a product that has caused or has the potential to cause injury.”
The Act also proposed to give standing to persons substantially affected by public hazards, including members of the news media, to contest such orders, judgments or contracts and to bring actions for declaratory judgment. H.B. 1460 received an unfavorable report by the House Judiciary Committee and S.B. 709 was subsequently withdrawn.
Health Care Provider Malpractice Insurance – Scope of Coverage (Passed)
House Bill 1487 (“H.B. 1487”) and Senate Bill 450 (“S.B. 450”) proposed to amend Section 19-104 of the Insurance Article to require that any policy that provides coverage for the defense of a health care provider in a disciplinary proceeding must disclose the cost of that coverage to the Maryland Insurance Commissioner. H.B. 1487 and S.B. 450 would also require that the cost of the coverage be itemized in the billing statement, invoice, or declarations page for the policy. H.B. 1487 was amended, unanimously passed the House of Delegates, and then unanimously passed the Senate on April 7, 2016. S.B. 450 was amended, unanimously passed the Senate, and then unanimously passed the House on April 8, 2016.
Civil Actions – Hydraulic Fracturing Liability Act (Failed)
Senate Bill 361 (“S.B. 361”), known as the Hydraulic Fracturing Liability Act (the “Act”) seeks to add a new Subtitle to the Courts and Judicial Proceedings Article. Hydraulic fracturing is a drilling technique that injects fluids or a mixture of water and chemicals, sand, or other substances into fractures in rock under high pressure. This technique is used for well drilling and the exploration and production of natural gas. For purposes of the Act, a “permitee” is one who holds a permit for the exploration and production of natural gas.
The Act proposed to render void as against public policy any contract that attempts to waive the right to bring an action against a permittee for injury, death or loss to person or property that is caused by the permitee’s hydraulic fracturing activity. The Act also proposed several provisions that would be relevant in litigation brought against a permitee. For example, information related to any chemical constituent used in hydraulic fracturing would be both discoverable and admissible. A plaintiff would be able to recover economic and noneconomic damages that were proximately caused by the permitee’s hydraulic fracturing activity. Finally, a court may award punitive damages to a plaintiff if it finds that an act or omission by the permitee constituted gross negligence or reckless, willful or wanton misconduct.
A similar iteration of the bill, known as S.B. 458 previously failed in 2015. S.B. 361 was amended and passed the Senate by a vote of 41 – 5, but failed after no action was taken by the House Environment and Transportation Committee.
Medical Malpractice – Notice of Intent to File Claim (Failed)
Senate Bill 566 (“S.B. 566”) proposed to amend Section 3-2A-04 of the Courts and Judicial Proceedings Article to prohibit a plaintiff from filing a claim against a health care provider for damage due to medical injury unless at least ninety (90) days before filing the claim, the plaintiff has given notice to the Director of the Health Care Alternative Dispute Resolution Office of his or her intent to file a claim. The notice must include the legal basis for the claim and the type and extent of the alleged damages, including information regarding the type of medical injury. Failure to provide notice could be excused upon a showing of good cause. S.B. 566 failed in the Senate Judicial Proceedings Committee.
Courts – Limitation on Damages Arising Out of Bedbug Extermination (Failed)
Senate Bill 1154 (“S.B. 1154”) proposed to limit the liability of pesticide businesses in civil actions arising out of a business’ treatment of a bedbug infestation to compensation for actual damages. S.B. 1154 would not limit liability in cases of gross negligence. S.B. 1154 failed in the Senate Judicial Proceedings Committee.