Is Saying “No” Enough in Maryland?

The Maryland legislature is debating a bill that removes the requirement that rape victims show they tried to physically resist their assailants.

Maryland’s Court of Appeals (the highest court in Maryland) has ruled that evidence of physical resistance is necessary to show a victim’s lack of consent in rape cases. The appellate decisions have been relied upon in jury instructions given in rape cases. According to Baltimore County State’s Attorney Scott Shellenberger, these rulings and the jury instructions that have spun off from them, essentially make physical resistance an element of rape.

Shellenberger told the Maryland Senate’s Judicial Proceedings Committee (“Committee”) that while physical resistance can be very strong evidence of lack of consent, it is not the only reliable evidence of rape.  He pointed out that a victim might choose to not resist their attacker, and that the lack of resistance was not consent.

Senator Robert A. “Bobby” Zirkin, (D-Baltimore County) and the chair of the Committee, asked whether there was really a need for the statute.  He cited rulings by courts in Maryland that indicated physical resistance is not needed to show lack of consent.

Senator Delores G. Kelley (D-Baltimore County) the bill’s chief sponsor, stated that this statute would place the focus on the alleged rapist’s actions rather than on the victim’s.

The text of SB 217 can be found here.

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How to Ensure You Have the Right Insurance Coverage on Your Car

car-auto-insurance

We’ve all seen the commercials.  Allstate has Mayhem, State Farm has Jake, GEICO has the gecko, and the list goes on.  We all pay for car insurance because the law requires that we do.  We all know our car insurance can go up if we get a speeding ticket or are at fault for an accident.  But, do you know what the various types of coverage mean?

Liability Insurance – The State of Maryland requires that all passenger vehicles carry liability insurance.  Maryland has minimum coverage amounts that each vehicle must carry.  What does liability insurance cover?

Liability insurance covers damage you cause with your vehicle to another person.  This includes property damage and bodily injury.  Property damage is pretty self-explanatory.  If you hit another car with your car, this part of your coverage covers the cost to repair the damaged vehicle, up to your policy limits.  So, if you rear end a Honda Accord, you’re probably fully covered.  If you rear end a vintage Ferrari, your limits may not be adequate.

Bodily injury covers payment of medical bills, lost wages, pain and suffering, and a host of other potential areas related to injuries sustained by a person in a car accident, up to your policy limits.

Another area of coverage that ties into liability insurance is your uninsured/underinsured motorist coverage.

Collision Insurance – If your car is damaged or destroyed in an accident, collision insurance coverage will typically pay to fix or replace it, up to certain limits (e.g., the value of your vehicle).  This coverage generally comes into play if you’re at fault for an accident and damage your own vehicle.  If you have a lien on your vehicle, you’re usually required to have collision coverage.  However, if you don’t have a lien on your vehicle, Maryland does allow you to opt of this coverage.

Collision coverage comes with a deductible. This means you have to pay a certain amount of the damage out of your pocket.  Any amount after that is typically covered up to the actual cash value of your car.  For example, if you have a $250.00 deductible, and the cost to repair your vehicle is $1,000.00, you will pay the first $250.00 and your insurance company will pay the remaining $750.00.  Generally, the higher your deductible, the lower your premium.    When making the decision to carry collision coverage, you should evaluate how much your car is worth.  If your car is worth a couple of thousand dollars, maybe it’s worth the gamble of not carrying it.  If your car is worth several thousand dollars, you may want to think about carrying collision coverage.

Comprehensive Insurance – This coverage pays for damage to your car caused by an event other than a collision, such as fire, theft, vandalism, if you hit an animal, or if you sustain flood damage.  Like collision, if there is a lien on the vehicle, you likely have to have this coverage.  The decision to carry this coverage, similar to collision, should be based on the value of your vehicle.

Your insurance agent can discuss these types of coverage with you in more detail and help you make a decision regarding the right types of coverage for you.

Having the right amount of coverage is very important if you’re involved in a car accident and you’re at fault.  It can mean the difference in seeing your insurance rates go up a little bit or having to liquidate assets in order to pay a settlement or judgment.  We’ll discuss policy limits and uninsured/underinsured motorist coverage in more detail in our next blog entry.

Am I in Good Hands if I Have an Accident as an Uber Driver?

Technology continues to make life easier.  Most people can be reached in seconds by text, email, or phone.  You can have food delivered, set up appointments, make dinner reservations and request a ride all from your smart phone.

Uber generated approximately $1.5 billion to $2 billion of net revenue in 2015.  Most people under the age of 40 in a major metropolitan area have used Uber or Lyft.

Driving for services like Uber and Lyft have become popular ways for some people to supplement their income, or to generate their primary income.  One thing Uber drivers don’t always consider is the interplay between their personal automobile insurance and using their personal vehicle as a car-for-hire.

If you get into an accident and your personal automobile insurance carrier finds out you were acting as a car-for-hire, it’s just about guaranteed that they will deny coverage for the accident.  This means if you were at fault for the accident you could be left having to pay for any damage to property as well as medical bills and pain and suffering if anyone was injured.

Uber carries insurance in most states as a secondary policy to your policy.  This means, if your insurance carrier denies coverages, Uber’s insurance may provide coverage.  However, there is some fine print:  a) usually, Uber requires that you were running the Uber app at the time of the accident, meaning you were acting as an Uber driver.  If you weren’t, their insurance won’t cover you; b) in most states, Uber only carries the minimum amount of insurance coverage required in that state; c) Uber’s policy generally covers only its liability obligations.  This generally will not include the damage to your vehicle.

In order to make sure you’re not on the hook for thousands, if not hundreds of thousands of dollars for injury and property damage, contact your insurance company.  More and more carriers are offering additional coverage for their insureds who drive for Uber, Lyft, etc.

Is It Down to the Wire?

You’ve doubtless seen articles and social media posts about the release of the new iPhone 7.  One of the most talked about features is the lack of a headphone jack and the new AirPods (wireless earbuds).   Companies are trying to keep up with the demand for the newest and best technology and most consumers prefer wireless.

Convenience and technological advancements aside.  An often overlooked law is the fact that in Maryland it is illegal to drive with earphones in both ears or headphones covering both ears.  The Maryland Transportation Article Section 21-1120  says you “may not drive a motor vehicle on any highway…in this State” while wearing over or in both ears a headset or earphones attached to a radio, tape player, or other audio device.

Some may want to argue what the term “attached” means.  Does there have to be a physical attachment by the use of wired headsets or earphones?  Is it okay if you use wireless earphones or headsets and have both ears covered?

The answer is “no.”  The use of bluetooth or wireless headphones or earbuds in both ears is a violation of Maryland law and punishable by a fine of $45.00 and 1 point on your license.

The rationale behind this law is that having both ears covered prevents you from giving full focus and attention to driving.  Some experts have even referred to it as a form of sensory deprivation while operating a motor vehicle.  In 2015, Maryland had 520 traffic fatalities.  This was nearly a 20% increase from 2014 and ended a downward trend in traffic fatalities in Maryland from 2007-2014  (30% decrease from 2007-14).  Nationwide, there were 38,300 traffic fatalities in 2015.  This represented an 8% increase from 2014.

Understandably, police are continuing to crack down on distracted driving and the lack of a wire from your headset or earphones to your phone won’t save you from a ticket, a point on your license and a possible court appearance.  There is no need to make the road anymore of a dangerous place than it is already.  The next life you save by reducing your distractions while driving could be your own.

She Gave an Interview and Now Mel Gibson is $500,000.00 Richer

Many of you have likely heard of civil settlements that involve confidentiality provisions. The terms will vary depending on the agreement, but generally they say that no party can discuss the settlement amount (usually applicable to the party receiving the settlement) or comment about the underlying facts that gave rise to the litigation or potential litigation.

This is not an uncommon thing in cases that involve large sums of money, public figures (i.e., athletes, celebrities, etc.) or cases where the defendant may have additional exposure in other pending cases (e.g., GM with the ignition switch litigation).  I once had a judge in Baltimore City get very irritated with me because I wouldn’t disclose the amount my client was paying to the plaintiffs to settle their cases.  I calmly explained that it was a confidential settlement.  After voicing his displeasure at me, he eventually conceded that it was within my client’s rights for me to not disclose the amount.

Do provisions like this have any teeth?  What can be done if a party violates the confidentiality provision?

Oksana Grigorieva, Mel Gibson’s ex-girlfriend, found out the hard way.  A California appeals court just affirmed a judgment that absolved Gibson of his obligation to make settlement payments to Grigorieva.  Gibson and Grigorieva both sued each other in 2010.  He sued to establish paternity of the couple’s daughter.  She sued him for defamation and battery.  They eventually reached a settlement agreement in which Gibson would pay $20,000 per month for child support and in exchange he was declared the father of the child. Additionally, to resolve the battery and defamation claims, Gibson agreed to pay Grigorieva $750,000.00 in three installments.

Sometime after receiving the first $250,000.00 payment, Grigorieva appeared on the Howard Stern Show and made comments that Gibson argued violated the settlement agreement.  The California appellate court agreed and Grigorieva is not going to receive any of the remaining $500,000.00 from the settlement.

Another person had his $80,000.00 settlement voided when his daughter decided to post something on Facebook.

If you sign something that contains a confidentiality provision, it’s best to comply, or it could end up costing you.  Just ask Oksana Grigorieva.

 

0-4. Now what?

Marilyn Mosby’s office is 0-4 in the prosecution of officers charged in connection with the death of Freddie Gray.  In December, the jury trial of Officer William Porter ended in a hung jury and mistrial.  Mosby’s office has said they will try him again.  Officers Edward Nero and Caesar Goodson were both acquitted after bench (judge) trials in May and June.  Just today, Judge Williams announced his verdict and found Lt. Brian Rice not guilty on all charges.

In a jury trial, the jury makes all findings of fact and the judge makes rulings on the law.  In a criminal jury trial, the jury would make the determination of guilt or innocence.  In a bench trial, the judge makes this determination.

Maryland is one of the limited number of jurisdictions that allow a criminal defendant to opt out of a jury trial without the consent of the prosecution.  Looking back on the trial of Officer Nero, his defense attorneys essentially created a playbook for each subsequent trial.  The most important strategy has been to opt for a bench trial.

It seems that after four trials, Mosby’s office has presented very little new evidence or shown any new strategy or approach.  Judge Williams pulled no punches in his ruling today.  During his ruling from the bench, he made it very clear that Mosby’s office failed to prove that Rice was aware he had a duty to buckle Gray into a seat belt and furthermore, and most importantly, they failed to prove that Rice deliberately breached his duty in an effort to endanger Gray.

“There are a number of possibilities this court could entertain, some that are innocent and some that are not,” Williams said. “However, the burden of proof rests with the state, and the court’s imaginings do not serve as a substitute for evidence.”

With this acquittal there have been renewed demands for justice for Freddie Gray and renewed demands for Mosby’s office to drop the charges against the remaining officer.

It’s logical to think that Mosby would drop charges against the remaining officers after four failed attempts to secure a conviction.  However, multiple sources believe Mosby’s office will continue to prosecute each remaining officer.  She made a promise to the citizens of Baltimore to get justice for Freddie Gray’s death, and despite what’s being said about her in the national media, she arguably remains quite popular in Baltimore City.  Even if her office fails to secure a single conviction, she can always state that she kept good on her promise, but the courts failed to give Freddie Gray his justice.

Will Mosby go 0-5 or will her office get on the board with a conviction?  Popular opinion amongst the legal community seems to indicate another acquittal is likely, but perhaps her office will learn from its four failed attempts and devise a new strategy.  Stay tuned -Officer Garrett Miller is scheduled to begin his trial on July 27.

News Signs = Admission of Liability?

Three days after an alligator dragged Lane Graves to his death on a Disney property, signs were installed warning guests about alligators.  Additionally, barriers are being installed.

So, since Disney has started posting these signs, this is essentially tantamount to an admission that the warnings should have been in place earlier, right?  The law says, no, it is NOT an admission of liability.

The signs Disney has posted are what the law refers to as “subsequent remedial measures.” This means essentially repairing/remediating something AFTER someone gets hurt.  This is not admissible in Florida (and pretty much every other jurisdiction) to prove that someone is civilly liable.  Florida’s law states “Evidence of measures taken after an injury or harm caused by an event, which measures if taken before the event would have made injury or harm less likely to occur, is not admissible to prove negligence.”

The primary reason behind this law is the practical rule that society wants to encourage individuals, companies, and other entities to take steps to prevent further injuries. Allowing such evidence to be admitted in court will likely serve as a deterrent to parties from making the improvements in the first place if those changes will later be used against them in court.  There are additional legal theories that tie into the rules of evidence, but the public policy argument is the most crucial one.

So the question of whether or not Disney should have had these types of signs up BEFORE a 2-year-old was killed on its property is one that a judge or jury may end up deciding, although as our last blog post indicated, a huge settlement is the likeliest resolution.

Is Disney Legally Liable for the Alligator Attack

By now, most of you have read the tragic, heartbreaking story about the 2-year-old boy who was grabbed by an alligator and pulled into the water at Walt Disney’s Grand Floridian resort in Orlando.

One of the secondary questions that has likely been thought or discussed is, what liability, if any, does Disney have as result of this tragedy.

The law generally states that the “duty” (responsibility) owed by a landowner to a person, depends on that person’s legal status on the land.  For example, if someone is trespassing on your land, the duty you owe to them is much different from what you owe someone you’ve invited onto your property.

The Graves family (the boy’s family) would be considered an “invitee” on Disney’s property.  They were invited to be on the property and they paid to stay there.

Florida law says that the owner or operator of the property has to maintain it in a reasonably safe condition and correct or warn of the dangers that the invitee knew or should have known about and which the property owner did not or should not have known had they exercised reasonable care and diligence.   

Danny Cevallos, a legal analyst for CNN wrote an article discussing this issue.  He points out that “whether or not Disney fulfilled its duty to the child and his family doesn’t just depend on their status as “invitees.” It’s also determined by the legal status of the “hidden danger” — in this case, the alligator.” He goes on to explain an area of law that is not commonly discussed, known as “ferae naturae.”  He states that under this legal doctrine, Florida law does not require a landowner to anticipate the presence of harm from wild animals.   As with most rules, there are exceptions.  Cevallos gives the following example, “if a resort had an alligator on a leash tied to a pole in a petting zoo, that’s going to impose liability in a way that an alligator born free in a swamp adjacent to a hotel would not.”

The ferae naturae doctrine does not provide complete immunity to a property owner in a situation like this. Florida courts have held that landowners may still be liable if they “know or should know of an unreasonable risk of harm posed by an animal on their premises, and cannot expect patrons to realize the danger or guard against it.”

The liability for Disney in this tragic situation will depend on a lot of factors, including what, if anything, did Disney know about the presence of alligators in the lagoon and what warning, if any did they give their invitees?  Numerous articles have stated that there were no signs posted specifically regarding the presence of alligators.  These are all things the trier of fact (usually a jury, but sometimes a judge) would have to determine in a trial. However, the likely reality is that Disney will quietly pay a settlement to the family (likely a confidential amount) and this will never go to trial.

Exotic Dancers Should be Classified as Employees

The 4th Circuit Court of Appeals ruled that exotic dancers at two Maryland night clubs, Fuego Exotic Dance Club and Extasy Exotic Dance Club, were misclassified as independent contractors, when they were in fact employees.

Six dancers brought suit, alleging they were owed back wage and damages as a result of improperly being treated as independent contractors.

Ultimately , money is a strong motivation for employers to classify workers as independent contractors versus as employees.  Designating workers as independent contractors allows employers to not pay minimum wage or overtime, carry workers compensation coverage for the worker or pay for unemployment insurance for the misclassified workers.

Courts generally look at several factors that determine if a worker is an employee versus an independent contractor and the most crucial of these is the amount of control the employer exerts over the worker (i.e., dictate schedules, how the work is to be done, etc.).  The 4th Circuit found that the amount of control the clubs had over the Plaintiffs was enough to create an employer/employee relationship.   Judge Wilkinson III noted in the Court’s opinion, “The clubs insist they had very little control over the dancers. Plaintiffs were allegedly free in the clubs’ view to determine their own work schedules, how and when they performed, and whether they danced at clubs other than Fuego and Extasy. But the relaxed working relationship represented by defendants — the kind that perhaps every worker dreams about — finds little support in the record.”

What’s Next in Baltimore?

So far, Baltimore’s State’s Attorney and top prosecutor, Marilyn Mosby and her office have tried two police officers in connection with the death of Freddie Gray and have failed to secure a conviction in either case.  The first case against Officer William Porter ended in a hung jury, and on Monday, May 23, 2016, Judge Barry Williams acquitted Officer Edward Nero.

Critics of Ms. Mosby point to these two cases and argue that it’s proof that there was no basis to charge any of the six officers in the death of Freddie Gray.  Proponents of Ms. Mosby point to the fact that she kept good on her campaign promise to fight police misconduct.

The approach taken by Ms. Mosby’s office in the trial of Officer Nero has come under criticism as well.  Prosecutors essentially argued that the arrest of Mr. Gray was in and of itself, a crime. However, the prosecution’s “star witness”, Officer Garrett E. Miller, who was compelled (forced) to testify and is also facing charges himself, exonerated Officer Nero through his testimony.

The next trial is that of Officer Caesar Goodson, Jr., scheduled to start on June 6.  Ms. Mosby’s office has five more trials (her office has indicated that Officer Porter will be tried again) to either prove her critics wrong and show that she did the right thing or to prove them right and face the strong likelihood of not being re-elected if she chooses to run in 2018.