Dependents of a firefighter can collect both retirement benefits and workers comp benefits

Felix L. Johnson, Jr., Deceased v. Mayor and City Council of Baltimore, No. 45, September Term 2012 STATUTORY INTERPRETATION — WORKERS’ COMPENSATION BENEFITS — PAYMENT OF DUAL PENSION AND WORKERS’ COMPENSATION BENEFITS TO DEPENDENTS OF DECEASED CLAIMANT — The General Assembly amended the Maryland Workers’ Compensation Act in 2007 to allow the surviving dependents of a firefighter or other specified public safety worker who died as a result of an occupational disease to collect both the deceased employee’s retirement and workers’ compensation benefits, up to the amount of the employee’s weekly salary at the time of his or her death. There is no express language in the amendments to Maryland Code (1999, 2008 Repl. Vol., 2012 Supp.), § 9-503(e) of the Labor and Employment Article, indicating that they applied retroactively. The change to the statute was substantive, not procedural or remedial, because it enlarged the potential class of beneficiaries. Given the presumption that substantive changes in the law apply prospectively, claimants who sought dual benefits prior to the 2007 amendments are not able to collect up to the amount of a deceased employee’s weekly salary, but instead must have their benefits reduced by the general offset provision in § 9-610 of the Labor and Employment Article. Circuit Court for Baltimore City Case No. 24-C-10-000102 IN THE COURT OF APPEALS OF MARYLAND No. 45 September Term, 2012 FELIX L. JOHNSON, JR., DECEASED v. MAYOR AND CITY COUNCIL OF BALTIMORE Bell, C.J., Harrell Battaglia Greene Barbera McDonald Cathell, Dale R. (Retired, Specially Assigned), JJ. Opinion by Barbera, J. Bell, C.J., Harrell and Cathell, JJ., dissent Filed: February 25, 2013 1 The Act also applies to other specified public safety workers. Section 9-503(e) reads as follows (emphasis added in bold): (e) Benefits in addition to retirement benefits. — (1) Except as provided in paragraph (2) of this subsection, any paid firefighter, paid fire fighting instructor, sworn member of the Office of the State Fire Marshal, paid police officer, paid law enforcement employee of the Department of Natural Resources, deputy sheriff of Anne Arundel County, park police officer or employee of the Maryland-National Capital Park and Planning Commission, deputy sheriff of Montgomery County, deputy sheriff of Baltimore City, Montgomery County correctional officer, deputy sheriff of Prince George’s County, or Prince George’s County correctional officer who is eligible for benefits under subsection (a), (b), (c), or (d) of this section or the dependents of those individuals shall receive the benefits in addition to any benefits that the individual or the dependents of the individual are entitled to receive under the retirement system in which the individual was a participant at the time of the claim. (2) The benefits received under this title shall be adjusted so that the weekly total of those benefits and retirement benefits does not exceed the weekly salary that was paid to the paid law enforcement employee of the Department of Natural Resources, a park police officer or employee of the Maryland-National Capital Park and Planning Commission, firefighter, fire fighting instructor, sworn member of the Office of the State Fire Marshal, police officer, deputy sheriff, or Prince George’s County or Montgomery County correctional officer. All references to the Maryland Code hereinafter are to the Labor and Employment Article, unless otherwise noted. The Maryland Workers’ Compensation Act allows the surviving dependents of a firefighter who died from an occupational disease to collect both pension and workers’ compensation benefits after the firefighter’s death, up to the amount of what had been the firefighter’s weekly salary. Md. Code (1999, 2008 Repl. Vol., 2012 Supp.), § 9-503(e) of the Labor and Employment Article.1 This policy has been in effect since October 1, 2007, when the General Assembly amended the Act specifically to make dependents eligible for these dual benefits. Previously, dependents who wished to collect pension survivorship 2 9-610. Offset against other benefits. (a) Covered employee of governmental unit or quasi-public corporation. — (1) Except for benefits subject to an offset under § 29-118 of the State Personnel and Pensions Article, if a statute, charter, ordinance, resolution, regulation, or policy, regardless of whether part of a pension system, provides a benefit to a covered employee of a governmental unit or a quasi-public corporation that is subject to this title under § 9-201(2) of this title or, in case of death, to the dependents of the covered employee, payment of the benefit by the employer satisfies, to the extent of the payment, the liability of the employer and the Subsequent Injury Fund for payment of similar benefits under this title. (2) If a benefit paid under paragraph (1) of this subsection is less than the benefits provided under this title, the employer, the Subsequent Injury Fund, or both shall provide an additional benefit that equals the difference between the benefit paid under paragraph (1) of this subsection and the benefits provided under this title. (3) The computation of an additional benefit payable under paragraph (2) of this section shall be done at the time of the initial award and may not include any cost of living adjustment after the initial award. * * * (c) Powers of Commission. — (1) The Commission may: (i) determine whether any benefit provided by the employer is equal to or greater than any benefit provided for in this title; and (ii) make an award against the employer or the Subsequent Injury Fund or both to provide an additional benefit that equals the difference between the benefit provided by the employer and the benefits required by this title. (2) A claim that comes under this section is subject to the continuing powers and jurisdiction of the Commission. -2- benefits and workers’ compensation death benefits had the total amount of the deceased worker’s compensation benefits reduced by the amount of the pension benefits under § 9- 610.2 The offset provided in § 9-610 continues to apply to all government employees who are not specifically exempted under § 9-503(e). We are confronted in this case with the question of whether a widow whose claim was pending at the time of the 2007 amendments, and who wishes to collect both her husband’s 3 The case is captioned in the name of Felix L. Johnson, Jr., now deceased. His widow, Janice Johnson, is pursuing the claim and seeking benefits in this case. For the sake of clarity and convenience, we shall refer to Janice Johnson as Petitioner. -3- retirement and workers’ compensation benefits, is entitled to collect under the amended § 9- 503(e) or, instead, is bound by the general offset provision of § 9-610. In other words, did the General Assembly intend that the 2007 amendments to § 9-503(e) apply retroactively to all claims pending at the time or only prospectively to new claims? For reasons we shall explain, we affirm the judgment of the Court of Special Appeals and hold that the amendments to § 9-503(e) do not apply retroactively. As a result, Petitioner’s claim is governed by the offset provisions of § 9-610. I. Felix L. Johnson, Jr. worked as a firefighter in Baltimore City for nearly 26 years until he retired on June 9, 1990. One month later, he married Janice Johnson (hereinafter “Petitioner”).3 Petitioner was not employed at the time and was entirely dependent on her husband for support. Johnson died of a heart attack at the age of 63 on November 7, 2005. As his widow, Petitioner began receiving survivorship benefits from her husband’s pension shortly after his death. On January 10, 2006, Petitioner filed a dependent’s claim for death benefits under the Maryland Workers’ Compensation Act. As to the cause of Johnson’s disease, Petitioner stated in her claim: “The decedent was continuously exposed to heat, smoke, noxious fumes and the product of combustion, causing him to sustain heart disease resulting in death.” The 4 Based on Johnson’s average weekly wage at the time of his death ($625), the Commission initially awarded Petitioner $417 per week. On February 26, 2010, the Commission amended its award in order to change the weekly amount from $417 to $358.08. -4- claim came on for a hearing before the Workers’ Compensation Commission (“Commission”) on October 1, 2009. Petitioner testified in support of her claim and was questioned regarding her dependency on her husband, his general health, and the linkage between his employment as a firefighter and his death from a heart attack. The major dispute at the hearing concerned what provision of the Act was applicable to Petitioner’s claim. The City, Respondent here, a self-insured employer, argued that the dollar-for-dollar offset under § 9-610 should apply because § 9-503(e) was not amended to include dependents in its scope of coverage until 2007. Petitioner, meanwhile, argued that the weekly salary cap under § 9- 503(e) should apply to her claim because her claim was pending at the time the General Assembly enacted the amendments. The Commission issued an initial award of benefits to Petitioner on December 4, 2009, but later rescinded that decision and issued an amended award on February 26, 2010, reducing the total amount of Petitioner’s weekly benefits.4 As part of its findings, the Commission determined that Johnson “sustained an occupational disease (heart disease) arising out of and in the course of employment” and died as a result. The Commission found further that Petitioner was wholly dependent on her husband for support. Finally, the Commission determined that § 9-503(e) governed the claim, which effectively meant that the dollar-for-dollar offset under § 9-610 would not apply. 5 The Circuit Court granted a motion to consolidate what had been two appeals into a single case. One appeal had been filed in response to the December 2009 Commission award and a second was filed after the amended award was issued in February 2010. 6 In so holding, the Court of Special Appeals stated the following: In the final analysis, we conclude that the 2007 amendment to [Labor and Employment Article] § 9-503(e) may not be applied retrospectively. The (continued...) -5- The City filed a petition for judicial review with the Circuit Court for Baltimore City on December 30, 2009, challenging only the Commission’s conclusion that § 9-503(e) applied to Petitioner’s claim.5 Both sides filed cross-motions for summary judgment and the matter came on for a hearing before the Circuit Court on September 1, 2010. In granting the City’s motion for summary judgment, and denying the motion filed by Petitioner, the Circuit Court ruled that at the time Petitioner’s claim arose in 2005, § 9-503 “did not include the dependents of firefighters.” Rather than viewing the 2007 amendments to § 9-503 as being remedial, as Petitioner urged, the Circuit Court concluded that “the statute provides a substantive right to a class of individuals.” As a result, the Circuit Court ruled that dependents, such as Petitioner, had no preexisting right to dual benefits prior to the statute’s amendment. The Circuit Court concluded that, although this was “a very harsh result,” the amended statute did not apply to Petitioner’s claim and the claim instead was governed by the offset provision in § 9-610. The Court of Special Appeals affirmed the decision of the Circuit Court, concluding that the 2007 amendments involved a “substantive change” in the law that precluded it from applying to pending cases.6 Johnson v. Mayor and City Council of Baltimore, 203 Md. App. 6(...continued) change in LE § 9-503(e) was intended by the General Assembly to address the Court’s decision in Johnson [v. Mayor and City Council of Baltimore, 387 Md. 1 (2005)] and to clarify the law to provide for dual benefits to the surviving dependents of certain public employees who are presumed to have died because of their occupational disease. There is no clear directive from the General Assembly that the amendment should apply retrospectively. The amendment has an adverse impact on the size of the class of eligible claimants who would benefit, and this effects a substantive change in the “legal landscape” and enlarges the obligations of public employers. The amended law creates an “obligation” that the employer had not previously been required to meet. Johnson v. Mayor and City Council of Baltimore, 203 Md. App. 673, 702-03 (2012). 7 There are two avenues by which an aggrieved party may challenge a decision of the Commission: A party dissatisfied by the action of the Commission may seek review in a circuit court by either proceeding on the record made before the Commission (much like judicial review of the final action of most state administrative agencies) or receive a new evidentiary hearing and decision before a jury (much like an original civil complaint brought in a circuit court). Baltimore County v. Kelly, 391 Md. 64, 67-68 (2006). The City elected to proceed on the record before the Commission, challenging only the legal conclusions drawn by the Commission. -6- 673, 703-04 (2012). Petitioner sought a writ of certiorari in this Court, which we granted on August 20, 2012. Johnson v. Mayor and City Council of Baltimore, 427 Md. 606 (2012). II. Section 9-745 governs appeals of decisions by the Workers’ Compensation Commission.7 The Commission’s decision “is presumed to be prima facie correct,” § 9- 745(b)(1), but “this presumption does not extend to questions of law, which we review independently.” Montgomery County v. Deibler, 423 Md. 54, 60 (2011) (citing Wal Mart Stores, Inc. v. Holmes, 416 Md. 346, 357 (2010)). This appeal is from the Circuit Court’s -7- grant of summary judgment in favor of the City. “When reviewing a grant of summary judgment, we must make the threshold determination as to whether a genuine dispute of material fact exists, and only where such dispute is absent will we proceed to review determinations of law.” Stachowski v. Sysco Food Servs. of Baltimore, Inc., 402 Md. 506, 515-516 (2007) (quoting Remsburg v. Montgomery, 376 Md. 568, 579 (2003)). The parties agree on the facts, leaving the interpretation of § 9-503(e) as the sole legal issue before us. “The standard of review of a trial court’s grant of a motion for summary judgment on the law is de novo, that is, whether the trial court’s legal conclusions were legally correct.” D’Aoust v. Diamond, 424 Md. 549, 574 (2012) (quoting Messing v. Bank of Am., N.A., 373 Md. 672, 684 (2003)); see also Uninsured Employers’ Fund v. Danner, 388 Md. 649, 658-59 (2005) (citing Johnson v. Mayor and City Council of Baltimore, 387 Md. 1, 5-6 (2005)) (noting that “the standard of review in a workers’ compensation claim disposed of at summary judgment by the Circuit Court is de novo”). The purpose and design of the Act factor into our interpretation of its provisions. As part of our review, “we recognize that the Act is a remedial statute.” Deibler, 423 Md. at 61 (citing Design Kitchen & Baths v. Lagos, 388 Md. 718, 724 (2005)). “The purpose of the Act is ‘to protect workers and their families from hardships inflicted by work-related injuries by providing workers with compensation for loss of earning capacity resulting from accidental injury arising out of and in the course of employment.’” Id. (quoting Howard County Assoc. for Retarded Citizens, Inc. v. Walls, 288 Md. 526, 531 (1980)). “Therefore, we have been consistent in holding that the Act must be ‘construed as liberally in favor of 8 Prior to the 1914 law, Maryland had in place an “Employers’ and Employees’ (continued...) -8- injured employees as its provisions will permit in order to effectuate its benevolent purposes.’” Id. (quoting Lagos, 388 Md. at 724). Our approach follows the general principles of statutory interpretation. “First, if the plain meaning of the statutory language is clear and unambiguous, and consistent with both the broad purposes of the legislation, and the specific purpose of the provision being interpreted, our inquiry is at an end.” Breitenbach v. N. B. Handy Co., 366 Md. 467, 473 (2001) (citing Marriott Employees v. Motor Vehicle Admin., 346 Md. 437, 445 (1997)). “Second, when the meaning of the plain language is ambiguous or unclear, we seek to discern the intent of the legislature from surrounding circumstances, such as legislative history, prior case law, and the purposes upon which the statutory framework was based.” Id. (citing DeBusk v. Johns Hopkins Hosp., 342 Md. 432, 437 (1996)). “Last, applying a canon of construction specific to the Act, if the intent of the legislature is ambiguous or remains unclear, we resolve any uncertainty in favor of the claimant.” Id. (citing Baltimore v. Cassidy, 338 Md. 88, 97 (1995)). “This Court, however, may not stifle the plain meaning of the Act, or exceed its purposes, so that the injured worker may prevail.” Id. (citing Morris v. Bd. of Educ., 339 Md. 374, 384 (1995)). III. Nearly 100 years ago, the General Assembly enacted the Maryland Workers’ Compensation Act.8 Chapter 800 of the Acts of 1914. In its original form, the Act “provided 8(...continued) Cooperative Insurance Fund,” but it covered only a few select occupations. Richard P. Gilbert & Robert L. Humphreys, Jr., Maryland Workers’ Compensation Handbook § 1.03 (3d ed. 2007). These included private transportation, quarry and mining operations, and private construction contracting work. Id. 9 An occupational disease is “one which arises from causes incident to the profession or labor of the party’s occupation or calling. It has its origin in the inherent nature or mode of work of the profession or industry, and it is the usual result or concomitant.” Johnson v. Mayor and City Council of Baltimore, 387 Md. 1, 6 n.5 (2005) (quoting Polomski v. Mayor and City Council of Baltimore, 344 Md. 70, 78 n.8 (1996)). See also § 9-502 (defining an employer’s liability to an employee who suffers from an occupational disease); § 9-503(a) (stating that firefighters and other specified public safety employees who have heart disease are presumed to have a compensable occupational disease that was suffered in the line of duty). -9- compensation only for disability or death of an employee from an ‘accidental injury’ that arose out of and in the course of employment.” Yox v. Tru-Rol Co., 380 Md. 326, 330-31 (2004) (citing Belschner v. Anchor Post, 227 Md. 89, 92 (1961)). The General Assembly amended the law in 1939 to provide compensation for injuries that arose because of certain occupational diseases and revised the law again in 1951 to provide coverage for all occupational diseases. Id. at 331-32. In 1971, recognizing that firefighters were “susceptible to diseases formerly not recognized as occupational,” the General Assembly amended the Act to grant a presumption in favor of compensation for “certain classes of fire fighters suffering from heart or lung disease, or hypertension.” Polomski v. Mayor and City Council of Baltimore, 344 Md. 70, 78 (1996). This presumption later was expanded to include additional public safety workers, such as police officers, and to cover additional occupational diseases.9 Johnson, 387 Md. at 13-14. 10 That case also involved a firefighter with the last name of Johnson (Ernest A. Johnson). As noted by the Court of Special Appeals, Ernest Johnson was not related to Felix L. Johnson, Jr., the deceased firefighter in the case before us. Johnson v. Mayor and City Council of Baltimore, 203 Md. App. 673, 689 (2012). -10- We last had cause to analyze the occupational disease provisions of the Act in Johnson v. Mayor and City Council of Baltimore, 387 Md. 1 (2005).10 We observed that § 9-502 “requires employers and insurers to compensate covered employees and their dependents for disability or death that results from occupational disease.” 387 Md. at 6. The liability of employers is limited, though, “by requiring the occupational disease to meet certain requirements in order to be compensable.” Id. “Section 9-503 of the Labor and Employment Article carves out an exception to the general occupational disease provisions noted in § 9-502 by giving special treatment to employees in particular professions who are suffering from particular diseases.” Id. at 7. A presumption exists that occupational diseases contracted by certain employees, including firefighters, are compensable. Id. at 7-8. At the time we analyzed § 9-503(e) in Johnson, the provision allowed for firefighters and other qualified employees to receive both workers’ compensation benefits and pension benefits, up to the total amount of the covered employee’s weekly salary. Id. We considered in Johnson a claim brought by the widows of two firefighters whose husbands had died of cancer as a result of their work. Id. at 3. The widows argued they were entitled to collect the full amount of their husbands’ workers’ compensation death benefits in addition to their husbands’ pension benefits, rather than having the workers’ compensation benefits reduced by the amount they received from the pensions. Id. We held that the statute 11 The provision at the time read, in pertinent part, as follows: (e) Benefits in addition to retirement benefits. — (1) Except as provided in paragraph (2) of this subsection, any paid firefighter . . . who is eligible for benefits under subsection (a), (b), (c), or (d) of this section shall receive the benefits in addition to any benefits that the individual is entitled to receive under the retirement system in which the individual was a participant at the time of the claim. (2) The benefits received under this title shall be adjusted so that the weekly total of those benefits and retirement benefits does not exceed the weekly salary that was paid to the . . . firefighter[.] Md. Code (1991, 1999 Repl. Vol., 2005 Supp.), § 9-503(e) of the Labor and Employment Article. -11- permitted dual recovery of such benefits by firefighters, but not by their surviving dependents. Id. In reaching that conclusion, we observed that § 9-503(e), as written, made no mention of dependents.11 Id. at 9. We stated that “[t]he language in that section reads as if the Legislature intended to provide benefits to firefighters . . . who are living but unable to work as a result of their occupational diseases.” Id. at 16. In contrast, § 9-610, which described the offset of benefits for covered employees generally, indicated that it applied to dependents, as well. Id. at 9. We declined to read the word “dependents” into § 9-503(e), noting that the language was “clear and unambiguous.” Id. at 22. We observed that the General Assembly was not required to treat all public employees the same, or to treat the dependents of firefighters in a similar manner as the firefighters themselves. Id. at 18. We held that our interpretation was consistent with the overall framework of the Act. Id. at 20. We acknowledged, however, that the General Assembly could, if it chose to do so, remedy any perceived unfairness in the final result: -12- In the instant case, it is clear that the Legislature found it acceptable to treat living firefighters suffering from certain cancers and other occupational diseases differently than the dependents of those firefighters. While that result may seem unfair to some, the Court is not free to ignore the statutory requirements in order to remedy any perceived unfairness. Id. at 21. In response to Johnson, the General Assembly amended § 9-503(e) in 2007 to include the dependents of firefighters and other public safety workers as a category of people entitled to collect dual pension and workers’ compensation benefits. Chapters 350-51 of the Acts of 2007. The title clauses of Senate Bill 752 and House Bill 1117 explained the reason behind the change: FOR the purpose of clarifying that surviving dependents of certain individuals are eligible to receive the same workers’ compensation benefits as the individual received at the time of death; and generally relating to workers’ compensation benefits for dependents. Id. The Court of Special Appeals characterized the amendments as remedying what the General Assembly evidently “viewed as a defect in the current law.” Johnson, 203 Md. App. at 692. The question we are now asked to decide is whether these amendments apply prospectively only, or if they retroactively apply to all claims that were pending at the time the change was enacted. IV. In deciding whether a statute applies to future cases only or if it has any retroactive effect, we have set forth four basic principles intended to guide our analysis. -13- (1) [S]tatutes are presumed to operate prospectively unless a contrary intent appears; (2) a statute governing procedure or remedy will be applied to cases pending in court when the statute becomes effective; (3) a statute will be given retroactive effect if that is the legislative intent; but (4) even if intended to apply retroactively, a statute will not be given that effect if it would impair vested rights, deny due process, or violate the prohibition against ex post facto laws. Pautsch v. Md. Real Estate Comm’n, 423 Md. 229, 263 (2011) (quoting State Ethics Comm’n v. Evans, 382 Md. 370, 381 (2004)). For reasons we shall explain, we do not need to reach the fourth element of the test. In applying the remaining principles to this case, we are left with two questions: (1) Did the General Assembly intend for the law to apply retroactively?; and, if the intent is unclear, (2) Does the statute govern procedure or remedy so that it should be applied to cases that were pending in court at the time the statute became effective? Petitioner would answer yes to both questions. Petitioner acknowledges that statutes generally apply prospectively but argues that, by drafting a remedial statute, lawmakers intended for the law to apply retroactively. She contends that the 2007 amendments are remedial because the General Assembly was attempting to correct a defect that it perceived had been created by our opinion in Johnson. Petitioner maintains that applying § 9-503(e) to pending claims is in line with the spirit behind the Maryland Workers’ Compensation Act, which is meant to be construed broadly in favor of injured workers and those who depend on them. The City responds that we do not need to consider legislative intent because the language of the statute is clear and does not contain a provision that states it should be applied retroactively. But even if we do consider legislative intent, the City maintains that 12 The effective date clause here states: “AND BE IT FURTHER ENACTED, That this Act shall take effect October 1, 2007.” Chapters 350-51 of the Acts of 2007. -14- there is no clear intent within the legislative history regarding retroactivity. The City argues that this Court did not change existing law when it held in Johnson that dual benefits were not available to dependents of firefighters under § 9-503(e). It was not until the General Assembly amended § 9-503(e) that dual benefits became available to dependents. The City argues that expanding this right to dependents created a new substantive right for them, and this cannot be construed as merely a remedial action. In deciding whether, under the first question identified in Pautsch (whether the presumption of prospective application is overcome by the apparent intent of the General Assembly that the law be applied retroactively), we employ the standard principles of statutory interpretation. “To ascertain the intent of the General Assembly, we begin with the normal, plain meaning of the statute.” Gardner v. State, 420 Md. 1, 8 (2011) (quoting State v. Johnson, 415 Md. 413, 421 (2010)). The relevant portion of § 9-503(e) states: (e) Benefits in addition to retirement benefits. — (1) Except as provided in paragraph (2) of this subsection, any paid firefighter . . . who is eligible for benefits . . . or the dependents of those individuals shall receive the benefits in addition to any benefits that the individual or the dependents of the individual are entitled to receive under the retirement system in which the individual was a participant at the time of the claim. (2) The benefits received under this title shall be adjusted so that the weekly total of those benefits and retirement benefits does not exceed the weekly salary that was paid to the . . . firefighter . . . . There is no indication from its statutory language or the effective date clause12 that § 9-503(e) is intended to apply retroactively. In fact, there is no language at all stating whether 13 Petitioner notes that the General Assembly has amended other portions of § 9-503, and stated in several instances that the changes were meant to be prospective only. Petitioner notes that, when the Act was amended in 2010 to include deputy sheriffs from Allegany County and in 2011 to include deputy sheriffs from Anne Arundel County, the bills indicated they applied prospectively. Additionally, when the list of qualifying diseases and cancers (continued...) -15- the statute is meant to apply to future cases only, or if it may be applied to cases that were pending at the time of its enactment. What would be the strongest piece of evidence in favor of retroactivity—a statement in the bill indicating that the amendments apply to all claims pending at the time of adoption—is not available here. And we will not read language into the statute that is simply not there. See Gardner, 420 Md. at 9 (quoting Johnson, 415 Md. at 421) (“We neither add nor delete language so as to reflect an intent not evidenced in the plain and unambiguous language of the statute . . . .”). As a result, we operate under the presumption that the law is not retroactive. Pautsch, 423 Md. at 263 (quoting Evans, 382 Md. at 381) (“[S]tatutes are presumed to operate prospectively unless a contrary intent appears.”); see also Washington Suburban Sanitary Com. v. Riverdale Heights Volunteer Fire Co., 308 Md. 556, 568 (1987) (“[W]hen the General Assembly intends a statute to have a retrospective application, it knows how to express that intent.”). Petitioner does not direct us to anything in the legislative history explicitly indicating an intent on the part of the General Assembly to have the law apply retroactively, and we have found none. Instead, Petitioner argues that the General Assembly intended for the law to be remedial and, consequently, did not need to state that the law applied retroactively in order for it to be applied in this manner.13 See Pautsch, 423 Md. at 263 (quoting Evans, 382 13(...continued) was altered in 2012, the General Assembly added specific dates that stated when the changes would be applied. Accordingly, Petitioner argues that the General Assembly did not have to state explicitly in the amendments that the changes were to have retroactive effect. Had the General Assembly meant these amendments to be prospective only, lawmakers would have indicated this within the amendments, Petitioner argues. This interpretation turns the general presumption of prospective-only application on its head and renders it meaningless, which is why Petitioner’s argument on this point fails to persuade us. -16- Md. at 381) (noting that “a statute governing procedure or remedy will be applied to cases pending in court when the statute becomes effective”). This argument implicates the second question identified in Pautsch: Does the statute govern procedure or remedy so that it should be applied to cases that were pending in court at the time the statute became effective? Under Petitioner’s theory, if we answer yes to this question, then it is assumed that the General Assembly intended for the law to apply retroactively. Petitioner cites Weathersby v. Kentucky Fried Chicken Nat’l Management Co., 86 Md. App. 533, 550 (1991), for the proposition that remedial statutes are “designed to correct existing law, to redress existing grievances and to introduce regulations conducive to the public good.” Petitioner contends that the law is remedial because “[t]he General Assembly was correcting a defect that it perceived to be created by this Court’s decision in [Johnson].” By seeking to restore prior law, Petitioner argues that the General Assembly was “addressing a grievance that was in the interest of the public good.” The City counters that the amendments were substantive because they enlarged the potential class of beneficiaries to include dependents. 14 Specifically, we observed that the law was in direct response to our decision in Tandra S. v. Tyrone W., 336 Md. 303 (1994), in which we denied putative fathers the right to challenge past paternity decisions because newly produced genetic or blood testing did not constitute a fraud, mistake, or irregularity necessary to revise the earlier judgment. Langston v. Riffe, 359 Md. 396, 405 (2000). -17- Both parties direct us to the case of Langston v. Riffe, 359 Md. 396 (2000), contending that it offers support for their respective positions. In Langston, we considered consolidated actions in which men who had been declared fathers of children in previous paternity proceedings sought to set aside those judgments based on new evidence suggesting that the men, in fact, were not actually the fathers. Id. at 399. At issue was Maryland Code (1984, 1999 Repl. Vol.), § 5-1038(a)(2)(i)2 of the Family Law Article, which allowed trial courts to set aside or modify a prior paternity decision in light of genetic or blood testing. Our task was to decide if this provision applied to cases decided prior to the statute’s effective date. Id. at 403. We said: Generally, remedial statutes are those which provide a remedy, or improve or facilitate remedies already existing for the enforcement of rights and the redress of injuries. They also include statutes intended for the correction of defects, mistakes and omissions in the civil institutions and the administration of the state. The definition of a remedial statute has also been stated as a statute that relates to practice, procedure, or remedies and does not affect substantive or vested rights. Id. at 408-09. After reviewing the “extensive” legislative history, we concluded that the General Assembly intended for the statute at issue in Langston to be remedial.14 Id. at 417. We characterized the statute as “expanding the procedure for remedying the perceived problem” -18- by creating another avenue by which putative fathers could challenge a prior paternity determination. Id. Langston instructs us on one instance in which a statute was determined to be remedial, but the facts at issue there differ considerably from those before us now. Langston is not the only case in which we have considered whether a statute is remedial. A second is Doe v. Roe, 419 Md. 687 (2011), in which we considered what, if any, retroactive effect should be given to a change in the statute of limitations for filing civil sexual abuse claims. Id. at 688-89. The plaintiff Roe alleged that her grandfather Doe raped her twice while she was a minor, and she filed a civil suit against him on September 3, 2008. Id. at 689-90. Roe filed her claim nearly seven years after she reached the age of majority, the point at which the statute of limitations had begun to run on her claim. Id. at 690. In 2003, the General Assembly amended the statute of limitations on filing civil sexual abuse claims, changing it from three years to seven years. Id. We were asked whether Roe’s claim was governed by the seven-year limitations period, or whether the three-year limitations period applied because the statute of limitations had already begun to run against her when the General Assembly amended the statute. Id. at 688-89. We concluded that the extension of the limitations period was remedial, noting that it “improves remedies already existing for the enforcement of rights and the redress of injuries.” Id. at 703 (quoting Langston, 359 Md. at 408). In reaching this conclusion, we noted that a majority of jurisdictions hold that a change in a limitations period is “procedural or remedial in nature” when applied to claims that are not yet barred by the statute of limitations. Id. at 704. We drew a distinction between cases that might create new -19- substantive rights through a new cause of action versus situations, such as in Doe, where there were viable claims already existing that merely could be filed later based on the extended limitations period. Id. at 705-06. As a result, we concluded that Roe and others whose claims were not already barred by the statute of limitations could file their claims pursuant to the lengthier limitations period. Id. at 689. In both Langston and Doe, we dealt with changes to statutes that did not create new substantive rights but merely altered already-existing procedures. Langston gave putative fathers a new procedure by which they could seek to reopen a paternity determination. Doe extended the statute of limitations for claims, but did not create any new causes of action. But the change to § 9-503(e) we consider here is not easily categorized as remedial. This Court has made clear that “[a]n act is remedial in nature when it provides only for a new method of enforcement of a preexisting right.” Pak v. Hoang, 378 Md. 315, 325 (2003) (citing State of Maryland Comm’n on Human Relations v. Amecom Div. of Litton Sys., Inc., 278 Md. 120, 125 (1976)). Here, dependents did not have a right to claim dual benefits until the General Assembly amended the statute in 2007. As the Court of Special Appeals concluded below, “the amendments . . . are, at bottom, substantive.” Johnson, 203 Md. App. at 696. They create a new class of people who are entitled to collect dual workers’ compensation and pension benefits who were not able to do so previously. We addressed a similar situation in State of Maryland Comm’n on Human Relations v. Amecom Div. of Litton Sys., Inc., 278 Md. 120 (1976). In Amecom, we noted that the General Assembly had amended an employment discrimination statute in direct response to -20- one of our previous decisions. Id. at 124-125. The statute gave the Maryland Commission on Human Relations the ability to “bring action to obtain a temporary injunction” where “the commission believes that appropriate civil action is necessary to preserve the status of the parties or to prevent irreparable harm.” Id. at 122. We noted that there was nothing in the legislative record to suggest that this new law should operate retroactively, and we concluded that the General Assembly “created an action based on what amounts to a new substantive right.” Id. at 124-25. As a result, we held that the law should only be applied prospectively. Id. at 126. Turning to the present case, we shall examine the legislative history behind the amendments to see if it sheds further light on whether we are dealing with a substantive change or a remedial one. We agree with Petitioner that our decision in Johnson, which holds that the statute, as written, did not include the dependents of firefighters and other rescue workers, was in the minds of lawmakers as they drafted the change to the law. The presence of a copy of the decision in the bill file is strong evidence of this fact, as is the ultimate change itself, which added the dependents of rescue workers to a statute that previously did not cover them. Moreover, the letter from the Attorney General to the Governor of Maryland, declaring the bills to have passed review for “constitutionality and legal sufficiency,” notes that the bills “were apparently introduced in response to the holding in Johnson . . . .” This alone, however, does not mean the change was meant to be applied retroactively. The purpose clauses for the two cross-filed, and ultimately-enacted, bills (House Bill -21- 1117 and Senate Bill 752) provide some support for Petitioner’s position. As noted earlier, the language of the title clauses reads as follows: FOR the purpose of clarifying that surviving dependents of certain individuals are eligible to receive the same workers’ compensation benefits as the individual received at the time of death; and generally relating to workers’ compensation benefits for dependents. Chapters 350-51 of the Acts of 2007 (emphasis added). The term “clarifying” sometimes can be helpful in signaling legislative intent. In Chesek v. Jones, 406 Md. 446 (2008), we were asked to determine whether a legislative committee always had the implied power to delegate its authority to issue subpoenas or if this ability came only through an express grant of power contained in legislation passed by the General Assembly. Id. at 456-57. We observed that, “[a]lthough a subsequent legislative amendment of a statute is not controlling as to the meaning of the prior law, nevertheless, subsequent legislation can be considered helpful to determine legislative intent.” Id. at 462. We noted that the purpose behind the amendment was for “clarifying that the Legislative Policy Committee may delegate its authority to issue subpoenas.” Id. (citing Chapter 546 of the Acts of 2007). We noted also that a representative from the Attorney General’s Office testified before a House committee and stated that the amendment was designed to “resolve any disputes over subpoenas and witnesses’ refusal to answer questions before certain legislative committees.” Id. We concluded ultimately that the legislative committee always had the implied power to delegate its subpoena power, and the General Assembly’s actions in “clarifying” the law 15 We consulted the Legislative Drafting Manual for guidance on how bill drafters use the word “clarify.” The manual notes: “Other commonly used catchall provisions in the purpose paragraph are used to describe simple changes in style or language, such as ‘making stylistic changes;’, ‘making conforming changes;’, or ‘clarifying language;’.” Maryland Department of Legislative Services, Legislative Drafting Manual 2013, at 41 (2012). This use of “clarifying”—to indicate a simple change in style or language—is different from its use in the present case, so this example does not provide us with any additional insight. The words “clarify” or “clarifying” are used in other places throughout the drafting manual, but we found nothing to aid us in our interpretation. -22- did not create a new power but merely acknowledged a power already in existence. Id. at 461-62. Our conclusion, however, was not driven solely by the use of the term “clarifying” in the purpose clause of the session law. There was additional evidence of the General Assembly’s purpose, including that the General Assembly had inherent and express powers of investigation and that our interpretation was consistent with federal jurisprudence concerning the power of subcommittees. Id. at 459, 461. Chesek teaches that the use of the word “clarifying” can mean, as Petitioner claims, that this is what lawmakers viewed as the state of the law all along. But the word can also signify that the absence of dependents in the statute was an oversight that lawmakers subsequently decided to correct by “clarifying” the law.15 In both instances, it is clear that dependents are now entitled to collect dual benefits under § 9-503(e). What remains unclear is whether this change was intended to be applied retroactively. Absent the type of additional evidence that supported our decision in Chesek, the use of the phrase “clarifying” by itself does not actually provide in this instance the clarity needed to resolve that question. Petitioner directs us to statements made by various lawmakers in support of House -23- Bill 1117 and Senate Bill 752, the bills that enacted the changes to § 9-503(e). The late Delegate Ruth Kirk, one of the bill’s sponsors, provided the following written testimony: House Bill 1117 corrects an unintended inequity for dependents of injured firefighters, police officers and other public safety officers who have received workers’ compensation benefits under the presumption statute. The dependents of injured workers have historically received the same benefits as the worker after the worker dies. In one section of the Workers’ Compensation statute dependents of injured workers who die see their benefits reduced. This bill will correct that unintended result. It will assure that all surviving dependents of injured workers will receive the same benefit as the worker received. Senator Nathaniel Exum, an author of the Senate bill, stated the following as he testified in support of the measure: Let me explain this bill this way: I think it was about September 2005 that there was a case before the Court of Appeals I believe called the Johnson case. Normally, when these public safety employees, for lack of a better term to call them, have these occupational diseases if the dependent dies then his, if the claimant dies, then his dependents normally would receive those benefits and they would not be reduced and that was the case up until September 2005. Everybody thought that they would just normally receive those benefits and its been that way for years until I guess an assistant solicitor from the City of Baltimore challenged the law, went to court, and the court ruled that yes it was not clear that these dependents, these claimants’ dependents could not receive those benefits without them being reduced and so those benefits were reduced which gives an equal equation in the terms of who receives benefits because only these occupational safety people, dependents, get reduced where the others do not get reduced, and so this Bill is to remedy that Johnson case and said that they will all get the same benefits if a claimant’s dependent got those benefits. Petitioner also relies on other materials in the legislative bill file in support of reading the statute as a remedial law. The floor reports for House Bill 1117 and Senate Bill 752 note that the amendments were designed to restore previous law. Analysis before the House and 16 Petitioner also points to a statement from the Montgomery County Office of Intergovernmental Relations in opposition to the Senate bill that seemed to characterize the Act as a “remedial statute.” We, however, agree with the City that this statement referred to the Workers’ Compensation Act as a whole, not the changes to § 9-503(e) specifically. -24- Senate finance committees similarly notes that the bill “RESTORES THE PRACTICE THAT WAS IN PLACE PRIOR TO A 2005 COURT OF APPEALS CASE.” A memorandum from the Professional Fire Fighters of Maryland in support of both bills states that “[t]his change will return the treatment of dependent beneficiaries under § 9-503 to the posture they were in before the Court of Appeals ruling.” Attorney Andrew Kahn, who also testified in support of the bill, described the Johnson case as catching “everybody completely by surprise.” Kahn stated that there had previously been no need to have the word “dependent” in § 9-503(e) because “everybody knew what the law was,” and there was a general assumption that dependents were already included in the statute.16 The City argues that the evidence marshaled by Petitioner “consists of statements by proponents and opponents and it represents the opinions of the persons or organizations most interested in the bill.” The City posits that this type of legislative history is necessarily “more subjective than objective and is a less trustworthy indicator of the intent of the legislature.” The City adds that there are no deletions or additions in the drafts of the bill that might shed light on the thinking of lawmakers and would provide a “more reliable” form of legislative history. The City further contends that the legislative history does not support Petitioner’s claim that the law is remedial. For instance, the floor reports that describe the bills restoring -25- “previous law” are incorrect. The City points out that our opinion in Johnson, 387 Md. at 22, established that the law in 2005 did not recognize dual benefits for dependents and this changed only after the 2007 amendments were enacted. Additionally, the City points to a statement in the Senate floor report that the bill would “treat all dependents equally.” The City notes that, despite this language, the law still treats the dependents of workers who die in the line of duty differently than those who die from occupational diseases, allowing dual benefits to be collected only in the latter situation. The City’s view is that, notwithstanding statements from witnesses in support of the bills that the practice in place prior to the Johnson opinion allowed for dual benefits, there is no evidence outside of that testimony to support those assertions. The City observes that there are statements in the legislative history that bolster its position that the law is a substantive one. The Fiscal and Policy Notes for the House and Senate bills state, “This bill extends this exemption to dependents of the listed workers.” A similar statement is made in the Attorney General’s letter to the Governor (“What the bill does is permit dependents to receive the full amount of the award even if they are also receiving benefits under the employee’s retirement system.”). These references characterize the bill as extending or permitting new benefits for dependents that did not exist before. The bill files contain contradictory statements about whether the amendments were intended to “restore” prior law or were viewed as extending a benefit that was not previously conferred. Petitioner has marshaled a convincing amount of material to support the premise that at least some people viewed the law as always allowing dual recovery for dependents -26- until we announced our decision in Johnson. But the state of the law at the time of our Johnson decision is clear: dependents were not included as beneficiaries under the plain language of § 9-503(e) at that time and, as a result, surviving dependents were not entitled to a dual recovery of benefits. We conclude that the legislative history, viewed in its entirety, does not support viewing the 2007 changes as being remedial or procedural, as Petitioner urges. We agree with the City and the Court of Special Appeals that expanding the class of people who are able to collect dual benefits is a substantive change in the law that is different from the state of the law as it was at the time of our Johnson decision. This case is unlike Langston, where we found suggestions in the legislative history that lawmakers intended for the bill to apply retroactively, and we noted that opponents of the measure appeared concerned about this retroactive effect. 359 Md. at 416-417. It is also dissimilar from Doe, where we concluded that extending the statute of limitations on a claim was remedial because it merely improved on an already-existing remedy. 419 Md. at 703. Instead, the 2007 amendments conferred a benefit on dependents that was previously not available to them. Before the change, the amount of workers’ compensation death benefits paid to the dependents of deceased firefighters was reduced by the amount of the firefighters’ pensions. By amending § 9-503(e), the General Assembly allowed for a larger pool of people—dependents—to be able to collect these dual benefits. Just as it was a substantive change in the law to give the Maryland Commission on Human Relations the ability to obtain temporary injunctions in Amecom, 278 Md. at 125, so, too, does enlarging 17 Our interpretation is in accord with the maxim of statutory interpretation that states that “the statute must be given a reasonable interpretation, not one that is absurd, illogical or incompatible with common sense.” Gardner v. State, 420 Md. 1, 9 (2011) (quoting State v. Johnson, 415 Md. 413, 422 (2010)). As the City notes, employees and their dependents who are not specifically listed in § 9-503(e) have their workers’ compensation benefits reduced by the amount of the pension benefits. This concept of “single recovery” dates back to the 1914 workers’ compensation law, which stated in pertinent part, “Whenever and so long as by State law, City Charter or Municipal Ordinance, provision equal or better than that given under the terms of this Act is made for municipal employees injured in the course of employment such employees shall not be entitled to the benefits of this Act.” Chapter 800 of the Acts of 1914. Given this history, it is not “absurd, illogical or incompatible with common sense” to interpret the 2007 amendments to § 9-503(e) as being prospective only because single recovery has long been a part of the law in Maryland. 18 Because we conclude that there is not sufficient evidence that the General (continued...) -27- the pool of beneficiaries constitute a substantive change in the law. Finally, we cannot classify the change as remedial, even if some lawmakers might have viewed it as such, when the weight of all relevant considerations dictates the opposite conclusion. As we have said in the past, “the Court is not free to ignore the statutory requirements in order to remedy any perceived unfairness,” Johnson, 387 Md. at 21, notwithstanding that the result might seem unfair to some.17 V. In sum, there is insufficient support in the legislative history to rebut the presumption that § 9-503(e) applies prospectively. Morever, the 2007 amendments are substantive, rather than procedural or remedial, which means they should not apply retroactively. Accordingly, we hold, as did the Court of Special Appeals, that the 2007 amendments to § 9-503(e) apply prospectively.18 As a result, Petitioner’s claim, which was pending at the time of the 18(...continued) Assembly intended for the law to apply retroactively, or that it is procedural or remedial in nature, we do not reach the fourth factor of the retroactivity test, which states that, “even if intended to apply retroactively, a statute will not be given that effect if it would impair vested rights, deny due process, or violate the prohibition against ex post facto laws.” Pautsch v. Md. Real Estate Comm’n, 423 Md. 229, 263 (2011) (quoting State Ethics Comm’n v. Evans, 382 Md. 370, 381 (2004)). -28- enactment, is not covered by the change and is instead governed by the offset provisions in § 9-610. JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS TO BE PAID BY PETITIONER. IN THE COURT OF APPEALS OF MARYLAND No. 45 September Term, 2012 FELIX L. JOHNSON, JR., DECEASED v. MAYOR AND CITY COUNCIL OF BALTIMORE Bell, C.J., Harrell, Battaglia, Greene, Barbera, McDonald, Cathell, Dale R. (Retired, Specially Assigned), JJ. Dissenting Opinion by Harrell, J., which Bell, C.J., and Cathell, J. join. Filed: February 25, 2013 I dissent. Reading the same legislative history of S.B. 752-2007 and H.B. 1117-2007 (2007 Md. Laws chs. 350-51) as the Majority (Majority slip op. at 20-27), I conclude that the General Assembly intended the amendments to § 9-503(e) of the Labor and Employment Article of the Maryland Code to apply to claims pending as of the effective date of the 2007 amendment. The proponents of the bills, including sponsors in both houses, expressed clearly their view that our decision in Johnson v. Mayor & City Council of Baltimore, 387 Md. 1 (2005), was contrary to the Legislature’s intent to cover dependents under the previous statute and practices as they existed prior to 2007. In essence, the Legislature was of the view that we simply got it wrong in Johnson. Chapters 350-51 of the 2007 Laws of Maryland made plain, i.e., clarified, that conviction. The goal of the amendment was to treat dependents of affected employees the same before and after 2007. See Majority slip op. at 23-24. One must, I submit, approach discovering the understanding of the meaning and significance of a legislative record differently than when we examine a trial record. The latter we expect to be developed exhaustively. A much less rigorous effort typically circumscribes how a legislative record is made. Although we should expect legislators (and those who draft bills at their behest) to say what they mean and mean what they say, there is an idiosyncratic vernacular code that they observe sometimes, and this case presents such a code word – clarify. This is legislative code for “we meant previously what we say now.” It is a politic way of saying we disagree with the Court (at least more politic than “abrogate”). Upon my consideration of the legislative history, viewed in its entirety, I conclude that 2 the 2007 changes were intended as remedial, as Petitioner urges. Thus, I would reverse the judgment of the Court of Special Appeals and direct reversal of the judgment of the Circuit Court for Baltimore City and remand to the Circuit Court with directions to affirm the decision of the Workers’ Compensation Commission. Chief Judge Bell and Judge Cathell have authorized me to state that they join in the views expressed in this dissenting opinion.

If Insurance Coverage is not at issue then Jury Doesn’t have to be told about Underinsured Coverage

Kara Keller v. Charles J. Serio and GEICO Ins. Co., Case No. 48, September Term 2013, Opinion by Adkins, J. MARYLAND RULE 2-520 — INSTRUCTIONS TO THE JURY — REVERSIBLE ERROR: It was not reversible error for a trial court to fail to instruct a jury as to why a plaintiff’s underinsured motorist carrier was a defendant at the trial or what underinsured motorist coverage is in a tort suit where the question of insurance coverage was not before the jury. Circuit Court for Baltimore County Case No. 03-C-09-004484 Argued: January 9, 2014 IN THE COURT OF APPEALS OF MARYLAND No. 48 September Term, 2013 KARA KELLER v. CHARLES J. SERIO AND GEICO INSURANCE COMPANY Barbera, C.J. Harrell Battaglia Greene Adkins McDonald Watts, JJ. Opinion by Adkins, J. Filed: February 26, 2014 In this case we are asked to decide whether it is reversible error for a trial court to reject a jury instruction on the nature of underinsured motorist (“UM”) coverage when an insurer is a party to the suit, but the issue of coverage is not before the jury. Because we fail to see how a question pertaining to coverage can constitute an essential part of a plaintiff’s theory of the case in litigation confined to causation and damages, we affirm the judgment of the Court of Special Appeals. FACTS AND LEGAL PROCEEDINGS This appeal arises out of a dispute between Kara A. Keller (“Petitioner”), who was injured in a motor vehicle accident, and her UM coverage provider GEICO and the at-fault driver Charles J. Serio (collectively “Respondents”). On April 21, 2006, Petitioner was rearended by Serio. Petitioner’s car suffered superficial damage. After the accident, Petitioner and Serio exchanged insurance information. Keller subsequently drove home, called an attorney, and went to the emergency room. Her medical treatment, which lasted over five years, spanned multiple care-givers and addressed headaches, back pain, and overall chronic pain. Her medical bills totaled $27,355.69. In April of 2009, Keller filed suit against Serio in the Circuit Court for Baltimore County. Keller later informed her motor vehicle insurer, GEICO, with whom she had UM coverage, of the potential for a UM claim. GEICO then successfully moved to intervene as a defendant to protect its possible interest in the litigation. At the trial, the parties stipulated that Serio was at fault for the accident. The only issues before the jury were causation and damages. In her opening statement, Petitioner’s counsel identified Serio as the at-fault driver, and identified GEICO as Keller’s UM policy carrier. GEICO’s counsel identified herself at trial. GEICO did not offer an opening statement, did not question witnesses, and did not present a closing argument. After Keller and Serio presented their cases, the trial court instructed the jury on the questions of causation and damages as they appeared on the verdict sheet. Keller’s counsel offered a proposed jury instruction on the nature of UM coverage. The trial court refused 1 to give this instruction, noting that insurance was not at issue at the trial. The jury returned a verdict in favor of Keller for $27,355.69, which was the amount of her medical bills. On the itemized verdict sheet, the jury entered $0 for both future medical expenses and non-economic damages. Petitioner later filed a motion for a new trial claiming that the jury award was inconsistent by awarding damages for medical expenses related to alleviating pain, but no damages for pain and suffering, and that in not giving an instruction about the nature of UM coverage, the trial court confused the jury. The court denied this motion. Petitioner then appealed to the Court of Special Appeals. In an unreported opinion, the intermediate 1The proposed instruction was the definition of UM coverage as explained in the eighth edition of Black’s Law Dictionary. It read as follows: Underinsured-motorist coverage is defined as insurance that pays for losses caused by a driver who negligently damages the insured but does not have enough liability insurance to cover the damages. Black’s Law Dictionary 1561–1562 (8th ed. 2004). 2 appellate court declined to find an abuse of discretion either in the trial court’s declining to instruct the jury on the definition of UM coverage, or in its declining to order a new trial on the basis of the inconsistent verdict. We granted certiorari to address the following question:2 [Whether] the failure to instruct the jury about the reason the plaintiff’s underinsured motorist carrier is a party to a tort suit is reversible error? Because the issue of UM coverage was not before the jury, we answer this question in the negative. Petitioner has no right to a jury instruction on a matter that is not properly before the jury. DISCUSSION We review a trial court’s refusal or grant of a jury instruction under the abuse of discretion standard. See Stabb v. State, 423 Md. 454, 465, 31 A.3d 922, 928 (2011). In In her brief, Petitioner presents the issue 2 in three parts: - Whether a party has a right to have the jury instructed as to the theory of its case. - Whether, when insurance is mentioned in a personal injury case, the court has a duty to give some instruction. - Whether it is appropriate for an appellate court to rule on the sufficiency of an instruction, when the issue was not decided by the trial court. Because we granted certiorari only to address the question of whether it was error for the court not to instruct the jury on the UM carrier’s presence at trial and its role in the suit, we shall confine our analysis to that question. 3 determining abuse of discretion in this context, we look to the following factors: “(1) whether the requested instruction was a correct statement of the law; (2) whether it was applicable under the facts of the case; and (3) whether it was fairly covered in the instructions actually given.” Stabb, 423 Md. at 465, 31 A.3d at 928 (citing Gunning v. State, 347 Md. 332, 348, 701 A.2d 374, 381 (1997) (internal citations omitted)). Keller interprets the question of why GEICO was a defendant at trial as identical to the question of how UM coverage works and presents three interrelated arguments to support her claim that refusing an instruction on UM coverage was error. Petitioner’s first argument is that litigants are entitled to an instruction on their theory of the case. Petitioner advances that disallowing such an instruction prevented her from instructing the jury on her theory of the case, theorizing that the nature of UM coverage could be confusing to a layperson. Keller’s second argument is that in not instructing the jury on the nature of UM coverage, the trial court caused the jury to be confused and possibly make adverse inferences about why GEICO was a defendant in the action. Finally, Keller avers that because the trial court never “mull[ed] over” whether the proposed instruction would have been sufficient, it was improper for the Court of Special Appeals to deem it insufficient. We examine the arguments in turn. Petitioner avers that she was prevented from explaining her claim against GEICO, thereby making her unable to explain her theory of the case. She claims that she was so inhibited because “UM coverage” is a confusing term, and the jury was unable to adequately 4 comprehend the role and presence of GEICO at trial. Thus, Keller says, she could not fully explain her case against GEICO at trial. In support of this argument, Petitioner relies heavily on Boone v. American Manufacturers Mutual Insurance Co. for the proposition that UM coverage is a confusing concept, and that such confusion can lead to prejudice. 150 Md. App. 201, 819 A.2d 1099 (2003). To be sure, in Boone, the intermediate court held that an accurate understanding of UM coverage was necessary for the jury to properly understand that case. 150 Md. App. at 231, 819 A.2d at 1116. Petitioner construes Boone as creating a “requirement that a jury must be told the details of underinsured motorist claims[.]” Thus, she says, in completely failing to instruct the jury on the issue of UM coverage, the trial court erred. In Boone, a woman injured in a car accident obtained a financial settlement from the at-fault driver’s insurer. 150 Md. App. at 204, 819 A.2d at 1100. Although this settlement was for the policy limits, Boone thought her true damages exceeded her policy amount. Id. She then sued her UM insurer for her remaining expenses and pain. Id. At the end of trial, Boone requested that the court instruct the jury on how UM coverage works.3 Boone, 150 3The instruction Boone recommended read: Members of the jury in finding a verdict for Mrs. Boone in this case, you are instructed that the amount which Mrs. Boone received from the underinsured driver, Mr. Sites, will be subtracted from the total amount of money which you award Mrs. [Boone]. In other words, there will be no double recovery by Mrs. Boone. (continued...) 5 Md. App. at 219, 819 A.2d at 1109. The trial court recognized the potential for the jury being confused on the issue of UM coverage, but ultimately declined to deliver Boone’s proposed instruction. Boone, 150 Md. App. at 221, 819 A.2d at 1110. The trial court did, however, attempt to explain UM coverage to the jury as follows: [T]here’s been some kind of obscure references to . . . what we call underinsurance . . . and . . . it simply means that when you recover for someone’s fault that harms you, you recover against the person who harmed you. But suppose, for example, you don’t believe it’s enough? It’s not a fair compensation. You have a right under certain circumstances to go against or to claim against your own policy which may carry what we call under insurance so that in a sense you make up a deficit . . . . What do you think is fair compensation, given the accident, given what she’s testified to? What she may or may not be looking elsewhere for, has absolutely nothing to do with this case. Nothing. Keep your blinders on and look only at that one question, phrased here as two questions. What are the damages, if any? Id. The Court of Special Appeals found this instruction insufficient and found that it was error to reject an instruction on UM coverage. Boone, 150 Md. App. at 231, 819 A.2d at 1116. Particularly, the intermediate court found error because: The jury was not told that the sum previously recovered by appellants from Sites would be deducted from the amount of any award of damages. The jury’s ignorance as to that matter certainly could have affected its understanding of the value to appellants of any damages that it awarded. 3(...continued) Boone v. Am. Mfrs. Mut. Ins. Co., 150 Md. App. at 219, 819 A.2d at 1109. 6 Id. Petitioner asks us to apply the Boone holding to this case, and similarly find an error in the Circuit Court’s failure to instruct the jury as requested. Boone is inapposite here because in this case the issue of insurance coverage was not before the jury. In Boone, the UM insurer was the sole defendant in the action, and the central issue was whether Boone merited coverage under the terms of the policy. 150 Md. App. at 204, 819 A.2d at 1100. As the Boone court explained: There is no question that the jury was informed that appellants had already recovered some money from Sites, and that the Boones were not satisfied with the amount of that recovery. The jury was also told that, as a result of that dissatisfaction, appellants brought an underinsurance claim against American, their own Insurer. On more than one occasion, the court attempted to explain the concept of underinsurance to the jury. Indeed, in its final jury instructions, the court twice told the jurors that appellants pursued their claim against American because of the alleged “deficit” with regard to appellant’s recovery from the tortfeasor. Boone, 150 Md. App. at 231, 819 A.2d at 1116. In the Boone context, the nature of UM coverage could be perplexing to the jury. Here, the situation is quite different. Although GEICO was a party defendant though its intervention, Petitioner filed no complaint against it. GEICO was only present to protect its potential interest in the case 11 months after Keller brought suit against Serio. Yet Keller never brought a claim against GEICO and, until the resolution of the underlying litigation, GEICO did not have (and thus could not breach) any contractual obligation to Keller. At no point during the trial was the subject of UM coverage mentioned. GEICO did 7 not offer a defense, did not question any witnesses, and did not present any arguments to the jury. Though a party, GEICO was not defending any claim, and was only present to protect a possible interest that would not become clear until after the jury delivered its verdict. Simply put, Keller’s case against Serio did not involve UM coverage, or GEICO, in any meaningful legal sense. We agree with the Court of Special Appeals that “the issue of insurance was not an issue in the case and the requested instruction did not inform the jury on the principles of law that applied to and governed the facts in the case.” As explained above, the only questions presented to the jury were on causation and damages. This distinguishes the present case from Boone, because in Boone, the UM insurer was the defendant in a breach of contract lawsuit in which it was the only target. Because coverage was not an issue, an instruction as to the definition of UM coverage is not applicable under the facts of the case. Petitioner’s repeated insistence that she was prevented from having her theory of the case presented to the jury is misplaced. We have explained that “[a] litigant is entitled to have his theory of the case presented to the jury, but only if that theory of the case is a correct exposition of the law and there is testimony in the case which supports it.” Levine v. Rendler, 272 Md. 1, 13, 320 A.2d 258, 265 (1974). Thus, a party has a right to have their theory of the case presented to the jury only if that theory is supported by evidence or testimony at trial. Id. Here, there was no evidence or testimony concerning either GEICO’s presence as a defendant or the subject of UM coverage. Any instruction, then, about 8 GEICO’s presence or how UM coverage works is simply beyond the scope of what was presented at trial, and thus fails the test that we clearly articulated in Levine. 4 Thus, a lack of an instruction on the definition of UM coverage did not impair Keller from putting on a theory of the case as it pertained to the issues before the jury. Petitioner next claims that the presence of an insurer in this case, combined with the lack of any clear instruction as to how to interpret its presence, could have led the jury to “reach a number of ‘distorted’ conclusions about [GEICO]’s reason for being made a party, none of them favorable to Ms. Keller.” Petitioner characterizes the potential distorted conclusions as follows: Perhaps it thought [Keller] was greedy, and was trying to make a double recovery, one against the tortfeasor and another against her insurance company. . . . Or, maybe the jurors concluded that because [GEICO] was an “underinsured motorist carrier,” poor Mr. Serio might be without sufficient coverage, and would have to pay out of pocket for any verdict they returned. An award of medical bills, but nothing else, suggests the jury wanted to shield Mr. Serio from having to pay a large award, while making sure that he at least took care of Ms. Keller’s seemingly out of pocket medical expenses. Or maybe still it thought that, if it returned a modest verdict against Mr. Serio, Ms. Keller would then be made whole by her insurance company. Keller submits that the verdict returned by the jury, which she views as inconsistent and 4As our holding in Levine implies, that a party simply argues that a particular factor is essential to their interpretation of how the case should be decided does not, by itself, create a right to a jury instruction on that factor. Rather, in order to meet the standard articulated by Levine, the relied upon factor must relate to, and be supported by, evidence and testimony presented at trial. 9 illogical, is evidence of such confusion. Keller says that because the jury returned a verdict awarding damages for medical bills related to the treatment of pain, but not damages for the pain itself, it is clear that the jury drew an inference adverse to her. She diagnoses confusion about GEICO’s role at trial as the cause of this adverse inference, and argues that her proposed instruction would have cured this confusion. Respondents counter that it was clear at trial who and what GEICO was, and claims that Petitioner is crying foul for prejudice she created for herself. During opening statements, Petitioner identified GEICO as a defendant and as Keller’s UM carrier. After that remark, there was no mention of GEICO or of insurance during the trial. Because opening statements are not evidence, and the jury was instructed on this point, the question of who GEICO was and how its presence would impact the availability of an award for Ms. Keller could not have caused any jury confusion. See e.g., Clarke v. State, 238 Md. 11, 20, 207 A.2d 456, 460 (1965) (“[a]n opening statement by counsel is not evidence[.]”). GEICO was clearly identified during opening arguments, and never mentioned again. Respondents also argue that it was Keller herself who injected the question of GEICO’s presence and potential coverage of Keller’s injury into the trial. Respondents then argue that this Court has a longstanding rule against a party claiming relief on the basis of insurance having been mentioned if that party was the sole source of it having been mentioned. See Ass’n of Indep. Taxi Operators, Inc. v. Kern, 178 Md. 252, 260, 13 A.2d 374, 377 (1940); York Ice Mach. Corp. v. Sachs, 167 Md. 113, 127, 173 A. 240, 246 (1934); 10 Int’l Co. v. Clark, 147 Md. 34, 43–44, 127 A. 647, 650–51 (1925). We find Keller’s argument unavailing. Although UM coverage can be a confusing issue that may require a jury instruction, the issue was simply collateral to this trial. As mentioned earlier, because Keller prosecuted no claim against GEICO, the issue of coverage was not presented to the jury and was not mentioned during the evidentiary portion of trial. Additionally, Petitioner was allowed to, and did, explain during her opening statement who GEICO was and its relationship to the parties. Furthermore, we decline to do as Petitioner asks and find jury confusion where there is no clear indicia of jury confusion. Although we would not hold the following factors to be exclusive, we consider the following facts as highly suggestive that the jury was not confused about UM coverage: (1) the jury did not ask for any clarification from the court once deliberation began; (2) the alleged confusing matter was not related to any question presented to the jury; and (3) there was no trial testimony concerning the alleged confusing matter. We do not find persuasive Petitioner’s contention that by awarding damages to cover bills related to injuries and pain, but no damages for the pain itself, the jury demonstrated any confusion. Indeed, to hold such a jury verdict illogical or necessarily inconsistent would amount to us holding that a jury must grant non-economic damages whenever it grants damages for medical bills. That is not the law. We have previously held that a jury verdict that awards damages for medical bills, but not pain and suffering, is not necessarily invalid. 11 See Leizear v. Butler, 226 Md. 171, 179, 172 A.2d 518, 522 (1961) (holding that the adequacy of a jury award is not reviewable on appeal simply because the verdict included compensation for medical expenses and lost wages, but no damages for pain and suffering), abrogated by Buck v. Cam’s Broadloom Rugs, Inc., 328 Md. 51, 56, 612 A.2d 1294, 1296 (1992). The Court of Special Appeals has explained that some jurisdictions 5 have disallowed verdicts that award medical damages where pain and suffering have been proven or could be reasonably assumed from the nature of the injuries involved. See Butkiewicz v. State, 127 Md. App. 412, 423, 732 A.2d 994, 1000 (1999). Yet, this Court has not found such a discrepancy to be invalid. Id. Indeed, as the Court of Special Appeals has held, jury verdict sheets that have multiple lines for different types of damages, as was present in this case, imply that the jury is allowed to award some types of damages and not others. Id. The plaintiff in such cases has the burden of proving each item of damage, and the jury determination of each distinct line item should not be based on guesswork or assumption. Id. Therefore, although it may be unusual for a jury to award damages for medical bills to treat pain, but not for the pain itself, such a verdict is not itself irrational, invalid, or evidence of a confused jury. Furthermore, Keller’s proposed instruction would not have, by itself, cured the potential confusion she diagnoses. Without being told the policy limits of the UM coverage, 5For explanation of the treatment of Leizear v. Butler, 226 Md. 171, 172 A.2d 518 (1961) by Buck v. Cam’s Broadloom Rugs, Inc., 328 Md. 51, 612 A.2d 1294 (1992), see Butkiewicz v. State, 127 Md. App. 412, 425, n.3, 732 A.2d 994, 1000, n.3 (1999). 12 the jury would still be left to wonder which party would have to pay for any discrepancies between the damages and policy limits, as well as how much would be out of pocket, and would still be confronted with the same issues concerning double recovery. Keller correctly notes that in “cases where the insurance carrier is a party to the litigation, obviously the existence of insurance cannot be kept from the jury.” Farley v. Allstate Ins. Co., 355 Md. 34, 42, 733 A.2d 1014, 1018 (1999). Yet, we also reiterated in the same case that, “the amount of uninsured/underinsured motorist coverage should not be disclosed unless the amount itself is in controversy.” Id. As explained earlier, Petitioner was allowed to, and did, identify GEICO as her UM insurer—the existence of insurance was not kept from the jury. Finally, Petitioner asks that she be allowed to amend her requested instruction to cure any error. She argues that a remand with the opportunity to fix a flaw is consistent with the idea that cases are to be decided on their merits rather than the niceties of the pleadings. See Hansen v. City of Laurel, 420 Md. 670, 701, 25 A.3d 122, 141 (2011) (holding that this Court has a “preference for granting leave to amend.”). Because we hold that an instruction on the subject of UM coverage is not improperly refused in a case where insurance is not an issue properly before the jury, we need not reach the question of the sufficiency of the proposed instruction. Thus, “whether the requested instruction was a correct statement of the law” is an irrelevant question once we have determined that the subject matter of the instruction was not “applicable under the facts of 13 the case.” Stabb, 423 Md. at 465, 31 A.3d at 928. We shall not, then, pass on the question of the sufficiency of the proposed instruction as a correct statement of the law. In conclusion, for the above reasons we hold that it is not error for a court to refuse an instruction on the issue of UM coverage when insurance coverage is not a question before the jury. JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS TO BE PAID BY PETITIONER. 14

Uninsured Motorist Coverage and PIP coverage Can Be Reduced by Workers’ Comp Benefits Received

If you receive workers compensation benefits and file for uninsured motorist benefits or PIP then your insurer can legally reduce any payment to you by the amount of the benefits received as long as you haven't paid your employer back. It is hard to fathom a scenario where an employee would be financially able to repay his employer for workers comp benefits received. Thereofore, in all likelihood most recipients would face the threat of a deduction by UM carrier.   Travco Insurance Company v. Crystal Williams, Misc. No. 7, Opinion by Greene, J. INSURANCE – MOTOR VEHICLE INSURANCE LAW – LIMITATIONS ON RECOVERY OF BENEFITS Maryland’s motor vehicle insurance law includes certain limitations on an insured’s recovery of benefits. Md. Code (1996, 2011 Repl. Vol.), § 19-513(e) of the Insurance Article requires that benefits payable under the personal injury protection and uninsured motorist statutes be reduced to the extent that the recipient has recovered un-reimbursed workers’ compensation benefits. IN THE COURT OF APPEALS OF MARYLAND Misc. Docket No. 7 September Term, 2012 ______________________________________ TRAVCO INSURANCE COMPANY v. CRYSTAL WILLIAMS ______________________________________ Bell, C.J. Harrell Battaglia Greene Adkins Barbera McDonald, JJ. ______________________________________ Opinion by Greene, J. _________________________________________ Filed: February 25, 2013 1 Subrogation is defined as “[t]he substitution of one party for another whose debt the party pays, entitling the paying party to rights, remedies, or securities that would otherwise belong to the debtor[,]” or “[t]he principle under which an insurer that has paid a loss under an insurance policy is entitled to all the rights and remedies belonging to the insured against a third party with respect to any loss covered by the policy.” Black’s Law Dictionary 1467 (8th ed. 2004). 2 A “write-down” is a “reduction of the entered value of an asset.” Webster’s II New College Dictionary 1305 (3d ed. 2005). In a medical context, a “write-down” is generally the difference between the total price listed and the negotiated price for medical services. See Tri-County Equip. & Leasing, LLC v. Klinke, 286 P.3d 593, 594 (Nev. 2012) (noting that “write-downs” refer to negotiated discounting that arises when “medical providers . . . accept[] as full payment for their services an amount less than the amount stated in their (continued...) We have before us questions of law certified by the United States District Court for the District of Maryland pursuant to the Maryland Uniform Certification of Questions of Law Act, Md. Code (1973, 2006 Repl. Vol.), §§ 12-601 to 12-613 of the Courts and Judicial Proceedings Article and Maryland Rule 8-305. The District Court has asked us to determine whether Md. Code (1996, 2011 Repl. Vol.), § 19-513(e) of the Insurance Article (or “§ 19- 513(e)”) requires an insurance company to deduct recovered workers’ compensation (“WC”) benefits from the benefits payable to an insured for uninsured motorist coverage (“UM”) and personal injury protection (“PIP”) when the insured has not reimbursed its WC provider, the WC provider claims the insured will need to reimburse it from any UM or PIP recovery, and the insured intends to reimburse the WC provider in the future. As an extension of this question, we are asked to determine the appropriate means for resolving a dispute between a PIP or UM insurer and insured regarding a WC provider’s subrogation right.1 Finally, we are asked whether § 19-513(e) permits an insurer to reduce its benefits payable for medical bill “write-downs,”2 assuming that the “write-downs” are considered a WC benefit under the (...continued) bills”). 2 applicable WC law. We shall hold that, under the plain meaning of § 19-513(e), an insured’s benefits payable under UM and PIP coverage “shall be reduced” to the extent that the insured recovered benefits under WC and the WC provider has not been reimbursed. Further, we hold that if the applicable WC law treats “write-downs” of medical bills as WC benefits, and the WC benefits have not been reimbursed, then the insurer shall deduct those benefits, calculated as discounts, from its benefits payable to the insured under § 19-513(e). We adopt the facts of the case as set forth by the District Court in its Certification Order dated June 8, 2012: [] TravCo Insurance Company (“TravCo”) issued to [] Crystal Williams a Maryland personal auto policy, number 978435964 101 1, effective July 28, 2007 to January 28, 2008. The Policy’s coverage included UM bodily injury coverage, with limits of $100,000.00 each person, and PIP coverage, with limits of $2,500.00 each person each accident. The policy’s UM coverage provided that “any amounts otherwise payable for damages under this coverage shall be reduced by all sums . . . [p]aid because of the ‘bodily injury’ under . . . [the] worker’s compensation law or similar law provided the insurer or selfinsurer of worker’s compensation benefits has not been reimbursed for amounts paid under the worker’s compensation law or similar law.” The [P]olicy’s PIP coverage similarly provided: “Benefits payable by the Company under the terms of this insurance to or on behalf of an ‘injured person’ shall be reduced to the extent that benefits therefore are paid, to or on behalf of the ‘injured person’ under any worker’s compensation law of any state or the Federal Government.” At all relevant times, Ms. Williams was employed by the 3 District of Columbia government. On August 2, 2007, Ms. Williams was a passenger in a District of Columbia government’s vehicle driven by her supervisor. They were traveling on a work assignment. Their vehicle was rear-ended by an unknown driver. Ms. Williams was stunned by the impact. While she was sitting in the vehicle trying to recover, her supervisor told the other driver to leave the scene. The driver responsible for the accident left and no information about him is known. Ms. Williams was injured in the accident. She missed nine weeks of work and her loss of [] earning capacity was $10,476.00. She incurred $13,096.50 in medical expenses and received a 22% disability rating.1 The medical invoices provided by Ms. Williams to TravCo indicate that her medical providers applied WC “write-downs,” totaling at least $3,591.53. The District of Columbia government’s WC third-party administrator asserts a subrogation right in the amount of $11,043.60 against any PIP or UM recovery by Ms. Williams. Ms. Williams intends to reimburse the District of Columbia government, although TravCo disputes her obligation to do so. The amount that Ms. Williams would reimburse the District of Columbia government cannot be determined before the settlement or judgment with TravCo, and Ms. Williams has no funds to reimburse the District of Columbia government out of pocket. TravCo does not dispute that Ms. Williams’ claims fall within the PIP or UM insuring agreements. Nevertheless, disputes regarding the effect of Section 19-513(e) have prevented settlement of her claims. ____________ 1 The parties have not conducted discovery. TravCo does not dispute the facts in this paragraph solely for purposes of the present certification proceeding. In light of the necessary interpretation of § 19-513(e) to resolve this issue, the District Court certified the following questions of law to this Court: 1. Does Section 19-513(e) of the Insurance Article, providing that uninsured motorist (“UM”) and personal injury protection (“PIP”) benefits “shall be reduced to the extent that the recipient has recovered benefits under the workers’ compensation [‘WC’] laws of a state or the 3 The District Court also certified a fourth question to this Court. On July 20, 2012, the parties submitted a joint motion to strike the question, however, because they determined that the question could be resolved by a previous decision of this Court. See Md. Code (1973, 2006 Repl. Vol.), § 12-603 of the Courts and Judicial Proceedings Article (noting that this Court “may answer a question of law certified to it . . . [if] there is no controlling appellate decision, constitutional provision, or statute of this State”). This Court granted the motion to strike the fourth certified question on July 20, 2012. 4 federal government for which the provider of the [WC] benefits has not been reimbursed,” apply where the insured has not to date reimbursed the WC provider but the WC provider claims that the insured will need to reimburse it from any UM or PIP recovery? 2. If the answer to the first question is “yes,” what is the appropriate means to resolve a dispute between the insurer and insured as to the validity and extent of a WC provider’s subrogation right?2 3. If the law applicable to the underlying automobile accident and to the WC claim treats “write-downs” of medical bills as WC benefits, do such “write downs” reduce the benefits payable under Section 19-513(e) of the Insurance Article?[3] ______________________ 2 The parties have phrased this question broadly to encompass a number of sub-disputes, including how “an amount equivalent to a reasonable attorney’s fee proportionate to the refund to the District of Columbia government” under D.C. Code § 1.623.32 is categorized for purposes of Section 19-513(e) of the Insurance Article. We note that under the Maryland Code, this Court “may reformulate a question of law certified to it.” Md. Code (1973, 2006 Repl. Vol.), § 12-604 of the Courts and Judicial Proceedings Article. Accordingly, we shall redact the first part of Question Two to reflect the appropriate question of law presented by the parties: What is the appropriate means to resolve a dispute between the insurer and insured as to the validity and extent of a WC provider’s subrogation right? I. 5 The issue in the present case is the correct interpretation of Md. Code (1996, 2011 Repl. Vol.), § 19-513(e) of the Insurance Article, which provides: § 19-513. Limitations on recovery of benefits. (e) Reduction due to workers’ compensation benefits. – Benefits payable under the coverages described in §§ 19-505 and 19-509 of this subtitle shall be reduced to the extent that the recipient has recovered benefits under the workers’ compensation laws of a state or the federal government for which the provider of the workers’ compensation benefits has not been reimbursed. The noted provisions within the statute refer to Maryland laws involving PIP, Md. Code (1996, 2011 Repl. Vol., Supp. 2012), § 19-505 of the Insurance Article, and UM, Md. Code (1996, 2011 Repl. Vol.), § 19-509 of the Insurance Article. PIP is a form of no fault insurance, that allows the insured to recover for medical expenses and lost income resulting from a motor vehicle accident. See Swartzbaugh v. Encompass Ins. Co., 425 Md. 614, 617, 42 A.3d 587, 589 (2012); § 19-505. Its main purpose “is to assure financial compensation to victims of motor vehicle accidents without regard to the fault of a named insured or other persons entitled to PIP benefits.” Clay v. GEICO, 356 Md. 257, 265-66, 739 A.2d 5, 10 (1999) (citations and quotation omitted). UM is a form of first-party coverage that allows an insured to collect even when the at-fault tortfeasor has no liability insurance or insufficient insurance funds. See Reese v. State Farm Mut. Auto Ins. Co., 285 Md. 548, 552, 403 A.2d 1229, 1231-32 (1979); § 19-509. “[T]he purpose of mandating UM coverage is to provide some measure of compensation to the innocent victims of financially irresponsible uninsured motorists.” Hines v. Potomac Elec. Power Co., 305 Md. 369, 374, 504 A.2d 632, 634 (1986) 6 (citations omitted). TravCo argues that § 19-513(e) unambiguously requires an insurer to reduce PIP and UM benefits wherever the insured “has recovered” WC benefits, and the benefit provider has not yet been repaid for those benefits. Under this theory, TravCo contends, it is required to reduce Ms. Williams’s insurance benefits because she received WC benefits from the District of Columbia and has not yet reimbursed the District for those benefits. According to TravCo, this interpretation of § 19-513(e) makes sense because UM and PIP benefits are intended to provide some means of protective compensation to the insured if other means are unavailable or not immediately available, and that purpose has already been somewhat achieved when WC benefits have been recovered. Finally, TravCo argues that, if the plain meaning of § 19- 513(e) leads to unjust outcomes to the insured, the General Assembly has the option of amending the statute to more appropriately reflect the legislature’s intentions. In fact, TravCo notes, that “[s]ince 1999, the General Assembly has passed six amendments to the UM and PIP statutes, including the 2001 amendment [to § 19-513(e)].” Ms. Williams contends that she will reimburse the District of Columbia for her WC benefits, either because she is required to do so under District law, or, in the alternative, because she intends do so voluntarily. Therefore, she argues, she should not incur a reduction in her settlement or judgment proceeds from TravCo under § 19-513(e). Her claim is based on both the statute’s purpose and “the conclusion that the legislature could not have intended bizarre practical results” that would follow from TravCo’s interpretation of the statute. According to Ms. Williams, the statute is intended to prevent windfall to the insured, 4 To illustrate this point, Ms. Williams maintains that if an individual were injured in a non-work-related accident, the individual would be entitled to recover both from the tortfeasor and from his or her insurance carrier for PIP benefits even though the recovery may be duplicative. 5 In her brief, Ms. Williams cites to the preamble to the 2001 amendment: “[f]or [the] purpose of limiting the reductions available to personal injury protection and uninsured motorist insurers to the extent that the workers’ compensation insurer is able to recover benefits paid under the workers’ compensation laws of a state o[r] [the] federal government . . . .” 7 not to create obstacles to fair recovery just because the injured party was involved in a workrelated accident.4 Ms. Williams further asserts that the General Assembly made this clear when it amended the statute in 2001 to allow insurance companies to reduce their UM and PIP payout only to the extent that the WC benefits have not yet been reimbursed.5 The 2001 amendment, Ms. Williams contends, is “remedial legislation, which should be interpreted broadly in favor of the injured worker[].” Finally, Ms. Williams argues that TravCo’s interpretation of the statute leads to impractical results because if an insured cannot afford to reimburse his or her WC provider before the insured receives his or her UM or PIP benefits, the insured is penalized by receiving a lower sum from the insurance company, which is further reduced by any required future reimbursement to the WC provider. As such, the General Assembly, Ms. Williams contends, could not have “intended the ‘reimburs[ement]’ clause of [§] 19-513(e) to apply only if an injured worker repays the workers compensation carrier prior to the settlement or judgment.” As this case requires us to interpret the meaning of a Maryland statute, we apply our longstanding principles of statutory construction. In State Farm Mut. Auto. Ins. Co. v. Ins. 8 Comm’r, 283 Md. 663, 670, 392 A.2d 1114, 1117-18 (1978) [hereinafter State Farm], we discussed statutory interpretation principles with reference to the predecessor of the statute at issue in the present case. We explained: The cardinal rule of statutory construction is to ascertain and carry out the real legislative intention. A statute should be construed according to the ordinary and natural import of the language used without resorting to subtle or forced interpretations for the purpose of limiting or extending its operation. That is, we must confine ourselves to the statute as written, and may not attempt, under the guise of construction, to supply omissions or remedy possible defects in the statute. Thus, if there is no ambiguity or obscurity in the language of a statute, there is usually no need to look elsewhere to ascertain the intent of the Legislature . . . . [W]here statutory language is plain and free from ambiguity and expresses a definite and sensible meaning, courts are not at liberty to disregard the natural import of words with a view toward making the statute express an intention which is different from its plain meaning. Id. (citations and quotations omitted). The predecessor to § 19-513(e), Md. Code, Art. 48A, § 543(d), provided that PIP and UM benefits “shall be reduced to the extent that the recipient has recovered benefits under [WC] laws of any state or the federal government.” Md. Code, Art. 48A, § 543(d) (1957, 1972 Repl. Vol., 1978 Cum. Supp.). We explained that § 543(d) was “plain and unambiguous.” See State Farm, 283 Md. at 671, 392 A.2d at 1118 (holding that the statute’s plain meaning required the insurer to reduce PIP benefits payable to its insured by the amount that the insured received under WC). This Court reaffirmed that statement as to § 19-513(e)’s predecessor statute in later cases. See Hines, 305 Md. at 377-78, 504 A.2d at 636-37 (noting that the language of the statute “is clear and unambiguous in requiring the reduction of PIP and UM benefits to the extent that the recipient has recovered [WC] 9 benefits”); Smelser v. Criterion Ins. Co., 293 Md. 384, 385, 444 A.2d 1024, 1025 (1982) (explaining that the statute “means precisely what it says when it specifies that . . . [PIP benefits] are to be reduced to the extent that a recipient has recovered sums pursuant to [WC laws of any state]”). In State Farm, we were asked to determine whether an insurance company could deduct the monetary payments a claimant received under WC, even though the claimant already reimbursed the WC provider. We focused our inquiry on what the term “has recovered” meant as it was used in the statute. State Farm, 283 Md. at 671-72, 392 A.2d at 1118. In other words, we were asked to interpret whether, under the statute, the claimant “recovered” the WC benefits, even though he repaid that money to the WC provider. Noting that the dictionary defined “to recover” as “to get,” “to obtain,” “to come into possession of,” “to receive,” “to succeed in a [legal] proceeding,” and “to obtain in any legal manner in contrast to voluntary payment,” we held that under those meanings, the insured had “recovered” WC benefits when he received the money from his WC provider as a result of his claim. Id. (citations omitted). Therefore, under the statute, the insurer was required to reduce the benefits payable to the insured by the amount of WC benefits the insured had received. We were asked to interpret the statute again in Gable v. Colonial Ins. Co., 313 Md. 701, 548 A.2d 135 (1988). In that case, an insurance company claimed that its policy provision which stated that it could deduct PIP benefits by the amount the insured may be entitled to recover in the future under WC law, allowed it to deduct the WC benefits the 10 insured would have gotten, even though the insured party never received such WC benefits. Gable, 313 Md. at 702, 548 A.2d at 135-36. We explained that the term “has recovered” in the statute, referred, in the past tense, to WC benefits “actually received.” Further, we noted that [t]he language of § 543(d) shows a legislative intent to provide offsets only for workmen’s compensation benefits actually received and not for future benefits. The subsection provides for a deduction only for workmen’s compensation benefits that the claimant “has recovered.” The General Assembly drew a sharp distinction between workmen’s compensation benefits which have been received and those benefits which have not. Gable, 313 Md. at 704, 548 A.2d at 136-37. This statute, we explained, stood in sharp contrast to the language in similar statutes in other states, allowing, for example, benefits to be reduced for WC benefits “recovered or recoverable.” See Gable, 313 Md. at 706, 548 A.2d at 137-38 (citing NY. Ins. Law § 5102(b)(2) (Consol. 1985)). “[T]he absence of the word ‘recoverable’ in the Maryland statute indicates that in Maryland the insurer’s right to offset workmen’s compensation benefits is contingent upon their receipt.” Gable, 313 Md. at 706, 548 A.2d at 138. As such, we held that the insurer could not reduce its PIP payout by the WC amount that the insured never received. In 2001, the General Assembly amended the statute and created an exception for benefits reimbursed to the WC provider. As such, the amended statute stated that insurers shall reduce benefits payable under UM and PIP to the extent that the recipient has recovered WC benefits “for which the provider of the workers’ compensation benefits has not been reimbursed.” § 19-513(e) (emphasis added), 2001 Md. Laws, Chap. 392. In other words, 11 insurers shall reduce PIP and UM benefits payable to the extent the recipient recovers unreimbursed workers’ compensation benefits. In Parry v. Allstate Ins. Co., 408 Md. 130, 968 A.2d 1053 (2009), we addressed the 2001 amended statute. Parry involved a UM claim by the estate of a police officer who died as a result of injuries sustained in an accident while on-duty. On its own initiative, the officer’s employer paid the medical bills pursuant to WC law. Thereafter, the officer’s estate filed a claim for UM benefits and the insurer sought a declaration that its liability for UM benefits be reduced by the officer’s recovered WC benefits that had not been reimbursed under § 19-513(e). Parry, 408 Md. at 132-35, 968 A.2d at 1054-56. In our analysis, we first reviewed our caselaw in light of the predecessor section of the statute, stating that its language was unambiguous. Parry, 408 Md. at 140-43, 968 A.2d at 1059-60. We then explained that the current law is “nearly identical[],” and that the added exception for situations where the WC provider “has not been reimbursed” did not alter the analysis in Parry, likely because there was no reimbursement to the WC provider. See Parry, 408 Md. at 143 & n. 6, 147, 968 A.2d at 1060-61 & n. 6, 1063. We held that under both versions of the statute, insurers are required to reduce PIP and/or UM benefits payable “to the extent the recipient recovers un-reimbursed workers’ compensation benefits,” regardless of the fact that no formal WC claim may have been filed. Parry, 408 Md. at 145-47, 968 A.2d at 1062-63. Similar to what we said in Smelser, “[t]he statute here is as clear and unambiguous today as it was when it was before the Court in State Farm,” and the additional language “in no way changes that view.” Smelser, 293 Md. at 393, 444 A.2d at 1029. The critical words 12 in the 2001 amendment to the statute are “for which the provider of the [WC] benefits has not been reimbursed.” In a case also dealing with the current version of this statute, the intermediate appellate court, in maintaining that the statute was unambiguous, noted that [t]he word “reimbursement” is commonly understood to mean “repayment.” A “useful starting point” in determining the plain meaning of a statutory term is that term’s dictionary definition. Comptroller of the Treasury v. Sci. Applications Int’l Corp., 405 Md. 185, 202, 950 A.2d 766 (2008) (quoting Ishola v. State, 404 Md. 155, 160, 945 A.2d 1273 (2008)). The Merriam-Webster Dictionary defines “reimburse” as “1. to pay back to someone; repay. 2. To make restoration of or equivalent to.” The American Heritage College Dictionary defines “reimburse” as “1. to repay (money spent); refund. 2. To pay back or compensate (another party) for money spent or losses incurred.” Blackburn v. Erie Ins. Grp., 185 Md. App. 504, 514, 971 A.2d 368, 374-75 (2009). Similarly, Black’s Law Dictionary defines “reimbursement” as “1. Repayment. 2. Indemnification.” Black’s Law Dictionary 1290 (7th ed. 1999). Furthermore, in interpreting this statute we must not forget the lessons learned in grammar school. Namely, the clause for which we are interpreting is phrased in the present perfect verb tense: “ . . . [the benefits] shall be reduced to the extent that the recipient has recovered benefits under the [WC] laws of a state . . . for which the provider of the [WC] benefits has not been reimbursed.” § 19-513(e) (emphasis added). The present perfect tense describes the use of an auxiliary verb or verb phrase preceding a past participle of the verb, in this case, “has not been reimbursed.” The New York Public Library Writer’s Guide to Style and Usage 149 (1st ed. 1994). Such construction is used to indicate “[a]ction that began in the past and leads up to and includes the present.” Muriel Harris, Prentice Hall 13 Reference Guide to Grammar and Usage 9 (2d ed. 1994). Therefore the phrase “has not been reimbursed,” means that the reimbursement has not yet occurred. Additionally, the phrase “has not been reimbursed” mirrors other language in the statute that we have interpreted in the past. Specifically, in Gable, we explained that the term “has recovered,” referred to WC benefits “actually received . . . not [] future benefits[,]” and that the use of the term “has recovered,” coupled with the absence of the word “recoverable” in the statute “indicate[] that . . . the insurer’s right to offset [WC] benefits is contingent upon [the insured’s] receipt [of the WC benefits].” Gable, 313 Md. at 704, 706, 548 A.2d at 136- 38. Following this method of interpretation, in the present case, the WC provider must have been actually reimbursed, and mere reimbursement in the future is insufficient under the statute. Furthermore, the statute does not include other forms of the verb “reimburse,” such as “reimbursable” or “shall not be reimbursed,” i.e., “for which the provider of the WC benefits will not be reimbursed,” further indicating that future reimbursement does not qualify for the exception. Cf. Gable, 313 Md. at 706, 548 A.2d at 137-38 (noting that the use of the term “has recovered” in the statute over other forms of the verb “recover,” such as “recoverable,” show the General Assembly’s intention “to allow offsets only for those [WC] benefits which have been actually received”). Under the plain meaning of the statute, therefore, the “reimbursement” to the WC provider must have occurred in the present, or have occurred in the past, for the previouslycompensated insured to avoid the statutory PIP and/or UM reduction by the insurer. The facts of the present case indicate that Ms. Williams “has recovered” WC benefits, and her 14 WC provider “has not been reimbursed” for those benefits. As such, under the plain meaning of § 19-513(e), the insurer shall reduce UM and PIP benefits to the extent of the recipient’s un-reimbursed WC benefits. Parry, 408 Md. at 146-47, 968 A.2d at 1062-63. TravCo’s position in the instant case, “in addition to being supported by the clear statutory language and the reported decisions [of this Court], is also confirmed by the legislative purpose underlying [the statute].” State Farm, 283 Md. at 674, 392 A.2d at 1120; see also Mayor of Balt. v. Chase, 360 Md. 121, 131, 756 A.2d 987, 993 (2000) (citations omitted) (noting that even when the language in a statute is unambiguous, this Court, “in the interest of completeness,” may explore the statute’s legislative history as a form of confirmation). In Parry, we explained that “the intent of § 19-513(e) (as interpreted under the predecessor to Ins. § 19-513(e), Md. Code, Art. 48A § 543(d) (1957, 1972 Repl. Vol., 1978 Cum. Supp.)) is to restrict the duplication of insurance benefits in several respects, one of which in subsection (d) is the reduction of PIP[/UM] benefits to the extent that the claimant recovered workmen’s compensation benefits.” Parry, 408 Md. at 137-38, 968 A.2d at 1057 (quotation omitted) (citing State Farm, 283 Md. at 675, 392 A.2d at 1120). In the present case, Ms. Williams recovered WC benefits, and the statute calls for a reduction of PIP and UM benefits to the extent that such WC benefits were recovered and un-reimbursed. The legislative intent discussed above is not changed by the addition of the “reimbursement” clause in 2001. The amendment was enacted “[f]or the purpose of limiting the reductions available to personal injury protection and uninsured motorist insurers to the extent that the [WC] insurer is able to recover benefits paid under the [WC] laws of a state 15 or the federal government.” 2001 Md. Laws, Chap. 392. As the Court of Special Appeals opined in Blackburn v. Erie Ins. Grp., the 2001 amendment sought to remedy the type of situation that was before this Court in State Farm. Blackburn, 185 Md. App. at 510, 971 A.2d at 372. Namely, under the former version of the statute, the insurer was able to reduce its PIP and UM benefits to the insured by the amount of WC recovery the insured received, despite the fact that the insured had already reimbursed the WC provider. See State Farm, 283 Md. at 675, 392 A.2d at 1120. “To remedy that [result], section 19-513(e) was amended to allow the carrier to deduct only the monies that the insured had not already paid back.” Blackburn, 185 Md. App. at 512, 971 A.2d at 373. The present case is distinctly different from the facts of State Farm, because unlike the situation in State Farm, the WC provider in the present case was not reimbursed. In light of our answer to Question 1, it is unnecessary to reach Question 2 regarding the appropriate means of resolving a dispute between TravCo and Ms. Williams as to the WC provider’s subrogation right. The plain meaning of the statute’s language controls, regardless of any claim by the WC provider that the insured will need to reimburse it from any PIP or UM recovery. Furthermore, we do not resolve what the District of Columbia is entitled to recover under its right to subrogation. Our responses are limited to an interpretation of Maryland law. II. We next address whether, assuming that the law applicable to the underlying automobile accident and to the WC claim treats “write-downs” of medical bills as WC 6 The question of whether “reimbursement” constitutes acceptance of repayment of the total benefits paid or a lesser amount in full satisfaction of the WC provider’s right to seek reimbursement is not before us. See Blackburn v. Erie Ins. Grp., 185 Md. App. 504, 514, 971 A.2d 368, 375 (2009) (footnote omitted). 7 TravCo acknowledges that “write-downs” “are not within PIP coverage in the first instance.” Therefore, according to TravCo, with regard to Ms. Williams’s PIP claim, medical “write-downs” do not come into play. 16 benefits, such “write-downs” would reduce the benefits payable under § 19-513(e) of the Insurance Article. Based on our interpretation of § 19-513(e) above, we hold that: (1) assuming the District of Columbia treats such “write-downs” as WC benefits; (2) Ms. Williams received such benefits; and (3) the WC provider has not been reimbursed,6 TravCo shall reduce the UM7 benefits payable to Ms. Williams. This holding is derived from the unambiguous language of the statute, specifically, that “[b]enefits payable under the coverages described in [PIP] and [UM] . . . shall be reduced to the extent that [Ms. Williams] has recovered benefits under the [WC] laws of a state . . . for which the provider of the workers’ compensation benefits has not been reimbursed.” Assuming, arguendo, that the “writedowns” were the actual benefits paid out by the WC provider and recovered by Ms. Williams under the WC laws of the District of Columbia, the UM benefits, which Ms. Williams is entitled to receive, shall be reduced to the extent that the “write-downs” were un-reimbursed. CERTIFIED QUESTIONS OF LAW ANSWERED AS SET FORTH ABOVE. COSTS TO BE DIVIDED EQUALLY BY THE PARTIES.

Cap On Non-economic Damages in Wrongful Death Action Involving Multiple Claimants Upheld

In a recent Court of Appeals case, the Court upheld the 150% cap on non-economic damages in a wrongful death case involving claims by the deceased's husband and children. Maryland law limits the damages for non-economic loss in a personal injury or wrongful death action to $500,000 for causes of action arising on or after October 1, 1994, that amount to increase by $15,000 on October 1 of each year after 1994.And  in a wrongful death action in which there are two or more claimants, an award for non-economic damages may not exceed 150% of the limitation irrespective of the number of claimants The plaintiff argued the cap would be applied that the cap was a violation of equal protection and due process among others because it did not take into account the number of claimants involved.   HEADNOTE Dixon v. Ford Motor Company No. 82, September Term 2012, Opinion by Wilner. J. (Retired, Specially Assigned) IN WRONGFUL DEATH ACTION WHERE WIFE/MOTHER DIED OF MESOTHELIOMA ALLEGEDLY CAUSED BY EXPOSURE TO ASBESTOS-LADEN DUST BROUGHT HOME BY HUSBAND FROM WORKING ON FORD BRAKE PRODUCTS AND/OR BY ASBESTOS-LADEN DUST FROM JOINT COMPOUND USED BY WIFE AND HUSBAND IN HOME IMPROVEMENT PROJECTS: (1) TRIAL COURT DID NOT ERR IN ALLOWING EXPERT TESTIMONY, BASED IN PART ON EVIDENCE OF MULTIPLE AND CUMULATIVE EXPOSURES BY WIFE, OVER 13-YEAR PERIOD, TO ASBESTOS FIBERS FROM THE FORD BRAKE PRODUCTS, THAT ANY OF THOSE EXPOSURES CONSTITUTED A SUBSTANTIAL CONTRIBUTING FACTOR IN CAUSING THE MESOTHELIOMA; (2) TRIAL COURT ERRED IN OVERTURNING JURY VERDICT THAT JOINT COMPOUND USED IN HOME IMPROVEMENT PROJECT WAS NOT A SUBSTANTIAL CONTRIBUTING FACTOR IN CAUSING THE MESOTHELIOMA; (3) CAP ON NON-ECONOMIC DAMAGES IN WRONGFUL DEATH ACTION INVOLVING TWO OR MORE CLAIMANTS OF 150% OF CAP ON INDIVIDUAL AWARD OF NON-ECONOMIC DAMAGES DOES NOT VIOLATE EQUAL PROTECTION, DUE PROCESS, RIGHT TO JURY TRIAL, OR ART. 19 OF MD. DECL. OF RIGHTS; (4) TRIAL COURT DID NOT ERR IN DENYING MOTION FOR NEW TRIAL. IN THE COURT OF APPEALS OF MARYLAND No. 82 September Term, 2012 ____________________________________________ BERNARD DIXON, etc., et al. v. FORD MOTOR COMPANY ____________________________________________ *Bell, C.J., Harrell Battaglia Greene Barbera McDonald Wilner, Alan M. (Retired, specially assigned) JJ. ____________________________________________ Opinion by Wilner, J. Bell, C.J. and Battaglia, J., dissent. ____________________________________________ Filed: July 25, 2013 *Bell, C.J., participated in the hearing of the case, in the conference in regard to its decision and in the adoption of the opinion, but he had retired from the Court prior to the filing of the opinion. Joan Dixon contracted mesothelioma, from which she eventually died. That the mesothelioma was caused by her exposure to asbestos is not in dispute. The principal issue here is, whose asbestos? As germane to what is now before 1 us, there were two possible culprits – asbestos-laden dust emanating from brakes manufactured by Ford Motor Company that Ms. Dixon’s husband, Bernard, who handled those products occupationally, brought home on his clothes, and asbestos possibly contained in a compound manufactured by Georgia-Pacific Corp. that the Dixons used in building their home, in some home improvement projects, and in building an adjacent structure.2 The Dixons filed suit against Ford and Georgia-Pacific in the Circuit Court for Baltimore City, claiming negligence on their part in failing to warn Ms. Dixon of the danger lurking in their products. Upon his wife’s death in 2009, Mr. Dixon continued the 1 Particularly in light of a case argued the same day as this one, also involving a product liability claim by a household member who contracted mesothelioma, Georgia- Pacific v. Farrar, Md. , A.3d (2013) (S.T. 2012, No. 102), it is important to note that no issue was raised in this appeal as to whether, prior to 1972, Ford was or should have been aware of the danger to household members from asbestos fibers brought into the home on the clothes of another household member. The existence of such direct or imputed knowledge seems to have been assumed which, given that Ms. Dixon’s exposure to asbestos dust emanating from Ford products extended well beyond 1972, may have been appropriate. In any event, because that issue was not raised in this appeal, we have not addressed it. 2 The Dixons sued several other manufacturers of asbestos-laden products as well, but, except with respect to a claim against Honeywell International, Inc., the claims against those defendants are not before us in this appeal. action as personal representative of her Estate and, along with the couple’s four daughters, pursued a wrongful death action as well. After a 12-day trial, the jury concluded that the only substantial contributing factor in causing Ms. Dixon’s mesothelioma was the dust from the Ford brake products. On that finding, it returned substantial verdicts in favor of Mr. Dixon and his daughters against Ford and denied a cross-claim by Ford against Georgia-Pacific. The court subsequently modified those verdicts in two respects. Applying one aspect of the statutory cap on awards of non-economic damages (Maryland Code, § 11-108(b)(3)(ii) of the Cts. & Jud. Proc. Article), the court reduced the amount of the verdicts, and, acting 3 under Md. Rule 2- 535, the court expressed its disagreement with the jury’s conclusion that the Georgia- Pacific compound was not also a substantial contributing factor and entered judgment for Ford on its cross-claim against Georgia-Pacific. All other post-trial motions, including Ford’s motion to enter judgment on its cross-claim against Honeywell International, Inc., were denied. Both the plaintiffs and Ford filed appeals to the Court of Special Appeals. Several issues were raised, but only one was addressed – the opinion evidence by the plaintiffs’ 3 All of the jury’s awards were for non-economic damages. They totaled $15 million, as follows: (1) to Mr. Dixon, as personal representative of his wife’s estate, $5 million; (2) to Mr. Dixon on his wrongful death claim, $4 million, and (3) to each of the four daughters on their wrongful deal claims, $1.5 million. As adjusted, the wrongful death awards were reduced to $426,000 for Mr. Dixon and $159,750 for each of the daughters. - 2 - principal expert, Dr. Laura Welch, that every exposure to asbestos, including the shortfiber chrysotile asbestos contained in the Ford brake products, increased the likelihood of contracting mesothelioma and thus constituted a substantial contributing cause of that disease. Based on what the intermediate appellate court believed was a “settled scientific theory of causation” known by “philosophers of science” as “probabilistic causation,” the court held that Dr. Welch’s opinion was not helpful to the jury and that the trial court abused its discretion in allowing it into evidence. The court reversed the judgments entered in favor of the plaintiffs and remanded the case for a new trial and, as a result, did not consider the cross-claim against Georgia-Pacific or any of the other issues raised by the parties. We granted the plaintiffs’ petition for certiorari and a conditional crosspetition by Ford to consider the validity of the Court of Special Appeals decision and the issues raised in but not decided by that Court.4 There is some overlap in the four questions raised by the plaintiffs 4 and the four raised by Ford. Eliminating the overlap, the issues, restated by us, are: (1) Was the Court of Special Appeals correct in concluding that the trial court erred in admitting Dr. Welch’s opinion testimony, and if so was the trial court’s error harmless; (2) If the Court of Special Appeals conclusion was correct, should that court have directed that a judgment be entered for Ford rather than ordering a new trial; (3) Did the trial court err (i) in using its revisory power under Rule 2-535 in entering judgment for Ford against Georgia-Pacific, and (ii) if not, in not using that power to enter judgment on Ford’s cross-claim against Honeywell – another alleged source of asbestos exposure; (4) Does Code, Cts. & Jud. Proc. Article, § 11-108(b)(3)(ii), in capping an award for non-economic damages to multiple claimants in a wrongful death action at 150% of the maximum amount of non-economic damages that may be awarded to an individual claimant in such an action, violate Federal and State equal protection principles - 3 - FACTUAL BACKGROUND – SOURCES OF EXPOSURE The Dixons were married in 1959 and lived thereafter as a couple in Garrett County. From 1958 until 1976, Mr. Dixon worked as a poultry inspector for the U. S. Department of Agriculture, mostly at a plant in Oakland. Upon his retirement from that position, he purchased and operated an ice cream stand near Deep Creek Lake. Over a 13- year period, from the early 1960s until 1976, he worked at least two evenings a week, ten months a year, at a garage owned by a friend, Skip Bernard. In that job, he performed brake maintenance, repair, and replacement work – on average two brake jobs per week. About 95% of the brake work Mr. Dixon did involved Ford brakes, which meant that, over the 13-year period, he performed about 1,000 Ford brake jobs. All Ford brakes and braking systems during that period contained chrysotile asbestos. In performing his brake maintenance and repairs, Mr. Dixon used compressed air and a wire brush to clean the drums and remove debris, and sand paper to remove glaze on the brake linings. If new brakes were required, he would file the edges of the new brake shoes before installing them. All of this generated asbestos-laden dust that clung to his skin, hair, and clothes. When he returned home, in that condition, he threw his clothes in the basement for his wife to wash. Mr. Dixon testified that she would shake out the and Articles 5, 19, 23, and 24 of the Maryland Declaration of Rights; and (5) Did the trial court abuse its discretion in denying Ford’s motion for new trial on the grounds that (i) the jury’s verdicts were inconsistent, against the weight of the evidence, and shocking, and (ii) plaintiffs’ counsel’s closing arguments were improper and prejudicial. - 4 - clothes and launder them. There was other testimony that, as early as 1971, one or more of the daughters also did or helped with the laundry. Evidence was presented that, for nearly 40 years, Ford warned its dealers and employees of the dangers of working with asbestos in Ford brakes but issued no warnings to anyone else. With respect to the construction and home improvement work, Mr. Dixon said that he used drywall in the building of his house in the early 1960s, but he used a powder mixed with water to fill in the joints and did not know the brand or manufacturer of the powder. There was no evidence as to whether it was an asbestos-laden Georgia-Pacific product. In the 1970s, the Dixons built an addition to the house and a separate building on their property enclosing four apartments and space for a meat processing business. Mr. Dixon testified that he recalled using a premixed Georgia-Pacific joint compound for both the drywall seams and a textured ceiling. His wife did the sanding and the cleanup. Evidence was presented by Georgia-Pacific that from 1963 to 1974, its Ready-Mix joint compound contained 3% to 8% asbestos, that it introduced an asbestos-free compound in 1974, but that it continued to sell the asbestos compound until 1977. There was no direct evidence at trial whether the product used by the Dixons contained asbestos.5 In supplemental answers to interrogatories, the Dixons 5 indicated that the Georgia-Pacific compound may have contained asbestos, but at trial, Mr. Dixon stated that he did not know whether the compound he and Ms. Dixon used contained asbestos. Some of the home improvement work they did was in or after 1974, when the nonasbestos compound was on the market. - 5 - DR. WELCH’S TESTIMONY – RESTATED QUESTIONS (1) AND (2) Prior to trial, Ford filed a motion in limine to exclude the plaintiffs’ proposed causation testimony and to conduct a Frye/Reed (Frye v. United States, 293 F. 1013 (D.C. Cir. 1923); Reed v. State, 283 Md. 374, 391 A.2d 364 (1978)) hearing regarding testimony expected from the plaintiffs’ experts. The motion was based on the assertion that there was no reliable epidemiological evidence that exposure to automotive friction products, such as brakes, causes mesothelioma and that, indeed, the evidence was that such exposure does not cause mesothelioma. The motion also asserted that brake dust is not asbestos because the heat generated during the braking process transforms the asbestos in the brake lining to non-fibrous forsterite. After the filing of Ford’s motion, Dr. Welch’s deposition was taken, with respect to both this and other cases in which she was expected to testify. The essence of her deposition testimony, which presaged her testimony at trial, was her opinion that, if someone has mesothelioma, it is asbestos-related and that each and every exposure that makes up the sum total is a substantial contributing factor to the disease. That, plus the fact that she no longer did clinical work and had not actually examined Ms. Dixon, produced a supplemental memorandum from Ford claiming that Dr. Welch was not qualified as an expert to give an opinion regarding causation of mesothelioma in the wives - 6 - of brake mechanics. Ultimately, the court, concluding that it was 6 bound by appellate decisions on the subject (though indicating some disagreement with those decisions), denied the motion, qualified Dr. Welch as an expert, and permitted her to testify. The examination of Dr. Welch at trial was more precise than the somewhat rambling deposition examination. Importantly, for purposes of this appeal, Ford does not challenge the trial court’s exercise of its discretion to qualify her as an expert. See Ford’s principal brief at 11, n.6. Given Dr. Welch’s curriculum vitae in the record, that is a reasonable concession. The present challenge is to the admissibility of her opinion that each exposure to asbestos, including asbestos-laden dust derived from asbestos contained in brake linings, may be a contributing cause to mesothelioma, which Ford maintains is not accepted by the scientific community. Dr. Welch first addressed the question of whether exposure to asbestos-laden dust brought into the home constitutes a high or low level of exposure. She stated that studies looking at household contamination from occupational exposure showed that the household exposure constituted a high level of exposure. She explained that the asbestos fibers from a day’s worth of dust on clothes, that gets shaken off, remain on the floor and in the air for a considerable period of time, so that one day’s worth can produce on-going exposure for days or even months. The fibers do not dissolve or evaporate. Each day that 6 Although Dr. Welch had not physically examined Ms. Dixon, she said that she did review Ms. Dixon’s medical records and took the information therein into account in forming her opinions. - 7 - a worker brings home dust-laden clothes adds to that on-going contamination. She then turned her attention to the subject of dose-response and compared mesothelioma to asbestosis and lung cancer. Mesothelioma, she said, is a cancer in the lining of the lung, which has a much smaller mass than the lung itself. Asbestosis is a scarring of the tissue in the lung. It therefore takes much greater exposure to asbestos to produce the level of scarring that results in asbestosis than it does to produce mesothelioma, which is not as dependent on repeated exposure; once a cancer forms, it is there and does not get worse from further exposure. Lung cancer, she added, has multiple causes, such as smoking, whereas mesothelioma is caused predominantly by asbestos. Her conclusion was that even a low exposure to asbestos can cause mesothelioma. Citing a number of national and international studies, including those from the World Health Organization, the Environmental Protection Agency, OSHA, and the National Cancer Institute, Dr. Welch stated that all forms of asbestos, including the chrysotile in brake linings, can create a risk of getting mesothelioma. In direct contrast to the view of Ford, she stated, based on those epidemiological studies, that “there is no question . . . that all forms of asbestos cause lung cancer and mesothelioma.” When asked more specifically about epidemiological studies limited to persons working on brake linings getting mesothelioma, she said that, because mesothelioma is such a relatively rare disease (less than 2,800 cases of mesothelioma in the U.S. each year compared with nearly 200,000 annual cases of lung cancer) and because not all mechanics work on brakes, it - 8 - was difficult to do a specific job-related epidemiological study, and that, in such instances, it is appropriate to look at case-control studies. Such studies, she said, have shown a connection between working on brakes and mesothelioma. The part of Dr. Welch’s opinion most directly challenged by Ford, and found useless by the Court of Special Appeals, came in response to a hypothetical question. She was asked to assume that (1) Mr. Dixon performed approximately two brake inspections or replacements a week, mostly on Ford vehicles, from the early 1960s through 1975, (2) during that period, Ford brake systems contained asbestos, (3) Mr. Dixon’s work involved removing brake drums, cleaning the drums and, when needed, replacing the brake shoes, (4) he used compressed air to clean the brake drums and occasionally sanded or filed new brake shoes, which created visible dust in the air, (5) dust got on his clothing and body, (6) he did not shower before going home and wore his clothes home, (7) Ms. Dixon was a bystander to and occasionally assisted Mr. Dixon when he worked on family cars at home, (8) Ms. Dixon did the family laundry, which included shaking out Mr. Dixon’s dirty work clothes, and (9) Ms. Dixon lived in the home the entire period and developed malignant pleural mesothelioma. Based on those assumptions, Dr. Welch stated that Ms. Dixon would have been exposed to asbestos from Mr. Dixon’s work on cars and that such exposure was a cause of her mesothelioma. She was then asked to assume that Ms. Dixon also worked with or around drywall joint compound that contained asbestos and that she was also exposed to - 9 - asbestos from that compound. On those further assumptions, Dr. Welch still was of the belief that Mr. Dixon’s work with Ford brake systems was a cause of the mesothelioma because “every exposure to asbestos is a substantial contributing cause and so brake exposure would be a substantial cause even if she had other exposures.” She added, somewhat more particularly, that “take-home exposures that a person has during their lifetime [are] a substantial contributing factor to the development of an asbestos-related disease if one occurs.” That was because “[e]very increasing dose increases the likelihood of getting it [and] that additional doses decrease the time it takes to get the disease as exposure goes up.” Focusing on Dr. Welch’s statement that “every exposure to asbestos is a substantial contributing cause,” Ford insists that the trial court erred in not subjecting her conclusion to a Frye/Reed examination which, in its view, would have shown non-acceptance of that conclusion by the relevant scientific community. As a fallback, it urges acceptance of the Court of Special Appeals view that Dr. Welch’s opinion simply was not helpful to the jury because it “conflated” scientific causation and legal causation and should have been excluded for that reason. The major fallacy in Ford’s contention that a Frye/Reed analysis is required is that it looks only to the “every exposure to asbestos is a substantial contributing cause” statement and largely ignores the other parts of her testimony that provide a context to that one statement. In Montgomery Mutual v. Chesson, 399 Md. 314, 326, 923 A.2d 939, - 10 - (2007), we confirmed that the general test for determining whether to allow expert testimony is set forth in Md. Rule 5-702 – that expert testimony, in the form of an opinion or otherwise, may be admitted if the court determines that the evidence will assist the trier of fact to understand the evidence or determine a fact in issue and that, in making that determination, the court shall determine whether the witness is qualified as an expert, the appropriateness of the expert testimony on the particular subject, and whether a sufficient factual basis exists to support the expert testimony. A Frye/Reed analysis is required, as a prerequisite to the application of Rule 5-702, only when the proposed expert testimony involves a “novel scientific method,” in which event there must be some assurance that the novel method has gained general acceptance within the relevant scientific community and is not just the view of a dissident minority. We may take judicial notice from our own decisions that the scientific community accepts the proposition that exposure to asbestos may cause mesothelioma. That is not a novel scientific principle. More than 20 years ago, in Eagle-Picher v. Balbos, 326 Md. 179, 194, n.7, 604 A.2d 445, 452, n.7 (1992), based on evidence in the case, we flatly rejected the assertion that mesothelioma cannot be caused by exposure to chrysotile asbestos.7 Thus, 7 In considering Eagle-Picher’s argument that there was insufficient knowledge prior to 1944 of the health hazards of exposure to asbestos to require warnings, we observed in the cited footnote: “Eagle would have us further limit the analysis to chrysotile asbestos. Eagle argues that its products contain only chrysotile asbestos and that mesothelioma cannot be caused by that type of asbestos. This argument ignores conflicting evidence as to both of its underpinnings. The argument - 11 - Dr. Welch’s opinion that exposure to chrysotile asbestos in Ford brakes may cause mesothelioma also is not a novel scientific principle. We determined in Balbos that the governing standard for liability in an asbestos case was that stated in § 431 of the Restatement (Second) of Torts – that an actor’s negligent conduct is a legal cause of harm if (1) its conduct is a “substantial factor” in bringing about the harm, and (2) there is no rule of law relieving the actor from liability. We concluded as well that, in determining whether the conduct qualifies as a substantial factor, the court must consider, among other things, the nature of the product, the frequency of its use, the proximity, in distance and time, of a plaintiff to the use of the product, and the regularity of the exposure of that plaintiff to the use of the product. Balbos, 326 Md. at 210, 604 A.2d at 460. In Scapa v. Saville, 418 Md. 496, 503, 16 A.3d 159, 163 (2011) we confirmed that the Balbos “frequency, regularity, and proximity” test remains “the common law evidentiary standard used for establishing substantial-factor causation in negligence cases alleging asbestos exposure.” The question is whether the evidence, viewed at the appellate level in a light most favorable to the prevailing party at trial, suffices to meet that test. In Scapa, we held that evidence that the plaintiff, Mr. Saville, regularly handled Scapa’s asbestos-containing product on a daily basis for at least one year was legally also ignores that the jury could have found that the expert on whose testimony the argument rests had been substantially impeached.” - 12 - sufficient to create a jury question on proximate cause. Id. at 505, 16 A.3d at 164. As noted, the evidence in this case was that Mr. Dixon worked on Ford brakes, on average, twice a week, 10 months a year, for 13 years, and that Ms. Dixon dealt with the dust-laden clothes and the ubiquitous asbestos fibers on most of those occasions. Even acknowledging that Mr. Dixon’s work was part-time evening work, that translates into his bringing home asbestos-laden dust from Ford brakes on more than 1,000 days, which, in terms of Ms. Dixon’s exposure to that dust, is at least on a par with Mr. Saville’s exposure in terms of frequency, regularity, and proximity. Dr. Welch’s ultimate opinion was based on that evidence and more – not just the raw number of occasions that the dust was brought into the home twice a week over a 13- year period, but as well on evidence that, because the asbestos fibers brought in on each occasion remained in the home for a considerable period of time, the exposure was continuous and cumulative in effect. With that background and context, we are unwilling to conclude that Dr. Welch’s opinion that each exposure increased the likelihood of contracting mesothelioma and thus constituted a substantial contributing factor involved a novel scientific theory not generally accepted in the scientific community. Her opinion was not in the context of one or two incidental exposures to Ford brakes. In contending that Dr. Welch’s one statement is not generally accepted in the scientific community, Ford cites a number of out-of-State cases, some of which, on examination, are distinguishable in a number of respects. Smith v. Ford Motor Co., 2013 - 13 - U.S. Dist. LEXIS 7861 (D. Utah 2013), for example, is an unreported U. S. District Court opinion in which the judge concluded that an “every exposure” opinion was inadmissible under Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed.2d 469 (1993) when the evidence showed that the plaintiff was exposed to Ford brakes only seven times 45 years before the suit was filed. A somewhat similar circumstance existed in Butler v. Union Carbide Corporation, 712 S.E.2d 537 (Ga. App. 2011), an intermediate appellate court ruling affirming the disallowance, under Daubert, of an “every exposure” opinion, when the evidence showed that less than one percent of the product to which the plaintiff may have been exposed was that of the defendant Union Carbide. The closest case cited, at least facially, is Betz v. Pneumo Abex LLC, 44 A.3d 27 (Pa. 2012), in which the court sustained the decision of the trial judge (1) to conduct a Frye examination with respect to an “every exposure” opinion, and (2) to disallow the opinion as inconsistent with a “substantial factor” analysis. That case, too, though the court’s opinion is a thorough one, is distinguishable. The Pennsylvania Supreme Court took the case as a test case, from among others then pending, to examine the “every exposure” theory in a global context, without regard, it seems, to any particular facts. The court made that clear in rejecting the plaintiff’s urging that the case was “not a case of de minimis exposure,” noting that “this case was selected among test cases for the anyexposure opinion as a means, in and of itself, to establish substantial-factor causation.” Id. - 14 - at 55 . That is not the context of this case. All we know from the court’s opinion regarding the facts of the Betz case is that the plaintiff worked as an automobile mechanic for 44 years, during which he was exposed to asbestos-containing friction products, such as brake linings, that he eventually contracted mesothelioma, from which he died, and that the lawsuit was against several defendants. There is nothing in the court’s opinion as to how many brake linings he worked with or whose. What was before the court was the proposed expert’s “broad-scale opinion on causation applicable to anyone inhaling a single asbestos fiber above background exposure levels.” Id. at 54 . That kind of opinion, if offered in a case of truly minimal exposure to the defendant’s product, may well raise concerns that would need to be tested under Frye/Reed, but, as we have indicated, that is not what is before us here. Dr. Welch’s opinion was based on evidence of repeated exposures by Ms. Dixon to highlevel doses of asbestos fibers emanating from Ford brakes and must be viewed in that light. Ford fares no better in its reliance on the Court of Special Appeals’ “probabilistic causation” analysis, from which that court concluded that, in order for a trier of fact to find that exposure to a particular asbestos product constitutes a substantial contributing factor, there must not only be evidence of the quantity of the alleged exposure but also “quantitative epidemiological evidence,” and that, lacking that evidence, Dr. Welch’s opinion that Ms. Dixon’s exposure to asbestos from Ford brakes constituted a substantial - 15 - contributing factor could not have been of any help to the jury and was therefore wrongly admitted. We note initially that, despite the court’s attempt in footnote 13 of its opinion to draw a distinction, that view seems directly inconsistent with the court’s pronouncement in ACandS v. Abate, 121 Md. App. 590, 671, 710 A.2d 944, 984 (1998) rejecting that very proposition and stating “[w]e shall not hold that a plaintiff in any asbestos case must present expert testimony as to the amount of respirable asbestos fibers emitted by a particular product.” Even to the extent that philosophers of science might find some underlying merit in the court’s articulation of its “probabilistic causation” analysis, its application of that analysis in reaching its ultimate conclusion improperly viewed the one statement by Dr. Welch that each exposure increased the likelihood of Ms. Dixon contracting the disease and thus was a substantial contributing factor in isolation, detached from the hypotheses on which it was based. As we have pointed out, those hypotheses, which formed a part of Dr. Welch’s opinion and were supported by substantial evidence, took account not only of the frequency of Ms. Dixon’s exposure to asbestos-laden dust from Ford brakes but why that repeated exposure was of high, not low, intensity. Viewed properly in context, the trial court did not abuse its discretion in allowing the testimony. In light of that conclusion, the issues of whether any error by the trial court was harmless and whether judgment should have been entered in favor of Ford are moot. - 16 - CROSS-CLAIMS AGAINST GEORGIA-PACIFIC AND HONEYWELL RESTATED QUESTION (3) As noted, the plaintiffs joined Georgia-Pacific and several other manufacturers as co-defendants and, until shortly before trial, maintained that Ms. Dixon’s exposure to their asbestos-laden products also was a substantial contributing causes of her mesothelioma. Prior to the scheduled trial, however, the plaintiffs settled with those co-defendants and thereafter pursued their case only against Ford. By stipulation, they dismissed all of their claims against Georgia-Pacific. Because Ford had filed cross-claims against those codefendants, however, they remained as defendants in the case, and Ford sought to show that their products were substantial contributing causes of Ms. Dixon’s disease. At the conclusion of the evidence, Ford did not move for judgment against Georgia- Pacific or Honeywell on its cross-claims, perhaps on the theory that such a motion was premature until Ford’s liability to the plaintiffs was established. The issue was submitted to the jury which, as noted, answered “No” to whether Ms. Dixon’s exposure to Georgia- Pacific’s or Honeywell’s product was a substantial contributing factor in causing her mesothelioma. Following rendition of the verdicts, Ford moved for judgment NOV under Rule 2-532 on its cross-claims against those two co-defendants, arguing that the jury’s verdict with respect to them was inconsistent with its finding of liability on the part of Ford and therefore was against the weight of the evidence. Rule 2-532(a) expressly states, however, that “[i]n a jury trial, a party may move for judgment notwithstanding the verdict only if that party made a motion for judgment at the close of all the evidence and only on - 17 - the grounds advanced in support of the earlier motion.” Though recognizing some merit in Ford’s contention that, until Ford’s liability was established, a motion for judgment on those cross-claims would have been premature, the trial court, relying largely on Scapa v. Saville, 190 Md. App. 331, 348-51, 988 A.2d 1059, 1068-70 (2010) concluded that a motion for judgment was indeed a prerequisite to a motion for judgment NOV and denied the JNOV motion for that reason. Nonetheless, exercising its broad discretion under Rule 2-535 to revise an unenrolled judgment, the court struck the judgment in favor of Georgia-Pacific and entered judgment for Ford. It did so for two reasons – because of “the comments during closing arguments,” upon which the court did not elaborate, and because “there was so much evidence, dramatic evidence against Georgia-Pacific.” The court expressed disbelief that a reasonable jury could have found that there was no liability on the part of Georgia-Pacific. It did not have the same view with respect to Honeywell and declined to provide relief with respect to that defendant. Neither side is entirely happy with that result. The plaintiffs complain that the trial court erred in using Rule 2-535 as an “end run” around the clear requirement of Rule 2- 532(a), and Ford complains that the court erred in not providing the same relief with respect to Honeywell. As noted, the Court of Special Appeals did not address those arguments. Although the cross-claim issue became moot under the Court of Special Appeals - 18 - ruling that there was no liability on Ford’s part, in light of our conclusion that the intermediate appellate court was wrong in that respect, it is moot no longer, and, indeed, raises the questions whether (1) a motion for judgment on a cross-claim that is contingent on a finding of liability on the part of the movant is permissible in advance of a finding that the movant is liable, (2) if not, there is an implied exception to the requirement in Rule 2-532(a) that such a motion be filed, and (3) if there is no such implied exception and Rule 2-532(a) would require denial of a motion for JNOV, it is permissible or appropriate for a court to invoke Rule 2-535(a) to circumvent that requirement. Fortunately, in this case, it is not necessary to address those issues, for there is another reason, apparent in the record, to conclude that the trial court erred in effectively reversing the jury’s verdict. As we have observed, notwithstanding the plaintiffs’ dismissal of their claims against Georgia-Pacific, that company remained a defendant with respect to Ford’s crossclaim, and every effort was made by Ford to establish that the Georgia-Pacific product was at least a, if not the, substantial contributing cause of Ms. Dixon’s mesothelioma. The critical evidence, however, which focused on (1) the Dixons’ installation of drywall during the construction of their house in 1963-64, (2) construction of an addition to the house in 1971-73, (3) the installation of drywall and textured ceilings during the construction of the apartment building later in 1976-78, and (4) drywall work that Mr. Dixon did for some friends, was not altogether clear. In the three projects on their property, Ms. Dixon did much of the sanding and was exposed to the dust emanating therefrom. - 19 - The Dixons said that, when building the house in the early 1960s, they did not use a pliable compound, such as Ready-Mix, but instead used a powder that they mixed with water. There was no evidence that the powder was manufactured or marketed by Georgia- Pacific or that it contained asbestos; Mr. and Ms. Dixon both testified that they did not know who manufactured the product. They acknowledged using a Georgia-Pacific compound when constructing the addition to the home in the early 1970s, but did not specifically identify the compound as Ready-Mix. They said only that it came in buckets that had the Georgia-Pacific name or the letters GP on them. That was the case as well when building the apartments later in 1976-78. Until 1977, Georgia-Pacific marketed a Ready-Mix compound that contained asbestos, and it is possible that the Dixons used that product when they constructed the addition to their home and when they built the apartment building. Mr. and Ms. Dixon both acknowledged that they used a Georgia-Pacific product, although neither identified it as Ready-Mix. Beginning in 1974, however, Georgia-Pacific marketed a Ready-Mix compound that did not contain asbestos, and it is also possible that the Dixons used that product instead, at least when constructing the apartments. In short, there was no direct evidence that the compound they used in any of the projects was asbestos-laden Ready- Mix, although an inference to that effect was certainly permissible. During closing argument to the jury, the plaintiffs’ attorney spoke briefly about the culpability of Georgia-Pacific. He said that, until about a month before trial, he thought he - 20 - could prove Ms. Dixon’s exposure to Georgia-Pacific’s joint compound, but that, after taking the deposition of a Georgia-Pacific witness, he concluded that he would be unable to establish that exposure. Ford objected to those statements and moved for a mistrial. The court denied the motion and instead gave a curative instruction that the attorney’s statements were improper and should be disregarded. Clearly, at that point, the court was convinced that a mistrial was not called for and that the curative instruction sufficed. In his closing argument, Ford’s attorney mentioned Georgia-Pacific only in passing, noting that there was evidence that the drywall compound used by the Dixons was made by Georgia-Pacific and that asbestos was in the compound “during certain years.” A trial circuit court’s discretion under Rule 2-535(a) to revise an unenrolled judgment is broad. Although in several cases, our predecessors have referred to it as “unrestricted,” in Southern Management v. Taha, 378 Md. 461, 495, 836 A.2d 627, 646 (2003), we observed that, because the exercise of the trial court’s discretion is subject to appellate review, it is not truly unrestricted but simply broad. That is a more accurate description. The purpose of allowing that discretion, which informs any limits to it, is “to ensure that technicality does not triumph over justice.” Id. 378 Md. 494, 836 A.2d 646. The purpose is not to allow the trial judge to upset jury verdicts that he or she simply does not agree with, for, if that were the standard, there would be little left to the right of jury trial in civil cases guaranteed under Articles 5 and 23 of the Maryland Declaration of Rights. - 21 - On this record, we believe that the trial court abused its discretion in setting aside the jury’s verdict on the cross-claim against Georgia-Pacific. There was no direct evidence that Ms. Dixon was ever exposed to asbestos emanating from a Georgia-Pacific product. At best, an inference could fairly have been drawn that she was, which made the issue one for the jury to resolve. The court carefully and properly instructed the jury on the standards it was to apply in weighing the evidence, explaining that the jury was the sole judge of whether testimony should be believed and of the weight of the evidence and that the party asserting a cross-claim had the burden of proving it. The court told the jury that, in determining whether the party with the burden of proof met that burden, it should consider the quality of all of the evidence and that, if the evidence was evenly divided on an issue, the finding should be against the party having the burden of proof. There is no indication that, with respect to Ford’s cross-claim, the jury did anything other than what it was instructed to do and what was properly within its province to do. There was no triumph of technicality over justice. The verdict was not against the weight of the evidence but simply reflected the jury’s belief that evidence of Ms. Dixon’s exposure to asbestos from a Georgia-Pacific product was insufficient to show by a preponderance that such exposure was a substantial contributing factor in causing her mesothelioma. That conclusion renders the question of whether the court should have stricken the judgment for Honeywell moot. - 22 - CAP ON AWARD OF NON-ECONOMIC DAMAGES – RESTATED QUESTION (4) Maryland Code, § 11-108(b)(2) of the Cts. & Jud. Proc. Article limits the damages for non-economic loss in a personal injury or wrongful death action to a fixed upset amount – $500,000 for causes of action arising on or after October 1, 1994, that amount to increase by $15,000 on October 1 of each year after 1994. Section 11-108(b)(3)(ii) provides that, in a wrongful death action in which there are two or more claimants, an award for non-economic damages may not exceed 150% of the limitation established under § 11-108(b)(2), regardless of the number of claimants or beneficiaries who share in the award. As noted, applying that statute, the court reduced the wrongful death award to Mr. Dixon from $5,000,000 to $426,000 and the awards to each of the four daughters from $1,500,000 to $159,750. There is no dispute that, under the statute in effect when this cause of action arose, the reductions are numerically correct. The plaintiffs’ claim is that § 11-108(b)(3)(ii) violates the Equal Protection Clause of the 14 Amendment and Articles th 5, 19, 23, and 24 of the Maryland Declaration of Rights and that there should have been no reductions in the jury’s verdicts. To provide some context to the plaintiffs’ argument, it is helpful to review the evolution of § 11-108. It was first enacted in 1986 (1986 Md. Laws, ch. 639). As introduced, the bill was limited to personal injury claims arising from medical malpractice but, during the session, it was amended to apply to all personal injury actions. In Murphy - 23 - v. Edmonds, 325 Md. 342, 368, 601 A.2d 102, 114 (1992), we observed that the bill was the product of a legislatively perceived crisis concerning the availability and cost of liability insurance, especially for persons engaged in hazardous activities or who were health care providers. The legislative perception was derived from the reports of two gubernatorial task forces -- one concerned with liability insurance generally and the other with medical malpractice insurance in particular. Both reports recommended a cap on non-economic damages of $250,000. The General Assembly opted for a cap of $350,000. The 1986 law was a simple one. It defined “non-economic damages,” it provided that, in any action for personal injury arising on or after July 1, 1986, an award for noneconomic damages may not exceed $350,000, and it required the trier of fact to itemize an award for personal injury to reflect the amounts intended for past medical expenses, future medical expenses, past loss of earnings, future loss of earnings, non-economic damages, and other damages. It said nothing about the procedure for applying the cap on noneconomic damages – whether the jury was to incorporate the cap into its verdict as part of its itemization or the court was to apply the cap post-verdict, and it said nothing regarding whether the cap applied to wrongful death actions. The first reported challenge to the cap came in what began as a product liability personal injury action in the U.S. District Court for the District of Maryland. It was not a death case. When, prior to trial, the statutory cap on non-economic damages was raised, the plaintiffs added a count for declaratory judgment seeking a determination that the cap - 24 - violated the right of jury trial guaranteed by the 7 Amendment to the th U.S. Constitution and Article 23 of the Maryland Declaration of Rights. In an opinion by Judge Niemeyer, the court concluded that the statute did not infringe on the right of jury trial. He reasoned that (1) “a legislature adopting a prospective rule of law that limits all claims for pain and suffering in all cases is not acting as a fact finder in a legal controversy,” and (2) the power of the legislature to define or even abolish complete causes of action necessarily included the power to define what damages may be recovered by a litigant, especially with respect to non-economic damages, which are often speculative and are not guided by any economic standard of measurement. Franklin v. Mazda Motor Corporation, 704 F. Supp. 1325, 1331-32 (D. Md. 1989). In considering some of the wording of the statute, Judge Niemeyer noted the requirement that the trier of fact itemize its award, so that non-economic damages can be identified for purposes of the cap, and concluded that the jury could not properly discharge that function without being instructed in advance about the limitation and that there was “no logical reason to keep the jury in ignorance of the cap.” Id at 1329. Shortly on the heels of Franklin, the Court of Special Appeals decided Potomac Electric v. Smith, 79 Md. App. 591, 558 A.2d 768 (1989), a survivor’s and wrongful death action arising from the death of a child who came into contact with a downed power line. A substantial jury award of non-economic damages was reduced in accordance with the 1986 version of the statute. On appeal, the plaintiffs claimed that (1) the cap did not apply - 25 - to wrongful death actions because such an action was not one for personal injury, and (2) if it did apply, it violated the right of jury trial, Article 19 of the Declaration of Rights, due process, and equal protection. The intermediate appellate court concluded that the legislative intent was for the cap to apply to wrongful death actions but, because the plaintiffs had agreed to a lump sum award, it was not necessary to decide whether the cap applied to the amount allocated to each claimant individually. Citing Judge Niemeyer’s opinion in Franklin, the court held that the cap did not infringe on the right of jury trial and did not violate Art. 19, due process, or, applying the rational basis test, equal protection. The Franklin decision was filed in February 1989, during the pendency of the 1989 session of the General Assembly. Obviously concerned about the court’s requirement that the jury be informed of the cap, the Legislature amended § 11-108 to provide that the jury not be informed of the limitation and that, if the jury awards an amount for non-economic damages that exceeds the limitation, the court shall reduce the amount to conform with the limitation. That amendment took effect July 1, 1989 and was made applicable to jury trials commenced after that date. See 1989 Md. Laws, ch. 629. The next significant event in this historical chain was Bartucco v. Wright, 746 F. Supp. 604 (D.Md. 1990), a wrongful death action filed by the parents of a child killed in an automobile accident. The jury awarded damages of $300,000 to each parent, and the defendants moved to reduce the awards, arguing that the cap was on the aggregate award, - 26 - not on the award to each parent. Synchronizing § 11-108 with the wrongful death statute, the District Court, in an opinion by Judge Garbis, rejected that approach. Relying on the Court of Special Appeals decision in Potomac Electric, the court concluded that the cap applied to wrongful death actions but that, in such actions, it applied to each claimant individually and not the aggregate award. Aware of the recent legislative direction that the jury not be told of the limitation, the court held that “[a]bsent a separate damage cap for each plaintiff, it would be difficult to square the need for the jury to consider each plaintiff separately in determining his or her appropriate recovery with the prohibition against informing the jury of the cap.” Id. at 608. This Court’s first pronouncements regarding the cap came two years later in Murphy v. Edmonds, supra, 325 Md. 342, 601 A.2d 102, which was an ordinary personal injury action not involving death. Applying a heightened scrutiny test, the trial judge found that the cap violated equal protection and declined to reduce a $510,000 award for non-economic damages. The Court of Special Appeals disagreed with the trial court’s reasoning, held that the cap was Constitutional, and directed that the award for noneconomic damages be reduced to $350,000. This Court affirmed the judgment of the intermediate appellate court. We agreed with the Court of Special Appeals that the rational basis test was the appropriate one to apply and that § 11-108 satisfied that test. We next concluded that § 11-108 “fully preserves the right of having a jury resolve the factual issues with regard to - 27 - the amount of noneconomic damages,” noting that “[n]either the $350,000 limit on recovery nor the provision that the jury not be informed of the limit, interferes with the jury’s proper role and its ability to resolve the factual issues which are pertinent to the cause of action.” Id. at 373, 601 A.2d at 117. Finally, although not raised in the briefs, the Court also concluded that the cap did not amount to a restriction on access to the courts and therefore did not contravene Article 19 of the Declaration of Rights. See also Oaks v. Connors, 339 Md. 24, 660 A.2d 423 (1995), confirming Murphy and holding that the individual cap applicable in a non-death personal injury action included damages awarded on a loss of consortium claim; there was not a separate cap for that claim. A year later, in United States v. Streidel, 329 Md. 533, 620 A.2d 905 (1993), we rejected the views of the U.S. District Court in Franklin and the Court of Special Appeals in Potomac Electric and held that the General Assembly did not intend for the cap to apply to awards in wrongful death actions. That ruling had a very short shelf life. In its next session, the General Assembly amended § 11-108 to make clear that, from and after October 1, 1994, the cap applied to non-economic damages awarded in wrongful death actions. See 1994 Md. Laws, ch. 477. It was in that 1994 law that the Legislature generated the issue now before us, by drawing a distinction between wrongful death actions and other personal injury cases with respect to the application of the cap. It mandated that, in personal injury actions generally, the cap on non-economic damages applied to “each direct victim of tortious conduct and - 28 - all persons who claim injury through that victim,” but “in a wrongful death action in which there are two or more claimants or beneficiaries, an award for noneconomic damages may not exceed 150% of the limitation . . . regardless of the number of claimants or beneficiaries who share in the award.” The last relevant event came three years later, when the Legislature defined and drew a distinction between primary and secondary claimants in wrongful death actions for purposes of the cap and established a clear preference for primary claimants.8 If the amount of non-economic damages for primary claimants equals or exceeds the applicable cap, the court must (1) reduce each individual award of a primary claimant proportionately to the total award of all primary claimants so that the total award to all claimants or beneficiaries conforms to the 150% limitation, and (2) reduce each award to a secondary claimant to zero. If the award to primary claimants does not exceed the 150% limitation, the court must enter an award to them as determined by the jury and reduce each individual award of a secondary claimant proportionately to the total of all secondary claimants so that the total award to all claimants or beneficiaries conforms to the limitation. We are not concerned with that statute in this appeal. Although citing some Federal and State court rulings in other States striking down a 8 A primary claimant is one who is suing because of the death of a spouse, minor child, parent of a minor child, or certain unmarried adult children. A secondary claimant is one suing for the death of a child or parent not within the definition of primary claimant. See § 11-108(a)(3) and (4) and Cts. & Jud. Proc. Art. §§ 3-904(d) and (e). - 29 - cap on non-economic damages as being in violation of those States’ Constitutions, the plaintiffs, presumably with some reluctance, accept this Court’s determination in Murphy and Oaks that the cap on individual non-economic damage awards provided for in § 11- 108(b)(2) does not infringe on the right to jury trial or, using the rational basis test, on the right to equal protection of the law. That kind of cap, they note, was based on studies showing that $250,000 would cover most claims for non-economic damages, and still allows the jury to focus on the loss suffered by each individual claimant. What they complain about, and observe that this Court has never addressed, is the effect of creating a lump sum cap without regard to how many claimants there are and not informing the jury of that cap. They note that there were no studies attesting to the reasonableness of that kind of cap, which effectively requires the court to redistribute the jury’s awards and thus ignores the jury’s perception of the actual degree of loss suffered by each of the individual claimants, which may differ from one to another. They aver that the legal impact of that is to improperly invade the jury’s fact-finding province and to constitute an arbitrary and discriminatory classification. Each individual with identical damages, they urge, must receive an identical recovery.9 As we indicated, there is no dispute between the parties 9 with respect to the numerical calculations used in applying the cap. The jury awarded non-economic damages to the wrongful death claimants in the total amount of $10 million – $4 million (40%) for Mr. Dixon and $1.5 million (15%) for each of the four daughters. The applicable cap under § 11-108(b)(2) to an individual claimant was $710,000. Applying the 150% enhancement under § 11-108(b)(3)(ii) brought to aggregate cap to $1,065,000. The court divided that cap proportionately to the jury awards – 40% (426,000) to Mr. - 30 - Three years ago, in DRD v. Freed, 416 Md. 46, 5 A.3d 45 (2010), we had a similar case, though not a similar argument, before us. DRD involved both a survivor’s action and a wrongful death claim by the parents of a child who drowned in a pool managed by DRD. The trial court granted summary judgment to DRD in the survivor’s action on the ground that there was no direct evidence that the child suffered any pain or suffering in the drowning process but allowed the wrongful death claim to go to the jury. The jury awarded aggregate non-economic damages of $4,006,412 ($2,000,706 to each parent) Applying § 11-108(b)(3)(ii), the trial court reduced the aggregate award to $1,002,500. The Court of Special Appeals reversed the summary judgment entered in the survivor’s action and affirmed the reduction of the wrongful death award. Freed v. D.R.D., 186 Md. App. 477, 974 A.2d 978 (2009). We granted certiorari on both issues and affirmed the judgment of the Court of Special Appeals. In their brief in this Court, the Freeds acknowledged the precedential effect of Murphy and Oaks and did not try to distinguish them. Their argument was that those cases were wrongly decided and should be overturned. There was no discussion in their brief of the issue presented here – the particular impact of the 150% cap when there are multiple wrongful death claimants – and, because that issue was not argued, it was not discussed in our Opinion. See Brief of Respondents/Cross-Petitioners in No. 104, Sept. Term, 2009 (2009 WL 5196414). Dixon and 15% ($159,750) to each daughter. - 31 - We agreed that Murphy and Oaks controlled, and, despite contrary rulings in other States, we saw no reason to overturn them. That sufficed to sustain the application of the 150% cap in that case, and, indeed, was the sole basis for sustaining that cap. What we are asked to do here, in effect, is to reconsider that ultimate ruling on a ground not raised or considered in that case – a new and different basis for examining the Constitutionality of the 1994 amendments to § 11-108. We shall address the argument made by the plaintiffs and not regard it as foreclosed by Freed, but our belief that 10 the 150% cap is not unconstitutional will not change. In deciding to apply a cap in wrongful death actions, the 1994 Legislature was necessarily required to determine how the cap would be applied. In a normal personal injury action based on injuries to more than one person, each plaintiff, whether suing separately or joining with other plaintiffs, represents a separate case. Any judgments are awarded separately, on an individual basis. The plaintiffs do not share in one gross award. That is not the case with a wrongful death action. Only one wrongful death action is permissible with respect to the death of a person. All beneficiaries seeking a recovery are required to join in that action, and one award is made, which is divided among the plaintiffs as directed by the verdict. See Cts. & Jud. Proc. Art. § 3-904 (1989 Repl. Vol. 10 In Crane v. Scribner, 369 Md. 369, 800 A.2d 727 (2002), we also had before us a wrongful death action by multiple claimants in which the 150% cap was applied to reduce the jury’s verdict. The issue there was whether the cap was applicable, not whether it was valid, and we therefore did not consider the Constitutional validity of the reduction. Id. at 375, n. 2, 800 A.2d at 730, n.2. - 32 - and 2006 Repl. Vol.). Unless that approach was to be changed, which the Legislature declined to do, any cap had to take account of it. Three bills were introduced into the 1994 session dealing with the cap on noneconomic damages – SB 283, HB 661, and HB 511. All three provided both for an increase in the cap and its extension to wrongful death actions. Although we are principally concerned with SB 283, which was the one that was enacted, the proceedings on the two House Bills influenced the ultimate text of SB 283. The Department of Legislative Services bill files on all three bills are voluminous. There were many letters and many formal reports on all sides of the issues – whether to impose any cap on wrongful death awards and, if so, what the amount of the cap should be and whether it should be retroactive. As introduced, SB 283 increased the cap from $350,000 to $450,000, subject to the annual increase of $15,000, and provided that, in a wrongful death action, that cap would apply regardless of the number of claimants or beneficiaries who would share in the award. House Bill 661 increased the cap over a three-year period, in increments of $50,000, to $500,000. That aspect was prospective. It also provided, retroactively to causes of action arising on or after June 1,1986 that were not yet adjudicated, that the applicable cap applied as well in wrongful death actions, regardless of the number of claimants. House Bill 511 took a different approach. As introduced, it would have increased the cap incrementally to $750,000 and applied the cap on a per claimant basis in - 33 - both ordinary personal injury actions and wrongful death actions. Following the hearing on the House Bills, in February 1994, several members of the House Judiciary Committee requested the Medical Mutual Liability Insurance Society, which provided medical malpractice insurance to most of the physicians in the State, to provide estimates of the impact of individual caps on insurance premiums. The company responded that, if there was a single cap (as provided for in HB 661), there would be a need for an immediate overall rate increase of 15%. If there were to be two caps, there would be an immediate need for a 30% increase in premiums, and, if there were to be three caps, the immediate increase would need to be 40%. In a separate letter, the company provided statistical support for those predictions. See letters from David Murray, President and Chief Operating Officer of Medical Mutual, to the Chair of the House Judiciary Committee on February 22 and February 28, 1994 in the Department of Legislative Services Bill File for HB 511 (1994). Presumably as a result of that response, HB 511 was amended in Committee to provide a single cap of 200% in multi-claimant wrongful death actions, but neither of the House Bills was enacted. Senate Bill 283 had its hearing in the Judicial Proceedings Committee several weeks after the hearing on the House bills. The Committee was well aware of the two House bills and the correspondence from Medical Mutual regarding the impact of separate caps in wrongful death actions. Not only did some of the same people who testified on the House Bills testify on the Senate Bill, but the letters from Medical Mutual to the Judiciary - 34 - Committee were provided to the Senate Committee as well. See Department of Legislative Services Bill File for SB 283. The Judicial Proceedings Committee kept the individual cap at $450,000 but added amendments (1) to increase the cap in wrongful death actions where there was more than one claimant to 150% of the individual cap, and (2) if the jury verdict exceeded that cap, to require the court to reduce the award proportionately. See Senate Journal (1994) at 1910-11. The bill passed the Senate in that form. The House of Delegates amended the bill to conform with the amended version of HB 511 – to increase the individual cap to $500,000 and the wrongful death cap where there was more than one claimant to 200% of the individual cap. See House Journal (1994) at 2603-05. The Senate refused to concur in the House amendments (Senate Journal at 3015-20), and the House refused to recede from them (House Journal at 3015), so the bill was referred to a Conference Committee, which agreed to an individual cap of $500,000 but otherwise rejected the House amendments and thus kept the wrongful death cap at 150% of the individual cap. House Journal at 3354- 59. Both Houses concurred in the Conference Committee recommendations, and the bill was enacted in that form. This history dispels the plaintiffs’ contention that there was nothing before the Legislature dealing with the effect of a cap on a lump sum wrongful death award, when coupled with the jury’s not being advised of the cap. It is evident that the Legislature was well aware of the various options that had been presented and the pros and cons of each, - 35 - and it reached a compromise. The legislative approach is a rational one that is entirely consistent with the long-standing statutory requirement that all individuals seeking damages for the death of a person must join in one action against the defendant and that the amount recovered is divided among the beneficiaries in shares directed by the verdict. The 150% cap does not intrude on the jury’s right to determine the relative degree of harm suffered by the individual claimants; nor does it create irrational classifications among the claimants. Section 11-108(b)(3)(ii) merely sets a limit on the gross amount of non-economic damages that may be awarded by reason of one’s death which, under the wrongful death law, is then divided proportionately as determined by the jury. That is precisely what was done here. Each daughter, who was awarded 15% of the gross award by the jury, received 15% of the net amount under the cap; the surviving husband received 40% – the percentage the jury determined he should receive. The fashioning of such a cap in wrongful death actions is no more odious or unlawful than the imposition of caps in non-death personal injury actions. We find no violation of equal protection, due process, the right to jury trial, or Art. 19, and thus sustain the reductions made by the trial court. DENIAL OF FORD’S MOTION FOR NEW TRIAL – RESTATED QUESTION (5) Ford complains that the trial court abused its discretion in denying Ford’s motion for new trial because (1) the jury’s verdict holding Ford liable to the plaintiffs was against the weight of the evidence, and (2) that verdict was influenced by improper comments by - 36 - plaintiffs’ attorney during closing argument. This argument need not detain us long. We have discussed in some detail the evidence presented at trial, and we have considered the comments in question and the court’s conclusion that a curative instruction was sufficient. We find no abuse of discretion in the court’s ruling. JUDGMENT OF COURT OF SPECIAL APPEALS REVERSED; CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO AFFIRM THE JUDGMENTS ENTERED IN FAVOR OF PETITIONERS DIXON, ET AL. AGAINST RESPONDENT FORD MOTOR COMPANY AND REVERSE THE JUDGMENT ENTERED IN FAVOR OF RESPONDENT FORD MOTOR COMPANY ON ITS CROSS-CLAIM AGAINST GEORGIA-PACIFIC; COSTS IN THIS COURT AND COURT OF SPECIAL APPEALS TO BE PAID BY RESPONDENT FORD MOTOR COMPANY. - 37 - IN THE COURT OF APPEALS OF MARYLAND No. 82 September Term, 2012 BERNARD DIXON, etc. et al. v. FORD MOTOR COMPANY *Bell, C.J. Harrell Battaglia Greene Barbera McDonald Wilner, Alan M. (Retired, specially assigned), JJ. Dissenting Opinion by Battaglia, J., which Bell, C.J., joins. Filed: July 25, 2013 *Bell, C.J., participated in the hearing of the case, in the conference in regard to its decision and in the adoption of the opinion, but he had retired from the Court prior to the filing of the opinion. I respectfully dissent and would affirm the excellent analysis and decision of the Court of Special Appeals, Dixon v. Ford Motor Company, 206 Md. App. 180, 47 A.3d 1038 (2012).

Potential Defenses in Auto Accidents

Contributory Negligence

Maryland is one of very few states that have this rule. In a nutshell, a victim who is at least 1% or partially at fault can be barred from recovering any damages against the other driver. You are probably thinking that is unfair or harsh, but as it stands that is the law of our state. Therefore, you need to review your case very carefully to ensure you are not vulnerable. Other states apply what is known as comparative negligence where damages are divided up based on the percentage of fault on the part of each party.

Assumption of Risk

If you knew or should have known about a specific risk, say walking on a ice covered parking lot where you could fall on slippery ice,  but decided to give it a shot anyway, you may not be able to recovery damages in your case.

Last Clear Chance

Did the other driver have the last opportunity to avoid the occurrence? If so, even a partially at fault driver can recover against a driver who failed to act when he or she had an opportunity to avoid the occurrence.

Unforeseen Incapacity

Did a sudden medical event such as a heart attack or stroke cause the driver to lose control of his or her vehicle resulting in an accident? He or she may be able to claim the defense of unforeseen incapacity if he had no prior history or notice that this could happen.