Rearend Accidents – Following Driver Negligent Abscent Emergency or Special Conditions

Rear-end Accidents - Following Driver Negligent Absent Emergency or Special Conditions

One of the most common accidents that I see as a Baltimore accident attorney is rear-end collisions. Typically, the first vehicle will start to slow down and the following vehicle fails to realize it causing a collision. Another common circumstance is people taking off at a light or in a traffic jam whereby the following car starts moving faster than the first vehicle resulting in a crash.

Other causes of rear end collision include:

  • Driving Under the Influence. As you can imagine alcohol impacts motor functions and one's ability to judge distances which could result in one following too closely or not slowing down fast enough resulting in a collision.
  • Sudden lane change. Changing lanes and cutting off another vehicle.
  • Weather conditions. The weather impacts roadways in a number of ways including visibilty and traction. Tehrefore, safe speeds in a good weather day could be fatal if there is ice on the road.
  • Vehicle parts fail to work as expect. Brakes can fail without warning and result in numerous accident each year.

Following Driver Negligence

In Maryland and the District of Columbia, unless there is an emergency or unusual road conditions, a driver who strikes another in the rear is negligent. This means that establishing liability is much easier for incidents where the driver of the vehicle that initiates the crash was following in the same lane as the forward vehicle. Conflict usually arises when one or both parties allege lane changes immediately prior to the incident. For example, the following driver may claim that the forward vehicle suddenly merged onto his lane leaving him with little time to slow down and avoid a collision.

Emergency and Special Conditions

The test is whether the condition is something that the following driver could not have foreseen. In addition, the driver shows that he or she responded to the existence of the situation is a reasonable manner. Examples: Medical emergency such as a heart attack or a seizure resulting in the driver losing control of the vehicle.

Common Injuries in Rear End Collisions In Maryland

  • Neck and back injuries. As you can imagine, when your car is hit from the rear, your body is thrust back and forth causing strain on the neck and back. Sprains are painful and caould take months to heal. On the other hand, herniated discs may require surgery and take longer to resolve.
  • Face and head injuries. Your face and head are exposed and could be pushed into the airbag or other parts of the vehicle causing injury. Victims may also suffer what is known as a closed-head injury to their brain. This is an injury that occurs from the brain striking the inside of your skull and does not require the head to strike anything within the car.
  • Hands, Shoulders and Legs. Your limbs are likely to hit parts of your vehicle as you absorb the force of impact resulting in lacerations or broken bones.

 Defenses to Rear End Collision Accidents in Maryland

  • Involvement of another Vehicle. If another vehicle struck the following driver pushing him into the forward car then you can be that the following vehicle will allege the cause of the accident was that other vehicle. As a result, plaintiff's should investigate and consider filing all claims against all vehicles involved.
  • Driving in reverse. If the forward driver backs his vehicle into the following vehicle then the following driver can defeat the presumption of liability.
  • Abrupt lane change. If a forward driver suddenly changes lanes or stops abruptly contributing to a crash he is susceptible to two defenses. First, he could be found negligent for not operating his vehicle in a reasonable manner by making sudden movements. Secondly, Maryland is a contributory negligence states which means if the is found to have contributed even as little as 1% toward the cause of the accident then he is barred from recovery. The latter rule mean that a defendant who is 99% negligent does not have to pay.
  • Disabled Vehicle Without Visible Emergency Warnings . If your vehicle is disable you have a duty to warn other drivers by using visible warning signs. Failure to do so could result in a contributory negligence defense if an accident occurs.
  • Malfunctioning brake or tail lights. If the forward vehicle’s brake and/or tail lights are not working so that following drivers are warned of an impending stop or turn then a contributory negligence defense could be raised.
  IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND JEANNE ELLEN ST. LOUIS * Plaintiff * vs. * CIVIL NO. H-00-3530 DONALD WAYNE DAIL and * ALLSTATE INSURANCE COMPANY Defendants * * * * o0o * * * MEMORANDUM AND ORDER In this civil action, plaintiff Jeanne E. St. Louis (“St. Louis”) is seeking to recover damages for personal injuries sustained by her in an automobile accident. Named as defendants in the amended complaint are Donald Wayne Dail (“Dail”) and Allstate Insurance Company (“Allstate”). Diversity jurisdiction exists under 28 U.S.C. § 1332(a). Plaintiff alleges that while stopped and preparing to make a left turn, she was struck in the rear by the vehicle being then driven by defendant Dail. Plaintiff claims that defendant was negligent in the manner in which he operated his vehicle, and she seeks damages for serious and permanent injuries allegedly suffered by her. Plaintiff had a policy of insurance with Allstate. She asserts that defendant’s insurance coverage was minimal, and she seeks a recovery from Allstate under her 2 policy which provided coverage for the liability of an underinsured motorist. Pursuant to Scheduling Orders entered by the Court, the parties have engaged in discovery. Presently pending in the case is a motion for partial summary judgment filed by plaintiff. By way of this motion, plaintiff requests that the Court enter summary judgment in her favor on the issue of liability. In support of her motion, plaintiff has submitted a memorandum of law and exhibits, including excerpts from depositions. Defendant Dail has filed an opposition to plaintiff’s motion for summary judgment, relying on excerpts from the deposition of plaintiff St. Louis taken on August 20, 2001. Defendant Allstate has joined in this opposition. Recently, plaintiff has filed a reply to the opposition of defendant Dail. The Court has now had an opportunity to review the pleadings, memoranda and exhibits. No hearing is necessary for a decision on the pending motion. See Local Rule 105.6. For the reasons stated herein, plaintiff’s motion for partial summary judgment will be granted. I Background Facts On May 30, 2000 at approximately 4:30 p.m., plaintiff St. Louis was traveling eastbound on Maryland Route 22 in Harford County. At the time of the accident, plaintiff’s car was stopped, and she was preparing to make a left turn into her driveway. Her left turn signal was on. Defendant Dail was also 3 traveling eastbound on Route 22 and was immediately behind plaintiff’s vehicle. It was a sunny day. While stopped and waiting for traffic to go by on the other side, plaintiff heard tires squealing behind her. The vehicle being then operated by defendant Dail struck plaintiff’s automobile in the rear and on the right passenger side. Plaintiff’s car spun around, and was propelled into the lane of ongoing traffic where she hit a vehicle coming from the other direction. II Summary Judgment Principles It is well established that a party moving for summary judgment or partial summary judgment bears the burden of showing the absence of any genuine issue of material fact and that she is entitled to judgment or partial summary judgment as a matter of law. Barwick v. Celotex Corp., 736 F.2d 946, 958 (4th Cir. 1984). The movant’s burden may be met by consideration of affidavits, exhibits, depositions and other discovery materials. Id. While the facts and all reasonable inferences drawn therefrom must be viewed in the light most favorable to the party opposing the motion, Ross v. Communications Satellite Corp., 759 F.2d 355, 364 (4th Cir. 1985), when the moving party has carried its burden under Rule 56, F.R.Civ.P., her opponent must do more than simply show that there is some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “‘A mere 4 scintilla of evidence is not enough to create a fact issue; there must be evidence on which a jury might rely.’” Barwick, 736 F.2d at 958-59 (quoting Seago v. North Carolina Theaters, Inc., 42 F.R.D. 627k, 640 (E.D.N.C. 1966), aff’d, 388 F.2d 987 (4th Cir. 1967), cert. denied, 390 U.S. 959 (1968)). Moreover, only disputed issues of material fact, determined by reference to the applicable substantive law, will preclude the entry of summary judgment. “Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Fourth Circuit has stated that, with regard to motions for summary judgment, the district courts have “an affirmative obligation. . .to prevent ‘factually unsupported claims and defenses’ from proceeding to trial.” Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987) (quoting Citrate, 477 U.S. at 323- 24). Applying these principles to the facts of record here, this Court has concluded that plaintiff’s motion for partial summary judgment must be granted. Judgment as to liability will be entered in favor of plaintiff St. Louis. III Discussion There is no dispute in this case as to the material facts. Proceeding in an easterly direction on Maryland Route 22, plaintiff had stopped her vehicle in front of her house to make a left turn into her driveway. She had been stopped for at least thirty seconds to a minute before she was struck. Her 5 left turn signal was on. Plaintiff was waiting for traffic to go by on either side so that she could make a left turn into her driveway. Defendant Dail was proceeding in his car in the same easterly direction and was immediately behind plaintiff Dail. He struck plaintiff’s vehicle in the rear on the passenger side and forced it into the car being then driven by Gary B. Williams (“Williams”) in a westerly direction on Route 22. In opposing plaintiff’s motion, defendant contends that the issue of negligence is in dispute and should be submitted to the jury at a trial. The Court must disagree. Defendant does not challenge evidence of record establishing that plaintiff’s vehicle was stopped for some thirty seconds to a minute, that her left turn signal was on, that defendant was following her, and that he struck her in the rear, forcing her into the Williams vehicle. In responding to an interrogatory served on him by counsel for plaintiff, defendant Dail stated that before the accident he had been watching in his rear view mirror a vehicle which was following him, and that, after glancing in his rear view mirror, he looked back at the road in front of him and suddenly saw plaintiff’s car stopped in front of him. Although defendant slammed on his brakes and swerved to the right, he could not avoid plaintiff’s stopped vehicle. The general rule has been established in Maryland that every automobile driver must exercise toward other drivers on the highways that degree of care which a person of ordinary prudence would exercise under similar circumstances. Brehm v. Lorenz, 6 206 Md. 500, 505 (1955). Thus, it is the duty of the rear driver to keep a safe distance between vehicles and to keep his machine well in hand so as to avoid doing injury to the machine ahead, so long as the driver in front is proceeding in accordance with his or her rights. Id. The duty of the rear driver not to hit the car in front of him “was clearly expressed by Brehem . . .” Teufel v. O’Dell, 123 Md.App. 51, 55 (1998). Ordinarily, as it was in Brehm, the question as to which of the drivers involved in a rear-end collision neglected to use due care is for the jury to decide. Altenburg v. Sears, 249 Md. 298, 304 (1968). However, in cases where it is clear that reasonable minds would not differ with regard to the facts, the question of negligence passes from the realm of fact to that of law. Id. The question presented in the appeal in Altenburg arose out of the rear-end collision of an ambulance with an automobile that was stopped at a traffic signal. The Court of Appeals determined that the ambulance driver was under the circumstances negligent as a matter of law. Similarly, in Nugent v. Curry, 908 F.Supp. 309 (D. Md. 1995), Judge Kaufman of this Court granted the plaintiff’s motion for partial summary judgment as to liability in a rearend collision case. Plaintiff Nugent had been stopped for a red traffic light when the vehicle immediately behind her driven by defendant Curry was struck by a vehicle driven by defendant Morehead. The force of that collision caused Curry’s vehicle to collide with Nugent’s vehicle. Id. at 310-11. In his ruling, Judge Kaufman relied on Fisher v. Best, 661 A.2d 1095, 1098-99 7 (D.C. 1995), which held that in the absence of emergency or unusual conditions, the following driver is negligent if he collides with the forward vehicle. Although the Nugent case was decided under District of Columbia law, Judge Kaufman concluded that the outcome would be similar under Maryland law. Id. at 313 n.11. Facts of record in this case establish as a matter of law that defendant Dail was negligent in the operation of his vehicle on the day in question. Where, as here, there was nothing to obstruct the vision of Dail, it is negligence for him not to see what was clearly visible. Colmes v. Jos. M. Zamoiski Co., 16 Md. App. 76, 82 (1972) (quoting from Dashiell v. Moore, 177 Md. 657, 666 (1940)). In his opposition to the pending motion, defendant Dail notes that plaintiff St. Louis testified in her deposition that she heard defendant say that the sun was blinding him at the time of the accident. However, in his version of the event contained in his answer to plaintiff’s Interrogatory No. 12, defendant does not mention that the sun was in any way the cause of the accident. Rather, he stated in that answer that he had been watching in his rear view mirror a vehicle following him and that, when he looked back at the road in front of him after glancing in the rear view mirror, he saw plaintiff’s car for the first time and could not avoid hitting “the stopped vehicle.” It is apparent from this statement that defendant’s inattention was the cause of the accident and constitutes negligence as a matter of law. That Dail may have been concerned about a 8 vehicle following him does not relieve him of his duty to exercise due care in avoiding a collision with the vehicle in front of him. The facts of record further establish that defendant’s negligence was the proximate cause of injuries sustained by plaintiff St. Louis. Summary judgment as to liability will therefore be entered in favor of plaintiff, and a jury trial will be scheduled for a determination of the damages to be awarded to plaintiff for the personal injuries sustained by her. For the reasons stated, it is this ______ day of December, 2001 by the United States District Court for the District of Maryland, ORDERED: 1. That plaintiff’s motion for partial summary judgment is hereby granted; 2. That judgment as to liability is hereby entered in favor of plaintiff St. Louis against defendant Dail; and 3. That a final pretrial conference is hereby scheduled in this case for Friday, January 18, 2002 at 4:00 p.m. in chambers. Senior United States District Judge

Discovery of Defendant’s Statements at the Scene of the Accident

Discovery of Defendant's Statements at the Scene of the Accident

Plaintiff's can obtain defendant's statements at the scene of the accident even when Defendant claims that is is attorney work product if he or she can show that: 1. Substantial need for the information 2. Plaintiff cannot obtain the same information elsewhere without incurring a substantial burden 3. The information involves a fact central to the manner in which the accident occurred, 4.  The Plaintiff was unable to undertake his own investigation at the scene due to injuries or other incapacity     IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND E WILLIAM COOGAN, JR., et al. : Plaintiffs : vs. Civil Action No. S-99-3500 : CORNET TRANSPORTATION CO., INC., et al. : Defendants ORDER On August 23, 2000, this case was referred to the undersigned for resolution of all discovery disputes (Paper No. 25). Pending before the Court is Plaintiffs’ Fourth Motion to Compel Discovery (Paper No. 35). I have considered the parties’ submissions, and no hearing is necessary. See D.MD. R. 105.6. I note first that Plaintiffs have again failed to comply with a Local Rule applicable to motions to compel. The Court previously denied Plaintiffs’ Second Motion to Compel Disclosure and Discovery because they failed to comply with Local Rule 104.7. This time, Plaintiffs have complied with Local Rule 104.7 but have failed to comply with Local Rule 104.8, which requires that the parties exchange their motion to compel, opposition memorandum, and any reply and then discuss the dispute before filing the papers with the Court. I ordinarily would deny Plaintiffs’ motion without considering the merits because of this deficiency. In this instance, however, I will suspend the requirement of the Local Rule and consider Plaintiffs’ motion to promote the Court’s interest in judicial efficiency. My decision to do so should not be construed as excusing Plaintiffs’ repeated failure to follow the procedures mandated by this Court in its Local Rules. 1Plaintiffs’ proposed order includes a line ordering Defendants to answer Plaintiffs’ interrogatories. Because it appears from the submissions of the parties that Defendants have answered the interrogatories, the Court will disregard this line. 2 This case arose from a motor vehicle collision between a vehicle driven by Plaintiff E. William Coogan and a truck driven by Defendant Namon Lee Walker and allegedly owned by the corporate Defendants. Mr. Walker wrote an account of the accident at the scene. Plaintiffs sought to obtain this statement from Mr. Walker through a request for production of documents. Defendants refused, asserting that it was protected from disclosure by the work product doctrine as codified in Rule 26(b)(3) of the Federal Rules of Civil Procedure. Plaintiffs have asked this Court to compel Defendants to produce Mr. Walker’s statement.1 Rule 26(b)(3) provides in pertinent part that a party may obtain discovery of documents . . . prepared in anticipation of litigation . . . by . . . another party . . . only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party’s case and that the party is unable without undue hardship to obtain the substantial equivalent of the material by other means. FED. R. CIV. P. 26(b)(3). This rule codified the work product doctrine announced in Hickman v. Taylor, 329 U.S. 495 (1947), as it applies to tangible items in civil proceedings. The present dispute turns on whether Mr. Walker’s statement was “prepared in anticipation of litigation” and, if so, whether Plaintiffs have a “substantial need” for the statement and cannot obtain its “substantial equivalent” without “undue hardship.” Assuming (without deciding) that Mr. Walker’s statement was prepared in anticipation of litigation, I hold that Plaintiffs are entitled to the statement because they have a “substantial need” for it and cannot 2In McDougall v. Dunn, 468 F.2d 468 (4th Cir.1972), the source of the foregoing quotation, the plaintiff was severely injured. The Court’s holding that there was a sufficient showing to permit discovery because the plaintiff’s injuries prevent him from investigating the accident immediately does not mean that a plaintiff is entitled to work product only if he was prevented from investigating by injuries. In other words, the fact that severe injuries were sufficient to permit a plaintiff to obtain work product created at the scene does not mean that such injuries are necessary for plaintiff to obtain such work product. 3This practice has been colloquially characterized as “ambulance chasing.” See Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 459 n.16 (1978); id. at 469 (Marshall, J., concurring). 3 obtain its “substantial equivalent.” The Fourth Circuit has recognized the special value of contemporaneous statements. See Goosman v. A. Duie Pyle, Inc., 320 F.2d 45, 50 (4th Cir. 1963) (citation omitted). When considering whether a party has a substantial need for statements taken immediately after an accident, the Fourth Circuit has observed: Statements of either the parties or witnesses taken immediately after the accident and involving a material issue in an action arising out of that accident, constitute “unique catalysts in the search for truth” in the judicial process; and where the party seeking the discovery was disabled from making his own investigation at the time, there is sufficient showing under the amended Rule to warrant discovery. National Union Fire Ins. Co. v. Murray Sheet Metal Co., 967 F.2d 980, 985 (4th Cir. 1992) (quoting McDougall v. Dunn, 468 F.2d 468, 474 (4th Cir.1972)). Mr. Walker’s statement, made on the day of the accident, captured his immediate perceptions of the accident, uninfluenced by the passage of time or his present status as a defendant. Although there is a dispute over the gravity of Plaintiff’s injuries, I find that it would not be reasonable to expect a layperson, injured when a truck collides with his automobile, to immediately hire an investigator or an attorney to record the contemporaneous statements of the other driver.2 Indeed, a contrary decision would make it necessary for lawyers to approach injured persons in their hospital beds when they are at their most vulnerable, a practice that is widely condemned as unethical.3 4 I therefore hold that Plaintiffs have a “substantial need” for this statement as evidence of what occurred and possibly for impeachment purposes, and that Plaintiffs probably could not have obtained the substantial equivalent of this contemporaneous statement, i.e., another contemporaneous statement, without undue hardship. This result is consistent with the purpose of the work product doctrine. Under the doctrine, fact work product is “clothed with a qualified immunity that is grounded on a proprietary aspect of the work.” Id. at 984. The Fourth Circuit explained that “[t]he immunity for this class of document is little more than an ‘anti-freeloader’ rule designed to prohibit one adverse party from riding to court on the enterprise of another.” Id. This is not a situation in which Defendants have spent time and incurred expense to uncover certain facts and Plaintiffs want to use the discovery process to avoid doing the same work. Defendant Walker, a witness to the accident, simply recorded his observations as required by the other Defendants. This result is also consistent with the purposes of discovery. “A lawsuit, it has been well said, ‘is not a sporting event, and discovery is founded upon the policy that the search for truth should be aided.’” McDougall, 468 F.2d at 473 (citations omitted). Permitting discovery of contemporaneous statements helps all parties to realistically assess what happened, which in turn stimulates the disposition of cases without the need for trials. See id. at 474. 5 For the foregoing reasons, it is hereby ORDERED that Plaintiffs’ Fourth Motion to Compel is GRANTED; and it is FURTHER ORDERED that Defendants shall produce Mr. Walker’s statement within fourteen days of the date of this Order; and it is FURTHER ORDERED that copies of this Order shall be sent to counsel. Dated this _______ day of February, 2001. BY THE COURT: ______________________________ James K. Bredar United States Magistrate Judge

Dangers of Waiting to File your Personal Injury Claim or Lawsuit

Dangers of Waiting to File your Personal Injury Claim or Lawsuit

The biggest risk is the expiration of the Statute of Limitations. As a Baltimore personal injury attorney, there is nothing heartbreaking that finding out that a victim or family suffering significant consequences because of the negligence of a third party may have waited too long to file a claim  If the statute of limitations are determined to have expired a victim is forever barred from pursuing that claim. If you have claim that you would like reviewed call Joseph K. Githuku at 410-849-9529. In Maryland, the general statue of limitations for most negligence action is 3 years from the incident or discovery of the incident. A wrongful death action must be filed within three years after death or descendants risk never recovering any damages for their loss.  As for Medical Malpractice claims, victims must be file their lawsuit either within five years from the date when the injury was committed or three years from the date when the injury was discovered, whichever is earlier.  Secondly, the case could be dismissed with prejudice for lack of prosecution. As the Reed case held, “[p]rejudice from delay can exist that is not amenable to specific delineation.” Reed, 739 A.2d at 648 936 (1999). A delay that is unreasonable and is not supported by a good faith basis may be found to result in prejudice to the potential defendants. As we all now, with time our memories of events are not as sharp and important pieces of evidence may be misplaced or even destroyed. Therefore, failure to act within a reasonable time could jeopardize the defendant's ability to put on a defense which the courts hold is unfair and basis for dismissal of your claim. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND LISA SHARP, et al. * * v. * Case No.: JFM-09-2622 * AMERICAN HONDA MOTOR CO., INC. * * * ***** MEMORANDUM Lisa Sharp and Mathew Barnes (“Plaintiffs”) filed a complaint in Maryland State Circuit Court on December 19, 2008 against American Honda Motor Co. (“Defendant”), alleging several grounds of liability for injuries stemming from an automobile accident. (Mem. in Supp. of Def.’s Mot. to Dismiss (“Def.’s Mem.”) at 1). On October 7, 2009, Defendant removed the case to the United States District Court for the District of Maryland. Now pending before the Court is Defendant’s Motion to Dismiss under Fed. R. Civ. Pro 12(b)(2), (4) and (5), and Maryland Rule 2-507 for insufficient process, insufficient service of process and lack of this Court’s jurisdiction over the Defendant. For the reasons stated below, I will grant the Defendant’s motion. Statement of Facts The following facts are relevant to resolving the pending motion. On December 28, 2005, Plaintiff Lisa Sharp was in an automobile accident in which she allegedly sustained injuries. Three years later, on December 19, 2008, Plaintiffs filed a complaint in the Circuit 2 Court of Maryland for Carroll County. The clerk of the court issued a summons on December 22, 2008. Plaintiffs never served this summons. On April 29, 2009, the Circuit Court issued a notification to the parties of contemplated dismissal stating: Pursuant to Maryland rule 2-507, this proceeding will be dismissed for lack of jurisdiction or prosecution without prejudice, 30 days after service of this notice unless, prior to that time, a written motion showing good cause to defer the entry of an order of dismissal is filed. (Def.’s Mem. at 2.) On May 28, 2009, twenty nine days into the thirty day response period, Plaintiffs filed a Motion to Defer Dismissal. (Id.) On June 23, 2009, the Circuit Court deferred dismissal for ninety days. (Id.) Under Maryland law, a summons becomes dormant sixty days after it is issued. See Maryland Rule 2-113. Therefore, Plaintiffs requested that the court reissue the summons on July 2, 2009. (Id.) On July 7, 2009, a second summons was issued. It became dormant on September 5, 2009. Plaintiffs served the defective summons on Defendant on September 11, 2009. On October 7, 2009, Defendant removed the case to federal court and filed a motion to dismiss. Discussion State law governs the sufficiency and service of process before removal to federal court. See Eccles v. Nat’l Semiconductor Corp., 10 F. Supp. 2d 514, 519 (D. Md. 1998) (citing Nealey v. Transportation Maritima Mexicana, 662 F.2d 1275, 1282 (9th Cir. 1980) (process properly issued and served under state law remains sufficient after removal)). Maryland Rule 2-507 3 provides that “[a]n action against any defendant who has not been served . . . is subject to dismissal as to that defendant at the expiration of 120 days from the issuance of original process directed to that defendant.” A plaintiff can request a deferral of dismissal under Rule 2-507(e) with a showing of good cause for the delay in completing service. “A litigant meets Rule 2- 507(e)’s good cause standard by proving willingness to proceed with the prosecution of the claim, and that the delay is not completely unjustified.” Reed v. Cagan, 739 A.2d 932, 936 (1999). In addition, the trial court should consider whether the non-movant’s delay has “substantially prejudiced the movant.” Id. The decision whether to grant the motion to dismiss is addressed to the Court’s discretion. See Powell v. Gutierrez, 529 A.2d 352, 355 (1987). Guided by the decision of the Maryland Court of Special Appeals in Reed v. Cagan, 739 A.2d 932 (1999), I find dismissal is appropriate for several reasons. First, Plaintiffs have not proffered a reasonable justification for the delay in effecting service. The only reason Plaintiffs suggested is the need to “investigate and work with defendant.” (Pls.’ Response at 3.) This is largely the same reason given by Plaintiffs when seeking a deferral before the Maryland Circuit Court. (Def.’s Mem., Ex. 4.) Furthermore, it is paradoxical for Plaintiffs to claim that they have been unable to serve process upon Defendant because they were in the process of preparing for litigation. Compounding the unreasonableness of their position, Plaintiffs have represented that they have been in communication with Defendant, yet they still have not completed service of process. Second, Plaintiffs’ delay in effect service was significant. The original summons was issued on December 22, 2008, nearly ten months before Plaintiffs made their first, albeit unsuccessful, attempt at service. (Def.’s Mem. at 2.) Acquiescing in this delay would frustrate limitations statutes and policies underlying them by permitting a plaintiff to extend the 4 limitations period by nearly a year beyond its expiration. Plaintiffs filed their complaint on the eve of the expiration of the relevant statutes of limitations. Nearly a year later, service of process upon Defendant has not been effectuated. Finally, the delay has prejudiced Defendant. Plaintiffs note that Defendant had notice of the suit and was aware that Plaintiffs had commenced discovery. (Pls.’ Response at 3.) Defendant requested, and was granted, an opportunity to inspect Plaintiffs’ vehicle. Therefore, Plaintiffs contend “Defendant can claim no prejudice . . . because it continues to have the ability to fully investigate the matter.” (Id.) However, as the court in Reed made clear, “[p]rejudice from delay can exist that is not amenable to specific delineation.” Reed, 739 A.2d at 648. The delay itself gives rise to an inference of prejudice. Over time, recollections fade and evidence becomes more difficult to obtain. A more specific showing of prejudice is not required because Plaintiffs have offered no reasonable explanation for their failure to serve Defendant. See, e.g., Reed, 739 A.2d at 936 (concluding that a higher showing of prejudice would be required when a delay is justified). Ultimately, Plaintiffs do not offer an acceptable reason for the delay in serving Defendant. Plaintiffs admitted “procrastination” in their first motion to defer dismissal on May 28, 2009. However, despite a second chance, they have failed to alter their course of conduct. For the foregoing reasons, I grant Defendant’s Motion to Dismiss. A separate order to that effect is being entered herewith. DATE: 11/19/2009 _/s/___________________ J. Frederick Motz United States District Judge 5 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND LISA SHARP, et al., * * v. * Case No.: JFM-09-2622 * AMERICAN HONDA MOTOR CO., INC. * * * ***** For the reasons stated in the accompanying Memorandum, it is, this 19th day of November, 2009 ORDERED 1. Defendant’s Motion to Dismiss Plaintiffs’ Complaint is granted 2. This action is dismissed __/s/__________________ J. Frederick Motz United States District Judge

Statement of Deceased Witness in a Personal Injury Trial

 

Statement of a Deceased Witness in a Personal Injury Trial 

Whenever you are involved an accident that is not your fault, it is paramount that you quickly identify and obtain contact information for any witnesses. These witnesses are a powerful arsenal should the at-fault party attempt to deny liability. Sometimes, however, the claim may take a long time  to adjudicate. Trials at the circuit court level can be occur months if not a year after the case is filed. This time does not account for the pre-trial period where the case is investigated and settlement negotiations are initiated. Given the time it takes to conclude a case, it is possible that a witness will die or move making it impossible to locate them. This presents a problem if the witness had made a favorable statement at or near the time of the accident that you need the court to consider as part of your case. The admissibility of the witness' statement is covered by the rules of evidence and specifically falls within the hearsay category. Hearsay refers to out of court statements made to establish the truth of the matter. For example, your witness may have said to the office at the scene of the accident that the other other driver failed to stop at a stop sign. This is a statement offered to prove that the other driver ignored the sign and did not bring his vehicle to a halt when he should have. Since this statement was made at the scene of the accident anyone attempting to use it in court without bring the witness to court must prove it fits with the exceptions of hearsay. In order to use this type of statement, when a witness is no longer available, you have to establish that the statement is trustworthy. This process requires looking that the circumstances at the time the statement was made. Easy ones would be statements made under oath at another trial or administrative proceeding. But if you do not have that then you have the following points to consider in making your case why the statement should be admitted into evidence and considered by the judge or jury:
  • did the witness speak voluntarily
  • did the witness speak from personal knowledge;
  • did the witness make a prior inconsistent statement;
  • was the witness recorded
  • was the witness questioned by an opposing party whether it is cross examination at trial or a deposition or settlement talks;
  • how much time after the incident did the witness make the statement
  • are there corroborating facts
  • is there an incentive for the witness to make a particular statement
  • did the witness make the statement with trial in mind
  • was the statement uttered in the spur of the moment
  • how well did the witness remember the facts at the time of the statement
  The more you can prove that the statement was made freely and close to the time of the incident by someone with personal knowledge of the acts the more likely it is you can get it admitted.     IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND SOUTHERN DIVISION MARY GOODE, et al., * Plaintiffs, * v. Civil Action No. AW-08-02965 * UNITED STATES OF AMERICA, * Defendant. ****** MEMORANDUM OPINION Pending before the Court is Defendant’s Motion in Limine (Doc. No. 22) to exclude the statements of the only identified witness to an automobile accident that gives rise to Plaintiffs’ negligence suit under the Federal Tort Claims Act. The Court conducted a pretrial conference on July 26, 2010, and heard arguments from both sides on Defendant’s motion. At the request of Defendant, the Court permitted Defendant to provide supplemental authority in support of its position that the deceased witness’ statements are not admissible under the residual exception to the hearsay rules of the Federal Rules of Evidence, and the Court allowed Plaintiffs to respond to Defendant’s Supplemental Memorandum. The Court holds that the statement the deceased witness gave to the officer who responded to the accident scene is admissible and finds that the witness’ statement to the private investigator retained by Plaintiffs’ counsel is inadmissible. Accordingly, for the reasons articulated below, the Court GRANTS IN PART AND DENIES IN PART, Defendant’s Motion in Limine. FACTS Plaintiffs, Mary Goode and her husband Oscar Goode, bring this personal injury case, pursuant to the Federal Tort Claims Act, arising from an automobile accident between Mary Goode and Lieutenant Commander Vernon Richmond (“Lieutenant Commander Richmond”), who was acting within the scope of his employment as active duty Navy Officer at the time of 2 the accident. Plaintiff Oscar Goode was not involved in the accident. The accident occurred on September 22, 2006. Plaintiff alleges that she was traveling south on Frederick Road in Rockville, Maryland, and was attempting to make a left turn at the intersection to proceed eastbound onto Indianola Drive. Plaintiff also claims that Lieutenant Commander Richmond was traveling north on Frederick Road and was continuing to travel north on this road. Plaintiff contends that she stopped in the middle of the intersection to wait for the northbound traffic to clear so that she could complete a left turn. She alleges that as she attempted to complete her left turn, Lieutenant Commander Richmond proceeded through the intersection after the light turned red. Plaintiff’s car collided into the front driver’s side of Lieutenant Commander Richmond’s car. Plaintiff concedes that she did not see the color of the traffic signal at the time of the collision. Lieutenant Commander Richmond alleges that the light was yellow when he proceeded into the intersection. Both vehicles were towed from the accident scene allegedly because of extensive property damage. The parties dispute the extent to which the accident caused Plaintiff Mary Goode’s physical injuries, largely because she has been in prior automobile accidents. The only identified witness to this accident, Gay Jackson (“Jackson”), made a statement to the responding officer, Corporal Terance Thomas, about the accident. In the Motor Vehicle Accident Report, dated the same day as the accident, Corporal Thomas recorded the witness as stating that Lieutenant Commander Richmond continued through the intersection after the light changed to red and struck Plaintiff’s car while she was making a left turn. Approximately three months later, on December 19, 2006, Jackson provided a handwritten statement about her observations of the accident to a private investigator retained by Plaintiff’s counsel. Jackson died in August 2008, before either party took her deposition and before Defendant could 3 question her. At issue in the Defendant’s Motion in Limine is the admissibility of these two statements in the bench trial. ANALYSIS Neither party has disputed that the witness’ statements are hearsay, as they are out-ofcourt statements Plaintiffs intend to offer to “prove the truth of the matters asserted.” Fed. R. Evid. 801. Hearsay is generally prohibited from being admitted at trial, unless it qualifies as under a hearsay exception. Id. at 802. In its Motion in Limine, Defendant seeks to have the Court rule that the statements of Jackson are inadmissible hearsay not subject to any exception.1 Plaintiffs argue that the statements should be admitted under Federal Rule of Evidence 807, referred to as the residual exception to the hearsay rules (hereinafter “residual exception”), and have not argued that the Court should admit the statements under any other hearsay exception. The residual exception provides that a statement is admissible if: (1) it has “‘circumstantial guarantees of trustworthiness” equivalent to the other hearsay exceptions enumerated in Rules 803 and 804; (2) “the statement is offered as evidence of a material fact”; (3) “the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts”; (4) “the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence”; and (5) the party seeking to admit the evidence has provided the opposing party with sufficient notice in advance of trial of the intention to offer the statement at trial. Fed. R. Evid. 807. Plaintiffs, as the proponents for the admission of the statements, must prove by a preponderance of the evidence 1 Defendant originally argued that the statement to the responding officer was not admissible under Federal Rules of Evidence 803(6), the business records exception, and Rule 803(8), the public records exception because the statement was not made by a person with a duty to report accurately or truthfully. Plaintiffs do not address these two hearsay exceptions in their briefings. In any event, this Court has already found that witness’ statements in police reports are not admissible under the business records and public records hearsay exceptions, unless independent grounds exist for the admissibility of the witness’ statements. Ramrattan v. Burger King Corp., 565 F. Supp. 522 (D. Md. 1987) (holding that a witness to an automobile accident was not acting with a business duty when making a statement to the responding officer, which the officer subsequently recorded in the accident report; thus, the statement was inadmissible under the business records and public records hearsay exceptions). 4 that the statements qualify under a hearsay exception. U.S. v. Alexander, 331 F.3d 116, 122 (D.C. Cir. 2003). There does not appear to be any disagreement that the deceased witness’ statements relate to a material fact in the case, namely the color of the traffic signal at the time of the accident, or that Plaintiffs have provided Defendant with sufficient notice of their intention to offer the statement at trial. Furthermore, as Plaintiffs argue, and Defendant has not disputed, Jackson’s statements are more probative than any other evidence that Plaintiffs can offer on this issue because she is the only identified witness to the accident, and the parties intend to provide conflicting testimony on the color of the traffic signal when Lieutenant Commander Richmond entered the intersection. In addition, the Court is convinced that admission of Jackson’s statement, as the only identified witness, serves the interest of justice because the Court is concerned with resolving cases based on the merits and does not believe that Plaintiffs’ case should be hindered simply because of the unanticipated death of a critical witness. The Court recognizes that without the witness’ statements, Plaintiffs will likely face a significant hurdle in proving their case of negligence against the Defendant. Nonetheless, the Court is also aware of the unfairness of admitting statements of an individual whom Defendant has not had the opportunity to question. Thus, the Court is only willing to admit statements, which the Court is convinced possess the circumstantial guarantees of trustworthiness, as required under the residual exception. However, the parties debate whether the statements satisfy this requirement of Rule 807 of the Federal Rules of Evidence. The Fourth Circuit has instructed that in considering whether the statements satisfy the residual exception to the hearsay rules, litigants and courts should focus on “whether the statement has ‘equivalent circumstantial guarantees of trustworthiness’” and not on how close 5 the statements come to falling under another hearsay exception. United States v. Clarke, 2 F.3d 81, 84 (4th Cir. 1993) (rejecting the “near miss” theory in analyzing the residual exception). As the parties point out, there appears to be no written opinion in this jurisdiction on the admissibility of hearsay under the residual exception in a case similar to the one currently before the Court. However, cases addressing the admissibility of hearsay under the residual exception, but involving different factual contexts, provide some general principles on the application of the residual exception for the Court to consider. First, the residual exception should be permitted “only in exceptional circumstances.” Wooldridge v. World Championship Sports Network, Inc., No. DKC 2007-3482 U.S. Dist. LEXIS 85057, at *13 (D. Md. Sept. 17, 2009). In determining whether a case involves exceptional circumstances sufficient to involve the residual exception, courts have generally held that the exception only applies when a statement meets all five requirements of Rule 807. See United States v. W.B., 452 F.3d 1002, 1006 (8th Cir. 2006) (“Whether such out-of-court statements are the most probative evidence and are necessary to properly develop an issue, however, requires careful scrutiny, because hearsay testimony should only be admitted under Rule 807 in exceptional circumstances.”); United States v. Wright, 363 F.3d 237, 245 (3d Cir. 2004) (“Rule 807 is “to be used only rarely, and in exceptional circumstances” and “appl[ies] only when certain exceptional guarantees of trustworthiness exist and when high degrees of probativeness and necessity are present.”); and Earhart v. Countrywide Bank, FSB, No. 3:08-cv- 238-RJC, WL 2998055, at *3 (W.D.N.C. 2009) (finding hearsay statements inadmissible under the residual exceptional where the plaintiff failed to show how the statements were more probative than other witnesses, lacked the circumstantial guarantees of trustworthiness because the statements were made by unidentified declarants, and because plaintiff failed to provide the 6 defendant with sufficient notice of his intent to use the hearsay statement). The death of a witness does not alone qualify as an exceptional circumstance to admit the witness’ statements under the residual exception. Phillips v. Irvin , No. 05-0131-WS-M, 2007 WL 2156412 (S. D. Ala. 2007). Also, the Fourth Circuit has instructed courts to look at the totality of the circumstances surrounding the making of a statement in deciding whether the statement has sufficient guarantees of trustworthiness and that courts should not consider corroborating evidence when making this determination, at least in cases involving an analysis of the Confrontation Clause of the Sixth Amendment. United States v. Betemit, No. 96-4755, 1997 U.S. App. LEXIS 31844, at *7 (4th Cir. Nov. 12, 1997); see also United States v. Shaw, 69 F.3d 1249, 1253 n.5 (4th Cir. 1995) (“Trustworthiness must emanate from the circumstances of a hearsay statement, not from its consistency with other evidence offered in the case.”); Clarke, 2 F.3d at 84 n.1 (“To the extent that those cases rely upon the presence of other corroborating evidence to support the admissibility of grand jury testimony, they run afoul of the Confrontation Clause analysis of Idaho v. Wright, 497 U.S. 805 (1990).”). However, evidence of corroborating facts may be utilized in determining whether the district court’s decision on the admissibility of the hearsay statements constitutes harmless error. See United States v. Spurlock, No. 96-4739, 1997 WL 545660, at *3 (4th Cir. Sept. 5, 1997); see also Holden v. Hughes, No. 1:97CV185-P, 1998 WL 1818616, at *10 (W.D.N.C. Jan. 22, 1998) (“The existence of corroborating evidence, although relevant to a determination of harmless error, is irrelevant to showing that the statement is trustworthy.” (citing Wright, 497 U.S. at 822-23)). Final, the Fourth Circuit has recognized that U.S. v. Burbank, No. 88-5634, 1990 WL 86147, at *2 (4th Cir. June 12, 1990) (quotations omitted). 7 As Defendant observes, the Fourth Circuit has clearly recognized a few circumstances in which a declarant’s statements generally demonstrate the requisite circumstantial guarantees of trustworthiness equivalent to the other hearsay exceptions, namely, statements made under oath, grand jury testimony, and plea agreements. See United States v. McDuffie, 24 Fed. App’x 167, 172 (4th Cir. 2001) (citations omitted); Shaw, 69 F.3d at 1253-54. Likewise, the Fourth Circuit has permitted statements of children who are alleged victims of abuse in situations other than the three examples discussed above when there are facts which the court can consider in testing the reliability of the statements. See United States v. Geraci, 74 Fed. App’x 241, 244 (4th Cir. 2003) (affirming the district court’s admission of a hearsay statement that a child sex abuse victim made to an adult who provided care to the child under the residual exception, where the statement was made spontaneously while the person was getting the child ready for bed, even though the child was available to testify); United States v. Dunford, 148 F.3d 385, 392-94 (4th Cir. 1998) (finding that a criminal defendant’s teenage daughters’ hearsay statements were admissible under the residual exception where the daughters made consistent statements to different persons, including governmental officials during the arrest of their father, about their father’s violent history, and where physical evidence corroborated a statement that the defendant had hit one of the daughters). Defendant also argues that courts have admitted hearsay statements under the residual exception when another hearsay exception applied. United States v. Workman, 860 F.2d 140, 144 (4th Cir. 1988) (holding that a deceased declarant’s statement to an FBI agent in a tape recorded interview was admissible under the residual exception especially where it also satisfied the requirements of the “statement against interest” exception to the hearsay rules pursuant to Rule 804(b)(3) of the Federal Rules of Evidence). Defendant urges the 8 Court to find that these limited examples are the only situations in which there are sufficient circumstantial guarantees of trustworthiness to admit the statements under the residual exception. Plaintiffs argue that other factors should weigh in the Court’s consideration of whether the circumstances involved in this case demonstrate equivalent circumstantial guarantees of trustworthiness and cite cases from courts in other jurisdictions, which provide several factors bearing on this determination. For example, the Third Circuit has articulated the following twelve factors: (1) whether the statement was made under oath; (2) whether the statement was voluntarily made; (3) whether the statement was based on personal knowledge; (4) whether the declarant made a prior inconsistent statement; (5) whether the statement was videotaped; (6) whether the declarant was subject to cross examination; (7) the proximity of time between the events described and the statement; (8) whether the statement is corroborated; (9) the declarant’s motivation to fabricate; (10) whether the statement is prepared in anticipation of litigation; (11) the spontaneity of the statement; and (12) whether the declarant’s memory was faulty. Aamco Transmissions, Inc. v. Baker, 591 F. Supp. 2d 788, 799 (E.D. Pa. 2008). 2 In addition to many of these factors, the United States District Court for the District of Columbia explained that whether “the statement was rich in detail” and whether “the written statement [was] edited and corrected by the [declarant],” are relevant to the trustworthiness determination. Shields v. Eli Lilly & Co., No. 87-2166(RCL), 1991 WL 134614, *2 (D.D.C. 1991). Furthermore, Plaintiffs assert that the facts in this case are similar to Turbyfill v. International Harvestor Co., in which the court ruled that a deceased witness’ statement about an accident that he observed, which he handwrote the afternoon of the incident while alone in a room “without prompting or pressure by his superiors,” was admissible under the residual exception, especially because such 2 The Court recognizes that corroborating evidence is generally irrelevant under Fourth Circuit precedent. 9 circumstances “was consistent with the policy underlying Rule 803(5),” which is the exception for recollection recorded. 486 F. Supp. 232, 234 (E.D. Mich. 1980). Lastly, Plaintiffs argue that the Second Circuit’s decision in Schering Corp. v. Pfizer Inc., 189 F.3d 218, 232-33 (2d Cir. 1999), on this issue is instructive. In Schering Corp., the court explained that the purpose of the hearsay rules, namely to guard against the classic risks of hearsay—insincerity, faulty perception, faulty memory, and faulty narration—should guide courts in deciding “the criterion of trustworthiness,” although “a hearsay statement need not be free from all four categories of risk to be admitted under Rule 807.” Id. at 232-33. Furthermore, the court in Schering Corp. demonstrated how each of the “firmly rooted” hearsay exceptions involve circumstances in which these classic dangers of hearsay are believed to be minimized, and thus the “traditional exceptions to the hearsay rule . . . provide the benchmark against which the trustworthiness of evidence must be compared in a residual hearsay analysis” as the language of Rule 807 requires. Id. at 233. For instance, the Rule 803(1) exception for present sense impression is believed to decrease the potential of faulty memory because the statements are made contemporaneously with or immediately after perceiving the incident while the incident is fresh in the declarant’s mind, and because the declarant is speaking from knowledge of his or her “direct sensory perception.” Id. The Court agrees with Plaintiff that although case law in this jurisdiction has not explicitly listed the factors that a court may consider in determining the trustworthiness of a hearsay statement under the residual exception, there are no cases indicating that the Fourth Circuit intends to only apply the exception in the limited circumstances that Defendant has argued. In fact, the Fourth Circuit has rejected a narrow view of the residual exception. Clarke, 2 F.3d at 83 (refusing to accept appellant’s argument that the court should interpret the term 10 “specifically covered” under the residual exception rule narrowly and holding that “the rule rejects formal categories in favor of a functional inquiry into trustworthiness, thus permitting the admission of statements that fail the strict requirements of the prior exceptions, but are nonetheless shown to be reliable”). Moreover, the Fourth Circuit explained that although statements made under oath or during grand jury testimony “generally militate strongly in favor of trustworthiness,” the court has cautioned that other factual circumstances surrounding the giving of the statements in those contexts may indicate that the statements do not possess such guarantees. Burbank, 1990 WL 86147, at *3. Even in addressing situations in which a declarant has given testimony under oath or during a grand jury proceeding, in ensuring that that the circumstantial guarantees of trustworthiness are satisfied, the Fourth Circuit has relied on many of the factors utilized by other courts addressing this exception. For instance, the Fourth Circuit has considered whether the declarant: had an incentive to lie, had been subject to cross examination, voluntarily gave the statement, made a statement that was contemporaneously transcribed, and had personal knowledge about the incident to which he or she made the statement. See, e.g., Spurlock, No. 96-4739, 1997 WL 545660, at *3 (finding no reversible error for district court’s admission of declarant’s statements made under oath where declarant observed the incident and testified about his personal knowledge of the event); Clarke, 2 F.3d at 84-85 (affirming district court’s admission of the declarant’s statement at a suppression hearing under the residual hearsay exception where the statement was made voluntarily under oath, subject to cross examination, contemporaneously transcribed, and did not indicate an incentive to fabricate because the declarant “knew that his statement could not be used against him”); Workman, 860 F.2d at 144 (upholding admission of hearsay statement of declarant who died prior to defendant’s criminal 11 trial where the declarant voluntarily made a statement to an FBI agent that was contemporaneously transcribed during a meeting in which the declarant made statements about his and the defendant’s involvement with stolen goods, and thus, could have also been admitted under the statement against interest exception). Cf. West Virginia v. Meadow Gold Dairies, Inc., 875 F. Supp. 340, 348-49 (W.D. Va. 1994) (explaining that evidence that declarant made a statement because of self-preservation, a relationship with or animosity towards either of the parties involved in a case in which the statements were to be used, all demonstrate a lack of reliability). Thus, the Court is satisfied that it can look to these additional factors in deciding whether to admit hearsay statements under the residual exception. Furthermore, the Court is convinced that these factors, along with many of the other factors used by other courts, seek to fetter out the classic hearsay dangers and serve as a helpful measure in weighing whether a hearsay statement possesses circumstantial guarantees of trustworthiness. Plaintiffs seek to admit the hearsay statement of the only identified witness to the officer who responded to the accident scene. The entirety of the witness’ statement recorded in the officer’s Motor Vehicle Accident Report provides: “According to witness, Veh 1 (Lieutenant Commander Richmond’s vehicle) was NB (northbound) on Frederick Rd. The light changed to red and Veh 1 continued [through] the light striking Veh 2 (Plaintff Mary Goode’s car) that was making a left turn.” (Pls.’ Mem. Opp’n, Ex. 2.) The statement was obviously not made under oath, during a plea agreement, or before a grand jury. Furthermore, Jackson’s statement to the officer was not contemporaneously transcribed so as to produce an exact replica of her statements, and the statement does not contain many details. Likewise, Jackson’s statement to the officer was not subject to cross examination. Plaintiffs argue, however, that Jackson voluntarily gave her statement to the officer and that she is otherwise an independent witness 12 who did not have a personal stake in the outcome of this litigation. Neither party addressed how soon the officer arrived at the accident scene or how quickly he took the statement of the now deceased witness after his arrival. For purposes of resolving Defendant’s Motion in Limine, the Court will presume that Jackson was an independent witness without a motive to fabricate her statement to the responding officer and that she provided her statement as to what she personally observed shortly after the accident occurred, which, without contrary evidence, convinces the Court that her statement contained in the Motor Vehicle Report, satisfies the circumstantial guarantees of trustworthiness. Additionally, the Court believes this case presents an exceptional circumstance that is sufficient to admit the statements of the deceased witness to the responding officer because she is the only identified witness of the accident and the statement addresses a material fact in this case, specifically, the color of the traffic signal at the time of the incident, which neither party appears able to offer more probative evidence of other than their conflicting and self-serving testimony. Thus, as the Court indicated during the pretrial conference on this issue, the Court is willing to admit the witness’ statement made to the responding officer, subject to the Court being provided some context surrounding the circumstances under which Jackson gave her statement to the responding officer. The handwritten statement Jackson provided to the Plaintiff’s private investigator nearly three months after the accident does not, however, possess equivalent circumstantial guarantees of trustworthiness. First, the fact that this statement was provided nearly three months after the accident raises the possibility that Jackson’s memory of the incident was affected by the passage of time. In addition, the statement was given at the request of Plaintiff’s private investigator and in preparation for the litigation, which the Court believes at least raises a question as to the extent that the witness’s handwritten statement was influenced by others. Furthermore, Defendant has 13 not had the opportunity to question the witness. The Court believes that these factors weigh heavily against finding that the witness’ statement to the private investigator possesses the circumstantial guarantees of trustworthiness for the Court to admit it under the residual exception. CONCLUSION For the foregoing reasons, the Court GRANTS IN PART AND DENIES IN PART Defendant’s Motion in Limine (Doc. No. 22). A separate order shall follow this Memorandum Opinion. August 9, 2010 /s/ Date Alexander Williams, Jr. United States District Court Judge

Jurisdiction of Insurance Contract

When an insurance contract does not include a provision regarding jurisdiction then the proper court will be where the contract was delivered and the premiums were paid.   TIG Insurance Company v. Monongahela Power Company, et al. No. 31, September Term 2013 Choice of Law - Insurance Contract. Absent a choice-of-law provision in a contract, a Maryland court called upon to construe a contract applies the law of the place where the contract was made. With respect to an insurance contract, the place of contracting is the jurisdiction in which the policy was delivered and the premiums were paid. The Circuit Court properly applied these principles in ruling, on summary judgment and at a bench trial, that Pennsylvania law governed a contract to provide excess liability insurance coverage. The Court of Appeals declined to consider an argument by the insurer, made for the first time in appellate oral argument and unpreserved in the trial court, that language in the contract that the contract was “not ... valid unless” countersigned by the insurer meant that the place of countersignature determined the place of making of the contract. Circuit Court for Washington County Case No.: 21-C-03-167733 Argued : November 14, 2013 IN THE COURT OF APPEALS OF MARYLAND No. 31 September Term 2013 TIG INSURANCE COMPANY v. MONONGAHELA POWER COMPANY, ET AL. Barbera, C.J. Harrell Battaglia Greene Adkins McDonald Wilner, (Retired, Specially Assigned), JJ. Opinion by McDonald, J. Filed: February 24, 2014 We  issued  a  writ  of  certiorari  in  this  case  to  review  a  substantive  choice-of-law question concerning the interpretation of insurance policies that may cover asbestos-related liability. The question arose as a result of a lawsuit filed by a holding company, whose subsidiaries own power-generating facilities, against multiple insurers regarding the terms 1 of the liability policies the company purchased between 1970 and 1985. In the Circuit Court for Washington County the parties argued that the disposition of the issues raised during the lawsuit turned on whether New York or Pennsylvania law applied to the interpretation of the policies. After briefing and oral argument, the Circuit Court ruled in favor of the holding company that Pennsylvania law applied to all policies at issue in the lawsuit. One of the 2 insurers, TIG Insurance Company (“TIG”), appealed to the Court of Special Appeals. The Court of Special Appeals held that the Circuit Court properly granted summary judgment  on  this  issue  because  there  was  no  genuine  dispute  of  material  fact  that  the insurance contracts at issue were made in Pennsylvania – as opposed to New York, as urged by the insurers – and that, therefore, Pennsylvania law governed the interpretation of the policies. 209 Md. App. 146, 58 A.3d 497(2012). We granted TIG’s petition for a writ of certiorari to review that decision. We have carefully  reviewed the opinion of the Court of Special Appeals and the arguments made by TIG to reverse it. We adopt the well-reasoned opinion of the Court of The  subsidiaries  were  also  parties  to  the  litigation.   For  simplicity,  we  refer  to 1 Respondents collectively as the holding company. At a subsequent hearing during a bench trial, the Circuit Court extended its ruling that 2 Pennsylvania law governed the interpretation of the policies specifically to TIG’s policies. Special  Appeals  with  the  exception  of  its  two-paragraph  discussion  addressing  TIG’s argument that the place of countersigning a policy determines the applicable state law.  See 3 209 Md. App. at 165-66. TIG’s argument concerning the countersignature provision was not preserved in the Circuit Court and the record was insufficiently developed on that issue. 4 Accordingly, we explicitly do not adopt the two paragraphs of the Court of Special Appeals’ opinion that discuss that issue, and we express no opinion as to the merits of the court’s analysis of that issue. 5 TIG relied on a clause at the end of each of the policies in question which provided 3 that  “the  policy  shall  not  be  valid  unless  completed  by  the  attachment  hereto  of  a Declarations page countersigned by a duly authorized representative of the company.” TIG argued that the final act of contract formation would occur in the location where a policy was countersigned. No  evidence  was  introduced  in  the  Circuit  Court  concerning  the  place  of 4 countersignature and only one of the four copies of policies submitted as exhibits even bore a countersignature. The intermediate appellate court recognized that TIG had failed to raise its  countersignature  argument  in  the  Circuit  Court  and,  indeed,  had  not  raised  it  in  the appellate court prior to oral argument in the Court of Special Appeals. Nevertheless, it went on to address TIG’s argument that the governing law would be the law of the state where the policies were countersigned. It concluded that there was no evidence in the record that the policies were countersigned in New York (as opposed to New Jersey or Illinois) and held that, even if the countersignature was made in New York, New York law did not apply because “countersigning of the policies was not the last act necessary to give the policies binding effect.” Before this Court, TIG raises two additional arguments that we find to be without 5 merit and address briefly. First, TIG argues that the Court of Special Appeals relied on a party’s “subjective belief”  and  ignored  Maryland  precedents  on  “offer  and  acceptance”  when  it  referred  to evidence submitted in the Circuit Court that the holding company considered itself to be bound by a policy when the policy was delivered to the company’s Pennsylvania office. TIG (continued...) 2 JUDGMENT  OF  THE  COURT  OF  S PECIAL  APPEALS AFFIRMED.  COSTS TO BE PAID BY PETITIONER. (...continued) 5 isolates that evidence out of context; it was just one part of several undisputed facts before the Circuit Court that the intermediate appellate court recounted in concluding that the trial court  had  properly  concluded  that  the  contracts  were  made  in  Pennsylvania  and  that Pennsylvania law applied.  See209 Md. App. at 164. Second, TIG argues that the holding company never moved for summary judgment in the Circuit Court on the application of Pennsylvania law to TIG’s policies. TIG itself, however, joined the motion of other insurers, who were then parties to the case, for summary judgment on the application of the New York law to the “general liability program policies.” Furthermore,  in  its  Brief  in  Opposition  to  TIG  Insurance  Company’s  Partial  Summary Judgment Motion, the holding company asked the Circuit Court to deny TIG’s motion to declare  that  New  York  law  applied  to  TIG’s  policies  and,  instead,  to  declare  that Pennsylvania law governed the interpretation of those policies. 3

Maryland woman arrested on DUI, leaving crash scene after couple she hit chased her car

Maryland woman arrested on DUI, leaving crash scene after couple she hit chased her car

 

Police say she admitted to being drunk and apologized for hitting "those people." Investigators say her blood-alcohol level was 0.33 according to FOX News.  The legal limit is .08. Hence, this woman was four times above that. Lucky she did not permanently injure or kills someone that night.