Pennsylvania Case Summaries
Kiak v. Crown Equipment Corp.
2009 Pa. Super. 32
Decided: February 17, 2009
The Pennsylvania Superior Court reverses trial court’s grant of summary judgment in favor of Defendant, and finds that products liability case is not preempted by federal law and may proceed to trial under 402A of the Restatement (Second) of Torts.
Background: Charles Kiak was pinned by a forklift being operated by a co-worker and manufactured by Crown Equipment Corp (“Crown”). Kiak claimed that he was unaware of the forklift’s approach, despite the presence of a strobe light, rearview mirrors and a backup alarm. Kiak filed a complaint against Crown, alleging that the backup alarm selected by his employer and installed by Crown was defective, because the alarm would cease to sound when the forklift was not in gear and coasting backwards. Kiak’s expert testified that this was particularly dangerous because an automatic steering wire guidance system located in the floor made it unnecessary for the driver of the forklift to look rearward to steer.
Crown filed a motion for summary judgment, contending that the case was controlled by the Superior Court’s decision in Arnoldy v. Forklift, L.P., 927 A.2d 257 (Pa. Super. 2007), alloc. denied, 939 A.2d 889 (Pa. 2007). The trial court agreed and granted summary judgment in favor of Crown. Kiak appealed.
Holding: On appeal, the Superior Court distinguished the Arnoldy case. There, the plaintiff argued that the forklift that struck him “lacked an audible backup alarm, rearview mirrors, any form of beacon or strobe lighting, or any other safety device that would adequately protect individuals from injury caused by the forklift moving in reverse.” 927 A.2d at 260 n.2. The Court concluded that under applicable OSHA regulations, the duty to select appropriate safety devices rests with the user of the forklift (employer in that case), not the manufacturer. As such, the Superior Court in Arnoldy held that the state law products liability claims were preempted by federal law – namely, the OSHA regulations.
The Superior Court in Kiak found that,unlike in Arnoldy, the employer selected safety features for its forklifts, and Crown selected and installed the device which included those features. Thus, the products claim against Crown was not premised on the failure of the manufacturer to install a safety device. Rather, Kiak contended that the actual safety device, the backup alarm, selected and installed by Crown was defective because it did not continue to beep when the forklift’s throttle was disengaged and the vehicle coasted backwards. The Court held that this claim was not preempted by federal law and could properly proceed to trial under Pennsylvania’s applicable tort law. The case was remanded to the Court of Common Pleas of Philadelphia County for trial.
Any questions regarding this case can be directed to Brooks Foland at 717-255-7626 (bfoland@tthlaw.com).
Wilsonv. El-Daief
964 A.2d 354 (Pa. 2009)
Decided February 19, 2009
The Pennsylvania Supreme Court holds that the determination of whether the statute of limitations is tolled by the discovery rule, for this particular medical malpractice claim, involves questions of fact for the jury to resolve.
Background: Plaintiff/appellant had two hand and wrist surgeries performed by Physician/appellee. Following the second procedure, she experienced continuous, excrutiating pain, hand contractures, an inwardly bent elbow and raised shoulder. She sought treatment from appellant and another orthopedic surgeon for over fourteen months. After two years without a definitive explanation from either physician, a third concluded that her radial nerve was lacerated. Plaintiff/appellant alleged physician/appellee negligently lacerated her nerve during surgery filing suit more than two years after the surgery. The trial court granted summary judgment finding that Plaintiff knew or should have known she was injured by the conduct of another and there was no basis to toll the statute of limitations with the discovery rule. The Superior Court affirmed in a divided memorandum, finding that lack of knowledge as to the nature of her injury did not toll the statute, since it was clear she was aware of an injury and a definitive diagnosis was not essential to commence the limitations period.
Holding: The Supreme Court allowed a limited appeal to consider the application of the statute of limitations in this medical malpractice action in light of prior holdings of Fine v Checcio, 870 A.2d 850 (Pa. 2005) and Caro v. Glah, 867 A.2d 531 (Pa. Super. 2004). The Court held that the issue of Plaintiff’s knowledge and diligence must be resolved by the jury if there is any question. In this case, the evidence suggested Plaintiff had made efforts to determine the cause of her injuries and the physicians were unable to pinpoint her specific injury or the cause. Due to this confusion, a question of fact existed as to the Plaintiff’s awareness of the injury and its cause. Thus, the Court found that Plaintiff’s evidence presented a question of fact for the jury with Plaintiff bearing the burden of proof. The Superior Court was reversed and the case remanded for further proceedings.
Any questions regarding this case can be directed to Kathryn Williams, 610-332-7029, kwilliams@tthlaw.com.
Bole v. Erie Insurance Exchange
2009 PA Super 38
Decided February 27, 2009
The Superior Court reverses the common pleas court’s refusal to modify an arbitration award where the arbitration panel misapplied the law.
Background: In a UIM arbitration, the arbitrators refused to award UIM benefits. Plaintiff insured sought to have the Erie County Court of Common Pleas modify the award, and the court denied that petition. The insured appealed.
Holding: The Superior Court found that the arbitrators misapplied the law, and the county court’s order was reversed. The case was remanded to the county court, with instructions to refer the matter back to the arbitrators for further consideration applying the proper standard of law. The insured was a volunteer fireman who was injured while responding to an auto accident, which was caused by an underinsured motorist. The arbitration panel determined that the insured was not entitled to benefits because his claim did not fall within the parameters of the rescue doctrine. The rescue doctrine is a rarely invoked, narrow exception to the ordinary principles of negligence which require a showing of proximate causation. The Superior Court found that, because there was no transcript from arbitration it was difficult to ascertain the principles of law applied by the arbitrators. However, the finding of the arbitration panel that the insured was not actively engaged in a rescue at the time of his injury was not supported by the facts. In this case, a call came in that a car had rolled over and the occupants were trapped. This was an emergency that risked death or serious bodily injury and encouraged rescue. Until it was determined that the emergency had passed, the person going to the rescue was actively engaged in a rescue, contrary to the statement of the law followed by the majority of the arbitrators.
Any questions regarding this case may be directed to Corey J. Adamson at 717-255-7639 or cadamson@tthlaw.com.
Halper v. Jewish Family & Children’s Service of Greater Philadelphia
963 A.2d 1282 (Pa. 2009)
Decided February 20, 2009
The Pennsylvania Supreme Court in a negligence suit against an adoption agency upholds negligent misfiling claim for failure to produce medical records of the birth mother when requested, denies claim for wrongful adoption because there was no duty to disclose birth mother’s schizophrenia at the time when this adoption occurred and adopts the “general verdict rule”
Background: The Plaintiffs adopted a child from the Defendant agency. The agency failed to notify the adoptive parents of the birth mother’s schizophrenia at adoption. The child began to experience serious mental problems, and the parents then sought the birth mother’s medical information from the agency, which did not provide it, as the agency had misfiled the birth mother’s records. The adoptive parents sued for wrongful adoption and failure to disclose the birth mother’s medical information (an identical “failure to disclose” claim for the child was also lodged). A general verdict for the parents and child was returned at trial. On appeal, the Superior Court found the verdict “too muddled to be legally supported,” as the verdict slip did not specify for what theories the jury awarded damages, and remanded the case for a determination of the child’s claim. The Superior Court also found that the parents’ experts offered contradictory testimony, such that the jury had no basis to determine whether the child was indeed schizophrenic. The parents and child appealed.
Outcome: The Pennsylvania Supreme Court explained that a claim for wrongful adoption is akin to negligent misrepresentation. At the time of the adoption here, schizophrenia was not considered to be genetic; thus, there was no foreseeable harm with a failure to disclose the mother’s schizophrenia, and the wrongful adoption claim failed. With regards to the “contradictory” expert testimony, a plaintiff’s case will fail when the testimony of his experts is so contradictory that the jury is left with no guidance on the issue. Even though the Plainitff’s experts’ ultimate diagnoses differed in the case at bar, they were in agreement regarding multiple symptoms, sufficient for the jury’s consideration. Finally, the Court adopted and applied the “general verdict rule,” that when a general verdict is supported on at least one theory, the verdict will not be reversed on appeal, and a defendant who fails to request a special verdict form will be barred from raising this issue on appeal. As adequate evidence was presented regarding the failure to disclose/negligent misfiling of the mother’s medical information to support a verdict on it, the entire verdict was proper.
Any questions regarding this case may be directed to Corey J. Adamson at 717-255-7639 or cadamson@tthlaw.com.
Zurich-American Insurance Company v. Michael O’Hanlon, et al.
2009 Pa. Super. 42
Decided March 16, 2009
The Pennsylvania Superior Court held that an insurance carrier was entitled to reformation of an insurance policy to include an aggregate limit on the policy where the record established that the insured intended to purchase a policy with a $10,000,000.00 aggregate limit, notwithstanding that the policy, on its face, provided for a $10,000,000.00 limit of liability applicable to each loss.
Background: DVI, a Zurich-American insured, sought the services of an insurance broker, Commerce National, to negotiate with Zurich after it was advised that its policy premiums were to increase over fifty percent upon renewal. The original policy provided an aggregate limited of liability of $10,000,000.00. Following negotiations, Zurich-American issued a binder omitting the word “aggregate” and merely stating that the limit of liability was $10,000,000.00. Zurich issued a revised binder specifying a $10,000,000.00 aggregate limit of liability. One day before the original policy was set to expire, Commerce wrote to DVI informing it that it had bound a Director’s and Officer’s policy with an annual aggregate limit of liability of $10,000,000.00. However, when the policy was formally issued, it stated that the $10,000,000.00 limit of liability applied to each loss. After four law suits were filed in various federal courts against the directors and officers of DVI, Zurich filed a Complaint in Equity to determine whether its obligations under the policy were limited in the aggregate to $10,000,000.00.
Holding: The Superior Court held that Zurich was entitled to reformation of the insurance policy in order to include an aggregate limit on the policy. The Court accepted Zurich’s argument that the declarations page of the policy, which omitted an aggregate limit, was a scrivener’s error because both parties had intended and agreed that the policy include an aggregate limit. The Court also found support in the record for a reformation of the policy, as the dealings between the parties indicated that DVI sought to purchase a policy with a $10,000,000.00 aggregate limit, and there was no evidence to the contrary. Therefore, Zurich was entitled to a reformation of the policy to conform it to the parties’ true agreement.
Any questions regarding this case can be directed to Cindy O’Donnell at 412-697-7403 (codonnell@tthlaw.com).
New Jersey Case Summaries
Stengart v. Loving Care Agency
BER-L-858-08
Decided March 5, 2009
Holding: Due to an explicit company email policy, company's counsel had a good-faith belief that the Plaintiff waived the attorney-client privilege.
In a case of first impression, a New Jersey Superior Court has determined that a plaintiff employee effectively waived attorney-client privilege when she emailed her attorney regarding her intention to resign and file suit against her employer because she did so from her personal email account on her company-issued laptop during business hours. The employee handbook specifically indicated that all email messages were considered part of the company's business records and were not to be considered private or personal to any employee. The employee attempted to argue that the email, which was recovered as a screen capture through a forensic recovery of her computer, was an inadvertently-disclosed document governed by RPC 4.4. The Trial Court disagreed.
If you have any questions, or wish to discuss this case, please contact Joseph F. Kulesa at (610) 332-7009 or jkulesa@tthlaw.com
Baboghlian v. Swift Electrical Supply Co.
197 N.J. 509
Decided February 18, 2009
Holding: Where a building owner voluntarily installs a fire alarm system (i.e., there is no statutory requirement to do so), there is no imposition of a nondelegable duty to comply with the Uniform Fire Code, N.J.A.C. 5:70-1.1 to 4.20 as there was no duty to install the system in the first place.
A fire began in Defendants’ business and also caused significant damage in the plaintiffs’ business/residence next door. It was determined that the Defendants’ fire alarm system either malfunctioned or did not have appropriate coverage in the area where the fire started. The New Jersey Supreme Court evaluated whether Defendant property owners’ installation of a fire alarm system throughout a building created a duty to comply with the Uniform Fire Code. Plaintiffs’ expert testified that, once Defendants decided to install the system, they should have obtained a permit, had a sub-code official test the system after it was installed, and had it inspected each year. Defendants argued that they were not required to install the fire alarm system at all, and any malfunction of the system did not cause or contribute to the fire.
If you have any questions, or wish to discuss this case, please contact Joseph F. Kulesa at (610) 332-7009 or jkulesa@tthlaw.com
Ogborne v. Mercer Cemetery Corp.
197 N.J. 448
Decided January 29, 2009
Holding: Under the Tort Claims Act, the conduct of a public entity and its employee should be governed by the rule of public entity liability with regard to dangerous conditions on public property (N.J.S.A. 59:4-2) (that Defendant acted in a “palpably unreasonable” manner) as opposed to the rule of vicarious liability for ordinary negligence set forth in N.J.S.A. 59:2-2.
Plaintiff was walking through a cemetery one evening when she was inadvertently locked in. She climbed a short brick wall to escape and injured her ankle as she landed on the ground. Plaintiff filed suit against the City of Trenton, alleging negligent maintenance. The Trial Court granted partial summary judgment in Plaintiff’s favor as to negligence and her punitive damages claim, and determined that matters of proximate cause and comparative fault were questions of fact that must be decided by a jury. The Appellate Court evaluated whether it was appropriate to apply the ordinary negligence standard or the “palpably unreasonable” standard, both of which are included in the Tort Claims Act (N.J.S.A. 59:1-1 to 12-3). Because the injury related to a dangerous condition on public property, the Appellate Court reversed in part and remanded, ordering a new trial on liability. The Supreme Court affirmed, remanding the matter for retrial for a jury to determine comparative negligence and whether the corporation acted in a “palpably unreasonable” manner.
If you have any questions, or wish to discuss this case, please contact Joseph F. Kulesa at (610) 332-7009 or jkulesa@tthlaw.com
New Jersey Sports Production v. Bobby Bostick Promotions
ESX-C-397-06
Decided May 25, 2007 (recently approved for publication)
Holding: So long as pre-suit letters are "basically factual and straightforward, without resort to hyperbole or scurrilous diatribes" and "evidence a reasonable belief that the client has a legitimate interest deserving of protection by appropriate means," they will be protected by an absolute privilege.
In a case of first impression, Judge Klein (Chancery Div.) of the New Jersey Superior Court evaluated whether attorneys’ pre-suit letters were protected by an absolute privilege. In this instance, Plaintiff’s attorney sent a letter asserting the client’s rights under the contract in question and related to the subject matter of the subsequently filed complaint. Fearing suits could become entangled in claims based on the contents of the letters, leading to trials within trials, Judge Klein determined that such letters are protected in the same fashion as such statements made in the course of litigation.
If you have any questions, or wish to discuss this case, please contact Joseph F. Kulesa at (610) 332-7009 or jkulesa@tthlaw.com
Maryland Case Summaries
Fidelity and Deposit Co. of Maryland v. Gladwynne, et al.
No. 2725, September Term, 2007, filed February 5, 2009. Opinion by
Eyler, Deborah S., J.
CONTRACTS - UNIFORM COMMERCIAL CODE - NEGOTIABLE INSTRUMENTS -
LOST UNCERTIFIED CHECK - LIABILITY ON UNDERLYING OBLIGATION.
Facts: In 1995, Fidelity and Deposit Co. of Maryland (“F&D”), a commercial surety, entered into a written indemnity agreement with Gladwynne Construction Company (“Gladwynne”), Wynnewood Enterprises Limited Partnership (“Wynnewood”), and Thomas Behrle, an officer and owner of both companies. In the Agreement, F&D was the indemnitee, and Gladwynne, Wynnewood, and Behrle, appellees, were the indemnitors. Appellees agreed to pay F&D any sum that F&D paid out on a payment or performance bond in good faith and under the belief that it was liable for the sums and amounts so disbursed.
In 1998, F&D issued performance and payment bonds (“the Bond”) for a project between Gladwynne, as general contractor, and the United States Department of Veteran Affairs, as owner(“the Project”). F&D’s claims counsel for the Project directed that F&D pay two claims made against the Bond: one for $57,800 and one for $3,840. Subsequently, F&D demanded reimbursement from appellees for the sums paid on the two claims. Gladwynne sent F&D two uncertified checks for the combined total of $61,640 in full payment of the two paid claims. F&D concedes that it received these checks, but later lost the checks before they were negotiated. F&D sued appellees in the Circuit Court for Baltimore City for breach of contract. At the close of F&D’s case-in-chief, appellees moved for judgment, the court granted the motion, and F&D appealed, claiming that, although Gladwynne sent it two checks equaling the total reimbursement amount owed to F&D under the Agreement, and F&D received the checks, appellees still owe the underlying obligation because F&D never presented the checks for payment and the checks are lost.
Held: Judgment affirmed. The Court of Special Appeals held that, under the applicable law as set forth in the Negotiable Instruments Title of the Maryland Uniform Commercial Code, Md. Code (1975, 1997 Repl. Vol.), sections 3-101, et seq. of the Commercial Law Article, appellees were entitled to judgment in their favor on F&D’s breach of contract claim. Generally, when a check is taken for an obligation, the obligation is suspended, and the suspension continues until the check is dishonored or paid. If a check taken for an obligation is lost, stolen, or destroyed, the payee can still enforce the check, and the debt is suspended up to the amount payable on the check. When Gladwynne issued the checks to F&D, its obligation was not discharged, but was merely suspended. This obligation remained suspended until the checks were presented and dishonored, at which time the obligation would have been taken off suspension, or presented and honored, and payment would have been made and the obligation discharged. Hence, although F&D misplaced the checks, F&D should have attempted to “present” the lost checks, and the obligation would have been discharged had the drawee bank “honored” the lost checks, or taken off suspension had the drawee bank “dishonored” the lost checks. Until the checks were presented and either dishonored or honored, however, the obligation remained suspended.
Any questions regarding this case may be directed to Mike Burgoyne at (410) 752-0075 or mburgoyne@tthlaw.com.
Nationwide Mutual Insurance Company vs. Regency Furniture, Inc.
No. 2420, September Term, 2007, filed January 6, 2009. Opinion by Deborah S., J.
INSURANCE - LANDLORD-TENANT - BREACH OF CONTRACT - VANDALISM -
RENT OWED - ENTRY ONTO TENANT’S PREMISES.
Facts: In this commercial landlord-tenant dispute, the tenant, Regency Furniture, alleged breach of contract by its landlord, DDRM, Inc., formerly known as Inland. The primary issues concerned vandalism to roof-mounted HVAC units, a dispute about the calculation of rent owed, and DDRM’s entry onto the tenant’s premises because of a dispute over the storage and removal of trash.
Nationwide Mutual Insurance Co. was a third party to the case. Because DDRM, based on its lease with Regency, denied liability for the expenses incurred to replace the damaged HVAC units, Regency filed a claim with Nationwide, which denied the claim based on the insurance policy held by Regency. In the Circuit Court for Prince George’s County, the Court ruled that Nationwide was liable for Regency’s insurance claim. Because DDRM and Regency had settled the rent dispute just before trial, and because Regency failed to prove that DDRM’s entry onto the premises constituted a breach, the Trial Court ruled that it was unnecessary to determine whether Regency was a prevailing party under its lease, and consequently denied Regency’s claim for attorneys’ fees.
Held: DDRM’s untimely cross-appeal was dismissed. Under the plain language of Rule 8-202(e), “[i]f one party files a timely notice of appeal, any other party may file a notice of appeal within ten days after the date on which the first notice of appeal was filed or within any longer time otherwise allowed by this Rule.” Under the circumstances of this case, the “longer time otherwise allowed” controlled; under Rule 8-202(a), DDRM was required to file its notice of appeal within 30 days after entry of judgment, but failed to do so. Moreover, DDRM failed to show that its untimeliness fit under the narrow exception to Rule 8-202 set forth in Maxwell v. Ingerman, 107 Md. App. 677 (1996). The Court of Special Appeals reversed the judgment as to Nationwide, because the Trial Court failed to consider the Declarations page in interpreting coverage under the insurance policy. Under the correct reading of the policy, Regency was not entitled to coverage because its policy did not cover damage to buildings or fixtures.
As to the points of error alleged by Regency, the Court affirmed the judgment. Because the Trial Court did not decide whether DDRM was liable for the expenses incurred to replace the damaged HVAC units, the case was remanded so that the Circuit Court could make that determination, leaving open the possibility of fees and costs limited to that issue.
Any questions regarding this case may be directed to Mike Burgoyne at (410) 752-0075 or mburgoyne@tthlaw.com.
Lynne Parry, personal representative of the Estate of Mark Parry, deceased, et al vs. Allstate Insurance Company
No. 83, September Term, 2008, filed April 6, 2009, opinion by Harrell, J.
INSURANCE – WORKERS COMPENSATON – REDUCTION IN UM/UIM BENEFITS PAYABLE, TO EXTENT OF UNREIMBURSED WORKER’S COMPENSATION BENEFITS RECOVERED.
FACTS: On December 27, 2001, a Baltimore County Police Officer was injured in the line of duty when he was struck by a vehicle driven by a Cesar Maza. He was transported to University of Maryland Medical Center in Baltimore and succumbed to his injuries approximately thirty (30) days later. During the period of his medical care, he incurred medical expenses totaling $168,169.87. Baltimore County, the employer of the police officer, on its own initiative, took the necessary steps to pay the expenses of their officer’s medical care. Geico was the insurance policy for Maza’s vehicle with third-party liability coverage of $20,000/$40,000. Under their private insurance policy with Allstate, the Parrys had UM/UIM coverage of $100,000.00. The Allstate policy, however, had a provision reducing the amount of UM/UIM benefits payable to the extent of amounts paid by other sources.
The Parrys settled their claim against Maza for that $20,000.00 limit and made a claim for the remaining $80,000.00 coverage under the Allstate UM/UIM coverage. Allstate declined coverage and filed a declaratory judgment action in the Circuit Court for Baltimore County. They sought a declaration that Allstate’s liability for UM/UIM benefits under the policy should be reduced by the benefits paid by Baltimore County. Circuit Court for Baltimore County agreed with Allstate and in an unreported opinion, the Maryland Court of Special Appeals agreed.
HELD: This case is slightly different than some of the other cases that have gone before it in that Mrs. Parry never filed a Worker’s Compensation claim on behalf of her deceased husband. Despite this, Baltimore County went ahead and paid the medical bills pursuant to the Worker’s Compensation Act. The Court held that this distinction was not a difference because regardless of whether or not a Worker’s Compensation claim was filed, the Parry’s recovered benefits under the Worker’s Compensation laws of Maryland in excess of the UM/UIM policy limit.
Any questions regarding this case may be directed to Mike Burgoyne at (410) 752-0075 or mburgoyne@tthlaw.com.
John Grady, et al vs. Darren Brown
No. 85, September Term 2008, filed April 7, 2009, opinion by Raker, J.
NEGLIGENCE AS A MATTER OF LAW – BOULEVARD RULE
FACTS: This case involves the application of Maryland’s Boulevard Rule. The Plaintiff was operating his motorcycle on the favored highway and the Defendant was operating his motor vehicle on the unfavored highway, an alley which crossed the Plaintiff’s lane of travel. The Plaintiff alleged that the Defendant was negligent in that he failed to grant the right-of-way. The case proceeded to trial before a jury in the Circuit Court for Baltimore City and the parties stipulated to a damage award should liability be found against the Defendant. The trial judge denied the Plaintiff’s Motion for Judgment not withstanding the verdict and the Maryland Court of Special Appeals affirmed that ruling.
The facts were in dispute. The Plaintiff indicated that he slammed on his motorcycle brakes and grazed the front of the Defendant’s vehicle as he protruded into the lane of travel. The Defendant, on the other hand, indicated that at no time did he enter into the path of the motorcycle and that the contact was a result of the motorcycle driver laying down the motorcycle and sliding into him. Maryland’s Boulevard Rule requires that a driver upon approaching a thru highway from an unfavored road must stop and yield the right-of-way to all traffic already in, of which may enter the intersection, during the entire time the unfavored driver encroaches upon the right-of-way.
HELD: The Court held that the Boulevard Rule in Maryland must be applied with a modicum of common sense. The unfavored driver is not required to remain at the curb line indefinitely, where his vision of oncoming traffic is blocked at that position. The Defendant was not precluded by the Boulevard Rule after coming to a complete stop from inching up and stopping his vehicle at a point where he could get a better view of traffic on the highway. The Court ultimately held that this case presents one of those rare instances in which the conduct of the favored driver was properly subject to the jury’s determination of reasonableness and prudence under the circumstances. The ruling of the Maryland Court of Special Appeals was affirmed. There was, however, a strong dissenting opinion authored by Wilner, J. which Bell, C. J. at Harrell, J. joined.
Any questions regarding this case may be directed to Mike Burgoyne at (410) 752-0075 or mburgoyne@tthlaw.com.
Thomas Nodeen vs. Anja Sigurdsson
No. 84 September Term 2008, filed April 7, 2009, opinion by Greene, J.
VENUE – MOTION TO TRANSFER
FACTS: The Maryland Court of Special Appeals vacated the order of the Circuit Court for Calvert County. In response to a Motion to Transfer Venue, the Circuit Court of Calvert County transferred the Complaint to Anne Arundel County deciding that it was a more proper and convenient venue. In this case, the biological mother filed a complaint for modification of custody. When the child was born, the mother was addicted to illegal drugs, and the biological father died before the birth of the child. Custody was granted, at that time, to a paternal aunt and uncle. Subsequently, there was a custody battle in the Circuit Court for Anne Arundel County between the maternal aunt and uncle and a grandmother. That Court granted custody to the paternal aunt and uncle but established a visitation schedule for the mother and grandmother. Approximately a year later, the mother filed a complaint in Calvert County to modify custody of her son. The paternal aunt and uncle filed a Motion to Transfer Venue to Anne Arundel County which was granted without a Hearing. On appeal, the Court of Special Appeals in vacating the Order found that although original jurisdiction and venue was in Anne Arundel County, it was not appropriate for the modification because the complaint for modification amounted to a new action and that, at that time, the Defendants did not reside, carry on a regular business, work, or habitually engage in a vocation in Anne Arundel County.
HELD: The Maryland Court of Appeals first held that either Anne Arundel County or Calvert County were permissible and appropriate venues. Accordingly, they focused their attention on the propriety of the transfer to Anne Arundel County on the basis of forum non conveniens. The Court held that a party who moves to transfer an action to an alternative forum under Maryland Rule 2-327, has the burden of demonstrating that the transfer to that forum better serves the interests of justice. This involves a balancing test whereby the Court must weigh the convenience of the parties and witnesses along with the interests of justice against the Plaintiff’s choice of venue. When the balance does not weigh strongly in favor of the proponents of the transfer, the Plaintiff’s choice of venue must be maintained. The Court held that in the instant action, the moving party did not present evidence that strongly favored the transfer and therefore, the trial court abused its discretion. The intermediate Appellate Court’s decision was affirmed.
Any questions regarding this case may be directed to Mike Burgoyne at (410) 752-0075 or mburgoyne@tthlaw.com.