John Doe Complaint

The case of Nam v. Montgomery County decided in 1999 stands for the proposition that one can file a “John Doe” complaint or a complaint against “unknown driver” and obtain the correct name during discovery. However, the Complaint against the real driver must be filed before the expiration of the statute of limitations. The John Doe complaint does not toll the statute of limitations.

CIVIL RIGHTS ACTIONS

Federal Claims are governed by 42 U.S.C. 1981, 1983, 1985, 1988. See Civil Rights Act 186; General Building Contractors v. Pennsylvania United, 458 U.S. 375 (1982);

Municipality liable by respondeat superior (Haugabrook v. City of Chicago, 545 F. Supp. 276, Floyd-Mayers v. American Cab, 732 F. Supp. 243, Crowley v. P.G. Co., 890 F. 2nd 683.

FEDERAL DIVERSITY JURISDICTION AND REMOVAL

If there is complete diversity of citizenship and the Plaintiff claims damages in excess of $ 75,000 the defendant can remove a case to U.S. District Court. 28U.S.C. Sec. 1446(b). Forum manipulation can cause estoppel when trying to amend after a year or to change the ad damnum whereby removal may well be approved. See Morrison v. National Benefit Life Insurance Co., 889 F. Supp. 945; Tedford v. Warner-Lambert, 327 F. 3d 423. 28 U.S.C. Section 1446 (a) and (b) set forth the requirements for removal. Murphy Brothers, Inc. v. Michetti Pipe Stringing, Inc. 526 U.S. 344 (1999) also addressed the ambiguous language in the statute that triggers commencement of the thirty day period.

BANKRUPTCY

Although Courts and Judicial Proceedings Section 11-504 would seem to exempt a personal injury settlement from the bankruptcy estate, judges of the United States Bankruptcy Court for the District of Maryland have ruled that the exemption provided by 11-504 b2 does not apply to recoveries for past lost wages. See In Re Hurst, 239 B.R. 89 (Bankr. D.M.D. 1999) or to recoveries for dischargable pre-petition medical expenses. See In Re Hernandez, 272 B.R. 178 (Bankr. D.MD. 2001). There is a duty to disclose to the trustee an award where lost income is part of the award. This is so that the trustee has the opportunity to remedy the failure to disclose by the client in the bankruptcy proceedings of any pending action. Although it is not fatal to the plaintiff’s claim in the third party case, the plaintiff should disclose it to the trustee. See WinMark, Ltd. v. Miles and Stockbridge, 345 MD. 614, (1997) and see Bowie v. Rose Shainis Financial Services, LLC, 160 MD app 227 (2004). If the bankruptcy is pending at the time of the litigation, the matter should be referred to bankruptcy counsel so that proper steps can be taken. The defendant can move to dismiss the tort action for lack of standing if there is a bankruptcy pending. Maryland law does provide for an exception for monies payable in the event of sickness, accident, injury or death of a person including compensation for loss of future earnings. See Maryland Code Courts and Judicial Proceedings Article Section 11-504 B2. However, this exemption does not apply to past lost wages. The existence of the exemption also does not affect the debtor’s obligation to “schedule” the tort claim as an asset in the bankruptcy case.

If a client does have a serious personal injury case and a lot of medical bills, wants to and does file for bankruptcy before the auto tort case is resolved, it is very important to be aware of the bankruptcy rules. See Attorney Grievance v. Nichols decided on 6/17/2008 which indicates what an attorney should not do. If an attorney does become aware that there is a pending bankruptcy claim while a personal injury case is pending, it must be properly dealt with. The entire personal injury claim can be dismissed on grounds of judicial or equitable estoppel because it is not being prosecuted by the real party in interest. The claim must be listed as an asset of the estate and exemption for the portions of the claim that are permitted to be exempt by state law must be filed so that the trustee may object if he feels it is appropriate. The bills are a debt for which the trustee is responsible to the creditors to the extent that a plaintiff is represented on any portion of the claim that is not exempt, the attorney must be retained by the trustee to collect those funds which ordinarily is not an issue, particularly if the attorney is not seeking any more than the amount agreed to in the contingency fee of contract with the plaintiff. If the attorney wishes to directly contact the creditors such as health care providers, the attorney should contact the trustee, get the trustee’s permission to contact the creditors with the understanding that the attorney is calling them in the role as counsel for the plaintiff only and not as a representative of the trustee. It is the trustee’s job to secure assets.

CLAIMING MEDICAL BILLS DISCHARGED IN BANKRUPTCY IN THIRD PARTY CLAIM

The right to recover the value of medical care provided gratuitously should be argued also as the basis for using medical bills discharged in bankruptcy. Similarly, the plaintiff can rely on the collateral source rule case of Plank v. Sommers, 203 MD 552 (1954). In this case, a Court of Appeals adopted the rule that where the hospital and medical services are furnished gratuitously to the injured party, he can recover the value of those services from the tortfeasor. One could also argue that the authorization and assignment prepared and signed by the plaintiff requires the medical bill to be paid out of any recovery and therefore it should be permitted in evidence. Similarly, that result would be consistent with the philosophy of bankruptcy. Hernandez v. Southern Hospital Association, Inc., 319 MD 226 also suggests that a patient’s obligation to the health care providers for expenses where an executed assignment has been provided is not discharged in bankruptcy. The reason is that the assignee of it chose in action acquires an equitable lien upon the outcome which, unless disallowed or voided, survives the bankruptcy.

PROCEDURE FOR TAKING OUT OF STATE DEPOSITIONS

Follow these step: (1) determine what is required by state where the action is pending (trial state) to take foreign depositions, (2) determine which state has jurisdiction over the deponent (discovery state), (3) determine what is required in the discovery state to have a subpoena issued, (4) call the clerk’s office in the discovery state to confirm what is required in the discovery state to have subpoena issued, (5) serve deposition notice. Maryland recently enacted the Uniform Depositions and Discovery Act which, at this time, can be found in the pocket part of Courts & Judicial Proceedings Article. Also, see Maryland Rule 2-413.

EFFECT OF ATTORNEY’S SIGNATURE ON PLEADINGS

See Maryland Rule 1-311.

SPOUSAL SHARE OF ESTATE

The term issue is defined in Estates & Trust Article 1-209. All children are included from all marriages. Under 3-203 a surviving spouse can claim an elective share in lieu of what is left under the will. The share is described as one-third if there are surviving issue and one-half if there are not.

HOW TO SUBPOENA A STATE TROOPER

Determine the trooper’s “traffic court dates” wherein all citations the trooper wrote are set on the same day. Call the District Court clerk’s office, give them the trooper’s name and i.d. number and they should be able to tell you the date and time when the trooper will appear in court.

Ex Parte Communications with Former Employees of Adverse Party or Potential Adverse Party

There is a conflict with regard to the propriety of such communications. It is not always prohibited. However, any improper contact can lead to remedies if sought by the adverse party. Initially, one should review Rule 4.2 by the Maryland State Bar Association Committee on Ethics and the U. S. District Court for the District of Maryland. Rule 4.2 of the Maryland Rules of professional Conduct is frequented cited for the suggestion that any such conduct is prohibited. The Comment to the rule suggests communication with persons with managerial responsibilities or persons whose act or omission in connection with the matter may be imputed to the organization or whose statement may constitute an admission on the part of the organization is prohibited. The rule also provides protection to organizations who are not formal parties. The MSBA Committee on Ethics in Docket 86-13 has opined that the predecessor rule from which Rule 4.2 derives only prohibits communication with certain current employees, such as officers, directors or managing agents. The Committees suggested the rule does not apply to former employees regardless of their position because a former employee has no power to bind the organization. When The Code of Professional Conduct replaced the Code of Professional Responsibility, the Committee revisited the interpretation and came to the same conclusion in Docket 90-29 and 91-38. In the U.S. District Court, however, there is a conflicting opinion in Camden v. State of Maryland, 910 F. Supp. 1115 (D. Md. 1996). The opinion suggests there should be some monitoring by the court before any such communication would be permitted, indicating the court might consider allowing counsel for the defendant to be present or setting other ground rules for the communication because of concern for possible confidential information the former employee may have. Even within the U.S. District Court of Maryland there seem to be other conflicting opinions.

Transfer of Case to Another County

See Terrence Smith v. State Farm Mutual insurance Company, No. 1033, September Term, 2005. See also Stidham v. Morris, 161 md. App. 562 (2005). The trial court transferred the case because there were insufficient contacts to maintain the case in Baltimore. The appellate courts use the abuse of discretion standard. It was not an abuse of discretion to transfer the case.

Enforcing a Settlement Agreement

See Maslow v. Vanguri, 169 Md. App. 298, 316 (2006); Cannon v. Cannon, 384 Md. 537, 584 (2006); Rourke v. Amchem Products, Inc., 153 Md. 91, 122 (2003). Simmons v. Koons Toyota Westminster, 2005 WL 638062 (D. md. 2005); Autera v. Robinson, 419 F. 2d 1197, 1203 (D.C. Cir. 1969). Moist of the decisions reflect that the courts favor settlements. However, the burden is on the moving party to prove all terms of the settlement. The court will look at the intention of the parties and construe the agreement in its entirety. Similarly, the court will construe the words in their ordinary meaning.

Defendant Attorney Attempting to Discuss Case with Plaintiff’s Treating Physicians

The United States District Court for the District of Maryland has recently denied the defendant the right to undertake ex parte communications with Plaintiff’s treating physicians. Law v. Zuckerman, 307 F. Supp. 2d 705, 708 (D. Md. 2004); Jeffries v. Kheti, Civ. No. L-07-1923. Divelbliss v. Appaswamy, Civ. No. 07-3025, slip op. (D. Md. Oct. 27, 2008). The only relief for the defendant is to take depositions during the discovery phase of the case.

Contempt of Court

There exist two types of contempt: direct and constructive. A direct contempt' means a contempt committed in the presence of the judge presiding in court or so near to the judge as to interrupt the court's proceedings." Md. R. 15-202(b). See also Smith, 382 Md. at 338, 855 A.2d at 344. Constructive contempt is any contempt other than a direct contempt. Md. R. 15-202(a). See also Smith, 382 Md. at 338, 855 A.2d at 344; In re Lee, 170 Md. 43, 47, 183 A. 560, 562, cert. denied 298 U.S. 680, 56 S.Ct. 947, 80 L.Ed. 1400 (1936) ("Indirect or constructive contempt is that which does not occur in the presence of the court, or near it, ... but at some other place out of the presence of the court and beyond a place where the contempt would directly interfere with the proper functioning of the court."); Dorsey v. State, 356 Md. 324, 344, 739 A.2d 41, 52 (1999) (noting that constructive criminal contempt proceedings are treated "like other ... actions with regard to the initiation of prosecution, waiver of counsel, waiver of jury trial, and bail"). King v. State400 Md. 419, 929 A.2d 169 Md.,2007; County Com'rs for Carroll County v. Forty West Builders, Inc.178 Md.App. 328, 941 A.2d 1181Md.App.,2008; Arrington v. Department of Human Resources 402 Md. 79, 935 A.2d 432 Md.,2007.

MAIF as a State Agency and Governmental Immunity

The issue arises as to whether MAIF is a State Agency and is cloaked with governmental immunity. This was briefed in the Court of Appeals in the case of Mesmer v. MAIF but the Court did not rule on the issue. It was created by the legislature in 1972. It has hybrid characteristics of a state agency and a private entity. See 61 Op. Att’y Gen’l 548, 549 (1976). In addition, in 58 Op. Gen’l 417 (1973) a statute using the phrase “governmental agencies of the State” was ruled inapplicable to MAIF. The opinion states “It is our opinion that the Comptroller has no duty, authority or function whatsoever with respect to MAIF funds, and that the Treasurer has only such limited powers and duties with respect to MAIF funds as are set forth in Section 243A”. It was felt that the State had no proprietary interest in nor claim upon MAIF assets. Thus, it seems like MAIF would not be entitled to claim governmental immunity.

PROVIDING SOCIAL SECURITY NUMBER IN DISCOVERY

To answer an interrogatory asking for a social security number the following language could be used: As to the part of the Interrogatory requesting Social Security Number, plaintiff objects on the grounds that there are no tax or credit decisions involved in this matter, the inquiring party is not a bank, an employer or a brokerage company. Similarly, the inquiring party is not a governmental agency (e.g. tax, welfare or motor vehicle department), and there is no other valid reason for the request in the circumstances of this case as it may apply to this answering party. Further, plaintiff has a legitimate concern of identity theft and will not voluntarily disclose a Social Security number.

The problem with this is that Medicare now put the insurance company at risk for repayment of any line so there may be a requirement to provide the social security number.

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