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With hundreds of thousands of confirmed cases and increasing deaths worldwide, COVID-19 has quickly become the only topic of conversation.  I can no longer remember what we used to talk about. If you own a business, you have probably felt the effects of the pandemic more substantively.  We have. The U.S. Judicial Panel on Multidistrict Litigation (JPML) will hear oral arguments in late July, about whether to consolidate and centralize lawsuits involving COVID-19 insurance coverage. After the SARS outbreak in 2003, many insurance carriers created policies made to include a vague virus exclusion as a reason for them not to cover businesses who have been paying insurance for years. Unfortunately, in most cases, insurance companies did not offer policies without this exclusion or the ability to buy virus coverage. On April 20, plaintiffs’ lawyers filed a motion to form an MDL. The motion filed in the Northern District of Illinois (and another was filed in Pennsylvania) alleges that there are two key issues that need to be decided in this litigation: business interruption cases turn on two questions: (1) whether COVID-19 causes “physical damage or loss to property” and, (2) whether the COVID was “present” on the insured property.  Those issues should be decided in one litigation for efficiency and for consistent rulings. The court has yet to decide whether to grant plaintiffs’ motion for an MDL class action. business interruption insurance

What Is the Benefit of Centralizing Claims and What Can I Expect?

The JPML will consider whether to consolidate both individual and class action lawsuits. The majority of these lawsuits surround the effect of the pandemic on business and insurance carriers. As a result of the pandemic, businesses have been outraged to find that their insurance refused to cover their losses, regardless of the policy. Most business owners who have filed a suit were under the impression that they were covered for the pandemic, because of their business interruption insurance. However, business interruption insurance policies typically only trigger if there’s a direct physical loss to property; they do not cover virus and bacteria. Insurance carriers in response have denied many claims, claiming that the virus was an exclusion in the coverage, written in the fine print of the policy. Various states have proposed legislation to resolve the situation. However, in the near future, there’s no immediate clarity for business owners or insurers.

With a growing number of complaints being filed in U.S. District Courts nationwide, several parties filed a motion to transfer, asking the JPML to centralize the claims before one judge in the Eastern District of Pennsylvania. Centralizing the claims would promote a more efficient and universal process, while also avoiding duplicative discovery into similar issues presented by each case. Somewhat predictably, insurance carriers have filed an opposition to the establishment of consolidated proceedings altogether. On July 30, arguments will be presented through a videoconference due to the ongoing pandemic. It is likely that in the time leading up to the hearing, thousands of businesses who have suffered similar effects will likely look to file lawsuits as well. In complex litigation, where numerous claims regarding similar situations and similar injuries have occurred as a result of the same circumstance, it is common to centralize the litigation for pretrial proceedings.

What Should You Do if You Have Lost Income as a Result of COVID-19?

The most important first step for any person or business owner is to collect evidence that will allow you to file a business interruption claim. You want to talk to a lawyer quick. There could be notice provisions and other technicalities that could bar a future claim.

Gathering as much information as possible and contacting your insurance carrier will allow them to determine whether your claims are covered.  Most insurance carriers are not covering losses due to the pandemic which is why there will be litigation for years seeking coverage.  However, if a policyholder files a claim within the deadline requirements for first notice of losses, it allows you to still dispute the insurance carrier’s decision. Before the July hearing, there hasn’t been a binding decision from any court in the country that makes provisions and exclusions in the insurance contract enforceable, at least concerning COVID-19 claims. By following the strict deadline requirements, it may allow you to dispute the claim decision at a later date when there has been regulations or court precedent passed universally. Sample-Business-Interruption-2   Regardless of any virus exclusion policy, you may still recover some damages. It’s not clear whether the virus exclusion will be enforceable and there is currently nothing to make a clear distinction. Making sure that you’ve followed the requisite steps will all you to not be precluded from recovery in the future.

What Else Should I Do?

What started as a judicial question has moved to both the legislative and executive branches. Legislative bills that would require insurers to pay COVID-19 business interruption claims have been introduced in eight states so far. President Trump also pronounced his support for claims made by business owners who purchased insurance policies without any virus exclusions during an April 10 press briefing. It is an election year so politicians will be pandering to business owners. That is good for you.

These are certainly unprecedented times we are living in. Moving forward in the coming weeks business owners can expect more clarity. For now, you should stay safe and healthy and take some additional steps to help yourself later down the road.

  • Stay up to date – Following the latest consolidation hearings, regulations, and restrictions from state and federal governments. This will help you stay in compliance. Doing so, will not preclude you from recovery and allow you to plan for the future.
  • Review your policies –You should take some time to familiarize yourself with the remainder of your policy, as well as other exclusions that may apply to you or your business. Doing so, will keep you up to date and acutely aware of how your policy affects your circumstances. 

Metro Verdicts Monthly looks at median settlements and verdicts in all civil rights cases in Maryland, the District of Columbia, and Virginia since 1987.  (This data is a bit older but I think it is still accurate.) The median civil rights award in Maryland is $90,000. The median in Washington DC is $100,000. Incredibly, and I have no explanation for this, the median in Virginia is $200,000, over 100% greater than the civil rights verdicts and settlement in Maryland.

We know for sure that post-George Floyd, we will see a lot more of these. Because juries will be more inclined to believe the victim. The world is changing. Not fast enough. But it is changing.

The following is a sampling of verdicts and settlements that involve the violation of civil rights:

Blood v. Stoneridge at Fountain Green Homeowners is an interesting case not only because the opinion begins with an Elton John verse from “Don’t Let the Sun Come Down on Me.”

Facts of Blood v. Stoneridge

In Blood, two Harford County (Bel Air) homeowners installed solar panels on their roofs. Big solar fans apparently, they installed fifteen solar panels on the front roof and thirty-three solar panels on the rear roof.

This post was originally written in 2008.  Goodness, things have changed in 2020, with COVID and everything else.

Let’s see where we are now with attorney salaries and, specifically, first-year starting salaries for new lawyers in the Baltimore area. Keep in mind so much of this is based on conjecture and rumor, so you have to take it all with a few ounces of salt.

What Do the 2019 Statistics Show?

I frequently get an email that is some version of this one on the diminished value of cars after a crash:

Hello Professor Miller,

It’s [name withheld], and I took Sports Law from you (really learned a lot by the way). Anyway, the reason, for my [voicemail], and why I’m writing is because I have a friend who has a problem. He purchased what I believed was an SUV, brand new in 2006. A few months ago it was stolen and vandalized. The police were eventually able to recover it, but it was totaled. According to my friend the blue book values the car at a certain amount, but the insurance company is not willing to pay him anything near the blue book value of the car. The more time passes the more the value decreases. My friend would like to recover the fair value of his vehicle and would like to know what his recovery rights are. I am sure you are incredibly busy, but my friend also wanted me to refer him to someone I trusted and was an expert in insurance law.

Sometimes, I think we should be harder on lawyers who have bad intent. But this is a little over the top for me.

In Attorney Grievance Commission v. Kepple, a lawyer was given an indefinite suspension of at least 30 days because 13 years ago she hid her real state of residence so she could get in-state tuition. Basically, she pretended she lived in West Virginia to get in-state tuition.

How did she get caught? Her spiteful ex-husband ratted her out. Lawyers who lie and steal from their clients need to be punished, probably more than they are now in Maryland. But this was a long time ago, she actually had good contacts with West Virginia because she worked there for a time… I just think this is a little over the top. You can find the court’s opinion here.

After almost six years, the Maryland Court of Appeals shuts down a public interest group’s attempt to block the creation of a dairy farm creamery. The court found that the third party group did not have standing because the easement they sought to enforce did not include them. A long fight for someone who, as it turned out, had no skin in the game.

Here is what happened. Defendants own an organic dairy farm that is located on 199 acres in the Long Green Valley area of Baltimore County. The Maryland Agricultural Land Preservation Foundation (MALPF) is a statutorily created organization that buys easements on farm owner’s lands, making them promise that they will only use it for farming purposes. Competition to get into the program is fierce, but in 1997, Bellevale sold a MALPF easement to MALPF for $796,500.

In 2007, the defendant proposed to build a 10,000 square foot creamery operation on the land and received approval from the MALPF because it created and stored milk, cheese, and other dairy products. The terms were compliant with MALPF’s statutory and organizational goals. However, another land preservation organization, the Long Green Valley Association (LGVA), took issue with the creamery and filed several complaints and emergency hearings with the Deputy Zoning Commissioner for Baltimore County. All the bureaucratic avenues ultimately declared that the creamery counted as a “farm” and was being created for “farming purposes.” Finally, the LGVA filed a lawsuit in the Circuit Court of Baltimore County.

The subject of DNA testing has been increasingly prevalent in Maryland courtrooms. In the past few months, a Maryland case (Maryland v. King) was argued in the Supreme Court on whether an arrested person’s DNA could be legally taken. No matter one’s view on its collection, DNA sometimes plays a large role in determining who did or did not do something. However, they recently decided that Brown v. Maryland shows an example of how allegedly exonerating DNA results that might not even matter.

Brown features a particularly violent assault and rape of a young woman. She was abducted, beaten, handcuffed, and tortured– among other things, that the court understated as being “not pretty.” I think the word “unimaginable” works.

Anyway, Brown was found guilty and convicted to eighty-five years in prison. Now he attempted to utilize a new Maryland statute that granted a new trial if post-conviction DNA was (1) favorable to the petitioner and there was (2) a substantial possibility…that the petitioner would not have been convicted if the results were known at trial.

Four former and current black police officers in Annapolis have filed suit in federal court against the city. The officers claiming they were discriminated against because they are black and, as a result, were turned down for promotions and opportunities to advance.

These kinds of cases are so hard to prove even when they are true. Two of the officers argue disparate treatment which means while the City of Annapolis might use facially neutral employment practices, they have had an unjustified adverse impact on these black officers. In other words, maybe it was not intentional discrimination, but it is.

The Baltimore Sun reports that the city has 26 black officers on its 117-member force, which sounds reasonable. But that does not mean there was no discrimination. You just can’t read a story like this and know what happened.