Joseph ANTONIO, et al. v. SSA SECURITY, INC. d/b/a Security Services of America.
Misc. No. 1, Sept. Term, 2014
Court of Appeals of Maryland.
March 2, 2015
110 A.3d 654
HARRELL, J.
Gary A. Bryant (Joseph P. Moriarty, Willcox & Savage, PC, Norfolk, VA; Gerry Hoban Tostanoski, Tydings & Rosenberg, LLP, Baltimore, MD), on brief, for appellee.
Argued before BARBERA, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, MCDONALD and WATTS, JJ.
HARRELL, J.
The federal Court of Appeals for the Fourth Circuit certified to this Court the following question of law:
Does the Maryland Security Guards Act,
Md.Code Ann., Bus. Occ. & Prof. § 19-501 , impose liability beyond common law principles of respondeat superior such that an employer may be responsible for off-duty criminal acts of an employee if the employee planned any part of the off-duty criminal acts while he or she was on duty?
We answer the certified question in the negative. For reasons to be explained, we hold that
I. FACTUAL AND PROCEDURAL BACKGROUND.
A summary of the certified facts of this case deserve mention.1
Aaron Speed, one of the arsonists, had been hired originally by SSA in November 2003, without the benefit of checking his references. Speed quit his employment with SSA in August 2004, after being reprimanded for “careless and aggressive conduct.” One of Speed‘s supervisors placed a recommendation in Speed‘s personnel file that he not be considered for rehire. Despite this recommendation, Speed was rehired by SSA in November 2004.
As part of the conspiracy to set fire to the homes, Speed left his guard post at the development on 3 December 2004 in order to stash fuel that would be used by the others to set fire to the homes. While on-duty, Speed created also a map of the neighborhood, indicating which houses were owned or contracted for by racial minorities.
William Fitzpatrick, another SSA employee, was alleged also to have conspired to commit the arson.3 Fitzpatrick was on-duty guarding the development from 6:00 PM until 5:00 AM on December 5-6, but, according to Appellants, left his post early to leave the properties unguarded so that Speed and the other conspirators could commit the arson.
Appellants asserted ultimately various civil claims in the U.S. District Court for the District of Maryland against SSA, two of its corporate affiliates, and the five convicted arsonists. One of Appellants’ theories of SSA‘s liability contended that
Deciding a motion for summary judgment filed by SSA, Judge Alexander Williams, Jr. of the U.S. District Court held that the
On appeal, Appellants asked the federal Court of Appeals for the Fourth Circuit to reverse the District Court‘s decisions: (1) granting summary judgment in SSA‘s favor as to the negligence claims; (2) granting summary judgment in SSA‘s favor as to the claims premised on strict liability under the
Appellants argued, as they do now, that the Maryland Security Guards Act extends the vicarious liability of security guard agencies beyond the Maryland common law doctrine of respondeat superior. The federal appellate court considered the text of the statute and, after applying Maryland‘s cannons of statutory construction, concluded that there were conflicting indications as to the meaning of the
II. OUR ANALYSIS.
We may answer questions certified to us by a United States court or the appellate court of another state or of a tribe if the answer might be determinative of an issue before the certifying court and there is no controlling Maryland authority.
The District Court dismissed several of Appellants’ claims because the alleged torts and fair housing violations committed by SSA‘s employees were beyond the scope of their employment. Appellants argued before the federal District Court, the federal Court of Appeals, and now us that the
The relevant portion of the Act,
When interpreting statutes, our overarching goal is to ascertain and implement the intention of the Legislature. Witte v. Azarian, 369 Md. 518, 525, 801 A.2d 160, 165 (2002). We turn first to the words of the statute. If, in pursuit of the North Star of intent, the words of the statute, given their common and ordinary meaning, are unambiguous and express a plain meaning, our inquiry stops normally and we interpret the statute as written. Oaks v. Connors, 339 Md. 24, 35, 660 A.2d 423, 429 (1995). If the text is ambiguous, however, we look to other evidence of the Legislature‘s intent, including the relevant statute‘s legislative history, the structure of the statute, the relationship of the statute to other laws, and the relative rationality of competing constructions. Witte, 369 Md. at 525-26, 801 A.2d at 165.
There is, however, one important and particularly relevant interpretive principle reining-in our quest to elucidate the will of the Legislature: we will not presume abrogation of the common law unless the Legislature‘s intent to do so is clear. Suter v. Stuckey, 402 Md. 211, 232, 935 A.2d 731, 743-44 (2007) (citing Robinson v. State, 353 Md. 683, 693, 728 A.2d 698, 702 (1999); Lutz v. State, 167 Md. 12, 15, 172 A. 354, 355-356 (1934)). When the intent of the Legislature is unclear with regard to abrogation, we will interpret the statute to be congruent with the common law.7
A. Abrogation Here of the Common Law?
Maryland‘s common law doctrine of respondeat superior holds employers liable “for the tortious conduct of ... [an] employee committed while the servant was acting within the scope of the employment relationship.” Barclay v. Briscoe, 427 Md. 270, 283, 47 A.3d 560, 567 (2012) (quoting Embrey v. Holly, 293 Md. 128, 134, 442 A.2d 966, 969 (1982)). For employee conduct to be within the scope of employment, “the acts must have been in furtherance of the employer‘s business and authorized by the employer.” Barclay, 427 Md. at 283, 47 A.3d at 567-68 (quoting S. Mgmt. Corp. v. Taha, 378 Md. 461, 481, 836 A.2d 627, 638 (2003)). Expanding the vicarious liability of security guard agencies by statute to include all on-duty acts of employees (strict liability) would alter significantly the common law scheme of respondeat superior and amount to an abrogation of the common law.
The common law doctrine of respondeat superior not only holds employers liable for the actions of their employees in furtherance of the employer‘s business, but also limits an employer‘s liability to those situations. It is central to the doctrine that an employee‘s acts committed outside the scope of employment, i.e., not in the furtherance of the employer‘s
A temporal interpretation of the
Contrary to Appellants’ arguments, interpreting the
The common law doctrine of respondeat superior answers the question: When is an employer liable for the torts of its employee? The
B. Plain Language of the Statute
The
Appellants’ major premise revolves around the temporal meaning of “while.” When used grammatically as a conjunction, as it is in the
The Maryland Security Guards Act defines “conducting the business of the agency.” A licensed security guard agency is defined as “a person who is licensed by the Secretary to conduct a business that provides security guard services.”
Combining these terms, Appellants arrive at the following meaning of the
SSA argues, in response, that if the General Assembly intended a temporal construction, extending liability to all acts of on-duty employees, it would have done so explicitly.11 Instead, the Legislature used language that SSA argues is a qualification based on the nature of the conduct.
The language of the
C. Context of the Statute
The crux of the Maryland Security Guards Act is the licensing scheme of security guard agencies, not the imposition of civil liability. The majority of the Act governs how an agency applies for and obtains the required licensure from the State to conduct a security guard agency. The “Miscellaneous Provisions” of the Act, of which
The broader context of the Maryland Code provides some support for the Appellants’ interpretation of the
Considering the language of the
D. Legislative History
The language of the
Senate Bill 968 of 1986 was introduced as a bill separate from a recodification initiative of the Maryland Code then underway. The separate bill was necessary because the General Assembly wished to address perceived substantive problems regarding the laws pertaining to private detectives. Department of Legislative Reference, Report on Senate Bill 968 at 1 (1986) (hereinafter “Report on Senate Bill 968“). Several issues with the pre-existing statutory language regarding the licensing and provision of private detective services were identified in the Report on Senate Bill 968. The Report did not identify any problem with the regime of vicarious liability of private detective agencies or security guard agencies then in force. Notably, it stated: “[F]or the most part, the proposals under the bill find their basis in actual law and practice and do not deviate substantially from the current law as it is now is applied. There is no attempt under the revision to change existing underlying policy.” Report on Senate Bill 968 at 2.
The Report highlighted elements of Senate Bill 968 warranting special attention by the General Assembly, but in doing so did not mention § 591 of the Bill, the language of which would be codified later as
Part VI of the revised subtitle consists of 8 “miscellaneous” sections that do not fit well into any of the other 7 parts of the revised subtitle. While revision of these sections involve an extensive reorganization and restatement of the current subtitle, all of the revised sections are based on current law.
Report on Senate Bill 968 at 8. In the opinion of the authors of the Report, the
The Bill Analysis of the Senate Economic and Environmental Affairs Committee interpreted similarly the “while the employee is conducting the business of the agency” language of Senate Bill 968. The Bill Analysis noted that “[t]he substantive changes are included for the limited purpose of clarifying existing law.” Department of Legislative Reference, Bill Analysis, Senate Economic and Environmental Affairs Committee at 1 (1986) (hereinafter Bill Analysis). Each section of the Bill was discussed in the Bill Analysis. For § 591, it observed that the Bill “[s]pecifies that the agency is responsible for the acts of its employees by clarifying provisions of
The Summary of Committee Report on Senate Bill 968 did not note anything of consequence regarding the vicarious liability of security guard agencies or private detective agencies. The Summary reiterated that “[t]he purpose of the bill is to clarify the current law without changing existing underlying policy.” Department of Legislative Affairs, Summary of Committee Report, Senate Economic and Environmental Affairs Committee at 2 (1986) (hereinafter Summary of Commit-tee Report). The Summary further noted that Senate Bill 968 “clarifies current law and sets forth explicit processes that are not included under current law.” Summary of Committee Report at 1. The legislative history of the Bill indicates overwhelmingly to us, at every turn, that the intent of the Legislature was to reiterate the law regarding security guard agencies’ vicarious liability as it existed at that time.
Appellants argue that the law prior to Senate Bill 968 imposed strict liability on security guard agencies. They point also to the rejection of a proposed amendment to reword the relevant section of the Bill to incorporate the common law term “scope of employment” as evidence of the General Assembly‘s rejection of SSA‘s interpretation of the statute.
Prior to adoption of Senate Bill 968 of 1986,
The holder of any license issued under the provisions of this subtitle may employ to assist him in his work and in the conduct of his business as many person as he may deem necessary, and he shall at all times during which such employment be accountable for the good conduct in the business of each and every person so employed.... The employer shall be responsible for the actions and conduct of all employees in connection with such employer‘s business.
Id. According to the legislative history, the General Assembly intended to incorporate the meaning of this statute into Senate Bill 968 of 1986, which later segued into the
The text of the 1951 statute does not establish, on its face, the General Assembly‘s clear intention to abrogate the common law. The exact meaning of that statute is as ambiguous, in its fashion, as is the present
Appellants make a more nuanced additional argument for reading the predecessor and current statutes as abrogating the common law. They point out that the 1951 Act was enacted two years after Apex Smelting Co. v. Burns, 175 F.2d 978 (7th Cir.1949). In Apex Smelting, the federal Court of Appeals for the Seventh Circuit upheld a directed verdict in favor of a security guard agency, finding that under Illinois’ negligence and respondeat superior jurisprudence the agency was not liable for an employee‘s act of arson. Id. at 981. Appellants claim that the Maryland General Assembly reacted to the Seventh Circuit case by enacting the 1951 Act, intending that a case similar to Apex Smelting would come to a different result in Maryland as a consequence.
After Apex Smelting, the Illinois Legislature formulated a statute similar to Maryland‘s 1951 Act. The Illinois statute read:
The holder of a certificate of authority who employs persons to assist him in the work of private detective and in the conduct of such business shall at all times during such employment be legally responsible for the good conduct in the business of each and every person so employed.
Stewart Warner Corp. v. Burns Int‘l Sec. Servs., Inc., 353 F.Supp. 1387, 1389 (N.D.Ill.1973). Applying the statute in Stewart Warner Corp. v. Burns Int‘l Sec. Servs., Inc. (involving a Chicago arson committed by an on-duty security guard), the U.S. District Court for the Northern District of Illinois held that the statute broadened the scope of vicarious liability of security guard agencies to include all wrongful acts of employees “so long as they were committed while the employee was actually on the job.” Id.14 Thus, the plaintiff prevailed.
Appellants’ argument continues by pointing out that subsequently the “good conduct” language (similar to both Maryland‘s 1951 Act and the Illinois statute) became controversial nationally. Some courts interpreted broadly similar statutes as the Stewart Warner court did. See, e.g., Simmons, Inc. v. Pinkerton‘s, Inc., 762 F.2d 591, 596-97 (7th Cir.1985). Other courts, construed the “good conduct in the business” language to merely codify merely the common law. Knouse Foods Co-op., Inc. v. Burns Int‘l Sec. Servs., Inc., 519 F.Supp. 867, 869 (E.D.Pa.1981); Hoover Ball & Bearing Co. v. Pinkerton‘s, Inc., 500 F.Supp. 673, 675 (W.D.Mich.1980).15 Appellants contend that the Maryland
Although Appellants advance an alluring causation narrative spanning decades and weaving through multiple related statutes and acts of the General Assembly, under close scrutiny it amounts ultimately to nothing more than plausible conjecture. It is equally likely that a general desire for implementation of a licensing regime for private detective and security guard agencies provided the motivation for the 1951 Act, with the Legislature unaware of or unconcerned with the Seventh Circuit‘s decision in Apex Smelting.16 Similarly, although the General Assembly sought to make substantive changes with Senate Bill 968 that were deemed inappropriate for the contemporaneous Code recodification initiative, the substantive problems identified by the General Assembly necessitating Senate Bill 968 involved the licensing regime itself, not the state of vicarious liability of private detective and security guard employers. There is no evidence we could find that the court cases interpreting statutes from other jurisdictions with similar language to Maryland 1951 Act figured in the formulation of the language adopted ultimately in Maryland. We interpret legislation to abrogate the common law only when the Legislature‘s intent to do so is clear. Suter, 402 Md. at 232, 935 A.2d at 743-44. It is not clear that the General Assembly sought to do so in the 1951 Act.
Appellants point also to a failed amendment to Senate Bill 968 that proposed to clarify that private detective and security guard agencies would be liable only for the acts of employees within the scope of employment. The Maryland Association of Contract Guard Services, a trade group, proposed to the Senate Committee on Economic and Environmental Affairs to change the language of § 591 of Senate Bill 968 to read: “A private detective agency is responsible for the acts of each of its employees if the acts are within the scope of the employment.” Loughlin Security Agency, Inc., Proposed Changes to Senate Bill 968 ‘Maryland Private Detectives Act’, Senate Committee on Economic and Environmental Affairs (1986) (hereinafter Proposed Changes to Senate Bill 968). Senator Francis Kelly sponsored the amendment before the Committee. Francis Kelly & Maryland Association of Contract Guard Services, Amendment to Senate Bill No. 968 (1968).
The trade group‘s written testimony explaining the proposed change justified it as desirable because the extant phrase imposing liability—“while the employee is conducting the business of the agency“—was ambiguous. Proposed Changes to Senate Bill 968. The proposed change, it was contended, would make clear that security guard agencies were subject to common law vicarious liability for acts of employees. Id. The Committee declined to recommend favorably to the floor the proposed amendment for the second reading of the Bill. The Bill file maintained by the
Consideration of failed amendment proposals can be useful sometimes in ascertaining or confirming legislative intent. State v. Bell, 351 Md. 709, 721, 720 A.2d 311, 317 (1998); NCR Corp. v. Comptroller of the Treasury, Income Tax Div., 313 Md. 118, 125, 544 A.2d 764, 767 (1988); see also Ishola v. State, 404 Md. 155, 166, 945 A.2d 1273, 1279 (2008) (using the rejection of a proposed amendment as evidence of legislative intent). Failed efforts to amend a proposed bill, however, are not conclusive proof usually of legislative will. City of Baltimore Dev. Corp. v. Carmel Realty Associates, 395 Md. 299, 329, 910 A.2d 406, 424 (2006); Auto. Trade Ass‘n of Maryland, Inc. v. Ins. Com‘r, 292 Md. 15, 24, 437 A.2d 199, 203 (1981). This is because there can be a myriad of reasons that could explain the Legislature‘s decision not to incorporate a proposed amendment. City of Baltimore Dev. Corp., 395 Md. at 329, 910 A.2d at 424.
Absent a clear indication in the legislative record, it is as likely that the effort to amend Senate Bill 968 in committee failed because, in the Committee‘s view, the Bill reflected already common law vicarious liability as it is that the Committee intended to abrogate the common law by reporting an unamended version of the Bill to the floor. Overall, the legislative history of Senate Bill 968 does not illuminate any clear understanding of the
E. Policy Considerations
Consideration of the practical consequences of divergent interpretations of an ambiguous statute may provide insight into its meaning. When “confronted with ambiguity regarding legislative intent, it is our duty to announce a rule that we are convinced is best supported by sound jurisprudential policy germane to the pursuit of legislative intent.” Haas v. Lockheed Martin Corp., 396 Md. 469, 493, 914 A.2d 735, 749 (2007). In some cases, policy considerations may outweigh other principles of statutory construction. Id.
Appellants urge that their interpretation of the
Appellant‘s policy arguments are appealing, but, as SSA offers, there are countervailing considerations. Most convincing of them is the wide range of potential acts for which security agencies could become liable were Appellants’ interpretation to be endorsed. Security guard agencies would be liable for an employee‘s acts unrelated completely to their employment or the special trust placed in them. A security guard agency could become liable, for example,
As noted earlier, Appellants, in their reply brief, propose a limitation on their interpretation of the statute that would prevent the kind of absurd results of which SSA warns. They would add the requirement of a nexus between an employee‘s on-duty wrongdoing and his or her provision of security services (such that the alleged tort is incident to the employee conducting the agency‘s business) before liability could arise under the
Although the requirement of such a nexus might dissipate the problematic hypotheticals suggested by SSA, that it was even proposed stands in opposition to the policy considerations underlying our rule of construction by which we interpret statutes in accordance with the common law, absent clear intent of abrogation. Ultimately, these policy considerations overcome whatever benefits might arise from the interpretation of the
Even seemingly small changes to the law, though motivated by conciliation and good intentions, often require future clarification, as Appellants’ offered interpretation of the
The common law doctrine of respondeat superior has its genesis in 17th and 18th Century England. Christine W. Young, Comment, Respondeat Superior: A Clarification and Broadening of the Current “Scope of Employment” Test, 30 Santa Clara L.Rev. 599, 601 (1990). The doctrine was adopted by courts in the United States and, over time, broadened to incorporate more acts of the employee. See generally id. (describing the adoption of respondeat superior by American courts and outlining its expansion in California). The common law has the advantage of the collective wisdom of a multitude of courts refining the doctrine over centuries. We are not convinced that the policy considerations that Appellants offer in support of their interpretation of the
III. CONCLUSION.
Considering the ambiguity of the