ON MOTION FOR RECONSIDERATION AND REQUEST FOR BOND PREMIUM COSTS
Respondents are residents of the Jacksonville community in Baltimore County, Maryland. They were awarded compensatory and non-economic damages by a jury in the Circuit Court for Baltimore County in 2009 flowing from an Exxon contractor’s puncture of an underground gasoline feed line on 13 January 2005 at an Exxon Mobil-owned gasoline service station, which went undetected for approximately a month. The
Respondents filed a Motion for Reconsideration on 17 April 2013, largely re-arguing the merits of the questions presented and decided previously. Exxon’s response arrived on 6 May 2013, together with its Amended Request for Bond Premium Costs seeking reimbursement in the amount of $920,566. Although we shall deny the Motion for Reconsideration, it is appropriate to address further one contention raised by Respondents.
Respondents argued in their motion, among other things, that, in our directions on remand to the trial court
As the trial drew near to submission to the jury, the trial judge requested on 14 January 2009 that Exxon and Respondents submit to him their proposed jury instructions. Respondents’ proposed jury instruction on property damages (based on Maryland Civil Pattern Jury Instruction 10:21) reflected Respondent-initiated strike-outs for damages for loss of use and enjoyment. The pertinent sections of Respondents’ proposed jury instruction read as follows:
In an action for recovery of damages for damaged property you shall consider the following:
* * * * * *
b. Conversion, Loss or Destruction
You shall award to the Plaintiffs the reasonable fair market value of the property immediately before it was damaged, was wrongfully taken, lost or destroyed, plus interest rate-at-the rate of (insert-rate) percent a year from (insert date-) minus the current reasonable fair market value of the property until the date you return your verdict;
*497 fe — Total loss
Where- the-coskof-repair-toAhe-pkintiffk-da-maged property is more-than its fair market value, the-award-to the plaintiff shall be the market value of the property before it was damaged; together with'loss of use, if any.
d. Loss of Use
T-he-measure -of - damages for loss of- use-is the reasonable rental value of comparable property. (Modified)
(Emphasis in original.) Accordingly, when the trial judge instructed the jury on 23 February 2009, he instructed on damages for diminution in market value only:
The Plaintiffs in this case are seeking three kinds of compensatory damages.... First they seek property damages in the form of diminution of the fair market value of their real property.... If you find that Exxon Mobil is liable for harm to a Plaintiffs real property, the Plaintiff is entitled to recover the difference between the fair market value of the Plaintiffs property before the injury and its fair market value after the injury.
The instructions on property damages that the trial judge delivered mirrored substantively the jury instruction proposed by Respondents. Hence, we conclude that, because Respondents submitted a modified pattern jury instruction which struck loss of use and enjoyment as a measure of damages (an instruction which was adopted substantially and given by the trial court), Respondents elected to pursue property damages for diminution in value — not loss of use and enjoyment — at trial. Just as we are unpersuaded by Respondents’ other arguments (most of which are re-arguments of the doctrinal merits), we deny Respondents’ Motion for Reconsideration.
Exxon requests that we order specifically that the assessment of costs in Ford (which we ordered to be paid pro rata by Respondents) include the cost of the premiums for the supersedeas appeal bond posted in each appeal of a plaintiffs judgment in the case — a total amounting to just under $1 million — pursuant to Md. Rule 1-406, which states that, “[u]pon request of the party entitled to costs[,] the premium
Exxon’s request provokes us to reconsider our allocation of costs in Ford, where we ordered all costs to be paid pro rata by Respondents. Ford,
We find persuasive support for our denial of Exxon’s Rule 1-406 request and our revision of the cost allocation in our mandate in the federal appellate courts’ consideration of judicial fairness in awarding costs to “successful” litigants in analogous situations to the parties here. The Second Circuit has noted that
costs in the federal courts are considered an incident of judgment and are not used as a punitive measure, nor to deter litigation. Hygienic Chemical Co. v. Provident Chemical Works,176 F. 525 , 527-28 (2d Cir.1910). They are awarded solely to reimburse the prevailing party for a part of his litigation expenses. Public policy considerations militate against allowing costs to be exacted as an “undue barrier to litigation.” See Larchmont Engineering v. Toggenburg Ski Center,444 F.2d 490 , 491 (2d Cir.1971).
Furman v. Cirrito,
We note one particularly relevant case in which an appellate court modified the court costs in a toxic tort case involving the Exxon Corporation in the face of an otherwise egregiously unjust result for the plaintiffs. Exxon Valdez v. Exxon Mobil Corp.,
The defendant owes the plaintiffs $507.5 million in punitives — according to counsel at oral argument the fourth largest punitive damages award ever granted. Yet that award represents a reduction by 90% of the original $5 billion. In light of this mixed result, and mindful that the equities in this case fall squarely in favor of the plaintiffs— the victims of Exxon’s malfeasance — we exercise our discretion by requiring each party to bear its own costs.
Id. (emphasis added). Although there is no Maryland counterpart to Fed.R.Civ.P. 39(a)(4), we conclude that the Ninth Circuit’s considerations in Exxon Valdez in awarding appellate
The effect of applying literally Rule 1-406 in a case as extraordinary as the present one would require Respondents, who consist of individuals harmed by Exxon’s admitted malfeasance, to pay approximately $1 million in premium costs for the supersedeas bond posted by Exxon pending an appeal that it pursued, as did Respondents.
Notes
. Among their arguments, Respondents contended that we represented erroneously, in footnote 60 of our earlier Opinion, that the Fox/Shindledecker and Anderson/Curtiss properties tested below the level of 20 ppb of MTBE in their wells. This was an error on our part and was corrected post-filing in the slip opinion. The correction was not substantive or material, however, because the judgments for these Respondents were reversed for other reasons, as explained in the Opinion.
. Md. Rule 8-422(a) provides, in pertinent part:
(a) Civil Proceedings.
(1) Generally. Stay of an order granting an injunction is governed by Rules 2-632 and 8-425. Except as otherwise provided in the Code or Rule 2-632, an appellant may stay the enforcement of any other civil judgment from which an appeal is taken by filing with the clerk of the lower court a supersedeas bond under Rule 8-423, alternative security as prescribed by Rule 1-402(e), or other security as provided in Rule 8-424. The bond or other security may be filed at any time before satisfaction of the judgment, but enforcement shall be stayed only from the time the security is filed.
. Md. Rule 8-423 states, in relevant part:
(a) Condition of Bond. Subject to section (b) of this Rule, a supersedeas bond shall be conditioned upon the satisfaction in full of (1) the judgment from which the appeal is taken, together with costs, interest, and damages for delay, if for any reason the appeal is dismissed or if the judgment is affirmed, or (2) any modified judgment and costs, interest, and damages entered or awarded on appeal.
(b) Amount of Bond. Unless the parties otherwise agree, the amount of the bond shall be as follows:
(1) Money Judgment Not Otherwise Secured. When the judgment is for the recovery of money not otherwise secured, the amount of the bond shall be the sum that will cover the whole amount of the judgment remaining unsatisfied plus interest and costs, except that the court, after taking into consideration all relevant factors, may reduce the amount of the bond upon making specific findings justifying the amount.
. We use advisedly the term "mass.” Of course, there is no hard-and-fast rule establishing a threshold beyond which a toxic contamination claim transmutes from a toxic tort to a "mass” toxic tort. Clearly, neither Ford nor Albright approach the circumstances of something like In re Union Carbide Corp. Gas Plant Disaster at Bhopal, India in Dec., 1984,
. We note that, although the argument is not before us, avoiding a literal application of Md. Rule 1-406 here precludes a potential constitutional challenge: compelling individuals in the place of Respondents may argue that the penalty of paying such egregious premium bond costs on a reflexive basis may violate their constitutional rights. See O’Donnell v. McGann,