*1 and multiple DiCicco involved numerous clients incidences of Furthermore, discrepancies involving his client trust account. 8.4(c), was found not to while DiCicco have violated Rule 8.4(a) violation Rule was sustained. We note Culver’s incident, only single case involves no violation of Rule charged. 8.4 was circumstances,
Considering all of the we conclude that the appropriate suspension sanction in this is an matter indefinite practice right from the of law with the to seek reinstatement days opinion from effective date of this and after after $3,500 Blums from payment to the the settlement of the litigation. Attorney second See Grievance Comm’n v. Mon (2002). 373, 397-98, Md. 794 A.2d fried, 368 ORDERED; IT PAY ALL IS SO RESPONDENT SHALL COURT, TAXED BY THE COSTS AS CLERK OF THIS TRANSCRIPTS, THE ALL INCLUDING COSTS OF PUR- 16-715(C). MARYLAND SUANT TO RULE JUDGMENT ENTERED IN SUM IN FAVOR THE IS THIS OF ATTOR- NEY GRIEVANCE MARYLAND COMMISSION OF JR.; CULVER, AGAINST ALLAN J. RESPONDENT’S THIRTY SUSPENSION SHALL COMMENCE DAYS THE FROM FILING OF THIS OPINION.
Oct. *3 (Kathleen Alan Hilliard Legum Duckett McCann of Alan Hilliard, P.A., brief), on Annapolis, petitioner. (Sloane Page
Richard R. Wyrough R. Franklin of Cain & P.C., Wyrough, brief), Marlboro, for Upper respondent. Argued BELL, C.J., ELDRIDGE, before RAKER, *4 WILNER, CATHELL, HARRELL, BATTAGLIA, JJ.
HARRELL, Judge. Faulk, Petitioner,
Cleveland Ewing, Louis Michael Re- spondent, were in involved a motor vehicle on 19 accident Easton, March 1998 in Maryland. accident, At of the time the Respondent was an employee of Easton Utilities Commission (“EUC”), a public utility commission owned and operated by Easton, the Town of and was driving an EUC vehicle. The 288 EUC, through to the Safety of for called scene
Director efforts, day it Ewing’s investigated accident on the same the firm employee initially repre- An law that occurred. the notification of the accident provided sented Petitioner written (“Hart- insurer, Company Insurance to Easton’s The Hartford ford”), Hartford claim on about 31 March 1998. denied the reply April in a 8 1998. letter of 16 in the Petitioner suit on June 2000 District Court filed County, seeking monetary in Talbot dam- Maryland, sitting presentation from At conclusion of ages Respondent.1 the closing argument, parties’ cases-in-chief Petitioner’s case, to for the first Respondent arguing moved dismiss the requisite to of his failed provide time Petitioner § Local claim to Town of Easton under 5-304 of the (“LGTCA”). Maryland Tort Claims Act Code Government (1974, Pro- Repl.Vol., Supp.), 2001 Courts and Judicial Article, to ceedings judge permitted § 5-304. Petitioner in re-open copies case-in-chief order introduce coun- exchange correspondence between Petitioner’s former ultimately District denied Re- sel and Hartford. The Court spondent’s judgment to dismiss and entered for Peti- motion 5-304, $5,000. regard judge tioner for With to LGTCA that the did not impliedly concluded notice sent Hartford 5-304, satisfy § but elected “to nonetheless entertain suit” showing preju- defense because no that the has been “there’s diced here lack notice.” County for Talbot Respondent appealed the Circuit Court Court, The Circuit on based the District record.2 (1974, Repl.Vol., Maryland Supp.), 1. Pursuant Code Article, 5-303(b), Proceedings of Ea- Courts and Judicial the Town damages “any judgment against employee its ston liable for resulting employee acts or from tortious omissions committed employment government.” scope within the with the local 10,000 damages, Maryland sought page $ see 2. Petitioner infra 7-102(b) provides, part, Rule relevant appeal be heard on record made the District Court [a]n shall following cases:
289 of the District judgment reversed March statutory proper provided had not that Petitioner ground to relief was not entitled and Town of Easton to the notice by this sought review then Petitioner that failure. from certiorari, Faulk issued a writ we 7 June On Court. (2001), to consider the A.2d 513 Md. Ewing, v. rephrased questions: following § of the 5-304 notice
1. Whether with, or satisfied, substantially complied are LGTCA 5-204(c), when: waived, §to pursuant motion to employee makes government a. A local at the close §with 5-304 comply for failure dismiss con- Complaint, trial, answering the in a after evidence evidentiary portion completing the discovery, and ducting trial. utility government’s for a local Safety Director b. The investigates the and is notified accident company scene. timely given written insurer is government’s A local
c. claim. notice of the not from prejudice shows no government A local
d. (b). § required by notice having received the at counsel argument by Petitioner’s the oral 2. Whether constituted in the District Court close of evidence good cause for waiver to show motion sufficient 5-304(c). §to pursuant requirement lower overruling in erred the Circuit Court 3. Whether dismiss, motion to Respondent’s denying decision court’s controversy exceeds (1) in the amount in which a civil action costs, interest, attorney's $2,500 attorney’s if fees fees exclusive by law or contract.... are recoverable Proceedings (1974, Repl.Vol.), Courts and Judicial Maryland Code Article, 12-401(f), states: in which the amount appeals. a civil case De novo and on record —In interest, costs, $2,500 attor- controversy exclusive of exceeds contract, any attorney’s recoverable law ney's if fees are fees article, (7)(ii) and in case arising of this under 4—401 matter on the record agree, appeal shall be heard parties an which the so District Court.... made specifically, whether the lower court’s decision constituted an abuse of discretion.
I. 1998, Petitioner, On 19 March Faulk, Cleveland and a passenger, Tracy Tilghman, were traveling on Glebe Road County Talbot in Petitioner’s Respondent, vehicle when Louis Ewing, allegedly Michael pulled out of driveway, encroached lane, into Petitioner’s ditch, forced Petitioner to into drive and go caused Petitioner’s car to “in air and down.” c[o]me At accident, Respondent time was an employee of EUC and operating an EUC vehicle within scope employment.3 Immediately accident, after the Respondent “dispatcher utilities,” radioed the who “took of calling care authorities,” proper including police paramedics. The dispatcher Tarrant, also notified Daniel G. the Director of Safety EUC, who went to the scene day the same investigated the accident “on behalf of Easton Utilities.” The following day, sought Petitioner medical treatment for sore- ness in his lower back. He receiving chiropractic continued care until 16 June 1998.
31On March Petitioner’s counsel4 sent a letter to Hartford, insurer,5 the Town of Easton’s contending that Respondent’s actions on 19 March caused Petitioner and Ms. Tilghman injuries. to suffer The letter read: Respondent testified that at "reading the time of the accident he was meters on Glebe Road.” 4. Plaintiff's counsel at attorney this time was not the same or firm that represented Court, him when the case was filed and tried the District Court, heard Circuit or considered this Court. case, assume, purposes 5. For of this we parties as did the and the below, Hartford, accident, courts at the time of the insured the Town of Easton type potential liability and EUC for the represented by Petitioner’s claim.
March Co. The Hartford Insurance
ATTN: Mr. Dan Schukraft
P.O. Box 170
Chewsville, MD 217216 Tracy Faulk Claimant Cleveland
RE: Tilghman Insured Town of Easton Driver Louis Michael Ewing, Jr.
D/Acc. 3/19/98 Rd., L/Acc. Co., Glebe Talbot MD Dear Mr. Schukraft:
Please be advised that this office represents the above named in the matter of personal injuries and/or property damage sustained as the result of involved being in an accident your with insured on the above date. captioned
Kindly acknowledge coverage in this matter.
Very truly yours, (ext. Diane T. 710) Cech Assistant [Petitioner’s counsel] DTC/cb
Enclosure (police report)
Hartford, April letter dated 8 as follows: responded Chewsville, Maryland, Washington County, just is located in east of travel, Hagerstown. By approximately vehicular Chewsville is (other Regarding relationship miles from Easton. the nature of the insurer/insured) frequency than of contact between Hartford’s EUC, generally Chewsville office and the Town of Easton or or with accident, regard explicit. to the 19 March 1998 the record is not lawyers]
[Petitioner’s
[Address] Easton Our Insured: Town of RE: 732 KAL 61422 Claim No. March D/L: Tracy Faulk & Tilghman Cleveland Claimants: Cech: Dear Diane we have reviewed the circumstances be advised
Please which occurred March the accident surrounding at information this time to make we have sufficient believe liability claim. this regarding decision proper do our be legally we not feel insured would investigation, our From According to the statement of the driver this incident. liable for vehicle, he never entered the eastbound lane insured of travel. There any contact between the vehicles. We was never have no information our suggest that insured contributed to this accident. Therefore, we respectfully deny voluntary must this payment of claim. this, at you any questions concerning have all please
Should don’t at to contact me 301-739-4582. hesitate kind very your cooperation. much for Thanks yours, Very truly CPCU, Schukraft, A. SCLA
Daniel *8 Representative Claims Senior denial, against Respondent filed suit
Following this Petitioner $10,000 “injuries for seeking damages in the District Court person, expenses, pain suffering.” medical and and Court, a Respondent Prior to the trial in the District filed general participated “Notice of Intention to Defend” and Discovery interroga- discovery with Petitioner.7 consisted of by parties. both propounded tories Easton, by Respondent represented was counsel for the Town of Hartford, designated by presumably as because the accident occurred Respon- and both Petitioner September At trial on 15 cases- exhibits their witnesses8 and submitted dent called Respondent closing argument, in-chief. After Petitioner’s case, time that arguing for the first to dismiss the moved given notice proof proper to adduce Petitioner failed (b) and required by as to the Town of Easton “absolutely nothing showed and that Petitioner LGTCA give position a failed support [he] which would 5-304(c).9 Petitioner, in under good notice for cause” by supra employment note scope Respondent’s EUC. See within the accompanying text. witnesses, Tilghman Tracy Faulk and as 8. Petitioner called Cleveland Respondent called Louis Respondent cross-examined. both of whom Tarrant, cross- Ewing examination. Petitioner M. and Daniel direct Ewing, Mr. Tarrant. did not cross-examine examined Mr. but Act, entitled Tort Claims 9. Section 5-304 of the Local Government damages,” provides: unliquidated "Actions for (c) (a) required. Except provided in subsection of this as Notice — section, brought damages may unliquidated not. be an action for employees against government unless notice a local or its days given after the by within 180 required claim this section is injury. (1) (b) County, giving Except in Anne Arundel Manner notice.— County, George’s County, County, Prince Baltimore Harford mail, receipt given person by return or certified notice shall be Service, bearing postmark requested, from the United States Postal claimant, county representative of the to the the claimant or the commissioner, council, county corporate a defendant authorities of government, local or: Solicitor; (1) City City, In Baltimore to the Executive; (ii) County County, to Howard In (iii) County Montgomery County, In to the Executive. (2) County, County, County, In Arundel Baltimore Harford Anne County, given byor George’s person be and Prince the notice shall mail, requested, bearing postmark from the receipt certified return Service, representative the claimant or the United States Postal claimant, attorney. county county solicitor or lime, (3) place, writing be in and shall state notice shall injury. and cause of the (c) requirement.-Notwithstanding provi- the other Waiver section, affirmatively show that sions of this unless the defendant can notice, upon prejudiced by has been lack of its defense *9 response, maintained that the court should not dismiss his Respondent objection prior case because made no that point litigation give proper based on failure to notice and because the Town of Easton actual notice of the claim had Safety’s investigation based EUC’s Director of of the scene day the accident on the the accident Shifting occurred. gears, permission Petitioner asked for reopen his case for simple purpose just was, “the putting in the notice that fact, given.” permission that granted, When Petitioner provided as copies evidence notice to the Town of Easton the March 1998 letter sent to April Hartford and the from denying letter Hartford the claim. judge
The District Respondent’s denied motion to dismiss, holding that there was no “showing that the defense prejudiced .. required ha[d] been lack of the notice” 5-304(c). § Although garbled under a bit transcript, it appears that judge preliminarily concluded that Petition- er’s 31 March 1998 letter to Hartford satisfy failed to (b).10 Therefore, §of granted he from requirements, relief the failure to meet the as allowed 5-304(c). Rule,11 application Based on its of the Boulevard judgment court entered for the Petitioner. Respondent appealed to the Circuit Court for Talbot Coun- ty. argued He that the District denying Court erred in (or merely persuaded motion because it was that he Town Easton) no prejudice by § suffered as contemplated 5- 304(c).12 plain 5-304, Based on a reading §of Respondent good may
motion and for shown cause the court entertain the suit though given. even notice was not judge question Whether the 10. considered this in terms of substantial compliance compliance as well as strict is unclear on this record. (1977, (Maryland Repl.VoL), The Boulevard Rule 11. Code Trans- Article, 21-404(b)) portation provides: Same-Yielding right-of-way. driver of a vehicle about to enter or —The highway private driveway cross a any from road or or from other place highway yield right-of-way is not a shall other approaching highway. vehicle on the Respondent argued judge also that the District Court erred in his Court, however, application of the Boulevard Rule. The Circuit dis- give adequate contended Petitioner failed to notice to the *10 Town, notice, maintained, Respondent which prerequisite “a to filing against government,” a claim a local and that Petition- good why er “failed show cause given no notice was and move the court for a responded [failed to] waiver.” Petitioner District judge Court did not abuse his discretion in refusing to dismiss Petitioner’s case because Petitioner “sub- stantially complied with requirement § of 5-304 by notice to, sending receiving written notification and written acknowl- from, edgment representatives____” of Easton’s [T]own Additionally, Petitioner by “putting contended that sub- stantive without raising preliminary defense of no- issue tice, [Respondent] ... preju- demonstrated that he was not notice,” alleged diced [Petitioner’s] lack of that “by and remaining long, for so [Respondent] silen[t] waived his right to 5-304(a)] protections arguably which may pre- [§ have vented this suit from being ‘brought’ against (Emphasis him.” omitted). hearing argument, Court,
After oral the Circuit on 7 March 2001, judgment reversed the of the District Finding Court. in Respondent’s arguments, merit it found that notice is “a necessary prerequisite” § under 5-304 and that Petitioner did not give adequate notice this Additionally, case. the court held that presentation Petitioner’s in the District did qualify not for a waiver of the requirement § under 5- 304(c) because Petitioner did not required make the motion and did not show adequate good for failing provide cause proper notice. sought
Petitioner then review this Court. We issued a writ of certiorari to interpretation § consider the 5-304 of at LGTCA issue in this case.
Additional may supplied facts be necessary as analy- our sis of the case. ground missed Petitioner's case on the provide adequate that he did not 5-304(a).
notice to the Town By doing, § of Easton under so Circuit Court was not applica- to consider the District Court's tion of the Boulevard Rule. That issue is not before this Court.
II.
strictly complied or substan
particular
Whether a
claimant
tially complied
with the notice
5-304(c)
(b),
pursuant
cause
for relief
good
showed
notice,
give
questions
also
proper
from
failure
were
opinion of this Court in
consoli
considered in the recent
Norouzi,
Brown,
Moore v.
v.
dated cases of
Mendelson
(2002) (Nos.
127,
A.2d 632
126 &
Sept.
371 Md.
Term
2000)(2002).
in the
and Men
granted
Certiorari
Moore
(362
February
delson
Md.
766 A.2d
cases on
(364
147(2001)),
present
Md.
and on 7 June 2001
case
(2001)).
and Mendel
297 give municipality requirement is to pose of the notice its own ample it time to conduct to allow notice sufficient 389-90, 359 754 Maynard, v. Md. investigation. Williams (hereinafter ”). Therefore, (2000) as “Maynard A.2d from Petitioner’s the March 1998 letter argument goes, his statute purpose to Hartford fulfilled counsel former compliance proof occurred. For and substantial accident, investigate to adequate Town Easton had time April only need look to Hartford’s urges he that one information” that it to “have sufficient reciting letter claimed to claim. upon reject to decide Petitioner’s which that, absence of argues in the Alternatively, Petitioner cause compliance, good substantial he demonstrated that his counsel’s proper notice. He claims provide failure to trial, at the of the District Court argument oral close dismiss, response Respondent’s to motion to was tantamount motion, 5-304(c), forgive non- to pursuant to to LGTCA further compliance requirements. with the Petitioner notice prejudice argues Respondent to show actual failed provide proper from notice. resulting Petitioner’s failure argues waited to Respondent that because Finally, Petitioner noncompliance raise with the LGTCA effectively virtually completed, Respondent until the trial requirements. waived the notice to move controverts that he was
Respondent notify pursuant 5-304 dismiss on the basis failure *12 District Court. prior to the time he made the motion Respondent investigation of argues further that neither the EUC, by Safety of nor the 31 the accident Director Hartford, to notice to March 1998 letter constituted actual 5-304(a) (b). required Respon- §by Town of Easton as and the contention that either Mr. Tarrant Mr. rejects dent of Easton for acting agents Sehukraft were as for the Town fur- purposes required statutory Respondent of notice. at the conclu- argues ther that Petitioner’s counsel’s comments pursuant did not a motion for sion of the trial constitute relief 5-304(c), showing that a to was not to make he notice, by a motion prejudice of due the lack of absent such Respondent Petitioner. claims that a formal motion to waive requirements, the notice showing cause, good of and a finding good of by cause prerequisites the court are all trigger Respondent’s obligation to make a of showing over- arching prejudice. Allegedly, Petitioner met none of those prerequisites.
Respondent argues next examples good cause pointed Petitioner to on appeal fail as a matter of law. The alleged good presented cause assertedly Petitioner does not fall into categories of good cause generally accepted in jurisdictions contexts, other in similar as enumer- ated Heron. See note 20. Additionally, Respondent infra that, contends although the trial court had discretion deter- mine whether Petitioner good demonstrated cause for non- compliance with requirement, the notice judge the trial abused that discretion because of the dearth of evidence in the record support a finding good cause.
III.
recognized,
This Court
recently
as
as the Moore and
cases,
Mendelson
purpose
“pro
LGTCA to
remedy
vide a
injured by
for those
government
local
officers
employees
acting without malice and in
scope
Moore,
employment.”
299
witnesses was undiminished
and the recollection
and extent
time,
the character
‘sufficient
ascertain
” May
in
it.’
connection with
injury
responsibility
and its
Jackson,
nard,
389-90,
(quoting
In
v.
v. Brown
consid-
Moore Norouzi and Mendelson
we
initially
by claimants/petitioners
ered
whether
acting on
of a
third-party claims administrator
behalf
self-
government
local
constituted strict or substantial com-
insured
§
with
of LGTCA 5-304. The
pliance
the notice
injured
in motor
acci-
petitioners
those cases were
vehicle
by employees Montgomery County.
allegedly
dents
caused
County
petitioner/claimant
Neither
sent notice to the
Execu-
Montgomery County
in the manner directed
tive
5-304(b)(l)(iii).14
LGTCA,
Rather,
in both
statute. See
04(b)
hough
to be
Alt
LGTCA 5-3
also allows notice
delivered to
(as
“corporate
Montgomery County
argued
authorities” of
also
*14
cases,
communications
had between the
substantive
were
claims administrator
for Mont-
third-party
claimants and a
Administrators, Inc.
Tri-
County, Trigon
(“Trigon”).
gomery
pursuant
Montgomery
as
to a contract with
gon acted
such
Finance,
Maryland, acting through
Department
its
County,
Trigon,
its
Management.
performing
of Risk
Division
County, employed
“fully
obligations
contractual
with the
County’s
with
system
integrated
that is
exist-
automated
Moore,
systems.”
other information
ing accounting and
Trigon kept
A.2d 632.
“current” both the data
Md. at
Management’s
information
it
and the Division
Risk
uses
county
using
It
so
on-line access to the
system.
did
either
with
system,
by providing
Management
or
Risk
information
system.
Id. Either
Trigon’s
information
on-line access
contract had “real-
party
that each
to the
method ensured
Moore,
system.
“[cjooperate with Office counsel, designated defense of claims ney, or other include, will subrogation recovery. and in Such assistance to, including making investigation, but not a full be limited claimant, taking statements from the claim- contacting the witnesses, ant, taking statements from all identifying and bills, ... obtaining taking photographs all relevant assisting hearings. at trials Once attending and/or and/or and the claim is transferred to the Office of lawsuit is filed counsel, County Attorney, designated or other the above will continue.” assistance
Moore,
161-62,
Trigon
at
facts. While
by County police
vehicle
was
the rear
a
vehicle
struck
acting
was
County Police Officer who
by Montgomery
driven
Moore,
164,
Md. at
his official
371
scope
within the
duties.
wife,
Mendelson,
reported
petitioner’s
Consequently, where the tort provides claimant the local government, through the unit or with responsi- division bility investigating against tort claims govern- that local ment, or government with whom local company function, unit has contracted for that the information re- 5-304(b)(3) quired by § supplied, acquires to be who thus knowledge actual within statutory period, the tort claim- ant substantially complied has with provisions the notice the LGTCA.
Moore,
Alternatively, this Court also found
even had it con-
compliance
lacking,
cluded
substantial
there was
good
evidence to find
cause
the claimants’ from
relieve
5-304(c).
requirements,
pursuant
*16
to LGTCA
We
that
petitioner
“ordinarily
noted
each
acted as would an
prudent person
circumstances,” by
under similar
relying on
representations
Trigon
the
of
that it represented
County.
the
Moore,
179,
In
appreciate
order
this
holding
Court’s
it
is useful to
Loewinger,
by
review
the earlier case overruled
Moore. Loewinger involved a woman who
in a
caught her feet
undergoing
treadmill while
hospital operat
medical tests at a
by
George’s County, Maryland.
ed
Prince
This Court ad
question
dressed the narrow
of
petitioner complied
whether
(1957,
with the notice
of Maryland Code
1972
57,
18,
Repl.Vol.),
§
predecessor
§
Article
the
statute to
5-
.
317,
304. Loewinger,
IV.
A. At analysis case, the threshold of our present we dispose procedural must of a argument mounted Petitioner. Petitioner contends that challenge gave whether he Town of Easton proper pursuant to LGTCA (b) is a matter that should have been Respon- raised *17 prior dent to when he moved to ground dismiss on that after
304
District
trial. Petitioner
in the
Court
the close of evidence
Court,
2-
Rule
this action been
Circuit
notes that “[h]ad
(c)
322(b)(4)
the defendant to raise
required
would have
and
could
that the trial court
have
...
to trial so
prior
the issue
considering
argu-
this
In
preliminarily....”
decided the issue
first,
statutory
notice
ment,
whether
we shall address
claim that he
element of Petitioner’s
requirement
facie case in the
part
prima
as
of his
obligated
prove
to
second,
Court;
the defense
defective
whether
District
trial
District Court.
prior to
must be raised
notice
been
type
of this
have
Generally, notice
maintaining subsequent
to
precedent
as conditions
viewed
Washington
v.
Suburban
Neuenschwander
legal actions.
(1946)
593,
Comm.,
67, 77,
48 A.2d
187 Md.
Sanitary
right
to the
precedent
a condition
that “the notice is
(stating
suit”),
by statute
grounds
overruled on other
maintain the
285,
270 Md.
George’s County,
Prince
in Arnold v.
as stated
(1973).
Highway
v.
Leppo
also
State
A common vehicle (b) a motion for as a defense is LGTCA upon calls the court judgment judgment. A motion by the non- presented strength of the evidence evaluate the
305 by a triggered analysis the described moving party. We Aviation Maryland Corp. v. Driggs in judgment for motion Administration, as during law, produced evidence
“whether, of the as a matter A, legally to most favorable case, light in a viewed A’s to find that the elements of fact a trier permit to sufficient have been A in order to recover proved to be required applicable.” proof standard by whatever established (1998). A motion A.2d Md. the evaluation hand, calls for dismiss, typically other the or claim stated in terms sufficiency pleadings Respon Although perhaps deficiencies.15 potential procedural to the challenge have framed correctly should more dent moving judg for Town of Easton to the provided evidence, Md. pursuant close of Petitioner’s at the ment over substance 3-519(a),16 form shall not elevate we Rule verbally Although of this case. record context of the timing of dismiss, the thrust motion to as a styled judg motion for akin to a sought relief motion Respondent’s analyze judge required his motion ground of ment. regarding evidence sufficiency of Petitioner’s no merit find cause of action. We proof of his element Respon timing quibble about the procedural Petitioner’s record, where Petitioner particularly motion on this dent’s any evidence in chief to adduce re-open his case permitted to cause to be matter, good or, evidence for that of notice requirements. from the notice excused District in the to dismiss mentioned only '‘pretrial” motion 15. The Rule 3- improper venue. Md. for is the motion to dismiss Court rules 326(a) may be raised on improper venue provides “a defense of commencement of trial.” before or at motion states, Maryland Rule any all of the issues may judgment on "Generally. party A move for opposing by an offered of the evidence action at close reasons particularity all moving party shall state with party. The for granted. objection to the motion No why motion should be right to necessary. party A does not waive judgment shall be during presentation of by introducing evidence make the motion opposing party’s case.” an argument Petitioner’s Respondent should have made his dispositive motion actually before he did also reflects misunderstanding fundamental of District civil prac Court tice. The District Court do rules not reflect the' extensive motions practice provided that is applicable rules Rather, Circuit practice. there are a limited number of mandatory pre-trial motions contemplated by Md. Rule 3- 326(a), improper such as venue. The District Court is intend ed to be a streamlined forum which contemplates limited pleadings, papers, discovery, and with trials held within a *19 relatively period short following filing of a complaint. To in introduce the District complex proce Court the more civil Court, dure of wishes, the Circuit as argument Petitioner’s would unnecessarily interfere with expeditious the and effi cient resolution of cases that come before that court.
B. case, In present the municipal we deal with a form of local (i.e. Easton) government the Town of within scope of the compliance LGTCA.17 Strict requirements with the §of 5- 304(a) (b) required Petitioner, that days within 180 of 19 1998, give claim, time, March written stating place, and injuries, cause of his personal delivery via or postmarked mail, certified U.S. receipt requested, return “corporate that, authorities” of the Town. It is clear even without deciding whether Hartford was a “corporate authori- ty” of Town of LGTCA, Easton for purposes of the produce Petitioner did not of strict compliance evidence with 5-304(a) (b) respects. copy other of the 19 March 1998 letter in evidence does not an envelope include or other indicia of postmark by the United States Postal Service, nor does copy of the purport letter original mail, had been sent via certified receipt return re- quested. Moreover, testimony there was no to such effect. It defines, 301(d)(5) others, among 17. LGTCA government,” a “local 5— municipal corporation as operating "[a] established or under Article 25 ” of the [Md.] Code.... fully informs the of the letter whether the content is debatable supplied), (although a date as to the “time” addressee Co., (some Rd., along Talbot unspecified point “Glebe “place” “accident,” MD”), (advising only of an injury” or “cause a motor vehicle or to whether it involved regard without vehicles, hole, operative modality). any or other open an compliance fail strict
Although Petitioner’s efforts whether, on the facts analysis turn now to an scrutiny, we case, compliance purpose with present substantial (b) §of exists. Unlike the notice compliance question, the analysis of the substantial Moore’s meaningful functional develop here fails record Hartford, or its Chewsville relationship between way the Here, office, general insur municipality. and the insured only per inference relationship is the reasonable er/insured record, relationship between Mont unlike the mitted unit, governmental local gomery County, self-insured Division, and contract claims through Management its Risk its administrator, obviously important to us Trigon. It was ar Moore, compliance claimants’ substantial accepting the systems technology information guments, that the intertwined existed, Trigon authority had to settle unilater of the two *20 claim, Trigon that ally up per claims and conducted $2500 negotiations with the claim fact-finding and other extensive ants, Despite differences be County. on of the the behalf records, reasoning in the Moore nonetheless leads tween the instant us to conclude that the facts the case demonstrate §of with the notice 5- compliance substantial 304(a) (b). and Moore, requires compliance, as characterized
Substantial ... requisite notice albeit not provide “some effort to the Moore, statutory provision.” 371 compliance strict with the present at A.2d 632. Petitioner in the case made Md. 807 supra, notice. As Peti- provide “some effort” to mentioned con- Hartford the 31 March 1998 letter tioner’s counsel sent apparently sufficient information about the accident to taining notifying occur and Hartford timely investigation enable a expected type compensation some from Petitioner its insured, Easton, for personal injuries the Town and property damage. compliance of substantial
The touchstone
is whether the
alleged
fulfill
purpose
“notice”
sufficient to
the
Moore,
requirement.
recognized
purpose
As we
requirement
government
is “to
that the local
ensure
liability
its
at a
possible
made aware of
time when it is able to
ascertain,
itself,
investigation
conduct its own
and
for
from
by
and
evidence
recollection
are fresh
undiminished
time,
injury
responsi-
the character
extent
and its
Moore,
bility for it.”
371 Md. at
a
C. *21 hold that Faulk Because we demonstrated substantial com- (b), pliance with LGTCA we shall not reach to argument alternative that he was entitled relief under 5-304(c). LGTCA THE
JUDGMENT OF CIRCUIT COURT FOR TALBOT REVERSED; THE REMANDED CIR- COUNTY CASE TO THE DIRECTIONS AFFIRM CUIT COURT WITH TO COURT; BE DISTRICT COSTS TO JUDGMENT OF THE PAID BY RESPONDENT. CATHELL,
Dissenting opinion J.
CATHELL, dissenting. Judge, respectfully
I dissent. That which I foresaw in Moore and Mendelson has occurred at judice. case sub With decision in the case bar all a form plaintiffs attorney has do is send out letters if potential governments, insurers of local one is sent to a insurer, government’s plaintiff, according local then that to the majority, complied provisions has with the of the Local Gov- A plaintiff notify ernment Tort Claims Act. can an insurance company, negotiate company, with an insurance have the claim paid by company, settled and the insurance without the local having government knowledge ever direct that a claim has made, only knowledge getting been indirect when its premiums history. are raised as a of its claim’s A result history may of it knowledge. which have little majority again gives short shrift law to the settled (before it), this provisions Court unsettled the notice prece- the Local Tort Claims Act Government are conditions against dent to the of most tort actions maintenance local governments. Legislature abrogated When the certain as- pects governmental immunity governments, for local it did torts, if, in respect only precedent, so aas condition specific pending given the existence claim was to specified companies entities. Insurance nowhere indi- were as proper recipients cated notice. judicially repeal Legisla-
The movement this action, i.e., requirement tive the notice Local Govern- *22 Act, declaring
ment Tort Claims without the statute itself view, is, my inappropriate. began in It not be unconstitutional case, with last decade. In with this but several cases over the Strader, 258, 273, 761 A.2d my dissent in Heron v. 361 Md. (2000), that has fully expressed my I concern the Court strayed policy Legislature apply- applying from the the case, choosing. present own With the the ing policy its majority goes repealing Legisla- of the further in this I thought possible. having than even After studied policy tive past in way in which the Court has dealt with the issue Mendelson, had, thought I until Moore and years, fifteen or so possibly go not so far as to hold that that this Court could statutory company satisfy to an insurance could notice However, cases, in two I that if provisions. those recent noted there, it it could what it has majority could do what did do hoped by pointing I had out where the Court’s done here. Instead, in going, majority *23 received. note,
I think important however, it is another matter that should be of some concern. We are firm in guarding against Legislative judicial encroachment into authority. branch We guard independence, our jealously vigorously. We should vigorous be no less in guarding the independence of the other of government. branches We do have the power awesome differently, treat others but we not should do so. We should Legislature’s defer to the power as primary creator public policy, just require as we that branch to defer to the proper authority of this Court. stated, Heron,
Simply Mendelson, with Moore and and now Faulk, predecessor cases, addition to their the Court has been, is, my opinion, legislating. substituting It is its concepts of proper public policy for that Legislative branch. I believe that it is wrong result, to do so. As a if governments local protections want they always have thought provided by were provisions issue, the notice they at go had better Legislature. longer There is no help, a sympathetic even ear for government. them in this branch of For, alas, issue, as to my struggle this my to reason with otherwise almost always colleagues reasonable is at an I end. stubborn, may be but I know longer when I no have chance of having my point of view on this accepted by issue three other members of the Court. If I were continue the (I fight, I would be capable unreasonable. am as being I anyone, suppose.) unreasonable as As I stated a some- case, what recent me, the name of which escapes quoting from tribe, fight “I will Joseph the late Chief of the Nez Perce no this more forever” battle.