2013 End of Session Wrap Up: Government Liability and Courts Legislation

This post summarizes the status of various government liability and courts bills that MACo either considered or took a position on.

Contributory Negligence and Comparative Fault:  In light of a pending decision by the Maryland Court of Special Appeals that could move the common law liability standard from a contributory negligence system to a comparative fault system, several bills were introduced to protect the State’s existing liability system.  HB 1156 / SB 819 would maintain contributory negligence as an affirmative defense that may be raised by a party being sued for damages in certain civil actions, contingent on the Court taking action to change the contributory negligence standard by December 31, 2020.    HB 1182 would also keep contributory negligence as an affirmative defense and maintain existing joint and several liability provisions.  HB 1182 would also establish a Commission to Study Maryland’s Fault Allocation System.  As the bills offer different approaches to preserving contributory negligence, MACo chose not to take a specific position on either bill but instead offered a general position statement on the importance of maintaining contributory negligence.

FINAL STATUS:  HB 1156 and HB 1182 were heard by the House Judiciary Committee but the Committee took no further action.  SB 819 was heard by the Senate Judicial Proceedings Committee but the Committee took no further action.

MACo Position Statement on Contributory Negligence

Attorneys Fees in Civil ActionsHB 130 / SB 263 would authorize a court to award a prevailing party reasonable attorney’s fees and expenses in a civil action: (1) to enforce a right secured by the Maryland Constitution or Declaration of Rights; or (2) that has resulted in the enforcement of an important right affecting the public interest.  A prevailing plaintiff could collect attorney’s fees based on a variety of factors and considerations but a prevailing defendant would only be allowed to recover fees if the court determines that the plaintiff’s suit was frivolous. The bill also specifies that any attorney fees awarded under the bill’s provisions do not count against the existing liability cap for the Maryland Tort Claims Act (MTCA) and the Local Government Tort Claims Act (LGTCA).  MACo opposed the bill, arguing that it would lead to increased litigation, treated plaintiffs and defendants unequally, and would increase costs for local governments.

FINAL STATUS:  HB 130 was given an unfavorable report by the House Judiciary Committee.  SB 263 was withdrawn by the bill’s sponsor.

MACo HB 130 Testimony

Workers’ Compensation – Statute of Limitations on Firefighter Cancer PresumptionsHB 1314 / SB 681 would delay the addition of five new cancers and the removal of one cancer from the list of cancers subject to a workers’ compensation occupational disease presumption for firefighters by two years to allow for a medical study on the linkage between firefighting and cancer to be completed.  The bill would also toll (freeze) the 2-year statute of limitations for filing a workers’ compensation claim for the five cancers that may be added to the presumption.  The cancer changes and the study were authorized by HB 1101 of 2012 and the study was supposed to be completed before the cancers subject to the presumption were modified.  MACo supported the bill as an equitable way to allow the study to be completed prior to the inclusion of the new cancers while still allowing firefighters a chance to benefit from the presumption if the cancers included under HB 1101 were ultimately included in the presumption.

FINAL STATUS:  While both the counties and the State were prepared to contribute funds to the study, the bill was opposed by the professional firefighters and plaintiffs’ attorney groups.  Based on concerns that the findings of the study would not be honored by all parties, MACo withdrew its support for the study.  Consequently, HB 1314 and SB 681 were withdrawn by their sponsors.

MACo HB 1314 Testimony

Workers’ Compensation – Presumption for Law Enforcement Duty BeltsHB 416 would create a new workers’ compensation public safety occupational disease presumption for State and local law enforcement officers who are required to wear a duty belt and suffer a lower back impairment resulting in partial or total disability. A law enforcement officer must have been a full-time employee for at least 5 years in order for the presumption to apply. The presumption applies for 5 years after the officer’s retirement. MACo opposed the bill, arguing that law enforcement officers already receive generous presumptions for other medical conditions, claims for back injuries are extremely common for all kinds of workers, and that the bill would impose significant new fiscal costs on county governments.

FINAL STATUS:  HB 416 was given an unfavorable report by the House Economic Matters Committee.

MACo HB 416 Testimony

Workers’ Compensation – Presumption and Enhanced Disability Benefits for Deputy Sheriffs:  As introduced, HB 873 would expand the workers’ compensation public safety occupational heart disease and hypertension presumptions to include all deputy sheriffs. The bill would also expand an enhanced public safety employee benefit for certain permanent partial disability injuries to include all deputy sheriffs and Allegany County Correctional Officers.  MACo opposed the bill, citing longstanding policy concerns regarding the application, rebuttability, cost, and causal nexus of the public safety occupational disease presumptions and that deputy sheriffs not currently eligible for enhanced benefits do not regularly perform the same law enforcement duties as police officers (who are eligible for the enhanced benefit).

FINAL STATUS:  The bill’s sponsor offered an amendment to the House Economic Matters Committee at the bill hearing to remove the presumption provisions and only retain the enhanced benefit provisions. However, MACo still continued to oppose the enhanced benefit provisions for the reasons stated in its testimony.  The Committee took no further action on the bill.

MACo HB 873 Testimony

 Workers’ Compensation – Average Weekly Wage for Volunteer FirefightersHB 1248 would alter the method of computing the average weekly wage of a volunteer firefighter for the purpose of determining workers’ compensation benefits.  Under the bill, the average weekly wage would be the greater of: (1) the salary the volunteer earns from other employment; or (2) the equivalent to the base salary or wages of a professional firefighter or emergency medical technician in the jurisdiction where the accidental personal injury or last injurious exposure occurred.  MACo opposed the bill, arguing that the bill runs counter the purpose of the workers compensation statute to replace wages of injured workers, would blur the distinction between volunteer and professional firefighters, and increase costs to local governments.

FINAL STATUS: After the Workers’ Compensation Subcommittee of the House Economic Matters Committee held several discussions on HB 1248, the bill was withdrawn by the bill’s sponsor.

MACo HB 1248 Testimony

Workers’ Compensation – Presumption for First Responders for Post Traumatic Stress DisorderHB 1256 would create a new workers’ compensation presumption for first responders, including firefighters, police officers, emergency medical technicians, and correctional officers.  The first responder would be assumed to be suffering from an occupational disease suffered in the line of duty if:  (1) the responder is diagnosed with post traumatic stress disorder caused by his or her job as a first responder by a licensed psychiatrist or psychologist; and (2) as a result of the disorder, the first responder is unable to perform his or her job.  MACo opposed the bill based on MACo’s longstanding policy concerns with the current presumptions and the broad new presumption the bill would create.

FINAL STATUS:  HB 1256 was withdrawn by the bill’s sponsor prior to the bill’s hearing before the House Economic Matters Committee.  As there was no bill hearing, MACo did not draft written testimony.

Adoption by Reference of State Legislation and Regulations:  As introduced, HB 1076 and SB 526 would authorize a county or municipality to adopt a State law or regulation by reference if the law or regulation requires that the local jurisdiction adopt provisions that are at least as strict as the law or regulation. If a local jurisdiction adopts a law or regulation by reference, the jurisdiction must specify: (1) whether it also adopts by reference any subsequent amendments to the law or regulation; and (2) any exceptions to the law or regulation if local options are allowed.  MACo supported the bills as they help commission counties streamline their adoption process of complicated State laws and regulations.

Note:  Although not formally listed as cross-files, HB 1076 and SB 526 were essentially identical bills as introduced.

FINAL STATUS:  The General Assembly passed both HB 1076 and SB 526 with identical amendments that clarified that if a county adopts a State law or regulation by reference, it does not remove the responsibility of the county to adopt or enact a local program, standard, or enforcement process.  MACo supported the clarifying amendments.

MACo HB 1076 Testimony

Sheriff Serve of Process FeesHB 192 / SB 156 would increase the various fees collected by sheriffs for service of process by $10. The additional $10 would go into a newly created Rental Allowance Program Fund within the Department of Housing and Community Development. Monies from the Fund must be used in support of the existing Rental Allowance Program, which helps low-income individuals find or maintain housing by providing housing assistance payments.  MACo opposed the bill, noting that the current service of process fees are insufficient to fund the actual costs incurred by sheriffs when serving process and that any fee increase should first be directed towards covering the costs incurred by the sheriffs.

FINAL STATUS:  HB 192 was withdrawn by the bill’s sponsor.  SB 156 was given an unfavorable report by the Senate Judicial Proceedings Committee.

MACo HB 192 Testimony

Reimbursement of Legal and Liability Costs Incurred by Elected OfficialsSB 210 would require a local or State elected official to reimburse a local government or the State if the official is found to have violated or admits to violating a federal, State, or local law in a civil action. The same reimbursement requirement also applies if the elected official consents to a settlement agreement. Additionally the elected official, as opposed to the local government or the State, would be liable for any awarded damages in such an action.  Citing the bill as a way to protect taxpayers from civil liability when an elected official operates outside of the bounds of office but concerned that the reimbursement was over broad, MACo supported the bill with amendments that authorizes a local government to require an elected official to reimburse the local government for legal expenses in a civil action where the official has knowingly or recklessly violated the law. Similarly, it would be a local government’s choice whether to assume liability in such a circumstance.

FINAL STATUS:  SB 210 was given an unfavorable report by the Senate Judicial Proceedings Committee.

MACo SB 210 Testimony

Maryland False Claims ActHB 509 would authorize a government entity, or a person on behalf of a government entity, to file a civil action against a person who makes a false claim. If a person files a civil action on behalf of the government entity, the government entity may elect to intervene in the action or else the action is dismissed. If the government entity does elect to intervene and prevails, the person filing the action is entitled to a certain percentage of any awarded damages. If the government entity does not elect to intervene, the court shall dismiss the action. The bill would also prohibit retaliatory actions against an employee who reports or refuses to participate in an action related to a false claim. MACo supported the bill as an additional tool to allow local governments to pursue and recover damages from a person making or furthering a false claim.

FINAL STATUS:  HB 509 was withdrawn by the bill’s sponsor.

MACo HB 509 Testimony

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