2015 End of Session Wrap Up: Government Liability & Courts

This post summarizes the status of various government liability and courts bills that MACo took a position on for the 2015 Regular Session.

Local Government Tort Claims Act – Increase in Notice and Liability Caps: As introduced, HB 113 increases the damage caps under the Local Government Tort Claims Act (LGTCA) from $200,000 to $500,000 per individual claim and from $500,000 to $1 million for all claims arising from the same incident or occurrence.  HB 728 increases the liability caps of the LGTCA and the Maryland Tort Claims Act (MTCA) for claims of excessive force or misuse of force by a law enforcement officers.  Under the LGTCA, the caps for such claims would increase from $200,000 to $1 million for an individual claim and from $500,000 to $1.5 million for all claims arising from the same incident or occurrence.  The MTCA is subject to similar liability cap increases.

MACo initially opposed HB 113, arguing that it would: (1) upset the balance in the LGTCA between the ability of plaintiffs to assert claims and recover damages and the unique role of local governments in providing public services; (2) increase litigation and local government liability costs; and (3) incentivize attorneys to litigate borderline cases rather than settling. MACo agreed to drop its opposition when the House passed HB 113 with amendments increasing both LGTCA caps by $100,000.  However, MACo renewed its opposition when the Senate Judicial Proceedings Committee put amendments on the bill that: (1) restored the bill’s original caps of $500,000/$1 million; (2) increased the LGTCA notice provision from 6 months to 1 year; and (3) added “good cause” language that would effectively undermine the notice requirement and abrogate almost 30 years of established case law.  Despite MACo’s objections, the Senate passed HB 113 with the Committee amendments.

MACo also opposed HB 728, arguing that the creation of a separate damage cap for a specific type of claim would undermine the purpose and functionality of the LGTCA by inviting future exceptions or categories.

FINAL STATUS:  The House and Senate appointed a conference committee for HB 113 and the conferees reached an agreement on the bill.  As passed by the General Assembly, HB 113: (1) increases the LGTCA cap for individual claims to $400,000; (2) increases the LGTCA cap for all claims arising from a single incident or occurrence to $800,000; and (3) increases the local government notice requirement to 1 year.  The good cause language was struck from the bill and other proposals such as separate damage categories for constitutional violations and automatic cost inflators for the caps were rejected. 

HB 728 was withdrawn by the bill sponsor.

MACo HB 113 Testimony

MACo HB 728 Testimony

Local Government Tort Claims Act – Repeal of Notice: SB 147 repeals the 6 month (180 day) notice requirement for bringing an action for unliquidated damages under the LGTCA and the 1 year notice requirement for bringing  a claim under the MTCA.

MACo opposed bill, arguing that it would: (1) upset the balance in the LGTCA between the ability of plaintiffs to assert claims and recover damages and the unique role of local governments in providing public services; (2) undermine the ability of a local government to properly conduct investigations in its defense; and (3) increase litigation and local government liability costs.

FINAL STATUS: The Senate Judicial Proceedings Committee heard SB 147 but took no action on the bill.

MACo SB 147 Testimony

Attorney Fees for Constitutional ViolationsHB 283/SB 319 authorizes a court to award a prevailing party reasonable attorney’s fees and expenses in a civil action for a violation of a right secured by the Maryland Constitution or Declaration of Rights. This includes claims such as due process, seizure of goods or property, and freedom of the press. A prevailing plaintiff could collect attorney’s fees based on the standard list of factors that a court currently uses when determining appropriate attorney fees but a prevailing defendant would only be allowed to recover fees if the court determines that the plaintiff’s suit was maintained in bad faith or without substantial justification. Any attorney fees awarded under the bill’s provisions do not count against the existing liability cap for the MTCA but are subject to the liability cap of the LGTCA.

MACo opposed the bill, arguing that it would lead to increased litigation, treated plaintiffs and defendants unequally, and would increase costs for county governments.

FINAL STATUS: The House passed HB 283 with amendments making any attorney fees awarded under the bill’s provisions count towards the MTCA’s existing liability cap but the Senate Judicial Proceedings Committee took no action on HB 283.  The Senate Judicial Proceedings Committee heard SB 319 but took no action on the bill.

MACo HB 283 Testimony

MACo SB 319 Testimony

Liability Insurance for Police Officers: HB 890 prohibits the Police Training Commission from certifying an individual as a police officer unless the individual provides proof of professional liability insurance that meet the cap limits under the LGTCA (for local police)  or the MTCA (for State police).  The coverage must cover both tortious and malicious acts and the police officer must maintain the coverage for as long as he or she remains employed in the state.  A law enforcement agency employing the officer may reimburse the officer for the base rate of the policy but the officer is responsible for any additional premium cost due to claim history.  The State or local government may not indemnify a police officer for a judgment against the officer that is greater than the caps contained in the LGTCA or MTCA unless the officer’s professional liability insurance is exhausted.

MACo opposed the bill, noting that no insurance company currently offers coverage for both tortious and malicious acts in Maryland and that even if available, the premiums for such insurance would be extraordinarily high – forcing officers to seek reimbursement from either State or local governments.

FINAL STATUS: HB 890 was withdrawn by the bill sponsor.

MACo HB 890 Testimony

Maryland False Claims Act: HB 405/SB 374 is sponsored by the Maryland Attorney General and authorizes a government entity or a person on behalf of a government entity to file a civil action against a person who knowingly makes a false claim (i.e., receives some type of financial benefit based on untrue statements) against the government entity. The bill does not apply to State or local tax issues. 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.  False Claims Acts have been enacted by the federal government, twenty other states, and the District of Columbia.

FINAL STATUS: The General Assembly passed HB 405/SB 374 with amendments that: (1) more narrowly define what constitutes a retaliatory action against an employee who files or participates in a False Claims Act proceeding; (2) remove the ability of a governmental entity to seek remedies through an alternative proceeding under the Act other than a civil suit; (3) set  an absolute cap for bringing a False Claims Act suit against a person to 10 years after the date of the alleged violation; (4) remove the ability of a person who brings a False Claims Act suit from proactively requesting court costs or attorney’s fees, although they may still be awarded by a court per the bill’s guidelines; and (5) make the bill prospective only.

MACo HB 405 Testimony

MACo SB 374 Testimony

Workers’ Compensation – Reversal or Modification of Permanent Partial Disability Compensation Award: HB 262 and SB 358 (identical but not listed as cross-filed bills)  provides that if an award of permanent partial disability compensation is reversed or modified by the Workers’ Compensation Commission or a court on appeal, the payment of any new compensation awarded shall be subject to a monetary credit for compensation previously awarded and paid.

MACo opposed the bills, arguing that it would create a potentially significant new liability for counties and their insurers for cases that are reopened by the Commission.  The Maryland Court of Appeals already held in 2014 that a reopened case due to a worsening of condition is a different situation than a modification on appeal and should be treated differently in terms of how credits are handled.  The bills would essentially override the Court of Appeals decision and the aggregate fiscal effect of the change could be very substantial.

FINAL STATUS: The House Economic Matters Committee gave an unfavorable report to HB 262.  The Senate Finance Committee heard SB 358 but took no action.

MACo HB 262 Testimony

Note: There is no MACo Testimony for SB 358

Workers’ Compensation – Law Enforcement Officer Duty Belt Presumption: HB 957 expands the workers’ compensation public safety occupational disease presumption to include State and local police officers or paid deputy sheriffs who wear duty belts and are suffering from a lower back impairment that results in partial or total disability.  The officer or deputy sheriff must have been employed at least 15 years and been required to wear the belt. The presumption extends for 60 months (5 years) following termination of service.

MACo opposed the bill, citing the extreme prevalence of back injuries in workers’ compensation cases, the high likelihood of any individual having back issues at some point in their life, the significant costs to counties, and the lack of true rebuttability in the presumption.

FINAL STATUS: HB 957 was withdrawn by the bill sponsor.

MACo HB 957 Testimony

Speed Cameras – Approval Process for Local “Ombudsman”: HB 1086/SB 132 provides that when a jurisdiction appoints a speed camera program ombudsman, the local governing body must hold a public hearing and then approve the appointment.

MACo opposed the bill, arguing that local governments should be able to make their own personnel decisions, including hiring and designation processes.  MACo found no compelling reason for the State to enact an arbitrary process requirement for the ombudsman.

FINAL STATUS:  The Senate passed SB 132 with an amendment striking the public hearing requirement.  The House Environment and Transportation Committee gave SB 132 an unfavorable report.  HB 1086 was withdrawn by the bill sponsor.

MACo HB 1086 Testimony

MACo SB 132 Testimony

Speed Cameras – Quarterly Audits: HB 271 requires a local jurisdiction with a speed camera program to have quarterly audits of its cameras performed by a qualified independent person. The results of the audit shall be kept on file and admitted as evidence in any court proceeding for a speed camera violation.

MACo opposed the bill, noting that the General Assembly considered and rejected quarterly audits as part of its omnibus speed camera reform legislation in 2014 (HB 929 and SB 350).  The 2014 legislation does require local speed camera programs to annually submit financial and performance information to the Maryland Police Training Commission which compiles and makes the information publicly available.  Additionally, all local speed cameras must undergo an annual calibration test by an independent laboratory.

FINAL STATUS: The House Environment and Transportation Committee gave HB 271 an unfavorable report.

MACo HB 271 Testimony

 

 

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