|
 |
 |
|
 |
|
LAWatch
Vol. 15, No. 1 Summer 2004 (HTML Version)
HOW WOULD YOU FEEL IF . . .
Scenario #1: You have been employed for ten years with Company A as Department Manager. In the past, you supervised two other employees. However, due to worsening economic conditions, you fired the two full-time employees and continued to perform your management duties as well as the duties of the vacant positions. In the past, you placed all orders for the Company, but now the Company has implemented a new centralized computer ordering system, and you merely check merchandise when it arrives. You earn a salary of $500 per week, but work an average of 50 or more hours per week. Despite your hard work, you have not received a raise in the last three years. At your nephew’s recent third birthday party, you overheard a conversation in which a guest explained that he just received a large check for past overtime wages. You ask yourself, am I entitled to receive overtime payments? See bottom of page for the answer. Scenario #2: You have been employed as a bookkeeper for ten years with a small family-owned company. Your primary duties include working on the general ledger, reviewing accounts receivable and accounts payable - you are a “full-charge” bookkeeper. You regularly make independent decisions regarding your primary duties such as determining when company bills are paid. You earn a salary of $400 per week, even though you work 45 hours per week (a regular 40- hour work week plus a half-day Saturday each week). Recently, you received a newsletter from a prominent law firm where a similar case was discussed and the law firm secured a significant recovery for the client. You ask yourself, am I entitled to receive overtime payments? See bottom of page for the answer.
FOR BETTER OR FOR TORTS: The doctrine of interspousal immunity was based on old laws that suspended the legal existence of a woman during marriage. The rationale was that when a woman married, she became the property of her husband. The first step towards the abolition of this doctrine in Maryland occurred in 1978. At that time, the highest court of Maryland held that a wife could sue her husband for damages arising from an outrageous, intentional tort, such as where a husband forced his wife’s car off the road, raped her, and aided two others in attempting to rape her. In 1993, Maryland moved a step closer to abolishing the doctrine when the high court held that interspousal immunity could no longer be permitted as a defense in negligence cases; i.e., auto accident cases. This doctrine was finally abandoned in its entirety in the recent case of Bozman v. Bozman, 376 Md. 461. (A copy of the case can be found at www.courts.state.md.us under Appellate Opinions in 2003.) In Bozman, Mr. Bozman sued his wife for malicious prosecution as a result of her filing criminal charges against him on three separate occasions and claiming multiple violations of a protective order. Mrs. Bozman raised the defense of interspousal immunity arguing that Mr. Bozman could not sue her because they were still married. The Court of Appeals abolished the interspousal immunity rule, explaining that the doctrine is an antiquated rule of law which runs counter to prevailing societal norms and has outlived its usefulness, if ever it had any. Therefore, for all tort claims arising after August 12, 2003, the defense of interspousal immunity no longer exists in Maryland. Although the abolition of the interspousal immunity doctrine may be appropriate, many issues are left unresolved by the Bozman decision. Most divorces involve allegations of bad behavior on the part of one or both spouses. That bad behavior may now be the basis of a tort claim. Suppose, for example, that Husband physically abuses Wife during the marriage. Wife files for divorce on the grounds of cruelty of treatment and also files a tort claim alleging assault and battery. While Wife may have the right to a jury trial in her tort claim, divorce cases in Maryland are not decided by a jury. Will our courts therefore insist that these actions be tried separately, or will the jury decide the assault and battery count while the judge determines alimony, custody, etc.? If the divorce action precedes the tort action, is a jury bound by the findings of the judge in the divorce proceeding as to whether Husband physically abused Wife? On the other hand, if the tort action precedes the divorce action, is the judge precluded from considering the violent conduct which was the cause of the tort action when determining the amount of the monetary award and/or alimony? The interplay between these two areas of law will undoubtedly give rise to many questions over the years to come.
THE DEBATE OVER JUDICIAL MODIFICATION OF CRIMINAL SENTENCES
Until early May, judges were able to review and modify a sentence at any time while the sentence was being carried out, including years after a conviction. The motion to modify had to be filed within a short time after the sentencing but could be held by the court indefinitely for action. Courts considering such modifications were required to inform victims of any hearing on the issue and provide them with an opportunity to attend to be heard and to articulate the reasons for any change on the record in open court. Victims rights’ groups and prosecutors have for years complained bitterly over this type of judicial discretion. Specifically, these groups have argued that such open-ended discretion prevents closure for victims and undermines certainty in the criminal sentencing process. Criminal defense attorneys have countered that there are few instances where sentences are changed years later and often they result from new evidence or irregularities in the sentencing process which make such a modification just. Of even greater concern to the defense bar, however, is the continuing erosion of judicial discretion which, on the federal level, has created a much harsher sentencing system. The Maryland Court of Appeals, which writes the rules governing Maryland courts, had its Rules Committee consider a change that would limit judicial discretion in modifying sentences. The committee consists of prominent members of the Bar and is chaired by Chief Judge Joseph Murphy of the Court of Special Appeals. After hearing testimony from both sides of the debate, the committee voted 11- 10 to reject the proposed change. Chief Judge Murphy determined that, due to the closeness of the vote, the committee would send the entire issue for a final decision by the Court of Appeals. On May 10, 2004 the Court of Appeals enacted a new rule that prohibits any modification of sentence more than five years after the original sentencing. This applies to sentences for all crimes, not just violent crimes. It is not clear at this time whether there will be a further push in the legislature next year to reduce this time limit even further. In the General Assembly this year, at least two separate bills were introduced to change this rule as well. The bills varied in the time limitations they would impose on a court to consider modification of a sentence, ranging from twelve to eighteen months after sentencing. These bills languished in the House and Senate Judiciary committees and failed to gain passage in this year’s General Assembly session. The Governor took no position on the issue. The ultimate outcome of this debate will have far-reaching consequences for those brought into the criminal justice system, not only regarding current sentencing rules but the independence of Maryland judges as a whole. We will continue to monitor events on this important issue affecting criminal defendants. If you have any questions about these issues or how our state’s criminal system works, feel free to contact us and discuss the matter.
YOU MAY BE ABLE TO CHOOSE YOUR OWN ATTORNEY The duty to indemnify requires the insurer to pay on behalf of the insured any monetary amount that the insured is legally obligated to pay as a result of a claim that is covered by the policy. The duty to defend, however, requires an insurer to pay on behalf of the insured the costs, fees and expenses necessarily incurred in defending claims against the insured which are potentially covered by the insurance policy. The insurance company generally has the right to choose the attorney who will defend the law suit. However, under certain circumstances, the insured has the right to choose its own attorney and have the cost for that attorney paid for by the insurance company. The fact that there is not a complete overlap between the duty to indemnify and the duty to defend can lead to a situation in which the insurance company refuses to agree to indemnify the insured for the potential suffered loss, but remains obligated to provide a defense to the insured. This can be confusing to the uninformed insured. In such situations a number of questions arise concerning the insured’s rights, which must be addressed. By way of example, we look to the Court of Appeals decision in Brohawn v. Transamerica Ins. Co., 276 Md. 396, 347 A.2d 842 (1975), the seminal case on the issue of the duty to defend. In Brohawn, the Maryland Court of Appeals was asked to consider the insurer’s obligation to defend its insured under general liability coverage granted under the insured’s homeowner’s policy. The case involved a lawsuit filed against Mrs. Brohawn which arose from her attempt to remove her grandmother from a nursing home. Several of the nursing home employees intervened to prevent her from doing so, and an altercation occurred. After the incident, some of the nursing home employees filed a civil lawsuit against Mrs. Brohawn. The employees alleged that they were injured in the altercation and claimed that Mrs. Brohawn’s intentional assault or, in the alternative, negligence, caused their injuries. At the time of the altercation at the nursing home, Mrs. Brohawn was insured under a homeowner’s insurance policy issued by Transamerica Insurance Company. The policy contained an exclusion for intentional acts such as assault. Negligence, on the other hand, was not excluded. The insurance company argued that because Mrs. Brohawn had been sued for an intentional act, assault (a claim that was excluded), it had no obligation to either defend or to indemnify against the employees’ law suit. Mrs. Brohawn, on the other hand, argued that because she had been sued by the employees for negligence (a claim that was covered under the insurance policy), the insurance company had an obligation to defend and to indemnify her from the employees’ law suit. The Maryland Court of Appeals began its analysis by stating the law governing its decision. The Court explained that “[t]he obligation of an insurer to defend its insured . . . is determined by the allegations in the [lawsuit]. If the [lawsuit] . . . alleges a claim covered by the [insurance] policy, the insurer has a duty to defend. Even if [the lawsuit] does not allege facts which clearly bring the claim within or without the [insurance] policy coverage, the insurer still must defend if there is a potentiality that the claim could be covered by the [insurance] policy.” Brohawn, 276 Md. at 407-408, 347 A.2d at 850. The Court concluded that because Mrs. Brohawn had been sued for negligence insurance company had an obligation to defend her in the lawsuit. However, because Mrs. Brohawn had also been sued for assault (a claim that was not covered), the Court concluded that there was a conflict of interest between Mrs. Brohawn and her insurance company. Clearly, it was in the interest of Mrs. Brohawn that she either win the lawsuit or lose on the negligence claim because if Mrs. Brohawn lost on the negligence claim, the insurance company would have to pay the judgment. Alternatively, it was in the interest of the insurance company that Mrs. Brohawn either win the lawsuit or lose on the assault claim because if Mrs. Brohawn lost on the assault claim, the insurance company would not have to pay the judgment. As you might imagine, the manner in which the lawsuit was defended might very well affect its outcome and the legal theory (assault or negligence) on which the nursing home employees prevailed. In order to resolve this conflict, the Maryland Court ruled that the insurance company was required to allow Mrs. Brohawn to choose her own attorney to defend her in the lawsuit and that the reasonable cost for the attorney chosen by Mrs. Brohawn was to be paid for by the insurance company. Thus, if you ever have the misfortune of having a claim filed against you and your insurance company either refuses to defend you or assigns an attorney of its own choosing to defend, you may have the right to choose your own attorney to represent your interests and have the cost of that attorney paid for by your insurance company.
Answers to HOW WOULD YOU FEEL IF . . .
The facts provided in each scenario have been condensed for purposes of this article. The facts of each case are a determining factor in whether or not an individual qualifies for overtime payments. Also, please note that on April 20, 2004, the U.S. Department of Labor announced new overtime regulations which will go into effect 120 days from that date. The new regulations have been incorporated into the factual scenarios set forth in this Article. If you believe that you may qualify for overtime payments, please feel free to contact either Jerry Lurie or Shobita DuBois for additional advice.
|
 |
How would you
feel if you
were entitled
to overtime payments but did not
even know it? Currently, wage and
hour investigators apply what is
commonly referred to as the “short
test” to determine whether or not
certain employees qualify for
overtime payments. The “short test”
is comprised of two elements: the
salary element and the duties
element. Employees who qualify as
executive, administrative or
professional employees are exempt
from receiving overtime payments.
The following scenarios will
illustrate the implementation of the
“short test”:
Before August
2003, a husband
could not sue
his wife, or vice versa,
for an intentional tort, such as assault,
battery, false imprisonment, intentional
infliction of emotional distress, or
malicious prosecution. This is no
longer the case. On August 12, 2003,
the highest court of Maryland, the
Court of Appeals, abolished the
defense of interspousal immunity by
holding that this defense can no longer
be used in cases of intentional torts.
Maryland joins forty other states that
have fully abrogated this antiquated
legal doctrine. Five states have
partially abrogated the doctrine,
leaving only four states which still
retain it in its entirety.
There has been
a great deal
of attention
in the media lately
concerning efforts in both the courts
and the General Assembly to change
the ability judges have to review and
revise criminal sentences. While the
issue is certainly not a new one, the
confluence of actions by both the
Maryland Court of Appeals and
various bills considered in the
General Assembly this year have
brought the issue to the forefront.
An insurance
policy is
really just a
contract between
you (the insured),
and the insurance company (the
insurer). In every insurance policy, the
insurer undertakes two contractual
obligations to the insured in exchange
for the payment of a premium: 1) a duty
to defend and 2) a duty to indemnify.
Each duty has a distinct scope and,
while they overlap to some extent, the
duty to defend is generally considered
to be the broader obligation of the
insurer.