Antonio v. SSA Security, Inc.

HARRELL, J. The federal Court of Appeals for the Fourth Circuit certified to this Court the following question of law: ⁷⁰ Does the Maryland Security Guards Act, Md.Code Ann., Bus. Occ. & Prof. § 19-501, impose liability beyond common law principles of respondeat superior such that an employer may be responsible for off-duty criminal acts of an employee if the employee planned any part of the off-duty criminal acts while he or she was on duty? We answer the certified question in the negative. For reasons to be explained, we hold that § 19-501 of the Maryland Security Guards Act is a codification of Maryland’s common law doctrine of respondeat superior and does not broaden the scope of vicarious liability of the employers of security guards for their employees’ acts beyond these principles.

I. Factual and Procedural Background. A summary of the certified facts of this case deserve mention. 1 Two security guard employees of SSA Security, Inc. (“SSA”), a security guard agency, and four of their confederates carried out a conspiracy to set fire during the early morning of 6 December 2004 to homes under construction in the Hunters Brook development in Charles County, Maryland. SSA had been hired previously by the builder/developer of Hunters Brook to provide security for the project while it was under construction. The arson was fueled by racial animus against Appellants and a desire to prevent them from moving into the neighborhood. 2 The resulting fires destroyed ten homes and damaged twelve others (some completed and some under construction), making it one of the worst residential ⁷¹ arsons in Maryland history.

Fortunately, no one was killed or injured as a result of the crimes. Aaron Speed, one of the arsonists, had been hired originally by SSA in November 2003, without the benefit of checking his references. Speed quit his employment with SSA in August 2004, after being reprimanded for “careless and aggressive conduct.” One of Speed’s supervisors placed a recommendation in Speed’s personnel file that he not be considered for rehire. Despite this recommendation, Speed was rehired by SSA in November 2004.

As part of the conspiracy to set fire to the homes, Speed left his guard post at the development on 3 December 2004 in order to stash fuel that would be used by the others to set fire to the homes. While on-duty, Speed created also a map of the neighborhood, indicating which houses were owned or contracted for by racial minorities. William Fitzpatrick, another SSA employee, was alleged also to have conspired to commit the arson. 3 Fitzpatrick was on-duty guarding the development from 6:00 PM until 5:00 AM on December 5-6, but, according to Appellants, left his post early to leave the properties unguarded so that Speed and the other conspirators could commit the arson. Appellants asserted ultimately various civil claims in the U.S. District Court for the District of Maryland against SSA, two of its corporate affiliates, and the five convicted arsonists.

One of Appellants’ theories of SSA’s liability contended that Maryland Code (2000, 2010 Repl.Vol.), Business Occupations & Professions Article, § 19-501 (hereinafter the Maryland Security Guards Act § 19-501) established a basis for SSA’s strict liability. Deciding a motion for summary judgment filed by SSA, Judge Alexander Williams, Jr. of the U.S. District Court held ⁷² that the Maryland Security Guards Act § 19-501 was merely a codification of the common law and did not expand the doctrine of respondeat superior, contrary to the plaintiffs’ contentions regarding SSA’s strict liability for Speed’s and Fitzpatrick’s intentional torts and civil rights violations. Antonio v. Sec. Servs. of Am., LLC, 701 F.Supp.2d 749, 766 (D.Md. 2010). After concluding that any intentional acts of Speed and Fitzpatrick were, considering the facts in the light most favorable to Appellants, outside the scope of employment, Judge Williams granted SSA’s motion regarding its liability under the Maryland Security Guards Act § 19-501.

Judge Williams would grant later SSA’s renewed motion for summary judgment regarding liability arising from SSA’s direct negligence and its vicarious liability for its employee’s negligence. 4 , 5 On appeal, Appellants asked the federal Court of Appeals for the Fourth Circuit to reverse the District Court’s decisions: (1) granting summary judgment in SSA’s favor as to the negligence claims; (2) granting summary judgment in SSA’s favor as to the claims premised on strict liability under the Maryland Security Guards Act § 19-501; and, (3) denying the request to certify to us the question regarding the interpretation of the Maryland Security Guards Act § 19-501. The federal appellate court, after affirming the District Court’s grant of summary judgment as to the negligence claims, turned to the question requiring interpretation of the Maryland Security Guards Act. ⁷³ Appellants argued, as they do now, that the Maryland Security Guards Act extends the vicarious liability of security guard agencies beyond the Maryland common law doctrine of respondeat superior. The federal appellate court considered the text of the statute and, after applying Maryland’s cannons of statutory construction, concluded that there were conflicting indications as to the meaning of the Maryland Security Guards Act § 19-501. Thus, the Court certified the question to us to resolve the uncertainty. 6 II.

Our Analysis. We may answer questions certified to us by a United States court or the appellate court of another state or of a tribe if the answer might be determinative of an issue before the certifying court and there is no controlling Maryland authority. Md.Code (1974,2013 Repl.Vol.), Courts & Judicial Proceedings Art., § 12-603. The Maryland Security Guards Act § 19-501 has not been interpreted by Maryland’s appellate courts before and its application could be dispositive of whether Appellants’ strict liability contentions will allow certain of its claims to survive summary judgment.

The District Court dismissed several of Appellants’ claims because the alleged torts and fair housing violations committed by SSA’s employees were beyond the scope of their employment. Appellants argued before the federal District Court, the federal Court of Appeals, and now us that the Maryland Security Guards Act § 19-501 imposes liability on SSA for the actions of Speed and Fitzpatrick beyond those for which SSA would be liable under Maryland’s common law doctrine of respondeat superior. The relevant portion of the Act, § 19-501, provides: “A licensed security guard agency is responsible for the acts of each of its employees while the employee is conducting the business of the agency.” Appellants contend that this section ⁷⁴ of the statute creates strict liability for the “on-duty” acts of employees, including those outside the scope of employment. SSA argues that the statute merely codified the Maryland common law of respondeat superior.

When interpreting statutes, our overarching goal is to ascertain and implement the intention of the Legislature. Witte v. Azarian, 369 Md. 518, 525 , 801 A.2d 160, 165 (2002). We turn first to the words of the statute. If, in pursuit of the North Star of intent, the words of the statute, given their common and ordinary meaning, are unambiguous and express a plain meaning, our inquiry stops normally and we interpret the statute as written.

Oaks v. Connors, 339 Md. 24, 35 , 660 A.2d 423, 429 (1995). If the text is ambiguous, however, we look to other evidence of the Legislature’s intent, including the relevant statute’s legislative history, the structure of the statute, the relationship of the statute to other laws, and the relative rationality of competing constructions. Witte, 369 Md. at 525-26 , 801 A.2d at 165 . There is, however, one important and particularly relevant interpretive principle reining-in our quest to elucidate the will of the Legislature: we will not presume abrogation of the common law unless the Legislature’s intent to do so is clear.

Suter v. Stuckey, 402 Md. 211, 232 , 935 A.2d 731, 743-44 (2007) (citing Robinson v. State, 353 Md. 683, 693 , 728 A.2d 698, 702 (1999); Lutz v. State, 167 Md. 12, 15 , 172 A. 354, 355-356 (1934)). When the intent of the Legislature is unclear with regard to abrogation, we will interpret the statute to be congruent with the common law. 7 ⁷⁵ A. Abrogation Here of the Common Law? Maryland’s common law doctrine of respondeat superior holds employers liable “for the tortious conduct of ... [an] employee committed while the servant was acting within the scope of the employment relationship.” Barclay v. Briscoe, 427 Md. 270, 283 , 47 A.3d 560, 567 (2012) (quoting Embrey v. Holly, 293 Md. 128, 134 , 442 A.2d 966, 969 (1982)). For employee conduct to be within the scope of employment, “the acts must have been in furtherance of the employer’s business and authorized by the employer.” Barclay, 427 Md. at 283 , 47 A.3d at 567 -68 (quoting S. Mgmt.

Corp. v. Taha, 378 Md. 461, 481 , 836 A.2d 627, 638 (2003)). Expanding the vicarious liability of security guard agencies by statute to include all on-duty acts of employees (strict liability) would alter significantly the common law scheme of respondeat superior and amount to an abrogation of the common law. The common law doctrine of respondeat superior not only holds employers liable for the actions of their employees in furtherance of the employer’s business, but also limits an employer’s liability to those situations. It is central to the doctrine that an employee’s acts committed outside the scope of employment, i.e., not in the furtherance of the employer’s business, are not attributable to the employer.

The universe of the types of employee acts for which the employer might be held strictly liable is limited. A temporal interpretation of the Maryland Security Guards Act § 19-501 would eliminate the distinction between employees’ acts within the scope of employment and those outside the scope of employment. Rather than turning on the character of employee acts, the focus would be on when the acts happened and whether the security guard was on duty. Security guard agencies would be liable for a broader set of acts of their employees, including, according to Appellants, even acts in direct opposition to the employers’ interests.

Such a change in employer liability would alter fundamentally the common law. ⁷⁶ Contrary to Appellants’ arguments, interpreting the Maryland Security Guards Act § 19-501 to impose vicarious liability on security guard agencies for all on-duty acts of their employees would operate more than to supplement the common law. Statutes we have held to supplement, rather than abrogate, the common law provide typically alternative remedies or criminal sanctions. See, e.g., Nickens v. Mount Vernon Realty Grp., LLC, 429 Md. 53, 74-75 , 54 A.3d 742, 755-56 (2012) (holding that a Baltimore City ordinance providing for a statutory eviction scheme supplemented, rather than abrogated, the common law remedy of peaceable self-help); Genies v. State, 426 Md. 148, 159 , 43 A.3d 1007, 1013 (2012) (holding that a statute creating a separate criminal offense for inmates exposing their private parts to correctional officers of the opposite sex as a means to abuse corrections officers did not abrogate the pre-existing common law crime of indecent exposure). Appellants’ interpretation of the Maryland Security Guards Act § 19-501, in contrast, would not create a new cause of action, but rather would modify the liability of security guard agencies for existing torts committed by their employees. 8 The common law doctrine of respondeat superior answers the question: When is an employer liable for the torts of its employee?

The Maryland Security Guards Act § 19-501 answers the same question with specific reference to employers ⁷⁷ who are security guard agencies. To change the answer amounts to an abrogation of the common law. Therefore, we look for an abundantly clear intent on the part of the Legislature to change the common law by its adoption of § 19-501. B. Plain Language of the Statute The Maryland Security Guards Act § 19-501 holds clearly and unambiguously licensed security guard agencies liable civilly for some acts of their employees.

The parties disagree which acts of employees come within the statute. At issue is whether the Legislature intended the phrase “while the employee is conducting the business of the agency” to modify the common law principles of an employer’s vicarious liability. Appellants’ major premise revolves around the temporal meaning of “while.” When used grammatically as a conjunction, as it is in the Maryland Security Guards Act § 19-501, “while” means typically “during,” “throughout the time that,” or “as long as.” Webster’s New Universal Unabridged 2084 (1988). 9 According to Appellants then, a licensed security guard agency is liable for all acts of its employees performed during the time that the employee is also “conducting the business of the agency.” The Maryland Security Guards Act defines “conducting the business of the agency.” A licensed security guard agency is defined as “a person who is licensed by the Secretary to conduct a business that provides security guard services.” Maryland Security Guards Act § 19-101(g). Security guard services are defined as “any activity that is performed for compensation as a security guard to protect any individual or property----” Maryland Security Guards Act § 19 — 101(Z). ⁷⁸ Combining these terms, Appellants arrive at the following meaning of the Maryland Security Guards Act § 19-501: A licensed security guard agency is liable for the actions of its employees occurring during the time that the employee is performing any activity for compensation to protect an individual or property. 10 Expressed another way, a security guard agency is liable for all acts its employees commit when they are “on-duty.” SSA argues, in response, that if the General Assembly intended a temporal construction, extending liability to all acts of on-duty employees, it would have done so explicitly. 11 Instead, the Legislature used language that SSA argues is a qualification based on the nature of the conduct.

The language of the Maryland Security Guards Act § 19-501 is subject to differing reasonable interpretations. Although Appellants’ argument may sound logical, when taken as a whole, the phase “while the employee is conducting the business of the agency” could be understood as well as having the same meaning as the common law doctrine of respondeat superior. The common law doctrine imposes liability only for acts by an employee furthering the employer’s business, Hopkins Chem. Co. v. Read Drug & Chem.

Co., 124 Md. 210, 214 , 92 A. 478, 479-480 (1914) (stating that employers are liable if an employee’s acts were “within the scope of his employment; not whether they were done while prosecuting the master’s business, but whether they were done by servant in furtherance thereof’), but we have summarized the rule as imposing ⁷⁹ liability for tortious acts “while the ... [employee] was acting within the scope of the employment relationship.” Embrey, 293 Md. at 134 , 442 A.2d at 969 . Neither side’s urging of the meaning of the statute renders any of the text meaningless. 12 Therefore, we move on to examine other indicia of legislative intent. C. Context of the Statute The crux of the Maryland Security Guards Act is the licensing scheme of security guard agencies, not the imposition of civil liability. The majority of the Act governs how an agency applies for and obtains the required licensure from the State to conduct a security guard agency.

The “Miscellaneous Provisions” of the Act, of which § 19-501 is a part, however, contain sections addressed to the civil liability of security guard agencies. See the Maryland Security Guards Act §§ 19-504 (requiring a minimum amount of general liability insurance for agencies with more than five employees); 19-505(a)-(b) (requiring consent to venue); 19 — 505(f) (allowing for service of legal process under certain circumstances on Maryland Secretary of State). The internal structure of the Maryland Security Guards Act contributes nothing to illumination of the intentions of the General Assembly. The broader context of the Maryland Code provides some support for the Appellants’ interpretation of the Maryland Security Guards Act § 19-501.

In other statutory schemes within the Code, the General Assembly uses the common law term “scope of employment.” See, e.g., Md.Code (1999, 2007 Repl.Vol.), Agriculture Art., § 4-127 (“when construing or enforcing any provision of this subtitle, every act, omission, or failure of any person acting within the scope of employment or office and acting for or employed by another person is the act, omission, or failure of that person as well as of the person committing the act”); Md.Code (1999, 2007 Repl.Vol.), Busi ⁸⁰ ness Occupations & Professions Art., § 12 — 501 (b)(2) (using the term “scope of employment” regarding insurance requirements for licensed plumbers); Md.Code (1992, 2010 Repl.Vol.), Business Regulation Art., § 9A-402(b)(2) (using the term “scope of employment” regarding insurance requirements for licensed heating, ventilation, and air-conditioning workers); Md.Code (1974, 2013 Repl.Vol.), Courts & Judicial Proceedings Art., § 5-303(b) (“a local government shall be liable for any judgment against its employee for damages resulting from tortious acts or omissions committed by the employee within the scope of employment with the local government”); Md. Code (2002, 2012 Repl.Vol.), Criminal Law Art., § 10-108 (creating an exception to the criminal statute for possession of “a tobacco product or cigarette rolling paper by a minor who is acting as the agent of the minor’s employer within the scope of employment”); Md.Code (1978, 2014 Repl.Vol.), Education Art., § 6-lll(a) (providing for full pay for employees absent due to disability resulting from an assault “while in the scope of board employment”); Md.Code (2007), Human Services Art., § 3-406 (prohibiting the State from paying judgments awarded against an employee under the section for acts or omissions occurring “outside the scope of employment”); Md. Code (1988, 2010 Repl. Vol.), Tax-General Art., § 1-101 (defining “Comptroller” to include “an employee of the Comptroller acting within the scope of employment”). It seems from this that the General Assembly is well acquainted with the common law term “scope of employment,” and is not averse to sprinkling it across the broad legislative landscape. Considering the language of the Maryland Security Guards Act § 19-501 in the foregoing context of the Maryland Code adds some weight to the Appellants’ interpretation.

One might anticipate that the General Assembly would use the term “scope of employment” here if it intended to codify common law respondeat superior. In isolation, however, the absence of this term in § 19-501 does not provide sufficiently clear evidence of the General Assembly’s intent to abrogate the common law. ⁸¹ D. Legislative History The language of the Maryland Security Guards Act § 19-501 has its genesis in Senate Bill 968 of the 1986 session, which codified a regulatory scheme as Md.Code (1999, 2007 Repl.Vol.), Business Occupations & Professions Art., § 13-601 (hereinafter the Maryland Private Detectives Act § 13-601). Security guard agencies remained regulated as private detectives under the Business Occupations & Professions Article of the Maryland Code until 1996 when House Bill 42 separated the Code’s treatment of security guard agencies into its own title. 1996 Maryland Laws Ch. 602 (which established the current regulatory scheme). The same language regarding liability was used in House Bill 42 as existed in the prior Article.

Id. Thus, the legislative history of § 13-601 of the Business Occupations & Professions Article of the Maryland Code, which covered civil liability for private detective agencies and security guard agencies before the reorganization, is informative regarding the analogous § 19-501 of the Maryland Security Guards Act. Senate Bill 968 of 1986 was introduced as a bill separate from a recodification initiative of the Maryland Code then underway. The separate bill was necessary because the General Assembly wished to address perceived substantive problems regarding the laws pertaining to private detectives.

Department of Legislative Reference, Report on Senate Bill 968 at 1 (1986) (hereinafter “Report on Senate Bill 968”). Several issues with the pre-existing statutory language regarding the licensing and provision of private detective services were identified in the Report on Senate Bill 968. The Report did not identify any problem with the regime of vicarious liability of private detective agencies or security guard agencies then in force. Notably, it stated: “[F]or the most part, the proposals under the bill find their basis in actual law and practice and do not deviate substantially from the current law as it is now is applied.

There is no attempt under the revision to change existing underlying policy.” Report on Senate Bill 968 at 2. ⁸² The Report highlighted elements of Senate Bill 968 warranting special attention by the General Assembly, but in doing so did not mention § 591 of the Bill, the language of which would be codified later as Maryland Private Detectives Act § 13-601 and even later replicated in the Maryland Security Guards Act § 19-501. Of the part of Senate Bill 968 which contained the relevant language, the Report noted: Part VI of the revised subtitle consists of 8 “miscellaneous” sections that do not fit well into any of the other 7 parts of the revised subtitle. While revision of these sections involve an extensive reorganization and restatement of the current subtitle, all of the revised sections are based on current law. Report on Senate Bill 968 at 8.

In the opinion of the authors of the Report, the Bill did not modify the law regarding the vicarious liability of security guard agencies for acts of their employees. The Bill Analysis of the Senate Economic and Environmental Affairs Committee interpreted similarly the “while the employee is conducting the business of the agency” language of Senate Bill 968. The Bill Analysis noted that “[t]he substantive changes are included for the limited purpose of clarifying existing law.” Department of Legislative Reference, Bill Analysis, Senate Economic and Environmental Affairs Committee at 1 (1986) (hereinafter Bill Analysis). Each section of the Bill was discussed in the Bill Analysis.

For § 591, it