Conaway v. State

EYLER, Judge. This is an appeal by Gregory Conaway from a judgment entered in favor of the State of Maryland, following a non-jury trial before Judge John Carroll Byrnes in the Circuit Court for Baltimore City. The issue before us is whether the trial judge correctly concluded that the State was immune from suit for damages as a result of negligent medical care received by appellant while he was an inmate in the custody of the Maryland Division of Correction. The health care providers were employed by a private company that supplied health care employees pursuant to a contract with the State.

More specifically, the sole question for our decision is whether the health care providers were “State personnel” within the meaning of Md.Code (1984, 1995 Repl.Vol.), § 12-101(1) or (4) of the State Government Article (S.G.), the Maryland Tort Claims Act. We answer that question in the negative and affirm the ruling of the trial judge. I. More than nine years after the injury that gave rise to this litigation, the parties are still wending their way through our judicial system. The underlying facts may be found in Judge Rosalyn Bell’s opinion in Conaway v. State, 90 Md.App. 234, 237-39 , 600 A.2d 1133 (1992).

We will not repeat the entire history of this litigation, but a brief review may be helpful in understanding its present posture. Appellant injured his hand while incarcerated at the Brock-bridge Correctional Facility in May, 1986, and was treated at that Facility’s dispensary. He filed a claim with the Health Claims Arbitration Commission and then a suit against Frank G. Basil, Inc. of Delaware, a health care company that the State contracted with to provide health care services to in ⁴⁸¹ mates at certain facilities, including Brockbridge, through June 30, 1986, and PHP Health Care Corporation, the contractor hired to provide such services subsequent to that date. In the first Conaway , the issues were whether appellant had made a written claim against the State in compliance with S.G. § 12-106(b) and whether the claim against Basil was barred by limitations.

Id. at 239-54, 600 A.2d 1133 . We held that appellant had given the State adequate notice of his claim but that the claim against Basil was barred by limitations. This Court remanded the case to the Circuit Court for Baltimore City for further proceedings consistent with our opinion. Subsequent to our remand, the Circuit Court for Baltimore City remanded appellant’s case to the Health Claims Arbitration Office (“HCAO”).

The HCAO granted defendant PHP Health Care Corporation’s motion for summary judgment on the ground that the negligent acts occurred prior to its involvement. This left the State as the sole defendant. Thereafter, on November 15, 1993, the panel issued its decision. The panel found the State liable to appellant and awarded to him: (1) $5,980 for future medical expenses; (2) $2,000 for past lost earnings and $15,000 for future lost earnings; and (3) $2,020 for non-economic damages.

Additionally, the panel assessed costs against the State in the amount of $1,247.99. On December 27, 1993, the State filed an action to “Nullify Award and Assessment of Costs” in the Circuit Court for Baltimore City. In response, on January 10, 1994, appellant filed a complaint, in which he claimed damages totaling $75,-000. The parties’ dispute survived motions for summary judgment and proceeded to a bench trial.

Prior to trial, the parties agreed that, if appellant prevailed, he would receive $18,000 in damages. The parties further agreed that they would proceed on the one issue as stated above. Although the parties did not explicitly stipulate that the health care provider or providers in question were negligent, it appears that they proceeded to trial with that assump ⁴⁸² ti'on. In any event, the issue is not raised, and we shall assume that the negligent acts occurred prior to June 30,1986.

Moreover, the parties do not raise an issue with respect to the fact of, or the basis for, the State’s liability for the negligent acts of the health care providers. Appellant does argue that the State had a duty to render adequate medical care to inmates and that this was a non-delegable duty. Additionally, appellant argues that there was a “holding out” of the health care providers as agents of the State. Either or both of these doctrines, if applicable, would give rise to vicarious liability on the part of the State.

We do not decide if a legal basis for liability exists on either of those theories, since the issue presented by the parties implicitly assumes (without conceding) a basis for tort liability by the State. 1 At trial, appellant testified that he did not know whether he was treated by State employees or by employees of Basil. The State presented two witnesses, Myles Carpeneto and Larry Andersson. Carpeneto and Andersson were, respectively, at the relevant times, Director of Procurement Services for the Department of Correction and Chief of Personnel Services for the Department of Correction. They testified, in part, that no State employees were assigned to provide health care at Brockbridge when appellant received negligent treatment.

At the conclusion of the trial on February 16, 1995, the trial judge held the matter sub curia. Approximately one month later, the trial judge filed his opinion and entered judgment against appellant. Appellant timely noted this appeal. Our discussion centers upon the Maryland Tort Claims Act (“Act”), which took effect on July 1,1982.

See Md.Code (1981 ⁴⁸³ Cum.Supp.), §§ 5-401 to 5-408 of the Courts Article. 2 As stated in the preamble to Senate Bill 585, the legislation was proposed for [t]he purpose of waiving the immunity of the State and its officials in certain tort actions to the extent that the State is insured; granting certain State personnel immunity from liability as individuals for such torts absent certain circumstances; providing for the representation of the State and its personnel in such cases; requiring the filing of a claim with the State Treasurer as a prerequisite to the waiver of such immunity; authorizing the Treasurer to consider, ascertain, adjust, determine, compromise, and settle such claims and contract for services; limiting the fees which attorneys may charge in such matters; directing the Treasurer to secure insurance for such purposes to the extent that funds are available; and generally relating to the immunity of the State and its personnel in tort. 1981 Md.Laws chap. 298, page 1609. Moreover, the Legislature specifically declared that the Act was to be liberally interpreted. The Act has been amended from time to time, including significant amendments in 1989, which would clearly resolve the issue herein, if applicable. The negligent acts in question occurred prior to July 1, 1986.

Appellant’s claim was filed in September, 1986. See Conaway, 90 Md.App. at 250 , 600 A.2d 1133 . As the trial judge in this case noted, the 1989 amendments to the Act took effect on July 1, 1989 and are inapplicable to this case. 3 ⁴⁸⁴ II. Under the Act, the State has waived immunity under certain circumstances with respect to negligent acts committed by State personnel.

The issue presented to us requires us to focus on two provisions of the Act defining “State personnel,” §§ 12-101(1) and 12-101(4). Under subsection (1), an individual is within the definition of “State personnel” if a “classified,” “unclassified,” or “contractual employee” of the State, or under subsection (4), if the individual “exercises a part of the sovereignty of the State.” Appellant’s first point relates to S.G. § 12-101(1). We look to that section as it existed prior to the 1989 amendments: In this subtitle, unless the context clearly requires otherwise, ‘State personnel’ means: (1) a classified, unclassified, or contractual employee of the State whose compensation is paid wholly or partly from State funds____ Md.Code (1984), § 12-101(1) of the State Government Article. 4 In his brief, however, appellant makes no argument regarding that section’s applicability to this case. Instead, he refers us to the joint record extract and to a memorandum appearing at the cited page, which was filed in the Circuit Court for Baltimore City.

The argument in the memorandum is not clear, but it appears as though appellant asserts that S.G. § 12-101(1) is germane to this litigation because Basil’s employees were “contractual employee[s] of the State whose compensation is paid wholly or partly from State funds----” The short answer to this assertion is that, in the absence of ⁴⁸⁵ argument in the brief, the point need not be considered by this court. Beck v. Mangels, 100 Md.App. 144 , 640 A.2d 236 (1994), cert. denied, 337 Md. 580 , 655 A.2d 370 (1995). The longer answer is that appellant is mistaken. We shall examine the argument because it aids our discussion of the main issue.

In analyzing appellant’s arguments, we are guided by the basic principles of statutory construction as set forth by Chief Judge Murphy in Condon: The cardinal rule of statutory construction is to ascertain and carry out the true intention of the legislature. In searching for legislative intention, a court looks for the general purpose, aim, or policy behind the statute. We first look to the plain meaning of the language of the statute to discern legislative intent. Where the language is clear and unambiguous, a court may not add or delete words to make a statute reflect an intent not evidenced in that language to avoid a harsh result.

A clearly worded statute must be construed without ‘forced or subtle interpretations’ that limit or extend its application. The language must be examined in the context in which it was adopted. All parts of a statute are to be read together to determine intent, and reconciled and harmonized to the extent possible. If reasonably possible, a statute should be read so that no part of it is rendered nugatory or superfluous.

Where a statute may be susceptible of more than one meaning, the court may consider the consequences of each meaning and adopt that construction which avoids a result that is unreasonable, illogical or inconsistent with common sense. It often is necessary to look at the development of a statute to discern legislative intent that may not be as clear upon initial examination of the current language of the statute. Condon, 332 Md. at 490-91, 632 A.2d 753 (citations omitted); Morris v. Osmose Wood Preserving, 340 Md. 519, 538-39 , 667 A.2d 624 (1995). The pre-1989 Act did not provide definitions of “classified, unclassified, or contractual” employees.

Appellant’s counsel stated at oral argument that no claim is being made that ⁴⁸⁶ Basil’s employees were “classified” or “unclassified” employees of the State. We turn to the Merit System law then in existence for clarification of “contractual” employees. 5 Section 15A of former Article 64A defined “contractual employee.” (2) ‘Contractual employee’ means a person providing personal services to the State for remuneration provided that: (i) The services and remuneration are specified in a written agreement; (ii) An employer-employee relationship exists; and (in) The person is not employed as a classified, unclassified or temporary extra employee. (3) ‘Employer-employee relationship’ means conditions of employment such that: (i) The State has the right to control and direct the performance of services, not only as to results but also as to details and means; (ii) The State has the right to discharge the employee; and (iii) The State furnishes necessary tools and a place to work. Md.Code (Cum.Supp.1986), Art. 64A, § 15A.

At trial, Carpeneto explained the distinction between a contractual employee and an independent contractor’s employee. Q Okay could you please explain the difference between a contractual employee and an employee of a contractor or a company with whom the State contracts? A Sure. And—a contractual employee is an employee of the State of Maryland.

We pay their social security, take • out their taxes. As far as Internal Revenue Service is concerned, they are a State employee. As employer contractor, we don’t actually contract with the employees, we ⁴⁸⁷ contract with the contractor himself. So in this case it was Frank E. Basil Incorporated.

And Frank E. Basil then had employees and paid their social security and taxes and whatever. And for the IRS purposes, they were employees of Frank E. Basil as opposed to employees of the State of Maryland. The trial judge found that the medical personnel at Brock-bridge at the pertinent time were not State employees. This finding was supported by uncontradicted evidence and is not clearly erroneous.

Additionally, the above discussion makes clear, based on the plain language of the statute, that an employee of an independent contractor is not a “contractual employee” of the State. Thus, the trial judge’s conclusion with respect to this point will not be disturbed.

III

Appellant’s second point is grounded in S.G. § 12-101(4), which includes, within the definition of “State personnel,” the following: (4) an individual who, with or without compensation, exercises a part of the sovereignty of the State. 6 It is helpful to review the common law doctrine of immunity prior to the Act and the history of the Act. At common law, public employees were not immune from suit for negligence, but public officials were immune from such suits, if based on discretionary, as opposed to ministerial, acts, and if they were in furtherance of official duties. The State was immune from liability, absent consent. Pursuant to the Act, the State waived its immunity in certain instances and, where waiver was applicable, the individual was immune.

The original version of the Act waived immunity in certain specified actions ⁴⁸⁸ to the extent and in the amount that the State was covered by a program of insurance established by the Treasurer. Six categories of actions were listed. The 1985 amendment broadened the waiver of immunity, waiving it with respect to all types of tort actions for damages to the extent of coverage, based on acts committed by “State personnel,” subject to the limitations contained in S.G. § 12-104(b). The Court of Appeals discussed subsection (4) as it existed prior to the 1989 amendments in Rucker v. Harford County, 316 Md. 275 , 558 A.2d 399 (1989).

The issues presented in Rucker came in the form of certified questions from the United States District Court for the District of Maryland. A stray bullet fired by a peace officer initiated appellant David Rucker’s claim. The court had before it the question of [wjhether Harford County or the State of Maryland is obligated to fund the expenses associated with claims for liability involving the Harford County Sheriff, the Deputy Sheriffs, or the Sheriffs office, including the cost of liability insurance, the costs of defending suits brought against them and the payment of any settlements and judgment[.] Rucker, 316 Md. at 278 , 558 A.2d 399 . The discussion is enlightening.

Subsection (4) of § 12-101 literally covers sheriffs and deputy sheriffs, and the Attorney General does not argue otherwise. Rather, the Attorney General contends that subsection (4) should not be given a literal construction, as this would render the State liable for the tortious acts of public officials and employees at every level of government, including many whose offices were created by local charters or local ordinances.... We agree with the Attorney General that subsection 4 of § 12-101 cannot reasonably be read to encompass every individual exercising part of the sovereignty of the State. Many county and municipal officials and employees could be said to exercise part of the sovereignty of the State.

The General Assembly, in enacting § 12-101(4), obviously did not contemplate that the State was assuming liability for the ⁴⁸⁹ torts of purely local government officials and employees. If it had, there would have been little reason to enact the Local Government Tort Claims Act or other legislation relating to the tort liability of local government personnel. As § 12-101 deals with ‘State personnel,’ § 12-101(4) should be limited to those who are State officers or employees, or to those directly acting for the State Government rather than for a county or municipality.... Subsection (4) of § 12-101, by referring to those exercising a part of the sovereignty of the State, and by making the matter of compensation irrelevant, seems particularly applicable to State officers like sheriffs, state’s attorneys, orphans’ court judges, and similar officials, who are performing fundamental State government functions but who may not be compensated by the State government.

It seems to have been specifically designed to cover these personnel, based upon the language used and the fact that virtually all other categories of State personnel appear to be encompassed by other subsections. Id. at 298-300, 558 A.2d 399 (footnote omitted). The Court of Appeals did not decide the question