Pope v. Barbre

ADKINS, Judge. Andrew Pope, III, appellant, suffered paralyzing injuries when Mark Barbre, appellee and Queen Anne’s County Deputy Sheriff, shot him in the neck following a traffic stop. The Circuit Court for Queen Anne’s County granted summary judgment on Pope’s claims against Barbre, and dismissed his claims against the State of Maryland and Queen Anne’s County, because Pope mistakenly notified Queen Anne’s County of his claim under the Maryland Tort Claims Act (MTCA), rather than notifying the State Treasurer or one of two specified designees. 1 Pope challenges those rulings, arguing that he ³⁹⁵ complied with the mandatory notice requirements of Md.Code (1984, 2004 Repl.Vol.), section 12-106(b) of the State Government Article (SG), and that such notice is not a prerequisite to his claim against Barbre individually. We are not persuaded that the “substantial compliance” doctrine under the Maryland Tort Claims Act can be expanded to encompass such defective notice.

But we agree that the statutory notice requirement did not apply to Pope’s claim against Barbre individually. FACTS AND LEGAL PROCEEDINGS On March 17, 2004, Barbre shot Pope in the course of his law enforcement duties, after stopping Pope’s vehicle in Grasonville. Pope was partially paralyzed, between his neck and waist, and now has limited use of his arms and hands. Five months after the shooting, on August 12, 2004, Pope’s attorney sent a certified letter to Benjamin F. Casell, Jr., Queen Anne’s County Commissioner.

The letter purported to “constitute the requisite 180 day notice under the Local Government Tort Claims Act, 5-304 of the Courts and Judicial Proceedings Act of the Maryland Annotated Code.” 2 Counsel advised that the “letter will be followed by a law suit against Queen Anne’s County alleging that Deputy Barbre acted with malice when he shot my client[.]” Counsel copied the letter to the County Attorney for Queen Anne’s County. On April 19, 2005, Pope filed a complaint in the Circuit Court for Montgomery County, naming Barbre and the Queen Anne’s County government as defendants. In the caption, Pope served the complaint on Commissioner Cassell, as repre ³⁹⁶ sentative of Queen Anne’s County (hereafter, the “County”). As insurer for the County, 3 the Local Government Insurance Trust (LGIT) entered its appearance on behalf of both Barbre and the County, then moved for dismissal or summary judgment in favor of both defendants.

Counsel for LGIT asserted that the County is not a proper party to the lawsuit and that the time for suing under the Maryland Tort Claims Act (MTCA) had expired. Specifically, the LGIT argued: (1) Barbre is classified as “State Personnel” for purposes of tort claims against him, so that (2) the County is not liable for any tort Barbre may have committed; (3) Barbre instead is amenable to suit only under the MTCA, but (4) Pope did not satisfy the MTCA requirement of notice to the State Treasurer, so that (5) Pope failed to obtain the waiver of sovereign immunity that is necessary to sue Barbre and the State. On May 13, 2005, fourteen months after the altercation, counsel for Pope hand delivered to the State Treasurer a letter stating: Although you may have already received notice of Mr. Pope’s claim via my August 12, 2004 letter to Queen Anne’s County Commissioner Benjamin Cassell, and via my March 7, 2005 Freedom of Information Act Request to Queen Anne’s County Sheriff Charles Crossley ... this letter will ensure that you have received direct notice of Mr. Pope’s intent to pursue his claim. Pope twice amended his complaint while the County’s motion to dismiss or for summary judgment was pending.

The first amendment dropped the County as a defendant, leaving only the individual claim against Barbre. The second amended complaint renamed the County and added the State of ³⁹⁷ Maryland as defendants. All three defendants moved to strike the second amended complaint, on the grounds previously asserted in the motion filed by the LGIT. The circuit court granted the motion to strike the second amended complaint, leaving only Barbre as a defendant.

At the same time, the court also granted summary judgment on all claims against Barbre in the first amended complaint. Pope noted this appeal, presenting four issues 4 that we reduce to two questions: I. Did the notice of claim that Pope sent to Queen Anne’s County satisfy the notice requirement in section 12-106 of the Maryland Tort Claims Act?

II

Did the circuit court err in striking Pope’s second amended complaint? In addition, Pope raises a third issue in his brief, arguing: III. The circuit court erred in granting summary judgment on the claims against Barbre in his individual capacity because “[t]here is no MTCA requirement to notify a State employee of claims asserted against him or her on an individual basis.” We find no error in the ruling that Pope’s failure to provide timely notice to the State Treasurer barred his claims against ³⁹⁸ the State. Although we shall affirm the decision to strike the second amended complaint, we reverse the judgment in favor of Barbre on Pope’s individual claim against him, because notice to the State Treasurer is not a prerequisite for suing a sheriffs deputy in his individual capacity for torts allegedly committed with malice or gross negligence.

DISCUSSION Tort Claims Against A Deputy Sheriff “Grounded in ancient common law, the doctrine of sovereign immunity bars individuals from bringing actions against the State, thus protecting it from interference with governmental functions and preserving its control over its agencies and funds.” Condon v. State of Maryland-Univ. of Md., 332 Md. 481, 492 , 632 A.2d 753 (1993). “By waiving the State’s tort immunity, the [Maryland Tort Claims Act has] afforded a remedy for individuals injured by tortious conduct attributable to the State.” Id. Title 12 of the State Government Article (SG) governs immunity and liability of State, local, and municipal entities. Subtitle 1 is the Maryland Tort Claims Act (MTCA), in which the State both defines the extent to which it waives its sovereign immunity and creates statutory immunity for State personnel. With respect the State itself, as well as its units, 5 the MTCA provides that the sovereign “immunity of the State and of its units is waived as to a tort action,” with certain “exclusions and limitations” specified in this subtitle.

See SG § 12-104(a). With respect to individual liability, the MTCA provides that “State personnel shall have the immunity from liability described under § 5-522(b) of the Court and Judicial Proceedings Article” (CJP). See SG § 12-105. This immuni ³⁹⁹ ty extends to the sheriff and deputy sheriff of a county, who are included within the definition of “State personnel.” See § 12 — 101(a)(6).

In turn, CJP (1974, 2006 Repl.Vol.), section 5-522(b) provides: (b) In general. — State personnel, as defined in § 12-101 of the State Government Article, are immune from suit in courts of the State and from liability in tort for a tortious act or omission that is within the scope of the public duties of the State personnel and is made without malice or gross negligence, and for which the State or its units have waived immunity under Title 12, Subtitle 1 of the State Government Article.... (Emphasis added.) Through this quid pro quo, the MTCA substitutes State tort liability for an individual State employee’s tort liability. As Judge Greene explained while he was a member of this Court, a party can bring a viable tort action against the State when the tort was committed by a State employee acting within the scope of his or her employment and without malice or gross negligence. Thus, the State has accepted vicarious liability arising from the tortious conduct of State personnel.

The MTCA also clearly provides that a State employee acting within his or her scope of employment and without malice or gross negligence is immune from suit. If, however, the State employee has acted with malice or gross negligence, or the State employee has acted outside the scope of his or her employment, the State is immune from suit and the injured party may only bring a viable tort claim against the State employee. Ford v. Baltimore City Sheriff’s Ofc., 149 Md.App. 107, 120-21 , 814 A.2d 127 (2002). Thus, “[t] he purpose of MTCA immunity is not simply to protect judgmental decisions by officials, but to insulate state employees generally from tort liability if their actions are within the scope of employment and without malice or gross negligence!.]” Lee v. Cline, 384 Md. 245, 261 , 863 A.2d 297 (2004). ⁴⁰⁰ One of the statutory “exclusions and limitations” on tort actions against the State and its units is the notice requirement that lies at the heart of this appeal.

SG section 12-106(b) provides in pertinent part: (b) Claim and denial required. — A claimant may not institute an action under this subtitle unless: (1) the claimant submits a -written claim to the Treasurer or a designee of the Treasurer within 1 year after the injury to person or property that is the basis of the claim; (2) the Treasurer or designee denies the claim finally; and (3) the action is filed within 3 years after the cause of action arises. (Emphasis added.) Complementing this notice requirement is a service requirement in SG section 12-108(a), which provides that, “[i] n an action under this subtitle, service of the complaint and accompanying documents is sufficient only if made on the Treasurer.” Moreover, by regulation, the State Treasurer has explained that, [f]or purposes of the provisions of State Government Article 12-106----[presentation of a purported claim to any unit of State Government other than the State Treasurer’s Office does not constitute proper submission of a claim[.] COMAR 25.02.03.01.B. Consistent with this scheme, the definition of “Treasurer’s designee” is limited to specified officials in the State Treasurer’s Office: (a) “Treasurer’s designee” means only the: (i) Chief Deputy Treasurer; or (ii) Director of the Insurance Division of the State Treasurer’s Office. (b) “Treasurer’s designee” does not mean or include any other person, including, but not limited to: (i) An officer or employee of State government other than those persons identified in § B(7)(a), above; (ii) The Comptroller of the Treasury, the Attorney General, or the Secretary of State; or ⁴⁰¹ (iii) A commercial insurer, adjuster, claims administrator, or similar person who provides services to the Treasurer as an independent contractor. COMAR 25.02.01.02.B(7) (emphasis added).

I. The Court Properly Dismissed Pope’s Claim Against The State The motion court dismissed the second amended complaint naming the State of Maryland as a defendant, on the ground that Pope did not satisfy the SG section 12-106(b) notice requirement. Pope challenges that ruling. 6 It is undisputed that Pope did not notify the State Treasurer of his claim within the one year period mandated in SG section 12-106(b). Neither did Pope provide notice to one of the State Treasurer’s two designees. Nevertheless Pope urges us to hold that the August 12 notice to the Queen Anne’s County Commissioner satisfied the MTCA notice requirement, either because the Commissioner qualifies as a Treasurer’s “designee” or because such notice substantially complies with section 12-106(b).

We cannot legally justify such a holding. A. The County Commissioner Is Not A “Treasurer’s Designee” To dispose of Pope’s contention that a county commissioner may serve as the State Treasurer’s “unofficial designee,” we need look no farther than the State Treasurer’s Office itself. By duly promulgated regulation, it has explicitly spelled out who is — and who is not — a “Treasurer’s designee” for purposes of accepting notice of tort claims under the MTCA. County commissioners are not on the Treasurer’s short list of two designees (ie., the Chief Deputy Treasurer ⁴⁰² and the Director of the Insurance Division of the State Treasurer’s Office), both of whom work within the State Treasurer’s Office.

See COMAR 25.02.01.02.B.7(a). To prevent any misunderstanding, the regulation unequivocally states that “ ‘Treasurer’s designee’ does not mean or include any other person[.]” See COMAR 25.02.01.02.B(7)(b). Consequently, county commissioners do not qualify as a Treasurer’s designee for MTCA notice purposes. Pope’s contention that the County’s financial responsibility 10 for any judgment against Deputy Sheriff Barbre renders Queen Anne’s County “the State’s designee” for MTCA notice purposes is similarly foreclosed by the clear language of the statute and regulations.

The insurance provisions in section 9-101 et seq. of the State Finance and Procurement Article simply do not authorize a county commissioner or municipal insurer to receive an MTCA notice on the Treasurer’s behalf. To be sure, Title 9 of that article creates a “program of purchased insurance and self-insurance against loss, damage, and liability that the State may incur.” Md.Code (1985, 1988, 2006 Repl.Vol.), § 9-102(a) of the State Finance and Procurement Article (SFP). Under SFP section 9-108, which “applies to any sheriff or deputy sheriff engaged in” law enforcement functions such as the altercation at issue here, (b) Insurance authorized. — A county or Baltimore City may obtain insurance to provide the coverage and defense necessary under the Maryland Tort Claims Act for personnel covered by this section. (c) Failure to obtain insurance. — (1) If a county or Baltimore City does not obtain adequate insurance coverage to satisfy the coverage and defense necessary under the Maryland Tort Claims Act, an assessment for coverage and for payment of any litigation expenses, other than for compensation for the time spent by any State employee working for the Attorney General, shall be set off from: (i) any tax which has been appropriated in the State budget to the county or Baltimore City; or ⁴⁰³ (Ü) the subdivision’s share of any income tax collected by the State Comptroller.

Yet Pope’s “unofficial insurer” argument fails to address the absence of any reference to the MTCA notice requirement in these or any other provisions of Title 9. It also fails to account for the Treasurer’s unequivocal rejection of notice to persons other than the two identified designees. This is not a mere matter of “semantics” as Pope contends. If neither the Comptroller, nor the Attorney General, nor any other State officer, nor an “insurer ... who provides services to the Treasurer as an independent contractor” qualifies as a Treasurer’s designee, see COMAR 25.02.01.02.B(7)(b)(i)-(iii), then neither does a county officer such as a county commissioner.

B. Pope Did Not Substantially Comply With The Statutory Notice Requirement Turning to Pope’s alternative “substantial compliance” argument, we are constrained by the language of the MTCA, as it has been interpreted by case law. The language of section 12-106(b) has been construed consistently as barring suits in which notice mistakenly was not given at the right time or to the right person. Both the Court of Appeals and this Court have refused to expand the concept of substantial compliance to encompass such situations. Recently, in Candelero v. Cole, 152 Md.App. 190 , 831 A.2d 495 (2003), this Court declined to hold that the claimant substantially complied with SG section 12-106(b) by mailing notice on the deadline, rather than ensuring that it was received by that date as required by statute and regulation.

In doing so, we reviewed the narrow circumstances in which the substantial compliance doctrine has been successfully invoked: The Court of Appeals has recognized the existence of a substantial compliance argument under the MTCA. In Condon, 332 Md. at 496 , 632 A.2d 753 (quoting Conaway v. State, 90 Md.App. 234, 246 , 600 A.2d 1133 (1992)), the Court ⁴⁰⁴ accepted our definition of substantial compliance as a “communication that provides the State ‘requisite and timely notice of facts and circumstances giving rise to the claim.’ ” (Emphasis supplied.) “The doctrine of substantial compliance, however, is not license to ignore the clear mandate of the MTCA,” Chinwuba v. Larsen, 142 Md.App. 327, 355 , 790 A.2d 83 (2002), and cannot serve as a springboard for judicial legislation. Provisions such as this, and the canon of construction favoring a liberal interpretation of remedial legislation, are helpful in resolving ambiguities in statutes, but do not permit us to expand the statute to afford relief where the words of the statute bar that relief. Simpson v. Moore, 323 Md. 215, 227 , 592 A.2d 1090 (1991).

Those principles are illustrated in two cases, Simpson, supra, and Conaway, supra. In Simpson , the case was dismissed because the claimant failed to file a written claim within 180 days after the accident. The claimant argued that the legislature intended the notice requirement in SG § 12 — 106(b)(1) to contain the same provision as that contained in Md.Code (1974, 1984 Repl.Vol.), § 5-306 of the Courts & Judicial Proceedings Article (“CJ”), permitting waiver of the notice requirement, under certain circumstances, in a case filed under the Local Government Tort Claims Act. The Court of Appeals declined to incorporate that waiver provision into SG § 12-106, stating that the legislature could have done so, if it wanted, by amendment.

Thus, because there was an “outright failure” by the claimant to file a written claim, and compliance was “a condition precedent to the maintenance of a claim against the State,” the doctrine of substantial compliance was not applicable. Simpson, 323 Md. at 228-29 , 592 A.2d 1090 . In Conaway , a prisoner filed a timely claim with the Treasurer, but did not demand specific damages as required by SG § 12-107(a). Applying the doctrine of substantial compliance, we held that while the claim “did not literally comply with all of the requirements of [SG] § 12-107(a),” it provided the State with “sufficient written notice of the ⁴⁰⁵ circumstances” of the accident to allow it to “investigate the claim and respond either by settlement or defense.” Conaway, 90 Md.App. at 250 , 600 A.2d 1133 (quoting Adams v. United States, 615 F.2d 284, 289 (5th Cir.1980)).

In so holding, we distinguished Simpson , stating that the claimant in that case had “provided no notice to the State.” Conaway, 90 Md.App. at 241 , 600 A.2d 1133 . Id. at 197, 831 A.2d 495 . The situation presented in Candelero differed from Simpson in that notice was provided, albeit late, and from Conaway , in that the notice included a specific claim for damages. This Court held that the claimant nonetheless failed to substantially comply with the notice requirement because the notice was not timely.

As in Simpson , the doctrine of substantial compliance is not applicable in this case. The notice requirement contained in SG § 12-106(b)(1) is a “condition precedent to filing suit against the State.” Conaway, 90 Md.App. at 240 , 600 A.2d 1133 . The primary purpose of that requirement is to permit the State to timely investigate the incident and to respond to the claim. The legislature has set the notice period at one year.

Because the Treasurer received Candelero’s written claim more than one year after the date of injury, the claim was not timely submitted. Although the claimant in Simpson failed to file any claim, we see little difference between that scenario and this case. If the purpose of the required notice is to permit a timely investigation and the legislature has determined that a timely claim is a claim submitted within one year, a claim that is not received within that time frame is untimely and, in effect, “an outright failure to comply.” Id. at 197-98, 831 A.2d 495 . As we recognized in Candelero , our decision in Conaway did not address whether notice given to someone other than the State Treasurer or designee could “substantially comply” with section 12-106(b).

No Maryland court has held that such substituted notice is satisfactory. To the contrary, in Chinwu ⁴⁰⁶ ba v. Larsen, 142 Md.App. 327, 357 , 790 A.2d 83 (2002), aff'd in part, rev’d in part on other grounds, 377 Md. 92 , 832 A.2d 193 (2003), we held that the language of the MTCA precluded the claimant’s argument that notice given to the Attorney General substantially complied with section 12-106(b). The doctrine of substantial compliance ... is not license to ignore the clear mandate of the MTCA. In Condon , the Court of Appeals warned that courts may not “infer an intent where the legislature has clearly indicated the contrary.” Similarly, in Simpson , the Court ____ explained that “[provisions such as this, and the canon of construction favoring a liberal interpretation of remedial