Riley v. United Services Automobile Ass'n

DAVIS, J. In the Circuit Court for Baltimore City, the Carpenter family 1 sued their former landlord, an Owings Mills dentist named Kenneth Hooper, alleging that Hooper negligently exposed the Carpenter children to lead paint during their tenancy and that, as a result, they suffered permanent brain damage. During discovery in that action, the parties disputed the applicability of Hooper’s insurance policies for the premises, issued by United Services Automobile Association (USAA). To resolve the insurance dispute, USAA, the appellee here, brought a declaratory judgment action against appellants, the Carpenters, and Hooper, 2 seeking to establish that USAA’s maximum exposure in the underlying tort action is $300,000. Appellants initially contended that Hooper’s USAA policies provided $2.7 million of coverage, but now contend they provide $1.2 million.

The lead paint case was stayed pending resolution of the insurance case. The circuit court granted appellee’s motion for summary judgment, declaring that appellee’s policies indemnify Hooper up to $600,000 of liability. From that judgment, appellants noted this appeal and presented the following question, which we have rephrased: Did the circuit court err by making findings of fact when it granted summary judgment for appellee? ⁵⁷⁶ Appellee noted a cross-appeal and presented the following question, which we have also rephrased: Did the circuit court err in declaring that USAA’s policies provided $600,000 of coverage, instead of $300,000? We answer “yes” to the first question, and, accordingly, we shall reverse the judgment.

To guide the parties on remand, we address the second question as well. FACTUAL BACKGROUND Hooper purchased four consecutive homeowner’s insurance policies from USAA to cover 1803 West Mosher Street, the property he rented to the Carpenters. The Carpenters lived at the premises during portions of each of the four insurance periods, which were: • July 28,1990 to July 28,1991; • July 28,1991 to March 1, 1992; • March 1,1992 to March 1,1993; and • March 1,1993 to March 1,1994. The family left the house sometime in the fall of 1993.

Counts 1 through 3 of the underlying complaint each sought $1 million dollars for damages resulting from injuries to Jeremy Carpenter, who was born shortly after the family’s tenancy began. 3 Counts 4, 5, and 6 each sought $1 million dollars for damages resulting from the injuries to Wendy Carpenter, who was two years old when the family moved into the residence. Finally, counts 7, 8, and 9 each sought the same damages for injuries to Christian Carpenter, who was not yet one when the family moved in. The allegations in the complaint of lead ingestion were subsequently supported by a relative’s affidavit, stating that the children were frequently ⁵⁷⁷ seen “gnawing on the windows and picking the paint” throughout the tenancy. In the course of the litigation, the Carpenters submitted evidence of their blood-lead level histories.

Blood-lead levels are usually measured in micrograms per deciliter of blood, abbreviated as “¡xg/dL.” See Scott A. Smith, Turning Lead into Asbestos and Tobacco: Litigation Alchemy Gone Wrong, Defense Counsel Journal, Apr. 2004, at 123. As medical research has progressed, what experts consider to be a “safe” lead level has consistently dropped: Prior to 1970, the U.S. Surgeon General defined the “level of concern” of lead in a young child’s blood as 60|xg/dL, a level rarely seen today. In 1970, the Surgeon General reduced the level of concern to 40|xg/dL. In 1978, the Centers for Disease Control and Prevention (CDC), having assumed jurisdiction over lead poisoning prevention from the Surgeon General, further reduced the level of concern to 30¡xg/dL; in 1985, to 25|xg/dL; and in 1991, to 10|xg/dL, where it stands today.

Id. Only recently has research shown that lead levels below 10[xg/dL not only are injurious, but, in fact, are disproportionately injurious, causing more harm per gg/dL up to 10 than beyond 10. Richard L. Canfield et al, Intellectual Impairment in Children with Blood Lead Concentrations Below 10pg per Deciliter, 348 New Eng. J. Med. 1517 , 1521-25 (2003) (Canfield).

Appellants submitted to us a copy of the Canfield article in a motion to supplement the record, but, because the results of the Canfield research had not yet been published when this case was before the trial court, it did not consider that research in rendering the challenged summary judgment decision, and therefore neither shall we. See, e.g., Douglas v. First Sec. Fed. Sav. Bank, 101 Md.App. 170, 176-78 , 643 A.2d 920 (1994). 4 ⁵⁷⁸ The Carpenter children’s lead levels were not measured until the fourth insurance policy period. Their results were: [[Image here]] Thus, owing to the late date at which the children were tested, it remains unknown when the children’s lead levels first exceeded 10|xg/dL.

In its summary judgment motion in the declaratory judgment action, appellee asserted that the Carpenters could not prove that any bodily injuries were ⁵⁷⁹ sustained during the first and second policy periods (i.e., before March 1, 1992), because no evidence showed that their lead levels exceeded the level-of-concern threshold of the Center of Disease Control of 10|xg/dL during that time. From the lead-level tables above, it is apparent that the earliest of the children’s blood tests occurred in April 1993, showing a level of 29pg/dL for Jeremy Carpenter, and 19pg/dL for Wendy Carpenter. The Carpenters’ medical expert, Dr. Howard Klein, conceded in his deposition that, based solely on this data and then-current medical research, when projecting backwards in time before the children’s lead tests, he could only conclude that the children’s blood-lead levels exceeded lOpg/dL during the third and fourth insurance periods. Simultaneously, however, Dr. Klein averred in an affidavit: It is my opinion within a reasonable degree of medical probability that Christian Carpenter and Wendy Carpenter were “exposed” to hazardous lead-based paint and dust at the premises 1803 W. Mosher Street beginning the date they first moved into the property in June 1989.

Likewise it is my opinion within a reasonable degree of medical probability that Jeremy Carpenter was “exposed” to hazardous lead based paint and dust at the premises ... beginning [in útero ] and continuing at his birth on February 24, 1990.... It is further my opinion within a reasonable degree of medical probability that this exposure for all three children caused damage on a cellular level to the children’s brains, disrupting normal cellular development. These opinions are based on the deteriorated condition of the lead-based paint while the children resided at the property, evidence of hand to mouth activity, gnawing on leaded paint, as well as actual observation of ingestion of lead paint chips.... It is further my opinion within a reasonable degree of medical probability that the lead-based paint and dust exposure during each separate policy period, in and of itself caused immediate bodily harm and injury to the cells of the brain, central nervous system tissues and organs for each of the three Carpenter children. ⁵⁸⁰ In his deposition, Dr. Klein never reconciled this opinion with his concession that, at the time, no published research confirmed that lead paint was harmful at levels below 10|xg/dL, and that he could not say when the children’s lead levels exceeded 10pg/dL.

In a subsequent affidavit, however, he essentially explained that the question was not asked of him during the depositions. Arguing that Dr. Klein’s opinion would be inadmissible at trial, appellee asserted that there was no evidence of injury in the first and second policy periods, so no recovery could possibly be had under those policies. The trial court agreed and entered partial summary judgment for appellee on that point. As to the remaining policies, appellee asserted that, although the aggregate of the two policies’ limits of liability was $600,000, because the children’s injuries during the two policy periods constituted a single occurrence under the policies’ terms, recovery could only be had under one policy, up to $300,000.

Each of the policies are materially identical, and each of them provides, under “Coverage E”: If a claim is made or a suit is brought against an insured for damages because of bodily injury or property damage caused by an occurrence to which this coverage applies, we [the insurer] will: 1. pay up to your limit of liability [i.e., $300,000] for the damages for which the insured is legally liable; and 2. provide a defense at our expense by counsel of our choice, even if the suit is groundless, false or fraudulent. The policies define “occurrence” as: An accident, including continuous or repeated exposure to substantially the same general harmful conditions, which results, during the policy period, in a. bodily injury; or b. property damage. ⁵⁸¹ “Bodily injury” is then defined as “bodily harm, sickness or disease, including required care, loss of services and death that results,” and finally, the policies impose a limit of liability: Our total liability under Coverage E for all damages resulting from any one occurrence will not be more than the limit of liability for Coverage E as shown in the Declarations. This limit is the same regardless of the number of insureds, claims made or persons injured. All bodily injury and property damage resulting from any one accident or from continuous or repeated exposure to substantially the same general harmful conditions shall be considered to be the result of one occurrence.

The trial court rejected appellee’s argument that, under these provisions, recovery could be had from only one policy. The court concluded that appellee’s policies were ambiguous as to whether an insured may “stack” consecutive policies’ coverage limits in cases of a continuous injury spanning more than one policy. Construing the ambiguity against the insurance company, the court declared that appellee was exposed to $600,000 liability in the underlying tort action. 5 LEGAL ANALYSIS I Appellee moved for summary judgment under Maryland Rule 2-501, which provides, in relevant part: (a) Any party may make a motion for summary judgment on all or part of an action on the ground that there is no genuine dispute as to any material fact and that the party is entitled to judgment as a matter of law. The motion shall be supported by affidavit if it is ... based on facts not contained in the record.

(b) A response to a written motion for summary judgment shall be in writing and shall (1) identify with particularity ⁵⁸² each material fact as to which it is contended that there is a genuine dispute and (2) as to each such fact, identify and attach the relevant portion of the specific document, discovery response, transcript of testimony (by page and line), or other statement under oath that demonstrated the dispute. A response asserting the existence of a material fact or controverting any fact contained in the record shall be supported by an affidavit or other written statement under oath. (c) An affidavit supporting or opposing a motion for summary judgment shall be made upon personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavit. (f) The court shall enter judgment in favor of or against the moving party if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law.

(Emphasis added.) The trial court’s decision as to the first two policy periods simply reads: As a factual matter, on the record before the Court, the three Carpenter Children cannot establish that any one of them suffered bodily injury within the meaning of the USAA policies during the terms of the first two policies.... Therefore, as a factual matter, the maximum number of USAA policies implicated is two. Appellee’s theory on appeal is that the trial court appropriately disregarded Dr. Klein’s opinion because it would have been inadmissible at trial under Maryland Rule 5-702, governing the admissibility of expert testimony. Thus, the refusal to admit Dr. Klein’s opinion regarding injuries below 10|xg/dL as part of the record, appellee argues, results in its entitlement to summary judgment as a matter of law because there no longer remained a genuine dispute as to whether the children ⁵⁸³ suffered “bodily injury,” as defined in the policies, during the first two policy periods.

On this evidentiary issue, we will only disturb the trial court’s decision if it amounts to an abuse of discretion, error of law, or other serious mistake. See, e.g., Giant Food, Inc. v. Booker, 152 Md.App. 166 , 182 n. 9, 831 A.2d 481 , cert. denied, 378 Md. 614 , 837 A.2d 926 (2003); Myers v. Celotex Corp., 88 Md.App. 442, 460 , 594 A.2d 1248 (1991). Rule 5-702 states: Expert testimony may be admitted, in the form of an opinion or otherwise, if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. In making that determination, the court shall determine (1) whether the witness is qualified as an expert by knowledge, skill, experience, training, or education, (2) the appropriateness of the expert testimony on the particular subject and (3) whether a sufficient factual basis exists to support the expert testimony.

(Emphasis added); see also 6 Lynn McLain, Maryland Evidence §§ 702:1-703:1 (2001 & Supp.2004). Appellee’s argument focuses solely on the third prong of the rule — whether a sufficient factual basis supported Dr. Klein’s opinion that all three children sustained lead-induced injuries throughout their tenancy. Before resolving that issue, however, we must first define, as precisely as possible, what Dr. Klein’s opinion was offered to prove. In order for the first two policies to be “triggered,” during those policy periods, the Carpenter children must have suffered “bodily injury,” as defined by the policy (and, where necessary, interpreted by the courts).

The policies define bodily injury essentially as “bodily harm, sickness or disease,” which, in a similar lead paint case, the Court of Appeals has interpreted to mean “harm or damage of, or relating to the body or any localized abnormal condition of the living body.” Chantel Assocs. v. Mt. Vernon Fire Ins. Co., 338 Md. 131, 143 , 656 A.2d 779 (1995). ⁵⁸⁴ In Chantel, an expert witness testified to many of the same opinions as Dr. Klein has in the present case, including that “[t]here is probably no safe threshold at which lead has no effect.” The expert’s opinion was offered in lieu of blood-lead level histories showing exact test results, to prove that the plaintiff-children suffered “bodily injury” for purposes of several potentially triggered insurance policies. The Court of Appeals held in Chantel that the expert’s opinion, which was offered in an affidavit, in concert with the plaintiffs’ allegations that they had ingested deteriorating lead paint at the premises throughout the policy periods, met their burden of showing bodily injury; and thus triggered the policies.

The Court noted that, as in this case, the opposing party had not offered any evidence, by way of affidavit or otherwise, to discredit the expert’s opinion that lead ingestion in any amount causes bodily injuries. Id. at 144 & n. 8, 656 A.2d 779 . 6 ⁵⁸⁵ Consistent with Chantel, appellee tacitly concedes that, if Dr. Klein’s opinion is admissible, then, when combined with the children’s lead-level histories and the family’s direct observations of lead ingestion, the opinion satisfies appellants’ burden of production as to evidence of their injuries during the first and second policy periods. Appellee, however, argues that the opinion is not admissible to prove the point because no published research supports the doctor’s opinion. We dealt with a similar argument in N.B.S., Inc. v. Harvey, 121 Md.App. 334 , 709 A.2d 162 (1998).

In that case, at a trial which occurred sometime after 1995 (i.e., at least four years after the CDC lowered the blood-lead level of concern to 10pg/dL), the medical expert of one of the parties proffered an opinion that lead ingestion only becomes harmful at levels above 40|xg/dL. For two reasons the trial court found that the witness was not qualified as an expert, and excluded her testimony: (1) she had not worked as a practitioner or researcher in the field for more than ten years; and (2) as the trial court observed, “there isn’t another physician out there who agrees with” her opinion that lead only becomes injurious over 40|xg/dL, so under Rule 5-702(3) “there was no existing factual basis” supporting her opinion. Id. at 339 , 709 A.2d 162 . We affirmed that trial court’s exercise of discretion in applying Rule 5-702(3).

However, the fact that an expert’s medical opinion is not generally accepted by the medical community does not stand as an automatic bar to its admissibility under Rule 5-702(3). We so held in Myers v. Celotex Corp., 88 Md.App. at 455-60 , 594 A.2d 1248 , concluding that the plaintiffs’ expert “should have been permitted to state his opinion as to how asbestos fibers cause cancer even though he could not state that the theory he espoused was generally accepted by the ⁵⁸⁶ medical community.” Id. at 455 , 594 A.2d 1248 . We were careful to add, in that case, that the challenged expert’s opinion, while not generally accepted, was also not uniquely held by that expert alone. Id. at 459 , 594 A.2d 1248 ; cf. Giant Food, Inc., 152 Md.App. at 188-89 , 831 A.2d 481 ; Owens Corning v. Bauman, 125 Md.App. 454, 498-502 , 726 A.2d 745 (1999).

The challenged opinion simply represented a minority view. We stressed that the standard for admissibility, at bottom, is whether the opinion is offered with a reasonable degree of medical probability. See also 5 McLain, supra, § 401:4; cf. id. § 702:2 at 512-14. Here, Dr. Klein acknowledged that, as of the time of his depositions, no published research had measured children’s lead-induced injuries at levels below 10|xg/dL.

However, the doctor opined that the Carpenter children sustained lead-induced bodily injuries throughout the tenancy — even without knowing their precise lead levels during the first two policy periods — based upon evidence that lead causes measurable damage at levels above 10pg/dL, and that the Carpenter children were eating lead paint throughout the tenancy. Appellee’s attack on Dr. Klein’s opinion fails because it assumes a fact not in evidence. Appellee assumes that the record shows that lead ingestion only becomes injurious at levels above 10|xg/dL, but appellee offered no evidence supporting the assumption. See Md. Rule 2-501 (a), quoted supra; cf. Chantel Assocs., 338 Md. at 149-50 , 656 A.2d 779 .

In fact, to the contrary, Dr. Klein testified to his understanding that there is no safe level of lead ingestion. As he pointed out, lead is a “toxin.” Dr. Klein is not alone in subscribing to this theory. The expert in Chantel testified to essentially the same opinion. 338 Md. at 138-39 , 656 A.2d 779 . 7 There was adequate factual support for Dr. Klein’s opinion to be offered ⁵⁸⁷ to a reasonable degree of medical probability, like the opinion offered in Myers v. Celotex Corp., and unlike that offered in N.B.S., Inc. v. Harvey. 8 In effect, appellee’s theory would write into Rule 5-702(3) a requirement that all medical opinions find support in published research, but neither the rule, nor cases construing it, impose such a requirement. Therefore, we hold