State Farm Mutual Automobile Insurance v. Hill

SALMON, Judge. In this appeal we are asked to decide whether the fireman’s rule is applicable when police officers sue a defendant who intentionally harms them. Other related issues are presented, viz, whether contributory negligence or assumption of risk are valid defenses to a personal injury claim arising out of intentional torts. In addition, we are called upon to interpret section 19-513(e) of the Insurance article of the Maryland Code (1997).

The statutory construction issue is: When a plaintiff receives a civil judgment and a workers’ compensation award arising out of the same incident, is $20,000 the maxi ³¹¹ mum worker’s compensation benefit credit allowable against the judgment under section 19-513(e)? I. Adam Rozas stole a Chevrolet S-10 pick-up truck in Mar-tinsburg, West Virginia, on November 12, 1995. He was fifteen years old at the time. West Virginia police officers spotted Rozas driving the stolen truck on the evening of November 12th and gave chase.

Rozas drove, at extremely high rates of speed, into Virginia and then into Western Maryland with the police in hot pursuit. Once in Maryland, Rozas’s reckless actions included topping a hill crest on the wrong side of the road, driving through the town of Boonsboro, Maryland, going between fifty and sixty miles per hour, and driving at speeds up to one hundred miles per hour in open country. Maryland police authorities were notified of Rozas’s actions, and several Maryland State Police officers joined in his pursuit. Among the Maryland State Police officers who tried to stop Rozas were Corporal Terrence Hill 1 and Trooper Richard Poffenberger.

Trooper Poffenberger and Corporal Hill, among others, were ordered to execute a “rolling roadblock” to stop the stolen vehicle. The goal of a rolling roadblock is to “box in” and eventually force an uncooperative motorist to stop his or her vehicle. It is executed by having one, or more, police officers in front of the vehicle being chased, and at least one car immediately behind the target vehicle. Initially, the police vehicles drive at the same speed as the car they are trying to stop; the lead car then gradually reduces its speed, which (hopefully) will cause the car being pursued to do likewise; if the car being chased reduces its speed, the lead car comes to a gradual halt — thereby causing the vehicle in the middle to do likewise. ³¹² Both Corporal Hill and Trooper Poffenberger had performed rolling roadblocks prior to November 12th, and both appreciated the fact that they risked serious personal injury whenever they attempted to stop an uncooperative motorist in this manner.

Despite the known danger, Corporal Hill drove to Alternate Route 40 — a two-lane highway — and waited for Rozas to approach from the east. Eventually he observed Rozas, driving at a high rate of speed, going westbound. Corporal Hill, with his emergency lights activated, pulled from the side of the road and accelerated up to Rozas’s speed as Rozas approached rapidly from behind. Shortly thereafter, Rozas was “boxed in” with Corporal Hill in front and another state police vehicle immediately behind.

The vehicles then approached a dangerous stretch of roadway known, ominously, as “Deadman’s Curve.” All three vehicles negotiated Dead-man’s Curve successfully but, in doing so, skidded dangerously. Immediately after meeting this challenge, Rozas struck Corporal Hill’s cruiser in the rear, causing it to “fishtail.” Corporal Hill regained control over his vehicle, but then Rozas forcefully struck the vehicle again, causing Corporal Hill to lose control of his vehicle. The police cruiser spun across the eastbound lane of traffic into a guardrail and then came to rest. As a result of the collision with Corporal Hill’s car, Rozas’s stolen vehicle was damaged.

This damage caused Rozas to slow down to about forty to fifty miles per hour. With Corporal Hill’s vehicle disabled, Trooper Poffenberger managed to get in front of Rozas’s vehicle, and another police vehicle still trailed Rozas. At that point, Rozas had four options: he could attempt to pass on the right shoulder; he could drive into the eastbound lane and attempt to pass; he could slow his vehicle to a stop; or he could accelerate forward and strike Trooper Poffenberger’s vehicle in the rear. Rozas took the last-mentioned option.

Trooper Poffenberger, however, did not lose control of his vehicle despite the impact, but about this time he concluded that Rozas had to be brought to a halt immediately because the rolling roadblock was approaching a more heavily populated area. With that in mind, ³¹³ Trooper Poffenberger decided “to slow down rapidly” in front of Rozas. When Trooper Poffenberger did so, his vehicle was struck in the rear with great force by the stolen vehicle, and the police car rotated clockwise, then slammed into an embankment. The impact between the stolen vehicle and Trooper Poffenberger’s cruiser caused Rozas to lose control of his vehicle, and he, too, came to a stop.

Both Corporal Hill and Trooper Poffenberger were injured as a result of Rozas’s actions, and both officers brought workers’ compensation claims for injuries arising out of the collisions just described. Corporal Hill received workers’ compensation benefits in the amount of $30,583.51, and Trooper Poffenberger was awarded $13,500 in benefits. At the time of the November 12, 1995, incident Rozas was uninsured. Corporal Hill was insured under an automobile policy issued by State Farm Mutual Insurance Company (“State Farm”), which provided him with uninsured motorist (“U.M.”) coverage.

Trooper Poffenberger also had U.M. coverage under a personal automobile policy issued to him by Nationwide Insurance Company (“Nationwide”).

II

Corporal Hill and Trooper Poffenberger filed separate lawsuits in the Circuit Court for Washington County against their U.M. carriers and Rozas. As originally drafted, the complaints alleged that Rozas’s negligence caused their injuries. Later the complaints were amended to allege, in the alternative, that the plaintiffs were intentionally injured by Rozas. The two cases were consolidated for trial.

Rozas did not appear at trial, but attorneys for the two insurance companies were present. At the end of the plaintiffs’ case and at the end of the entire case, both Nationwide and State Farm moved for judgment in their favor. 2 State ³¹⁴ Farm argued that Corporal Hill’s claim against Rozas was barred by both the fireman’s rule and the assumption of risk doctrine. Nationwide contended that Trooper Poffenberger’s claim was barred for the same reasons as those advanced by State Farm; Nationwide also argued that Trooper Poffenber-ger had forfeited any right to recover against Rozas due to his own contributory negligence. The trial judge denied the motions of both insurance carriers.

The jury, answering questions on a special verdict form, found, inter alia, that (1) Rozas intentionally caused injury to Corporal Hill and Trooper Poffenberger; (2) neither Corporal Hill nor Trooper Poffenberger assumed the risk of injury; and (3) Trooper Poffenberger was not guilty of contributory negligence. 3 The jury decided that Corporal Hill suffered damages in the total amount of $85,595 as a result of the November 12, 1995, incident, and that Trooper Poffenberger suffered injuries worth $30,624.32. Both insurance carriers filed motions for judgment notwithstanding the verdict. They argued that the judgments against them should be set aside for the same reasons that they advanced in their motions for judgment made during the trial. In addition, both State Farm and Nationwide filed motions to alter or amend judgment, in which they asked that the judgments be reduced (pursuant to section 19-513(e) of the Insur- ³¹⁵ anee article) by the amounts of workers’ compensation benefits received by each plaintiff.

The trial court denied the motions for judgment notwithstanding the verdict but granted the motions to alter or amend judgments; the court reduced Corporal Hill’s judgment to $55,011.49 ($85,595 — 30,588.51); Trooper Poffenberger’s judgment was reduced to $17,093.35 ($30,624.32 — 13,530.97).

III

Neither State Farm nor Nationwide contests coverage for the harm caused to their insureds by Rozas. Furthermore, the insurers do not claim that the evidence was insufficient to support the conclusion that Rozas intentionally caused injury to the plaintiffs. At bottom, they contend that because Rozas should not have been liable to the plaintiffs, neither should they be held liable. A. Contributory Negligence Nationwide maintains that the trial judge erred in denying its motion for judgment on the ground that Trooper Poffenberger, as a matter of law, was guilty of contributory negligence and therefore Rozas was not liable to him. 4 In support of its argument, Nationwide quotes Campbell v. Montgomery County Board of Education, 73 Md.App. 54, 64-65 , 533 A.2d 9 (1987): Contributory negligence, it is said, “occurs whenever the injured person acts or fails to act in a manner consistent with the knowledge or appreciation, actual or implied, of the danger or injury that his or her conduct involves.” Gilbert, Maryland Tort Law Handbook, § 11.4.1; Schwier v. Gray, 277 Md. 631 , 357 A.2d 100 (1976). ³¹⁶ A case may not be taken from a jury on the ground of contributory negligence unless the evidence demonstrates “some prominent and decisive act which directly contributed to the ... [incident] and which was of such a character as to leave no room for difference of opinion thereon by reasonable minds.” Balto. [Baltimore] Transit Co. v. [State for Use of] Castrando, 194 Md. 421, 434 , 71 A.2d 442, 447 (1950); Baltimore & O.R.R. v. Plews, 262 Md. 442 , 278 A.2d 287 (1971); see also Kirby v. Hylton, 51 Md.App. 365 , 443 A.2d 640 (1982); Rafferty v. Weimer, 36 Md.App. 98 , 373 A.2d 64 (1977)[;] Myerberg v. Thomas, 13 Md.App. 539 , 284 A.2d 29 (1971).

Id. Nationwide continues, ... Nationwide ... maintains and asserts that on these facts, there is no room for difference of opinion thereon by reasonable minds, and that the Circuit Court erred in denying the Motions for Judgment ... in favor of ... Nationwide ... on the grounds that ...

Poffenberger was himself contributorily negligent, which was a[,] or the[,] proximate cause of the accident in the present case. Overlooked in this argument is the fact that the jury found that Rozas intentionally injured Trooper Poffenberger. Rozas’s actions therefore constituted battery. Restatement (Second) of Torts reads as follows: § 481.

Intentional Injury The plaintiffs contributory negligence does not bar recovery against a defendant for a harm caused by conduct of the defendant which is wrongful because it is intended to cause harm to some legally protected interest of the plaintiff or a third person. Restatement (Second) of Torts § 481 (1965). In Prosser and Keeton on the Law of Torts, the authors state: The ordinary contributory negligence of the plaintiff is to be set over against the ordinary negligence of the defendant, to ³¹⁷ bar the action. But where the defendant’s conduct is actually intended to inflict harm upon the plaintiff, there is a difference, not merely in degree but in the kind of fault; and the defense never has been extended to such intentional torts.

Thus it is no defense to assault or battery. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 65, at 462 (5th ed.1984) (footnotes omitted); see also Stuart M. Speiser, et al., The American Law of Torts § 12.9, at 535-36 (1986). In Saba v. Darling, 72 Md.App. 487 , 531 A.2d 696 (1987), the defendant intentionally punched the plaintiff (Saba) in the jaw. Nevertheless, in an apparent effort to obtain insurance coverage for the defendant’s wrongful action, the plaintiff dropped his battery claim against the defendant and sued him for negligence only.

The trial judge instructed the jury as to the defense of contributory negligence. Id. at 490 , 531 A.2d 696 . We said in Saba that, inasmuch as it was undisputed that the defendant intentionally struck Saba in the jaw, the defendant was not guilty of negligence but rather was guilty of battery. Id. at 491-92 , 531 A.2d 696 (quoting, as we have done, Prosser and Keeton on Torts, and § 482 of the Restatement (Second) of Torts (1965)).

We held in Saba that the trial judge erred in instructing the jury regarding contributory negligence because that defense has no applicability when a defendant intentionally causes the plaintiffs injury. Id. at 492 , 531 A.2d 696 . Since the Saba decision, both the Court of Appeals and this Court have said, albeit in dicta, that the plaintiffs own negligence is not a defense to an intentional tort. See JBG/Twin-brook Metro L.P. v. Wheeler, 346 Md. 601, 620 , 697 A.2d 898 (1997) (citing Victor v. Sell, 301 Minn. 309 , 222 N.W.2d 337, 341 (1974) and authorities cited therein); Janelsins v. Button, 102 Md.App. 30 , 41 — 43, 648 A.2d 1039 (1994).

Earlier, in Tucker v. State, 89 Md. 471 , 43 A. 778 (1899), the Court of Appeals said that the “authorities seem to agree that the doctrine of contributory negligence can have no application when the action is founded on intentional violence.” Id. at 486 , 43 A. 778 . ³¹⁸ Nationwide cites no authority, and we have found none, which would allow the contributory negligence of a plaintiff to bar a claim when the defendant intentionally injured the plaintiff. Intentional torts, such as the one committed by Rozas, are morally wrong and thus fundamentally different from acts of mere negligence. There is no valid public policy reason why the contributory negligence of a plaintiff should ever bar a claim for acts of the defendant that were intended to cause harm. B. Assumption of Risk As already mentioned, both State Farm and Nationwide claim that the doctrine of assumption of risk was a complete bar to the claims of Corporal Hill and Trooper Poffenberger against Rozas.

We reject that argument based on the holding in Janelsins, 102 Md.App. at 39 , 648 A.2d 1039 , which was cited with approval by the Court of Appeals in JBG/Twinbrook, 346 Md. at 621 , 697 A.2d 898 . In Janelsins , the defendant was a patron at a bar who became inebriated; the plaintiff, Button, helped to escort the defendant to his automobile. Janelsins, 102 Md.App. at 34 , 648 A.2d 1039 . When Button (and others) tried to force the defendant into the backseat of his car, so that he would not attempt to drive home, the defendant kicked Button in the face.

Id. Button brought a civil battery action against the defendant. Id. at 33 , 648 A.2d 1039 . At the conclusion of the case, the defendant made a motion for judgment and contended that Button’s battery claim was barred by the assumption of risk doctrine.

Id. at 34 , 648 A.2d 1039 . The trial judge rejected that argument and so did we. Id. After a thorough review of the authorities, Judge Hollander, for this Court, said: Because of the legitimate public policy of deterring and punishing intentional wrong-doing, the fact that a plaintiff “assumed the risk” that such wrongdoing would occur cannot bar recovery for the wrongs perpetrated.

Although Button certainly knew that Janelsins was intoxicated and, after Janelsins began to resist forcibly, nevertheless eontin- ³¹⁹ ued to push Janelsins into his car, Button did not assume the risk of battery. Id. at 44-45 , 648 A.2d 1039 . We hold that Corporal Hill’s and Trooper Poffenberger’s battery claims were not barred by the assumption of risk doctrine. C. The Fireman’s Rule 5 Maryland’s present version of the fireman’s rule was set forth in Flowers v. Rock Creek Terrace, L.P., 308 Md. 432 , 520 A.2d 361 (1987), as follows: [Fjiremen and police officers generally cannot recover for injuries attributable to the negligence that requires their assistance....

A fireman or police officer may not recover if injured by the negligently created risk that was the very reason for his presence on the scene in his occupational capacity. Someone who negligently creates the need for a public safety officer will not be liable to a fireman or policeman for injuries caused by this negligence. Id. at 447-48 , 520 A.2d 361 . Notwithstanding the fact that the fireman’s rule speaks of a bar to claims of negligence, both State Farm and Nationwide contend that the fireman’s rule should prohibit appellees from recovering against Rozas for the latter’s actions, which were intended to cause harm.

Twenty-four states and the District of Columbia have adopted some form of the fireman’s rule by statute or by caselaw. See Waggoner v. Troutman Oil Co., 320 Ark. 56 , 894 S.W.2d 913, 914-15 (1995) (listing the jurisdictions that have ³²⁰ adopted the rule). Three states have rejected the fireman’s rule either by statute, Minn.Stat., 604.06 (1984); Fla. Stat., Ch. 112.182 (1990), or by case law, Christensen v. Murphy, 296 Or. 610 , 678 P.2d 1210 (1984).

See id. The California Court of Appeals, on at least two occasions, has barred recovery for a police officer’s injury by application of the fireman’s rule in situations where the police officer was injured by the intentional acts of the defendant. See City of Los Angeles v. O’Brian, 154 Cal.App.3d 904 , 201 Cal.Rptr. 561 (2d Dist.1984); Lenthall v. Maxwell, 138 Cal.App.3d 716 , 188 Cal.Rptr. 260 (2d Dist.1982). In Lenthall , a police officer employed by the City of San Luis Obispo received a call to respond to the defendant’s home because of a domestic dispute with “possibly shots fired.” Lenthall, 188 Cal.Rptr. at 261 .

Upon arrival at the defendant’s residence, the plaintiff, a police officer, was shot and injured by the defendant. Id. The police officer sued the person who had intentionally shot him, but the trial court granted summary judgment in favor of the defendant based on the fireman’s rule. Id.

The lower court was affirmed on appeal. Id. The Lenthall court explained: Our reading of the cases cited to us leads us to conclude as follows: (1) The rule does not apply to injuries inflicted by an independent actor not connected with the event bringing the officer to the place of injury; (2) the rule does not apply to injuries caused by conduct which the officer could not reasonably anticipate would occur by reason of his presence at the place of injury; (3) but that the rule does apply to injuries inflicted by a participant in the event bringing the officer to the place of injury and the act causing the injury is one which the officer should reasonably expect to occur while he was engaged in the duty bringing him to the place of injury. As applied to the case before us, a police officer called to subdue a violent offense involving firearms, should reasonably anticipate that one of the persons whom he was called ³²¹ on to subdue might resist him by use of the firearms involved.

Id. at 261-62. In the case of City of Los Angeles v. O’Brian, a police officer saw the defendant driving a stolen van. O'Brian, 201 Cal.Rptr. at 562 . The officer, driving a marked police cruiser, followed the stolen van until it stopped at a red light.

Id. The police cruiser came to a stop approximately twenty feet behind the defendant’s vehicle, whereupon the defendant backed up at a rate of about twenty miles per hour and struck the patrol car, injuring the police officer and damaging his vehicle. Id. The stolen van then sped away.

Id. Other police officers later stopped the stolen vehicle and arrested the driver. Id. The city sued the driver of the stolen van in an attempt to recover the monies it had expended for workers’ compensation benefits paid to the injured police officer, together with monies expended to repair the police vehicle.

Id. The trial court granted summary judgment in favor of the defendant. Id. On appeal, the O'Brian Court, citing Lenthall, supra, affirmed the trial court and held that the fireman’s rule was applicable even for intentional torts.

The Court said: We conclude that an officer, engaged in a high speed chase of a law violator, should foresee the possibility of a collision. Here, however, the officer was not “chasing” the van but, as the city argues, had deliberately taken such care as was possible to avoid that kind of risk. However, we feel that a police officer, “trailing” a criminal suspect, in a marked police car, should foresee the possibility that the quarry may take measures to avoid apprehension and that ramming the pursuing vehicle is not such an unusual tactic as to render the injury not part of the risks of the police conduct. That being the case, the application of the [fireman’s] rule to this case was proper.

Id. Despite the holdings in Lenthall and O'Brian, it is clear that if those cases were decided under current California law the fireman’s rule would not bar the claims of police officers ³²² who are injured initially by a defendant. See Gibb v. Stetson, 199 Cal.App.3d 1008 , 245 Cal.Rptr. 283, 287 (2d Dist.1988). In 1982, the California legislature enacted Civil Code section 1714.9 (Stats.1982, ch. 258, § 2, 836-37), which provides several important exceptions to the fireman’s rule.

One of those exceptions provides that a defendant is liable for injuries caused to a peace officer when the conduct causing injury was intended to injure. See Cal. Civ.Code § 1714.9(a)(3) (Deering 2001); 6 Gibb, 245 Cal.Rptr. at 286 . ³²³ Numerous cases from other jurisdictions have held, or said in dicta, that the fireman’s rule does not protect a defendant who intentionally causes injury to a public safety employee. See Diaz v. Salazar, 924 F.Supp. 1088, 1100 (D.N.M.1996) (held: fireman’s rule is not applicable in the context of intentional torts); Alvarado v. United States, 798 F.Supp. 84, 87 (D.P.R.1992) (dicta: fireman’s rule does not bar recovery for intentional conduct); Bates v. McKeon, 650 F.Supp. 476, 480 (D.Conn.1986) (held: fireman’s rule does not bar claims for intentional torts); Fox v. Hawkins, 594 N.E.2d 493, 498 (Ind.Ct.App.1992) (dicta: fireman’s rule would not bar claim for willful, wanton, or intentional conduct); Rennenger v. Pacesetter Co., 558 N.W.2d 419, 421 (Iowa 1997) (dicta: policemen not barred from recovery for intentional acts of misconduct by a third party); Worley v. Winston, 550 So.2d 694, 697 (La.Ct.App.2d Cir.1989) (held: professional rescuers rule does not bar recovery for “particularly blameworthy conduct, especially intentional criminal conduct”); Wilde v. Gilland, 189 Mich.App. 553 , 473 N.W.2d 718, 719 (1991) (held: fireman’s rule does not bar claims for intentional misconduct); Lang v. Glusica, 393 N.W.2d 181, 183 (Minn.1986) (held: fireman’s rule does not bar recovery