Surratt v. Prince George's County

⁴⁴² ADKINS, Judge. In Prince George’s County v. Fitzhugh, 308 Md. 384 , 519 A.2d 1285 (1987), we held that § 1013 of the Prince George’s County Charter constituted a full waiver of governmental immunity because a purported limitation of the scope of the immunity embodied in a 1982 charter amendment was not authorized by the Express Powers Act. We now hold that 1986 amendments to § 1013 were equally ineffective to abolish the waiver of immunity. We further hold that a plaintiff who accepts a remittitur may, nevertheless, cross-appeal if the defendant appeals.

As a consequence of that holding, we deal with a difficult issue involving recusal of the trial judge. We reverse the judgment of the Court of Special Appeals in Prince George’s County v. Surratt, 80 Md.App. 415 , 564 A.2d 95 (1989). 1 I. WAIVER OF IMMUNITY To place this issue in context, we need sketch only briefly the outlines of the underlying litigation. We shall supply additional details when we address the other issües. A. Petitioners Blondine Surratt and Donald Jackson were the parents of Baby Boy Surratt who died at the age of 14 days as a result, petitioners alleged, of obstetrical malpractice.

After their claims had been rejected by a health claims arbitration panel, Surratt (as personal representative of the infant’s estate and as his mother) and Jackson (as the ⁴⁴³ child’s father) sued a doctor and respondent Prince George’s County (owner and operator of the hospital where Surratt had undergone prenatal treatment and where the baby had been born). A jury awarded damages of $533,739.86 against the County, the trial court having rejected the County’s plea of governmental immunity. The Court of Special Appeals decided otherwise and held that “the claims of medical malpractice and wrongful death are barred by governmental immunity.” Surratt, 80 Md.App. at 418 , 564 A.2d at 97 . Our review of that holding requires us to revisit the somewhat convoluted history of governmental immunity in Prince George’s County.

B. Fitzhugh traces that history, 308 Md. at 387-389 , 519 A.2d at 1286-1287 . Section 1013 of Prince George’s County’s first charter, adopted in 1970, in pertinent part permitted “[t]he County [to be] sued in actions sounding in tort in the same manner and to the same extent that any private person may be sued.” Id. at 387 , 519 A.2d at 1286 . In Bradshaw v. Prince George’s County, 284 Md. 294 , 396 A.2d 255 (1979), we held that that language meant what it said, but no more than that. We concluded that the waiver did not extend to public official immunity of individual police officers, and that if the officers were immune, the County could not be held liable on the basis of respondeat superior. 284 Md. at 303-305 , 396 A.2d at 261-262 .

Although § 1013 had been somewhat amended in 1976, James v. Prince George’s County, 288 Md. 315, 320-321 , 418 A.2d 1173, 1176-1177 (1980), pronounced that the section still waived fully the County’s governmental immunity. We modified Bradshaw , however, by holding that the language of the section “makes the county liable for the negligent conduct of all of its employees occurring in the course of their employment, without regard to their status as public officials.” 288 Md. at 336 , 418 A.2d at 1184 [footnote omitted]. See also Cox v. Prince George’s County, 296 Md. 162 , 460 A.2d 1038 (1983). ⁴⁴⁴ It seems that the County was not pleased with the outcome of James . The county attorney’s office drafted an amendment to § 1013 which was adopted in 1982.

The section then read [language added in 1982 emphasized]: The County may be sued in actions sounding in tort for which its officers, agents, and employees may be liable, by actions filed in the courts of the State of Maryland, or in the United States District Court for the District of Maryland, with a maximum liability of ... ($250,000) per individual, per occurrence, to the extent of its liability insurance, whichever may be greater. The County shall carry liability insurance to protect itself, its officers, agents, and employees. Nothing herein shall preclude the County from meeting the requirements of this section by a funded self-insurance program, and nothing herein shall be deemed to be a waiver of any charitable, governmental, or sovereign immunity which any officer, agent, or employee shall otherwise have, by reason of any Statute of the United States of America, public general law of the State of Maryland, or common law as determined by the Courts of Maryland.

Fitzhugh, 308 Md. at 389 , 519 A.2d at 1287 . That version was before us in Fitzhugh , where we struck down, as unauthorized by the Express Powers Act, 2 the attempt to limit “the county’s waiver of governmental immunity to cases in which county officers, agents, or employees do not possess public official or any other sort of individual immunity.” Id. at 389, 394 , 519 A.2d at 1287, 1290 . We declined to decide whether the emphasized language (that added in 1982) could be severed, because the result would be the same in either case: If the offending provision is severed, the remainder of § 1013 constitutes a full waiver of governmental immunity. The section would read as it did in 1976, and in James we held it had that effect.

If the language added in 1982 is not severed, § 1013 is invalid in its entirety, because of ⁴⁴⁵ its violation of the Express Powers Act. The total invalidity of the 1982 version of § 1013 means that this case is governed by the section as it was adopted in 1976. Id. at 395, 519 A.2d at 1290 . It seems that the outcome of Fitzhugh was not to the County’s liking either, and that it had foreseen the possibility of that outcome even before our decision.

In 1986 the county attorney’s office drafted and the voters adopted yet another version of § 1013. Fitzhugh, 308 Md. at 388 -389 n. 3, 519 A.2d at 1287 n. 3. The pertinent portions of that draft provided [new language emphasized]: The County may be sued in actions sounding in tort only for those occurrences for which its officers, agents, and employees may be liable____ The sentences, clauses or phrases of this section shall not be severable. If any such sentence, clause or phrase of this section is declared unconstitutional or invalid for any reason, then it is intended and declared by the people of the County that the entire section be declared invalid.

It is the non-severability portion of this amendment that the County invokes in this case. Since Fitzhugh in effect held invalid the attempt to limit immunity evidenced by the first sentence, the County argues that the second sentence effectively repeals § 1013 altogether, thereby abolishing any waiver of governmental immunity. It persuaded the Court of Special Appeals to adopt this position, and thus to reverse the earlier judgments in favor of Surratt and Jackson. Surratt, 80 Md.App. at 423 , 564 A.2d at 99 .

Were the 1986 amendment to the charter valid, that holding might well be correct. But the amendment was not valid. We explain. C. In Anne Arundel Co. v. McDonough, 277 Md. 271 , 354 A.2d 788 (1976), we struck down the results of a referendum because we were ⁴⁴⁶ convinced that the failure of the ballot question to present a clear, unambiguous and understandable statement of the full and complete nature of the issues included in [that question], coupled with the advertisements, limited as they were to a verbatim statement of the Question[,] constituted a “deviation from the prescribed forms of the law [and] had so vital an influence as probably to have prevented a free and full expression of the popular will.” Id. at 307 , 354 A.2d at 809 (quoting Dutton v. Tawes, 225 Md. 484, 491 , 171 A.2d 688, 691 (1961)).

We explained that “Question D,” both as it was stated on the voting machines, and as it was advertised prior to the election, was so inaccurate, ambiguous and obtuse, that an ordinary voter, of average intelligence, could not, in a meaningful and comprehending manner, have knowledgeably exercised his franchise when called upon to vote either “FOR” or “AGAINST” that question. McDonough, 277 Md. at 307-308 , 354 A.2d at 809 . The ballot question in McDonough concerned a referendum on a complex zoning question. The ballot read: “QUESTION NO.

D REFERENDUM To rezone certain parcels of land in the median strip, the west side of the southbound lane and the east side of the northbound lane of Route 3; and to rezone one parcel of land on the west side of Brockbridge Road near Ellen Street; all parcels of which are in the Fourth Assessment District and which were rezoned by virtue of amendments to Bill No. 59-73.” 277 Md. at 278 , 354 A.2d at 792-793 . Voters were directed to vote “FOR” or “AGAINST” this question. Id. We thought that the question, so worded, limited the choice of voters “to a vote ‘FOR’, or ‘AGAINST’ ‘rezoning. ’ ” Id. at 298, 354 A.2d at 804 . [emphasis in original]. ⁴⁴⁷ As so limited, the ballot failed to disclose the nature of the rezoning (which involved 41 different amendments to County Bill No. 59-73), the location of the properties, or that the zoning of the J.F. Johnson Lumber Co., which was the subject of one of the amendments, would not, in fact, be affected in any way by the referendum.

Id. at 298-299 , 354 A.2d at 804 . As a consequence, the ballot question did not comply with the requirement of Maryland Code (1957, 1986 Repl.Vol.), Article 33, § 16-6(a), that a ballot “ ‘shall contain a condensed statement in understandable language of every ... question to be submitted to the vote of the people.’ ” 277 Md. at 287 , 354 A.2d at 798 . Rather, Question D failed to “present a clear, unambiguous and understandable statement of the full and complete nature of the issues undertaken to be included in the proposition.” 277 Md. at 300 , 354 A.2d at 805 . [Emphasis supplied; footnote omitted.] In the case before us, the question presented on the ballot was not by way of “a brief summary of the contents or purpose” of the proposed charter amendment (the § 16-6(a) procedure used in McDonough). Instead, it was through, printing the title of the amendatory bill adopted by the Prince George’s County Council (an alternative procedure permitted by § 16-6(a)).

See Lexington Park v. Robidoux, 218 Md. 195, 199-200 , 146 A.2d 184, 186 (1958) (construing Code (1957), Art. 33, § 94(i), a predecessor to § 16-6(a)). Whichever alternative is used, however, the first sentence of § 16-6(a) still directs that the ballot’s wording must constitute a “statement in understandable language” of the question to be submitted to the voters. As McDonough makes clear, “understandable language” includes the concept that the ballot wording must convey with reasonable clarity the actual scope and effect of the measure, if adopted. The language used here did not meet that requirement.

The ballot presented to the voters of Prince George’s County in 1986 said this: ⁴⁴⁸ PROPOSED CHARTER AMENDMENT To provide that in all pending and future claims the County will only waive its immunity in those instances where its officers and employees are liable. What this tells the reader is that the charter in essence will remain unchanged, for that is what the charter already provided as a result of the 1982 amendments: “The County may be sued in actions sounding in tort for which its officers, agents, and employees may be liable.” The 1986 addition of “only for those occurrences,” inserted after “actions sounding in tort,” added nothing substantive to and changed nothing substantive in the meaning of this sentence. The real change proposed by the 1986 amendment, of course, was its nonseverability provision. As we have seen, this was intended to effect a total repeal of the waiver of governmental immunity should the first sentence be struck down.

The ballot contained not the slightest hint of that possible outcome. A voter who read the ballot language would have no inkling that a vote in favor of the charter amendment could be a vote in favor of repealing absolutely the waiver of governmental immunity that had existed in Prince George’s County, in one form or another, since the original charter of 1970. Like the “inaccurate, ambiguous and obtuse” language before us in McDonough, 277 Md. at 307-308 , 354 A.2d at 809 , the verbiage here did not and could not convey to a voter an understanding of “the full and complete nature” of what the charter amendment involved. Id. at 300 , 354 A.2d at 805 .

In point of fact, it told the voter nothing about what really was involved. Where a legislative title is used as the ballot question, the prescriptions of Article III, § 29 of the Constitution, concerning the sufficiency of the title, come into play and the title-ballot question must embrace one subject, fairly apprise the voters of the purpose of the act, not be misleading and not [be] calculated to lead the public to believe that the proposed legislation is substantially dif ⁴⁴⁹ ferent from that which would actually become law under the statute. Id. at 295-296, 354 A.2d at 802 . 3 Putting aside the question of “single subject,” the ballot title used here fails the test in every respect. It was misleading, and it was calculated to suggest to the voter that the charter amendment would have virtually no effect — and certainly not the repeal of the waiver of immunity.

See, e.g., Shipley v. State, 201 Md. 96, 100-104 , 93 A.2d 67, 69-71 (1952) (title to bill referred only to Art. 66V2; portions of bill purporting to amend Art. 89B, unconstitutional under Art. Ill, § 29); Culp v. Comrs. of Chestertown, 154 Md. 620 , 141 A. 410 (1928) (title to act authorized issuance of bonds, but failed to disclose creation of special commission that was to have equal authority with town commissioners to expend proceeds; act unconstitutional). The County protests that it performed all the legal prerequisites with respect to acquainting the voters with the proposed charter amendment. Under those circumstances, it assures us, Dutton v. Tawes, supra, instructs that “there is a clearly recognized difference between the effect given to modal provisions of the election laws before the election and the effect of the same provisions after election.” 225 Md. at 491 , 171 A.2d at 690 . This is because if the election has been held before court action is sought [obviously, this is the case here] and it is not shown that the failure of the officials to follow the law has interfered with the full and fair expression of the will of the voters, that expressed choice will not be disturbed by the Courts.

Id., 171 A.2d at 690-691 . The “modal provisions” required in connection with the adoption of charter amendments appear to be the provisions of § 317 of the county charter requiring notice of and a public hearing on any legislation introduced, including posting of a copy of the bill in a “public place,” and § 320’s ⁴⁵⁰ directive that “all laws and all amendments to this Charter ... be published promptly following their enactment.” Additionally, § 1105 commands that any proposed charter amendment “shall be published by the County Executive in the [three] County newspapers of record for five successive weeks prior to the election at which the question shall be considered by the voters of the County.” Nothing in the record shows that the County followed any of these provisions. Nevertheless, we shall assume that all of them were complied with. It makes no difference.

We are not dealing here with failure to publish notices precisely as required by statute, as was the case in Dutton . In that case, the statute required publication in 56 newspapers; the act in question was reproduced only in one. 225 Md. at 493 , 171 A.2d at 691 . Yet “[t]here were published [throughout the State] some one hundred twenty-two articles, in many of which [were] the views pro and con Of public officials and prominent citizens as to various aspects of the [Potomac River] compact” as well as numerous letters to the editor and radio and television news broadcasts. Id., 171 A.2d at 692 .

The Court thought that this achieved substantial compliance with the purpose of the notice provisions — to acquaint the public with the law involved — arid refused to strike it down. But here, even if we assume publication of the full text of the proposed charter amendment in three newspapers for five weeks prior to the election, another crucial element of the notice procedure — the ballot language itself — was totally defective. And while the assumed publication of the statutory text serves to distinguish one aspect of this case from McDonough , there is no hint here that the 1986 amendments to § 1013 were the subject of anything like the public debate described in Dutton . In any case, we have here something more than a mere lack of notice or non-compliance with some.other “modal provision[] of the election laws.” We have a misleading and inaccurate notice given at the point and moment of greatest impact: on the ballot confronted by the citizen in ⁴⁵¹ the voting booth.

McDonough constrains us to hold that the 1986 amendments to § 1013 of the Prince George’s County charter were invalidly adopted. The charter provision that is before us is the same one we considered in Fitzhugh . And pursuant to the holding in that case, the version of § 1013 that pertains here is the one adopted in 1976. 308 Md. at 395 , 519 A.2d at 1290 . D. The 1976 version of § 1013, as earlier quoted, permits Prince George’s County to be sued in tort, but subject to “a maximum liability of ...

($250,000) per individual, per occurrence, to the extent of its insurance coverage, whichever may be greater.” The section goes on to direct that “[t]he County shall carry liability insurance to protect itself, its officers, agents and employees,” but nevertheless provides that “[njothing herein shall preclude the County from meeting the requirements of this section by a funded self-insurance program____” In this case, the jury’s verdicts against the County in the aggregate sum of $533,739.86, were computed thus: For Blondine Surratt, individually $350,000 For Donald Jackson $150,000 For Blondine Surratt, personal representative of Baby Boy Surratt $ 33,739.86. As the last stage of its sovereign immunity argument, the County claims that § 1013 limits its liability to a total of $250,000. 4 The County fares better on this contention than it has heretofore. ⁴⁵² The $250,000 per individual, per occurrence language of § 1013 is derived from former § 5(CC) of Article 25A (The Express Powers Act), 5 which was in effect when the 1976 version of § 1013 was adopted. The pertinent provisions of § 5(CC) read: Any chartered county enacting legislation or otherwise waiving sovereign immunity under this subsection shall carry comprehensive liability insurance to protect itself, its agents and its employees. The purchase of this insurance shall be considered as for a public purpose and as a valid public expense.

The liability of any county under this subsection may not be greater than $250,000 or the amount of its insurance coverage, whichever is greater, per individual per occurrence. The charter language, despite its garbling of the third sentence, quoted above, is clearly intended to track this language. And the § 5(CC) wording, we think, manifests a legislative purpose to look to commercial liability insurance policies for the meaning of the somewhat cryptic “per individual per occurrence.” That is manifested by the several references to “comprehensive liability insurance” and “this insurance.” It is also manifest that some limitation of liability is intended by this language. It is not uncommon for a commercial liability policy to establish one limit of liability for each individual’s claim and another larger one, for the entire “occurrence.” Daley v. United Services, 312 Md. 550, 553 , 541 A.2d 632, 633 (1988).

That, indeed, is the approach of the Local Government Tort Claims Act. See Md.Code (1989 Repl.Vol.), § 5-403(a) of the Cts. & Jud. Proc. Art. (“[t]he liability of a local govern ⁴⁵³ ment may not exceed $200,000 per an individual claim, and $500,000 per total claims that arise from the same occurrence ... ”), and n. 5, supra.

The verbiage of §§ 1013 and 5(CC) is a bit more cloudy, but under the facts of this case, we conclude that it supports the County’s position. In Daley , we had before us an insurance policy that imposed, for bodily injury liability, a limit of $100,000 for “each person” and what we described as “a $200,000 ‘each occurrence' limit for all such damages arising out of bodily injuries sustained by two or more persons as a result of any one occurrence.” 312 Md. at 552 , 541 A.2d at 633 . The claimants in that case were the parents of a minor child who had been killed as the result of the negligence of the insured. The parents, like Surratt and Jackson, brought wrongful death and survival actions, recovering a total of $225,000.

We held that the only bodily injury was to the child and that the parents’ (and the estate’s) claims were derivative from that injury. “Therefore, such consequential or derivative damages are computed together with the claim for bodily injury of which they are a consequence.” Id. at 554 , 541 A.2d at 634 . Judge Cole, writing for the Court, observed that “[t]hese principles have been applied in wrongful death actions.” Id. See also Smith v. Gross, 319 Md. 138 , 143 n. 4, 571 A.2d 1219 , 1221 n. 4 (1990) (“injured party” under wrongful death statute is the “decedent”). And see F. Harper, F. James & O. Gray, The Law of Torts, § 23.8, at 449 (2d ed. 1986) (survival action is “derivative in the fullest sense of the term”).

Judge Cole went on, in Daley , to explain that “[w]here state law creates a right to damages for mental anguish suffered by those in specified relationships to the person who suffers bodily injury or death, it has been held that the damages for mental injury are, in effect, derivative of the single bodily injury.” 312 Md. at 554 , 541 A.2d at 634 . He also compared the parents’ claim for solatium damages to a claim for loss of consortium, citing cases holding such a claim to be derivative. Id. at 556 , 541 A.2d at 634-635 . ⁴⁵⁴ Therefore, whether we view the death of Baby Boy Surratt as the occurrence, or whether we view him as the one person who was injured within the contemplation of § 1013, the $250,000 limit applies. See also Chicago Insurance Co. v. Pacific Indem.

Co., 566 F.Supp. 954 (E.D.Pa. 1982), aff'd, 720 F.2d 660 (3d Cir.1983). Surratt and Jackson attempt to avoid this conclusion by persuading us that the 1976 version of § 1013 is invalid, and urging that we revert to the original waiver provision, which contained no limitation of liability. We are not convinced. The argument here is that the 1976 version of § 1013, in addition to tracking Article 25A, § 5(CC) with respect to limits of liability and the mandatory purchase of liability insurance, added that “[n]othing herein shall preclude the County from meeting the requirements of this section by a funded self-insurance program____” Since § 5(CC) did not authorize self-insurance, the argument continues, that portion of § 1013 is invalid under Fitzhugh .

And, say Surratt and Jackson, the language is not severable, so the 1976 § 1013 falls, and we return to 1970. They read Fitzhugh too strictly. It is true that we there held that a county that waived immunity pursuant to § 5(CC) had to do so within the confines of that subsection’s authorization. 308 Md. at 393-394 , 519 A.2d at 1289-1290 . Since § 5(CC) permitted only a waiver that would allow suit in “ ‘the same manner and to the same extent that any private person may be sued’ ” no lesser waiver would suffice.

Id. It is true, also, that § 5(CC) was concerned with insurance. Chapter 825 of the Acts of 1976 (by which § 5(CC) was enacted) explains that the legislation was FOR the purpose of permitting chartered counties to waive the defense of sovereign immunity in certain cases; and requiring any county waiving this defense to establish an insurance program. [Emphasis supplied] ⁴⁵⁵ But the emphasis on insurance and the specific textual reference to “comprehensive liability insurance” do not rule out the possibility of self-insurance. The General Assembly’s paramount goal was to assure the authority of counties to waive governmental immunity — an authority that was questionable in 1976, because Bradshaw , holding that this authority was granted by Article 25A, § 5(S) (general welfare), had not yet been decided.

See 284 Md. at 299 , 396 A.2d at 258-259 . As a means of effectuating that goal, the legislature called for limits on liability should immunity be waived. Those limits, however, were flexible, for a county could go above the statutory $250,000 by purchasing insurance with a higher limit. This evidences the legislature’s interest in local fiscal stability: a liability limit of $250,000 only if the county did not protect itself by purchasing insurance.

Were that protection procured, the limit could be increased. To be sure, the legislation shows a concern with the purchase of insurance; but that concern, manifested by the direction to purchase, also could be met by or funded through self-insurance — a method not unfamiliar to the General Assembly in 1975. For example, by Chapter 403, Acts of 1973, the legislature enacted former Code (1957, 1969 Repl.Vol., 1973 Cum.Supp.), Article 95, §§ 25-35, dealing with both self-insurance and purchased insurance to cover certain potential State liability. Those sections were adopted under the subtitle “State Insurance Program” — the identical language used in the title of the bill adopting § 5(CC).

Clearly, an “insurance program” may encompass both methods of protection. In fact, the Fiscal Note on HB 1813 of 1976 (the bill that enacted § 5(CC)) stated that an “alternative [to procuring insurance from an insurance company] would be for the County to become a self-insurer and appropriate funds to a special contingency fund to be used for such insurance coverage.” We believe that § 1013’s self-insurance provision is in harmony with the legislative purpose of § 5(CC). ⁴⁵⁶ Therefore, subject to one caveat we shall shortly note, the $250,000 limitation applies here. The total judgment must be reduced to that amount, unless the County has purchased insurance with a higher limit. The County represents that it has not — that it is self-insured.

Surratt and Jackson, however, point to some post-judgment documents produced by the County, and introduced into evidence at the remittitur hearing. At that time, the trial judge announced he was “not interested” in those documents, perhaps because he was about to grant the remittitur. Nevertheless, one of the papers, entitled “Schedule of Insurance in Force, June 30, 1984” discloses that for the policy period “7/29/83 — 7/29/84,” the County had in force St. Paul Fire and Marine Medical Professional Liability Policy No. 519JC8758, with liability limits of $500,-000 per person and $1,000,000 aggregate. That policy period post-dates the conduct that caused the death of Baby Boy Surratt in the winter of 1983.

But. we know nothing about the coverage provisions of the policy, or whether there was an earlier one in effect. Surratt and Jackson subpoenaed County insurance records back to 1976, but the County failed to produce any from earlier than 1984. It now becomes necessary to examine the subject of insurance more closely. The issue of insurance coverage, if any, did not become important until judgments were entered on the jury verdicts.

At that point, the question of limitation of liability was presented: $250,000 or any greater limit contained in a County liability insurance policy. Since the County was contending for a limitation of liability, it was incumbent upon it to prove what the applicable limit was. The existence or non-existence of insurance was particularly within the County’s knowledge. Maryland State Department of Health and Mental Hygiene v. Phoebus, 319 Md. 710, 718 , 575 A.2d 335, 339 (1990).

The trial judge, seemingly preoccupied with the County’s remittitur motion (based mainly on the argument that the awarded damages were “excessive and shocking to the Court’s conscience”), brushed aside the ⁴⁵⁷ problem of § 1013 limits on liability, whether that limit might be $250,000 or a higher amount established by an insurance policy. This case, therefore, must be remanded to the circuit court for determination of whether the County had liability insurance coverage applicable to the claims here involved, and if so, what were the liability limits of any such policy. If there was such a policy, and its limits of liability exceeded $250,000, the policy limits will control the maximum amount of a permissible judgment against the County. If there is no such policy, the $250,000 § 1013 maximum governs.

In that event, on remand there must be a determination of how the $250,000 is to be apportioned among the petitioners. But, since that figure is less than the judgment entered pursuant to the remittitur, there ordinarily would be no need to consider Surratt’s and Jackson’s contentions relating to the remittitur — whether they could