Wolf v. Ford

KARWACKI, Judge. In this case we focus upon the enforceability of an exculpatory clause in an agreement between an investor and a securities investment firm. The clause at issue provides that the investment firm will not be liable for losses to the investor resulting from the firm’s negligence, but only for those losses resulting from its gross negligence or wilful misconduct. Under the circumstances of the instant case, we shall enforce the ⁵²⁸ exculpatory clause.

Viewing the evidence and all inferences therefrom in a light most favorable to Elizabeth Wolf, the appellant, the following facts were established at trial. In April, 1986, the eighteen-year-old appellant received $145,700 in settlement of a lawsuit she had filed to recover damages for injuries arising out of a 1983 automobile accident. On April 2, 1986, Wolf and her mother visited the home of the appellee, Harry M. Ford, who at the time was employed as a stockbroker at the investment firm of the appellee, Legg Mason Wood Walker, Inc. (“Legg Mason”). The purpose of the meeting was to discuss Wolfs options for investing the money she had received from the settlement.

At the meeting, Wolf told Ford that her goals were to get a college education and to preserve the bulk of her money. She testified that she told Ford, “I don’t want it to flitter away, it was something I wanted to hold on to.” The following day, Ford sent Wolf a letter stating that he was looking forward to working with Wolf in her investments. The letter contained three enclosures that Wolf was to sign and return to Ford; among the enclosures was a Discretionary Account Agreement. 1 The Agreement provided in pertinent part: “You are hereby authorized to buy, sell and generally trade in securities, on margin, in cash or otherwise in accordance with your terms and conditions for my account and risk. “... I hereby exonerate you from any and all liability for losses which may occur while you are acting on my behalf except for such as may result from your gross negligence or willful misconduct.” “I hereby reserve the power to direct and terminate at any and all times the selection of securities for purchase or ⁵²⁹ sale, but the exercise of such power shall not be deemed a revocation of this agreement, the same to remain in full force and effect until revoked by me by written notice addressed to you ... but such revocation shall not affect any liability in any way resulting from transactions initiated prior to such revocation.” Wolf signed this Agreement on April 7,1986 and returned it to Legg Mason.

On April 15, 1986, Legg Mason received $135,-000.00 from Wolf. 2 Ford used this money to purchase 22 different stocks for Wolfs portfolio. Later that same year, Wolf began to withdraw large sums of cash from her account with Legg Mason. In August, 1986, Wolf withdrew $8,000.00. In October and November, 1986, she withdrew a total of $4,500.00.

In December, 1986, she withdrew $500.00. In January, 1987, she withdrew $6,000.00. In July, 1987, Wolf received a letter from C.A. Bacigalupo, a senior vice president of Legg Mason, which stated: “As a service to our clients, we periodically review discretionary authorizations at Legg Mason Wood Walker, Inc. This enables us to verify that the authority is to continue. “It is requested that you sign and return this letter indicating whether or not you wish to continue the discretionary authority which you conferred upon your investment broker.... If we do you hear from you by August 7, 1987, the discretionary authority will be terminated.” Wolf signed the letter on September 4, 1987, indicating on the letter that she wished to continue the discretionary authorization.

In November and December, 1988, Wolf withdrew $5398.44. In January, 1989, she withdrew over $5,200.00. During the time her account was handled by Ford, she withdrew a total of $64,650.00 from her account. Each withdrawal required the prompt sale of one or more of the stocks from her portfolio.

Apparently upset with the performance of some of the stocks in her portfolio, Wolf called Legg Mason in June, 1990 ⁵³⁰ and terminated the discretionary authority she had given Ford. In August, 1990, she instructed Legg Mason to transfer her account from Ford to John Seifert, another stockbroker at Legg Mason. Wolf closed her account with Legg Mason in March, 1991. Wolf filed suit in the Circuit Court for Baltimore County against Ford, Seifert, and Legg Mason in May, 1992.

Seifert was voluntarily dismissed from the case by Wolf prior to trial, and after the close of Wolfs case at a jury trial, the court (Bollinger, J.) granted the defendants’ motion for judgment pursuant to Maryland Rule 2-519. 3 The trial judge ruled that the exculpatory clause contained in the Discretionary Account Agreement limited defendants’ potential liability to those losses resulting from gross negligence or intentional misconduct. He further ruled that there was no evidence of either gross negligence or wilful misconduct on the part of Ford or Legg Mason and entered judgment in their favor. Wolf timely noted an appeal to the Court of Special Appeals. We issued a writ of certiorari on our own motion before consideration of the case by the intermediate appellate court to consider the effect of the exculpatory clause in the Discretionary Account Agreement.

I Before this Court, Wolf argues that the exculpatory clause contained in the Discretionary Account Agreement is void as ⁵³¹ against public policy and that the case should therefore be remanded for a determination of the existence of simple negligence on the part of Ford or Legg Mason. We disagree. The late Judge Charles E. Orth, Jr., writing for the Court of Special Appeals, discussed the validity of exculpatory clauses at length in Winterstein v. Wilcom, 16 Md.App. 130 , 293 A.2d 821 , cert. denied, 266 Md. 744 (1972). In the absence of legislation to the contrary, exculpatory clauses are generally valid, and the public policy of freedom of contract is best served by enforcing the provisions of the clause.

Id. at 135, 293 A.2d at 824 ; 57A Am.Jur.2d, Negligence § 53, at 112 (1989). The rule has also been explained thus: “It is quite possible for the parties expressly to agree in advance that the defendant is under no obligation of care for the benefit of the plaintiff, and shall not be liable for the consequences of conduct which would otherwise be negligent. There is in the ordinary case no public policy which prevents the parties from contracting as they see fit....” W. Page Keeton, et al., Prosser and Keeton on the Law of Torts, § 68, at 482 (5th ed. 1984). See also Comment (a), Restatement, Second, Contracts § 195 (1981) (“a party to a contract can ordinarily exempt himself from liability for harm caused by his failure to observe the standard of reasonable care imposed by the law of negligence”).

There are circumstances, however, under which the public interest will not permit an exculpatory clause in a contract; these have often been grouped into three general exceptions to the rule. First, a party will not be permitted to excuse its liability for intentional harms or for the more extreme forms of negligence, i.e., reckless, wanton, or gross. Winterstein, 16 Md.App. at 136 , 293 A.2d at 824 ; Restatement, Second, Contracts § 195(1); Keeton, supra. Second, the contract cannot be the product of grossly unequal bargaining power. “When one party is at such an obvious disadvantage in bargaining power that the effect of the contract is to put him at the mercy of the other’s negligence, the agreement is void as against public policy.” Winterstein , 16 Md.App. at ⁵³² 135-36, 293 A.2d at 824 ; Keeton, supra.

Third, public policy will not permit exculpatory agreements in transactions affecting the public interest. Winterstein, 16 Md.App. at 136 , 293 A.2d at 824 . This last category includes the performance of a public service obligation, e.g., public utilities, common carriers, innkeepers, and public warehousemen. It also includes those transactions, not readily susceptible to definition or broad categorization, that are so important to the public good that an exculpatory clause would be “patently offensive,” such that “ ‘the common sense of the entire community would ... pronounce it’ invalid.” Md. Nat'l Cap.

P. & P. v. Wash. Nat'l Arena, 282 Md. 588, 606 , 386 A.2d 1216, 1228 (1978), quoting Estate of Woods, Weeks & Co., 52 Md. 520, 536 (1879). This standard is a strict one, in keeping with our general reluctance to invoke the nebulous public interest to disturb private contracts. As we stated in Md. Nat'l Cap.

P. & P., supra: “Fearing the disruptive effect that invocation of the highly elusive public' policy principle would likely exert on the stability of commercial and contractual relations, Maryland courts have been hesitant to strike down voluntary bargains on public policy grounds.” 282 Md. at 606 , 386 A.2d at 1228 . See also Anne Arundel Cty. v. Hartford Accident, 329 Md. 677, 686-88 , 621 A.2d 427, 431-32 (1993); Finci v. American Casualty, 323 Md. 358, 376-79 , 593 A.2d 1069, 1077-78 (1991). Because the concept of the “public interest” is amorphous, it is difficult to apply. Courts, therefore, have struggled to refine and narrow the definition in an attempt to make the concept more concrete.

Winterstein referred to a six-factor test developed by the Supreme Court of California in Tunkl v. Regents of the Univ. of Calif, 60 Cal.2d 92 , 383 P.2d 441 , 32 Cal.Rptr. 33 (1963) that was intended to determine which exculpatory agreements affect the “public interest” and which do not. Winterstein quoted the following passage from Tunkl , noting that it is to be used as a rough outline of that type of transaction in which exculpatory provisions will be held invalid: ⁵³³ “ ‘Thus the attempted but invalid exemption involves a transaction which exhibits some or all of the following characteristics. It concerns a business of a type generally thought suitable for public regulation. The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public.

The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards. As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services. In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.’ ” Winterstein, 16 Md.App. at 137 , 293 A.2d at 825 , quoting Tunkl, 60 Cal.2d at 98-101 , 383 P.2d at 445-46 , 32 Cal.Rptr. at 37-38 (footnotes omitted).

Ten years before Winterstein was decided, this Court examined an exculpatory clause in a lease and determined that such clauses are generally valid. Eastern Ave. Corp. v. Hughes, 228 Md. 477 , 180 A.2d 486 (1962). 4 Since Winterstein was ⁵³⁴ decided, we have not often had the opportunity to consider exculpatory clauses in the absence of statutory provisions governing the clause. 5 The Court of Special Appeals, however, has considered exculpatory clauses in several matters. In Boucher v. Riner, 68 Md.App. 589 , 514 A.2d 485 (1986), the court held enforceable an exculpatory clause signed by a parachute student shortly before he jumped and suffered injuries in his descent.

The following year, the Court of Special Appeals enforced a limitation of damages clause that limited the monetary damages available for negligence in a contract for a burglar alarm system, notwithstanding the fact that personal injury was involved in that case. Schrier v. Beltway Alarm Co., 73 Md.App. 281 , 533 A.2d