Posted on January 21, 2010 in Personal Injury

The most recent Maryland Court of Appeals case discussing whether Maritime Law applies can be found in Matthews v. Howell, 359 Md. 152, 753 A.2d 69 (2000).

Facts: Four friends boarded a boat and traveled to a bar. After consuming a variety of alcoholic drinks, the friends returned to the boat and headed back to the marina. On the way back, the conditions worsened (wind increased, water was choppy, and it was dark). While traversing the Chesapeake Bay, the captain (one of the four friends), abruptly throttled back, thereby slowing the boat, but did not anchor. The captain announced that he wanted to take a swim, and dove into the Bay, jumping from the seat at the helm. Then, one of the four friends, Ms. Matthews, either fell or jumped into the water. Rescue attempts by the friends failed. The US Coast Guard and a helicopter could not locate Ms. Matthews. Two days later, Ms. Matthews’ fully clothed body was found. Cause of death was drowning.

Analysis:
• (1) Navigable waters of the US -Parties do not, and cannot dispute, that the Chesapeake Bay is a navigable waterway of the US
• (2) Whether the incident caused a potential hazard to maritime commerce –
-Boat was stopped in the middle of a major shipping waterway -Boat remained adrift during rescue efforts -The parties remained adrift in the area while search parties arrived -Search parties spent a great amount of time scouring the area of the navigable waterways for Ms. Matthews
-No evidence of disruption of maritime commerce, but travel by any other vessel through that portion of the Bay would have been restricted by the search effort • Whether the actions surrounding the incident bore a substantial relationship to traditional maritime activity –
-Does not matter that the parties were not engaged in commercial shipping at the time -Under certain circumstances, the act of diving from a boat could bear a relationship to maritime activity -Unclear whether Ms. Matthews actually dove from the boat or fell into the water -Search effort by the Coast Guard is a traditional maritime activity -Broader view of “traditional maritime activity” – captain’s actions are lack of proper navigation; failure to manage, direct, and position his vessel properly
+Captain navigated the boat by stopping it and leaving it adrift in a major navigable waterway prior to diving from the boat
+He abandoned the helm without taking the proper precautions that maritime law requires
+Failed to assist in the rescue of a woman overboard from his vessel
Holding: Maritime law applies to the facts and allegations of this case.

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 Posted on January 21, 2010 in Personal Injury

In many personal injury actions which happen on a boat or on the water, the value of the case and the way lawyers approach the case depends on whether maritime law applies. Originally, maritime or admiralty law was applicable when any claim arose upon the navigable waters of the United States. The Plymouth, 70 U.S. 30 (1866). However, several U.S. Supreme Court cases have changed this rule.

Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249 (1972): A plane taking off from a runway hit a flock of birds, lost engine power, and crashed into Lake Erie, sinking to its bottom. The plaintiffs sought damages under traditional maritime jurisdiction. The Supreme Court held that, for maritime law to be applicable, a court must find, not only that the action accrued upon or in navigable waters, but that the incident alleged in the claim bears a “significant relationship to traditional maritime activity.”

Foremost Insurance Co. v. Richardson, 457 U.S. 668 (1982): Two pleasure boats collided, resulting in the death of a passenger in one of the boats. The Supreme Court held that the collision was actionable under maritime jurisdiction because there is no requirement that maritime activity be an exclusively commercial one. All operations of vessels on navigable waters are subject to uniform rules of conduct. The Court held that “[b]ecause the ‘wrong’ here involves the negligent operation of a vessel on navigable waters . . . it has a sufficient nexus to traditional maritime activity to sustain admiralty jurisdiction.”

Sisson v. Ruby, 497 U.S. 358 (1990): Fire started on a yacht moored at a marina, which destroyed the yacht, and damaged the marina and several other boats nearby. The Court stated that there are two essential prongs to the “nexus” test:
(1) that the incident caused a “potential hazard to maritime commerce” and (2) that the actions surrounding the incident bore a “substantial relationship to traditional maritime activity.”

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 Posted on January 20, 2010 in Family Law

The Maryland Court of Appeal issued an opinion in Curtis O. Rosemann v. Salsbury, Clements, Bekman, Marder & Adkins, LLC on January 13, 2010 stating that funds received as a part of a settlement in personal injury case are exempt from being executed for a judgment of child support arrearages. Mr. Rosemann, the father and primary custodial parent of two minor children sought to garnish funds received from his ex-wife in a personal injury lawsuit after she failed to pay her child support. Mr. Rosemann’s battle began in 2001 when he obtained two judgments in the Circuit Court for Howard County against his ex-wife for child support arrearages totaling over $33,000.00. Ms. Rosemann and her attorneys were awarded $30,000.00 from America West Airlines in a personal injury lawsuit after being injured while on an America West flight. After learning of this settlement, Mr. Rosemann attempted to garnish the account that held Ms. Rosemann’s share of the settlement.

The Circuit Court found, and the Court of Special Appeals affirmed that the funds were exempt from execution on judgment in accordance with Maryland Code, Courts and Judicial Proceedings § 11-504(b)(2), which states the following: (b) The following items are exempt from execution on a judgment: (2) Money payable in the event of sickness, accident, injury, or death of any person, including compensation for loss of future earnings. This exemption includes but is not limited to money payable on account of judgments, arbitrations, compromises, insurance, benefits, compensation, and relief. Disability income benefits are not exempt if the judgment is for necessities contracted for after the disability is incurred.

While the Court of Appeals stated that they could understand Mr. Rosemann’s situation and pursuit, they affirmed the lower courts’ decisions. The Court can simply not place language in a statute that they believe should be there, or was meant to be there simply to avoid an unfortunate result.

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 Posted on January 07, 2010 in Criminal Defense

Maryland Criminal Attorneys/Lawyers are often called upon to defend people in cases involving assaults on police officers and in matters involving perverted practice charges. Rarely are we called upon to represent someone charged with both of these offenses in the same case. I had such a case in Baltimore County District Court this week. The facts of the case are really quite humorous, although until this week when the cases were stetted, my client’s failed to see the humor.

My client’s are a married couple whom I will refer to as John and Jane in this blog to protect their privacy. John is in his early forties and Jane, who never took his last name, is in her mid fifties. Neither has ever been in any trouble with the law in their lives. John is in the printing business and Jane has been a school teacher for 30 years. They have been happily married for about 15 years.

One evening they decided to go out for a little entertainment to "spice up" their love life. To that end they went to a local strip club where they each had a single drink and spent about an hour watching the performers. When they got out to their car they began to kiss and one thing led to another….. At about the same time a couple of undercover vice detectives arrived on the scene just in time to see John and Jane exit the nightclub and get into their car. Within a few minutes on John was visible in the car although Jane had not exited it ( I will leave it up to your imagination what was transpiring). At this point the police approached the car and rapped on the window identifying themselves, at least according to them, as Baltimore County Police Detectives. According to John they did not so identify themselves and were not in uniform or displaying badges or anything else identifying them as police officers. Fearing that he was about to be robbed or worse he started the vehicle and pealed out of the parking lot. One of the detectives was struck by the back end of the vehicle throwing him off balance but he was not knocked to the ground and was not injured.

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 Posted on December 18, 2009 in Divorce

Maryland’s second highest court filed an opinion in the case of Guzman Cruz v. Clemencia Silva on November 25, 2009, which held that a spouse can be awarded alimony absent a divorce. The idea of alimony disconnected from a divorce, although a strange scenario for most to imagine, has long been a reality in Maryland. For more information regarding alimony see our October 2, 2009 and October 13, 2009 blog posts.

The Cruz’s came to the Circuit Court for Princes George’s County on January 9, 2008, both seeking a divorce but did not prove legally sufficient grounds for the divorce. However, the Judge awarded custody of the two minor children to Clemencia, ordered Guzman to pay her $764.00 per month in child support, and $1,500.00 per month in alimony. Guzman appealed to the Court of Special Appeals contending that the trial court erred in awarding alimony to Clemencia without granting a divorce and without properly determining the type and amount of alimony. The Court stated that Maryland has long recognized that the common law obligation of alimony was the obligation of husband to provide support to wife (or wife to husband). This is evidenced by Maryland Code, Family Law Section 11-101(a)(1), which provides that a court may award alimony not only in a decree of divorce, but also in a bill of complaint for alimony. The Court of Special Appeals held that while a spouse can be awarded alimony absent a divorce, that in this case the award was an error as a spouse still has to prove a case that would entitle him or her to alimony.

For more information on alimony with our without a divorce, contact an experienced family law attorney.

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 Posted on December 14, 2009 in Personal Injury

A Baltimore man was tragically killed on Saturday night in a hit and run accident on the 4700 block of Greenspring Avenue. A recent Baltimore Sun article reports that James Little, Jr. was struck by a Jeep Cherokee traveling northbound on Greenspring Valley Road which left the scene following the accident. According to the article, the police located the vehicle and its driver a short while later and noticed the vehicle to have a smashed and bloodstained windshield. The vehicle’s driver, a 20 year old woman, was taken into custody for questioning and toxicology tests and later released.
Every year, pedestrians throught Maryland are injured in motor vehicle-pedestrian accidents. Experienced auto accident attorneys can help victims and their families recover for their injuries.

If you or someone you know has been injured in an automobile accident or while a pedestrian, please contact Maryland’s best personal injury lawyers at 410-385-2225 or czissel@silvermanthompson.com

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 Posted on December 07, 2009 in Divorce

When disclosing or researching your marital property in a Maryland divorce action, it is important that clients are informed that any portion of a retirement account accrued during the marriage is marital property. For more information on marital property in Maryland, see Maryland Code, Family Law 8-203 and see August 19, 2009 blog. The courts in Maryland have the authority to transfer any percentage of the martial portion of the retirement account whether it be a pension, profit sharing plan, deferred compensation plan, thrift savings account, 401k or IRA from one spouse to the other, Maryland Code, Family Law §8-205. The court may apply one of several methods when valuing the marital portion of the retirement account, all of which an attorney would be able to advise you.

In order for a portion of the retirement benefit to be transferred a Qualified Domestic Relations Order, otherwise known as a QDRO, must be signed by a Judge and submitted to the plan administrator. The QDRO is an order by the court to modify the payee of all or a portion of the retirement plan. Each plan administrator may require a different type of QDRO and QDRO’s must comply with the ERISA (The Employee Retirement Income Security Act of 1974) laws, so it may be important to hire an attorney to assist you in this drafting process.

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 Posted on December 03, 2009 in Family Law

With the holidays approaching many parents in divided households may be facing uncertainty or conflicts as to where their child(ren) will be spending the holiday. The Maryland Court system in years past has implemented specific instructions for what is known as "holiday court," or the process that takes place in order to resolve these holiday access disputes. We have collected information from a few of the surrounding venues to find out how they will be handling this year’s (2009) holiday disputes.

Baltimore County Circuit Court
Baltimore County Circuit Court will consider holiday visitation disputes from November 23, 2009-December 19, 2009, and all disputes shall be submitted to Judge Dugan, who will assign each matter to a particular Judge on a rotating basis. When the case is assigned to the Judge who will hear the holiday dispute, the party should contact the Judge’s chambers with the name and contact information for all parties involved, the details of any efforts to reach an agreement between the parties, what relief each party is requesting, and what each party is proposing the holiday access schedule be.

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 Posted on December 01, 2009 in Criminal Defense

Baltimore Mayor Sheila Dixon Convicted of Fraudulent Misappropriation. Maryland Criminal Attorney discusses whether this count is a Misdemeanor or a Felony and whether or not the Mayor is subject to a mandatory minimum jail term of one year.

As many have now heard Baltimore Mayor Sheila Dixon was convicted by a jury today of count four of the indictment that she was facing. This count was Embezzlement – Fraudulent Misappropriation by Fiduciary is a Misdemeanor although one that carries a maximum prison term of Five years in prison. The jury apparently acquitted her of all other counts including count one – Felony Theft which is a felony that carries a maximum penalty of fifteen years in prison. So what conduct constitutes Embezzlement – Fraudulent Misappropriation by Fiduciary?

Pursuant to Maryland Criminal Laws Annotated, Criminal Law Section 7-113 – A fiduciary may not:

1) Fraudulently and willfully appropriate money or a thing of value that the fiduciary holds in a fiduciary capacity contrary to the requirements of the fiduciary’s trust responsibility: Or
2) Secrete money or a thing of value that the fiduciary holds in a fiduciary capacity with a fraudulent intent to use the money or thing of value contrary to the requirements of the fiduciary’s trust responsibility.

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 Posted on December 01, 2009 in Administrative Law/Defense of Professionals

I have recently received a number of inquiries from persons who have either been denied a security clearance or have had their clearances revoked by government officials on installations across the United States. The tenor of the conversations is almost always one of defeat. Persons who lose their clearances almost always believe that they have no power to fight back. Read on to learn about your rights when the government tries to take your clearance away.

Few things can be more intimidating than the prospect of fighting the United States Government regarding your security clearance. Contractors and federal employees who work for Government agencies depend on their security clearances for their livelihood. Loss of a clearance – or refusal to grant one in the first instance – can be a devastating and life-altering event. For most people, the prospect of taking on a federal agency about the revocation of a security clearance is a daunting one. Many believe that because an agency has revoked or denied a clearance, there is nothing they can do to fight back. After all, the agency knows best . . . right? WRONG!

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