Insurance Defense Blog

DC Superior Court to fast track auto cases

The DC Superior Court is implementing new fast track Scheduling Orders this fall for car accident cases only. 

The fast track is identified as "V" for "vehicle."

Key changes:

1. For all car accident cases, the Pretrial Date and the Mediation Date will be set at the Initial Status Conference.  Accordingly, TRIAL COUNSEL's calendar must be available to whomever is attending the Initial Status Conference (given that trial counsel MUST attend the Pretrial Conference).  Whoever attends the Initial Status Conference needs to have the trial counsel's calendar and must be able to interpret the calendar on the fly.

2. Track V1 and Track V2 are the same as the current Track 1 and 2 cases. Track V1 Fast and Track V2 Fast will be used for cases where no summary judgment will be filed. If you think that there is ANY possibility that you may file such a Motion, you SHOULD NOT agree to one of the Fast tracks. The Court will be very reluctant to grant a continuance or reschedule Pretrial Conferences. A compelling reason will be needed to obtain Track 3.

3. Please note that under the new procedures, there is very little time for a Rule 16 meeting and preparation of pretrial materials between Mediation and the Pretrial Conference.

Specimen Track "V" scheduling orders are Download specimen_track_v_scheduling_orders.pdf .

Recent changes to D.C. Superior Court Rules 5 and 16

SCR 5 has been changed with regard to when a Certificate Regarding Discovery is to be filed.  Now, it is only to be filed when a motion relating to discovery is filed, and the certificate is to detail all the discovery to date as of that time.  SCR 16 has been changed to make mandatory the attendance at pretrial conferences any persons whose presence is necessary to settle a case, unless excused.  The old rule allowed availability by phone.  Download order_amend_scr_civil_5_and_16_082107.doc

Bell Atlantic v Twombly -- the death of notice pleading?

Ted Frank at Point of Law was early to recognize the import of the May 21, 2007 decision in Bell Atlantic v. Twombly, 127 S.Ct. 1955 (2007).  A longer look at the decision was taken in Dodson, Pleading Standards After Bell Atlantic Corp. v. Twombly, 93 Va. L. Rev. In Brief 121 (July 9, 2007), which gives a thorough overview and will convince you that it is worth your while to read the decision.  (Thanks to the SW Virginia Law Blog for the link to the Dodson article.)

It does now appear that the decision will have a major effect on notice pleading rules.  As of today, the decision had already been cited around 470 times.  Its effect is not going to be limited to antitrust cases.  Essentially, where the previous standard was that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief", under Twombly a complaint must present enough facts to state a claim that is plausible on its face. 

Defense counsel are going to have to rethink the cost benefit analysis of when it makes sense to file Rule 12(b)(6) motions.  There is more of a chance of success now in light of Twombly.   In particular, fraud claims and conspiracy claims that are pled without sufficient supporting facts should be candidates for a Twombly motion.  Also claims for punitive damages that are not supported by plausible factual allegations should be attacked at the outset of the litigation with a Twombly motion. 

Surprisingly, the first decision from the D.C. Court of Appeals to cite Twombly did so in the context of a motion to strike affirmative defenses and counterclaims under Rule 12(f).  See Franco v. National Capital Revitalization Corp., No. 06-CV-645 (July 12, 2007). As that opinion suggests, Twombly may also require changes in the way that affirmative defenses, counterclaims, and cross-claims are pled.

Checklist for E-Filings in DC Superior Court

Tips recently provided from the DC Superior Court for successful e-filing:

ü     I have the proper full case number and judge having checked at www.dccourts.gov/pa

ü     If I am filing in response to opposing counsel’s filing, I have checked my eService Inbox to make sure the court clerk accepted the opposing counsel’s filing before I eFile

ü     I have typed “/s/” and the filing attorney’s name, applied an imaged signature, or printed the document, had it signed and scanned

ü     I have named my documents appropriately on my computer (i.e. Motion for Summary Judgment, Certificate of Service, Answer, Opposition, Witness List)

ü     I have included a properly completed Certificate of Service with a signature and date of service specifying who and how service was accomplished

ü     I have included a Proposed Order in the efiling

ü     For filings over 25 pages, I am uploading all documents attached to the lead filing in the second field and checking the merger box

ü     For filings over 25 pages, I have also mailed a paper copy to the Judge

ü     I have emailed the Proposed Order to the judge to the judge’s eservice box:

ü     In a Microsoft Word or WordPerfect format

ü     Subject line includes case number followed by case name

ü     email format: judge[lastname]eserve@dcsc.gov or magistratejudge[lastname]eserve@dcsc.gov

ü     I have caused service of this filing to be made

Liability of DC Halfway House For Acts of Former Resident

In Smith v. Hope Village, Inc., No. 05-633 (RBW)(D.D.C. Apr. 12, 2007), the district court denied the defendant's motion for summary judgment, in which the defendant had argued in part that, as a matter of law, a halfway house owes no duty to unknown parties with whom it has no relationship for harm caused by an offender previously housed at the halfway house approximately five months prior to the offender's harmful act. 

An inmate named Kelly had been released from prison into the custody of the Hope Village halfway house in December, 2001.  (Although the opinion doesn't say, the pleadings indicate that the date was Dec. 12, 2001).  On March 7, 2002, less than three months later, Kelly was discharged from Hope Village and was placed under the supervision of the DC Court Services and Offender Supervision Agency.  About five months after that, on August 6, 2002, Kelly allegedly broke into a house in Silver Spring where he shot and killed two people -- one of whom was the plaintiff's nine year old daughter.

Kelly had a long rap sheet with numerous felonies, including one involving a loaded gun.

Plaintiff brought a wrongful death and survival action against Hope Village.  The theory of liability was that Hope Village was negligent in its supervision of Kelly, and as a result, the halfway house was responsible for his improper and untimely release into the community.  Plaintiff alleged that Hope Village knew, or should have known, of Kelly's violations of the terms of his conditional release while at Hope Village, yet it never disciplined him.

In its motion for summary judgment, Hope Village argued, among other things, that it does not owe any legally cognizable duty to the plaintiff, or to any parties with whom it has no pre-existing relationship, for injuries resulting from Kelly's criminal conduct five months after he was discharged from the halfway house program.  It also argued that there was no proximate cause due to a lack of foreseeability, and due to remoteness and superseding and intervening negligence.

In a lengthy opinion, Judge Walton rejected all of Hope Village's arguments, finding that Hope Village did owe a duty to people in the local community such as the plaintiff and her daughter, and that the question of foreseeability was for the jury.  Judge Walton also reinstated plaintiff's wrongful death claim, finding that the 3 year statute of limitations under the Maryland Wrongful Death Act applied, not the shorter period of limitations under the D.C. Act.

DC Bar's Virtual Law Library - Law of Lawyering

The DC Bar's website is sporting a "Virtual Library" these days.  Most significantly, it includes a lengthy treatise on the Law of Lawyering, courtesy of the law firm of Covington & Burling, described as follows:

This publication, written by D.C. Bar member David B. Isbell, is a comprehensive analysis of the D.C. Rules of Professional Conduct, which governs the ethical practice of law in the District of Columbia, as well as the attorney discipline system upholding those rules. Published 2004. Updated in part, March 2007, following amendments to the Model Rules in 2002 and 2003 and the D.C. Rules of Professional Conduct effective February 1, 2007.

This reference should be among those consulted by any D.C. lawyer researching an ethical issue.

D.C. Landlord's Liability for Lead-Based Paint Poisoning Expanded By Court of Appeals

The D.C. Court of Appeals has held that a landlord can be sued in negligence for lead-based paint poisoning of a child even if the landlord had no notice of the presence of lead-based paint on the premises, or notice of the presence of chipping, flaking or peeling paint --  provided that the landlord knew that a child under the age of 8 years old lived there. Childs v. Purll.

The Court based its decision on a D.C. regulation which creates an affirmative duty on the landlord to remediate lead paint hazards in an apartment where such young children live.

The Court stated, in pertinent part, as follows:

Although the Purlls and their management company may not have known there was lead paint in the premises, “actual knowledge [of the defect] is not required for liability; it is enough if, in the exercise of reasonable care, appellee[s] should have known that the condition . . . violated the standards of the Housing Code.” Whetzel, 108 U.S. App. D.C. at 393, 282 F.2d at 951. “Ordinarily, the landlord will be chargeable with notice of conditions which existed prior to the time that the tenant takes possession,” RESTATEMENT § 17.6 cmt. c, and the creation in § 707.3 of an affirmative duty to furnish lead-free premises implies a concomitant, antecedent duty to ascertain whether the premises in fact are lead-free.

Upon notification that the prospective tenants of 1411 Ridge Place would include children under eight years of age, § 707.3 imposed a specific, affirmative duty on the owners and their agents to provide those premises to the Childs family in a lead-free condition or not at all.

(footnotes omitted, emphasis added).

In this case, the landlord was notified of the age of the children in the lease agreement.

Citing a New York case, the Court further stated that, " In effect, § 707.3 presumptively serves to put the landlord on constructive notice of any lead paint hazard in premises occupied by children under eight."

One way to try to defend against the statutory presumption of negligence is to show that the landlord did all that all reasonable person would do to establish that the premises were free of lead paint and to comply with the regulation.

This is a major expansion of the liability of landlords for lead-based paint poisoning in the District of Columbia, in the same vein as recent lead poisoning cases in Maryland. 

The end result is that any child under 8 years old in the District of Columbia who sustains lead-based paint poisoning in an apartment has a cognizable cause of action in negligence against the landlord, even if the landlord had no knowledge that there was lead-based paint on the premises and had no knowledge that there was flaking, peeling, or chipping paint there.  The focus of lead poisoning litigation in the District will necessarily be on the proof that the child got the lead poisoning on the premises, rather than from other sources such as the municipal water system.

The Court's opinion, however, rejected the argument that a lead poisoning claim could be the basis for a claim under the D.C. Consumer Protection Act.

Residual Diminution of Value After Repair Held By D.C. Court of Appeals To Be A Recoverable Element of Damages

In American Service Center V. Helton the D.C. Court of Appeals held that remedies for injury to personal property include residual diminution in value after repair. 

In this case, there was an automobile accident involving an Avis rental and a Mercedes Benz owned by a large Mercedes dealership, the American Service Center.  Avis paid for the repairs to the Mercedes, but American Service Center sued to also recover the net residual diminution in value after repair.  The Court held that:

when a plaintiff can prove that the value of an injured chattel after repair is less than the chattel’s worth before the injury, recovery may be had for both the reasonable cost of repair and the residual diminution in value after repair, provided that the award does not exceed the gross diminution in value.

EPA Criticizes D.C. WASA's Handling of Replacement of Lead Service Lines

From today's Washington Post:

The D.C. Water and Sewer Authority violated federal law by claiming that the water in more than 400 District homes had safe levels of lead and by not replacing that number of lead service lines, federal regulators announced yesterday.

D.C. Court Appeals Affirms Summary Judgment In Legal Malpractice Case Where Plaintiff Failed to Identify An Expert Witness

The D.C. Court of Appeals has recently affirmed a decision by the trial court which granted summary judgment in a legal malpractice case, on the grounds that the plaintiff failed to name an expert witness.

Disclosure:  This case was defended by one of my partners, David P. Durbin, who has defended many legal malpractice cases over the years.