Ankney v. Franch, No. 348

• Court: Court of Special Appeals of Maryland
• Writing for the Court: DAVIS
• Citation: 103 Md.App. 83,652 A.2d 1138
• Docket Number: No. 348
• Decision Date: 01 September 1994
• Parties: Lottie L. ANKNEY, et vir v. William F. FRANCH, et al. ,

Page 83

103 Md.App. 83 652 A.2d 1138 Lottie L. ANKNEY, et vir
v.
William F. FRANCH, et al. No. 348, Sept. Term, 1994. Court of Special Appeals of Maryland. Feb. 1, 1995.

[652 A.2d 1141]

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Marcus Z. Shar (Bierer, Shar & Allentoff, PA, Baltimore, Jack J. Schmerling, Glen Burnie, and Cynthia E. Young, Annapolis, on the brief), for appellants.

Ronald G. Dawson (Smith, Somerville & Case, on the brief), Baltimore, for appellees.

Argued before ALPERT, WENNER and DAVIS, JJ.

DAVIS, Judge.

INTRODUCTION

The challenge to the lower court's judgment presented by appellant Ankney stems from rulings by the Circuit Court for Anne Arundel County that struck the testimony of two witnesses offered by Ankney as experts in workers' compensation law and consequently determining that there was no evidence of malpractice committed by appellee Franch, Ankney's lawyer. He had counselled her that she would not succeed in appealing an adverse decision of the Workers' Compensation Commission (the Commission) opining that Ankney was barred from future workers' compensation benefits because of her settlement with a third party. Thus, this appeal is principally a review of whether the trial judge, in his evidentiary ruling and interpretation of the pertinent law, erred in

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granting Franch's motion for judgment in essence determining that Ankney had not produced sufficient evidence to sustain a claim for malpractice. Before reaching the question of whether Franch's advice constituted legal malpractice, we must decide whether the decision of the Workers' Compensation Commission opining that Ankney's settlement barred recovery of future benefits was wrong and whether the state of the law was such, at the time of Franch's advice, that he exercised the proper standard of care in rendering his advice and his assessment of Ankney's chances for success.

The purpose and objective of workers' compensation statutes are to insure that [652 A.2d 1142] an employee who is injured during activity which benefits the employer will be compensated without regard to the fault of the employer. The employee, on the one hand, is not left without a remedy when he or she is injured through no fault of the employer, and the employer, at the same time, avoids the disruption of business by reason of burdensome lawsuits having the potential of crippling the business enterprise. It is the clearly-stated policy of such statutes, including Maryland's statute, MD.ANN.CODE, LABOR AND EMPLOYMENT, § 9-101 et seq., to carry out a beneficent purpose and to vest liberally in employees, injured during or in the course of their employment, benefits pursuant to a preset schedule according to the degree and duration of physical impairment.

While the benevolent purpose of the statutes is the cardinal principle in determining the rights of the parties, this case presents the question of how to achieve the beneficent purpose of the statute while not impairing an employer's right to be reimbursed by a third party who has caused the injury.

THE INSTANT CASE

Appellant Lottie L. Ankney ¹ brought suit against appellees William F. Franch, et al., alleging legal malpractice in

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Franch's handling of a workers' compensation claim. The malpractice claim proceeded to trial in August 1993. At the close of Ankney's case, the Circuit Court for Anne Arundel County struck the entire testimony of Ankney's two expert witnesses and granted Franch's motion for judgment.

Ankney presents the following questions for our review, which we restate for clarity:

I. Did the trial court err as a matter of law in striking the entire testimony of plaintiff's expert witnesses?

II. Did the trial court abuse its discretion in striking the entire testimony of plaintiff's expert witnesses?

III. Did the trial court err in granting defendant's motion for judgment, when expert witnesses were unnecessary and the court could have instructed the jury on the relevant points of law?

FACTS

In January 1982, Lottie Ankney injured her back during the course of her employment at Maritel Enterprises. Ankney had been sent to purchase lunch for a work-related meeting. Returning from that errand, she slipped on the ice and fell in a parking lot owned by Beerfoot Enterprises, Inc. Following a hearing in April 1982, the Workers' Compensation Commission awarded Ankney benefits from the date of the fall. Ankney's attorney in those proceedings was Samuel H. Paavola. Pursuant to an insurance policy with Maritel, the benefits were to be paid by Aetna Casualty & Surety Insurance Company (Aetna).

According to Ankney, Aetna was slow in paying covered medical expenses. After one of her treating physicians filed suit, Ankney complained to Paavola, who negotiated a third-party settlement with Beerfoot's insurance company. From the $6,500 settlement, Paavola retained roughly $1,900 in

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attorney's fees. Ankney testified that the balance went to pay covered medical expenses. She also testified that Aetna continued to be slow in paying her medical bills:

They paid a few of them, off and on, you know. But, uh, they didn't pay all of them. In fact, when I was cut out completely from Working--Workman's [sic] Comp, Mr. Franch still had quite a few bills there that hadn't been paid. And from the time limit that it was cut off, I had quite a few bills that they should have paid, you know, before that, and I never got it.

Ankney eventually discharged Mr. Paavola and retained the appellees, William F. Franch and the firm of Franch, Earnest & Cowdrey, P.A. On January 22, 1985, Franch appeared before the Workers' Compensation Commission at a hearing on Ankney's claim. Aetna advised the commissioner that Ankney had settled her third-party claim against [652 A.2d 1143] Beerfoot without Aetna's knowledge or consent. By order dated January 29, 1985, the Commission ruled that Ankney's claim for benefits was terminated by the unauthorized settlement, and further compensation after that date was denied. No appeal was taken. In April 1986, Ankney's petition to reopen the case was also denied.

Ankney's back condition grew progressively worse, and she underwent surgery in 1988 and 1991. She made several attempts to return to work, but was unable to do so. At trial, Ankney presented evidence that, as of the date of the fall, she suffered from a sixty-eight percent functional impairment of her back, and was one hundred percent disabled from employment. There was also expert testimony that she probably will suffer gradual deterioration and will, over the years, become "much worse than she is now."

The gravamen of Ankney's complaint is that Franch gave her bad advice regarding the merits of an appeal from the Commission's decision to terminate her benefits. She further contends that Franch greatly overstated the cost of pursuing an appeal. According to Franch, Ankney elected not to proceed after being properly advised on those matters. It is

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not disputed that Franch requested an advance of $2,500 toward the cost of an appeal, including the expense of expert witnesses. Ankney testified that Franch "seemed to think that I didn't have a chance of, you know, getting anywhere with going to the Circuit Court." By letter dated February 28, 1985, Franch stated:

This letter will confirm a telephone conversation which we had on Monday, February 25th, at which time I told you that I did not believe that an appeal could be successful and for that reason it was mutually agreed that there would be no appeal taken.

Ankney testified that she did not have the $2,500, "[b]ut if I thought that I had a chance of getting my Workman's [sic] Comp back, I would have borrowed it from my brother or from someone."

Prior to trial, Ankney proposed to offer expert testimony from two practicing workers' compensation attorneys: Herbert Arnold and Harold DuBois. Both witnesses were prepared to testify regarding the appropriate standard of care. After taking their depositions, Franch filed a memorandum arguing that Ankney's experts should be excluded because their opinions were based on "an erroneous assumption as to the applicable Maryland law."

At trial, both experts testified that the Commission had erred in terminating Ankney's benefits. Mr. Arnold explained:

I believe that the only action against Mrs. Ackney [sic] should have been a credit against any future award of compensation, and that her case should have remained open subject to credit. I believe if Aetna, having been represented by Mr. Paavola, since they're a subrogee of Mrs. Ackney [sic] here, if they felt that they had some grievance against him for settling the case, then they should have--should have taken an action against him as far as a breach of any alleged subrogation rights are concerned, or an alleged breach of subrogation rights. But as far as the Workers'

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Compensation claim is concerned, absolutely not. It should have stayed open subject to a credit.

Mr. Dubois also testified that the Workers' Compensation Commission erred when it terminated Ankney's claim, and opined that Ankney would have been successful on appeal. With regard to the advance that Franch requested, Dubois testified that the amount was "excessive" because "there was only one limited issue in this case," and it would have been decided on summary judgment without any need for expert witnesses.

With respect to the amount of workers' compensation benefits lost by Ankney as a result of the alleged failure by Franch to exercise the proper standard of care, the following colloquy transpired:

Q (By Mr. Shar) Based upon your education, training, experience and expertise in the area of Workman's [sic] Compensation law, uhm, do you have an opinion what, if any Workman's [sic] Compensation protection Lottie Ankney lost as a result of the Defendant's breaches of the generally accepted standards of legal practice?

[652 A.2d 1144] A As a result of being terminated by--as a result of her benefits...