Maslow v. Vanguri
| Decision Date | 11 April 2006 |
| Docket Number | No. 564 September Term, 2005.,564 September Term, 2005. |
| Parties | Marina MASLOW v. Apparo VANGURI. |
| Court | Court of Special Appeals of Maryland |
Appeal from the Circuit Court, Baltimore County, Ruth Ann Jakubowski, J.
COPYRIGHT MATERIAL OMITTED
Harvey K. Maizels, Baltimore, for Appellant.
Barbara L. Ayres, Towson, for Appellee.
Panel: HOLLANDER, KENNEY and BARBERA, JJ.
In this appeal, we must determine whether a party's breach of a "High-Low" settlement agreement was material, so as to permit rescission of the agreement. Marina Maslow, appellant, sued Apparo Vanguri, M.D., appellee, for medical malpractice. During the course of a jury trial in the Circuit Court for Baltimore County, the parties entered into what is colloquially referred to as a High-Low settlement agreement (the "Agreement"), the terms of which were placed on the record and reduced to writing.1 Pursuant to the Agreement, both parties agreed not to appeal the jury's verdict. Nevertheless, after the jury returned a verdict in favor of Dr. Vanguri, appellant appealed to this Court, which affirmed. See Maslow v. Vanguri, No. 821, September Term 2003, 159 Md.App. 745, 750 (filed October 27, 2004) ("Maslow I"). Accordingly, Dr. Vanguri refused to pay appellant the "low" of $250,000 due under the Agreement. The circuit court subsequently denied Ms. Maslow's "Motion to Enforce High/Low Settlement Agreement," leading to her second appeal to this Court.
Ms. Maslow presents the following questions:
A. Did Marina Maslow's first appeal under the facts of this case justify a rescission of the High/Low Settlement Agreement, or did it instead require Dr. Vanguri to seek his remedy, if at all, in damages?
B. To the extent that Ms. Maslow's appeal required Dr. Vanguri to seek his remedy in damages, did he do everything reasonably necessary and prudent to mitigate his damages, or did he instead waive his right to even complain at all?
For the reasons set forth below, we shall affirm.
On December 20, 2000, appellant filed suit against Dr. Vanguri, alleging that he was negligent in performing a vagotomy and antrectomy2 on September 25, 1997, and complaining that he failed to obtain her informed consent. Trial commenced on May 12, 2003 (Jakubowski, J., presiding). During the trial, on May 16, 2003, the parties entered into the Agreement that is at issue here.
The Agreement provided that, in the event appellee won (as he did) or the jury returned a verdict in appellant's favor for less than $250,000, appellee would nonetheless pay $250,000 to appellant. The parties also agreed that, in the event the verdict favored appellant and was in excess of $1,000,000, appellee's obligation would be capped at $1,000,000. And, if the jury returned a verdict in favor of appellant, in an amount between $250,000 and $1,000,000, the parties agreed that appellee would pay the precise amount within that range. In addition, and of import here, the parties agreed that neither side would take an appeal from the verdict.3
The parties placed the terms of the Agreement on the record. The following exchange is relevant:
The one thing that we may not be able to control since this is going to go to verdict is I understand that you're not going to do anything to seek publicity but, I have to tell you, court reporters are around here all the time.
(Emphasis added.)
In addition, appellant executed a two-page, handwritten document, dated May 16, 2003, specifying the terms of the Agreement. That document, the first page of which bears appellant's signature, states:
A high-low offer has been extended by the Defendant's insurance company. The high is $1,000,000.00 and the low is $250,000.00. If the pending case is won on the issue of liability, the most I can recover is $1,000,00.00[.] If the case is lost, the insurance company will still pay $250,000.00. By agreeing to this high-low agreement, I understand that I am giving up any right of appeal and any attempt to recover an award over $1,000,000.00 either from the Defendant directly or by way of an assigned bad faith case.
I am accepting this high-low arrangement based on representations by Louise Gonzales, Esq. who has been advising me through my attorney, Paul Weber. Ms. Gonzales has indicated that the proceeds of a high low award can be protected by way of a special needs trust. I understand that no proceeds of the award under the high low agreement may be paid directly to me. A special needs trust must be established and approved by Maryland's Attorney General's Office. I understand that the approval process will take at least 6-8 weeks. I also understand that amounts of the medical may have to be determined by Medicare before such a special needs trust can be established. I understand that I will have to meet with Louise Gonzales, Esq. in order to establish this special needs trust and that her fees for these services have been estimated to be $3000.00.
I understand that the retainer agreement between me and Paul Weber remains in effect. I understand that all fees, litigation advanced expenses and established liens and letters of protection must be paid first out of any proceeds paid under the high low agreement.
I hereby agree to accept the high low agreement offered and I do so on my own free will and after consideration of the issue with my family.
(Emphasis added.)
On May 19, 2003, the jury returned a verdict in favor of appellee. It found that he did not breach the standard of care, appellant was contributorily negligent, and that appellee had...
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