Riley v. USAA

• Decision Date: 04 April 2005
• Docket Number: No. 16,16
• Parties: Rita Towana RILEY et al. v. UNITED SERVICES AUTOMOBILE ASSOCIATION.
• Court: Court of Special Appeals of Maryland

871 A.2d 599

161 Md. App. 573

Rita Towana RILEY et al. v. UNITED SERVICES AUTOMOBILE ASSOCIATION.

No. 16, September Term, 2003.

Court of Special Appeals of Maryland.

April 4, 2005.

Brian S. Brown (Saul E. Kerpelman & Associates, PA, on brief), Baltimore, for appellant.

Andrew Janquitto (Mudd, Harrison & Burch, on brief), Towson, for appellee.

Panel DAVIS, EYLER, JAMES R., KRAUSER, JJ.

DAVIS, J.

In the Circuit Court for Baltimore City, the Carpenter family¹ sued their former landlord, an Owings Mills dentist named Kenneth Hooper, alleging that Hooper negligently exposed the Carpenter children to lead paint during their tenancy and that, as a result, they suffered permanent brain damage. During discovery in that action, the parties disputed the applicability of Hooper's insurance policies for the premises, issued by United Services Automobile Association (USAA).

To resolve the insurance dispute, USAA, the appellee here, brought a declaratory judgment action against appellants, the Carpenters, and Hooper,² seeking to establish that USAA's maximum exposure in the underlying tort action is $300,000. Appellants initially contended that Hooper's USAA policies provided $2.7 million of coverage, but now contend they provide $1.2 million. The lead paint case was stayed pending resolution of the insurance case.

The circuit court granted appellee's motion for summary judgment, declaring that appellee's policies indemnify Hooper up to $600,000 of liability. From that judgment, appellants noted this appeal and presented the following question, which we have rephrased:

Did the circuit court err by making findings of fact when it granted summary judgment for appellee?

Appellee noted a cross-appeal and presented the following question, which we have also rephrased:

Did the circuit court err in declaring that USAA's policies provided $600,000 of coverage, instead of $300,000?

We answer "yes" to the first question, and, accordingly, we shall reverse the judgment. To guide the parties on remand, we address the second question as well.

FACTUAL BACKGROUND

Hooper purchased four consecutive homeowner's insurance policies from USAA to cover 1803 West Mosher Street, the property he rented to the Carpenters. The Carpenters lived at the premises during portions of each of the four insurance periods, which were:

• July 28, 1990 to July 28, 1991;

• July 28, 1991 to March 1, 1992;

• March 1, 1992 to March 1, 1993; and

• March 1, 1993 to March 1, 1994.

The family left the house sometime in the fall of 1993.

Counts 1 through 3 of the underlying complaint each sought $1 million dollars for damages resulting from injuries to Jeremy Carpenter, who was born shortly after the family's tenancy began.³ Counts 4, 5, and 6 each sought $1 million dollars for damages resulting from the injuries to Wendy Carpenter, who was two years old when the family moved into the residence. Finally, counts 7, 8, and 9 each sought the same damages for injuries to Christian Carpenter, who was not yet one when the family moved in. The allegations in the complaint of lead ingestion were subsequently supported by a relative's affidavit, stating that the children were frequently seen "gnawing on the windows and picking the paint" throughout the tenancy.

In the course of the litigation, the Carpenters submitted evidence of their blood-lead level histories. Blood-lead levels are usually measured in micrograms per deciliter of blood, abbreviated as "g/dL." See Scott A. Smith, Turning Lead into Asbestos and Tobacco: Litigation Alchemy Gone Wrong, Defense Counsel Journal, Apr. 2004, at 123. As medical research has progressed, what experts consider to be a "safe" lead level has consistently dropped:

Prior to 1970, the U.S. Surgeon General defined the "level of concern" of lead in a young child's blood as 60g/dL, a level rarely seen today. In 1970, the Surgeon General reduced the level of concern to 40g/dL. In 1978, the Centers for Disease Control and Prevention (CDC), having assumed jurisdiction over lead poisoning prevention from the Surgeon General, further reduced the level of concern to 30g/dL; in 1985, to 25g/dL; and in 1991, to 10g/dL, where it stands today.

Id.

Only recently has research shown that lead levels below 10g/dL not only are injurious, but, in fact, are disproportionately injurious, causing more harm per g/dL up to 10 than beyond 10. Richard L. Canfield et al., Intellectual Impairment in Children with Blood Lead Concentrations Below 10g per Deciliter, 348 New Eng. J. Med. 1517, 1521-25 (2003) (Canfield). Appellants submitted to us a copy of the Canfield article in a motion to supplement the record, but, because the results of the Canfield research had not yet been published when this case was before the trial court, it did not consider that research in rendering the challenged summary judgment decision, and therefore neither shall we. See, e.g., Douglas v. First Sec. Fed. Sav. Bank, 101 Md.App. 170, 176-78, 643 A.2d 920 (1994)

.⁴

The Carpenter children's lead levels were not measured until the fourth insurance policy period. Their results were:

------------------------------------------------------------------- | Jeremy Carpenter | |-------------------------------------------------------------------| | Date | Lead Level | |---------------------------------|---------------------------------| | April 26, 1993 | 29µg/dL | |---------------------------------|---------------------------------| | September 8, 1993 | 32µg/dL | |---------------------------------|---------------------------------| | October 20, 1993 | 24 or 25µg/dL | |---------------------------------|---------------------------------| | December 15, 1993 | 18 or 19µg/dL | |---------------------------------|---------------------------------| | May 9, 1994 | 19µg/dL | |---------------------------------|---------------------------------| | February 17, 1995 | 12µg/dL | |---------------------------------|---------------------------------| | September 20, 1995 | 12µg/dL | |---------------------------------|---------------------------------| | December 19, 1995 | 11µg/dL | ------------------------------------------------------------------- ------------------------------------------------------------------- | Wendy Carpenter | |---------------------------------|---------------------------------| | Date | Lead Level | |---------------------------------|---------------------------------| | April 26, 1993 | 19µg/dL | |---------------------------------|---------------------------------| | September 13, 1993 | 23µg/dL | |---------------------------------|---------------------------------| | December 22, 1995 | 10µg/dL | ------------------------------------------------------------------- ------------------------------------------------------------------- | Christian Carpenter | |---------------------------------|---------------------------------| | Date | Lead Level | |---------------------------------|---------------------------------| | May 19, 1993 | 23µg/dL | |---------------------------------|---------------------------------| | June 17, 1993 | 24µg/dL | |---------------------------------|---------------------------------| | September 13, 1993 | 28µg/dL | |---------------------------------|---------------------------------| | May 9, 1994 | 15µg/dL | |---------------------------------|---------------------------------| | February 17, 1995 | 11µg/dL | |---------------------------------|---------------------------------| | May 15, 1995 | 11µg/dL | |---------------------------------|---------------------------------| | September 21, 1995 | 9µg/dL | -------------------------------------------------------------------

Thus, owing to the late date at which the children were tested, it remains unknown when the children's lead levels first exceeded 10g/dL. In its summary judgment motion in the declaratory judgment action, appellee asserted that the Carpenters could not prove that any bodily injuries were sustained during the first and second policy periods (i.e., before March 1, 1992), because no evidence showed that their lead levels exceeded the level-of-concern threshold of the Center of Disease Control of 10g/dL during that time.

From the lead-level tables above, it is apparent that the earliest of the children's blood tests occurred in April 1993, showing a level of 29g/dL for Jeremy Carpenter, and 19g/dL for Wendy Carpenter. The Carpenters' medical expert, Dr. Howard Klein, conceded in his deposition that, based solely on this data and then-current medical research, when projecting backwards in time before the children's lead tests, he could only conclude that the children's blood-lead levels exceeded 10g/dL during the third and fourth insurance periods. Simultaneously, however, Dr. Klein averred in an affidavit:

It is my opinion within a reasonable degree of medical probability that Christian Carpenter and Wendy Carpenter were "exposed" to hazardous lead-based paint and dust at the premises 1803 W. Mosher Street beginning the date they first moved into the property in June 1989. Likewise it is my opinion within a reasonable degree of medical probability that Jeremy Carpenter was "exposed" to hazardous lead based paint and dust at the premises ... beginning [in utero] and continuing at his birth on February 24, 1990.... It is further my opinion within a reasonable degree of medical probability that this exposure for all three children caused damage on a cellular level to the children's brains, disrupting normal cellular development. These opinions are based on the deteriorated condition of the lead-based paint while the children resided at the property, evidence of hand to mouth activity, gnawing on leaded paint, as well as actual observation of ingestion of lead paint chips.... It is further my opinion within a reasonable degree of medical probability that the lead-based paint and dust exposure during each separate policy period, in and of itself caused immediate bodily harm and

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