Robinson v. CX Reinsurance Co., 1888
| Decision Date | 15 October 2019 |
| Docket Number | No. 1888,1888 |
| Parties | DAQUANTAY ROBINSON, ET AL. v. CX REINSURANCE COMPANY LIMITED, ET AL. |
| Court | Court of Special Appeals of Maryland |
Circuit Court for Baltimore City
Case No. 24-C-14-005676
UNREPORTED
*Woodward, Kehoe, Nazarian, JJ.
Opinion by Woodward, J.
*Woodward, Patrick L., J., now retired, participated in the hearing of this case while an active member of this Court, and as its Chief Judge; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and the preparation of this opinion.
**This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.
In the Circuit Court for Baltimore City, after Daquantay Robinson, appellant, prevailed in a lead paint action against his former landlords ("the Underlying Action"), he filed this declaratory judgment action against his former landlords' liability insurers, Pennsylvania National Mutual Casualty Insurance Company ("Penn National") and CX Reinsurance Company Limited ("CX Re") (collectively "the Insurers"), appellees. Robinson asked the court to declare that Penn National and CX Re were jointly and severally liable for the entire judgment obtained against their insureds. The Insurers moved for summary judgment arguing that Robinson's injury did not fall within their respective coverage periods and, therefore, their obligation to indemnify their insureds had not been triggered. After a hearing, the circuit court granted, in part, and denied, in part, Penn National and CX Re's motions for summary judgment. The circuit court subsequently entered a final declaratory judgment allocating liability between the Insurers based upon the pro rata time-on-the-risk approach adopted by this Court in Mayor & City Council of Baltimore v. Utica Mutual Insurance Co., 145 Md. App. 256 (2002). The circuit court declared that Penn National was liable for 12.04% of Robinson's judgment and that CX Re was liable for 25.7% of Robinson's judgment. Robinson appealed and the Insurers cross-appealed.
The parties present the following questions for our review, which we have rephrased as follows:1
For the following reasons, we hold that the trial court did not err by declaring that liability for the judgment would be allocated on the pro rata time-on-the-risk basis, and we decline to overturn Utica Mutual and adopt the alternative "all sums" approach. We further hold that the trial court did not err by declaring that Robinson's injuries fell within Penn National's policy period, but did err by declaring that his injuries were covered under CX Re's third policy. Accordingly, we affirm, in part, and reverse, in part, the judgment of the circuit court, and remand the case for entry of an amended declaratory judgment consistent with this opinion.
In January 1997, Tiesha Robinson ("Tiesha") moved into a row house at 1642 E. 25th Street in Baltimore City (the "Property"), which was leased by her mother, Sandra Moses. Tiesha was eight months pregnant with Robinson, who was born on February 11, 1997. Robinson lived at the Property until the end of 2000. The Property was owned by the Dackman Company and managed by Jacob Dackman & Sons, LLC ("the Dackmans"). On December 3, 1997, when Robinson was nearly ten months old, his blood was tested for lead. The results indicated that Robinson had an elevated blood lead level of twelve micrograms of lead per deciliter of blood (μg/dL). Over the next three years, while Robinson lived at the Property, he continued to have elevated blood lead levels:
Date Taken Blood Lead Level December 3, 1997
12 μg/dL May 13, 1998
13 μg/dL November 11, 1998
12 μg/dL June 11, 1999
14 μg/dL February 18, 2000
9 μg/dL August 30, 2000
9 μg/dL
On November 28, 2012, Robinson, by and through his mother,2 sued the Dackmans in the Circuit Court for Baltimore City, alleging that he suffered injuries caused by exposure to lead-based paint while residing at the Property. At trial, Tiesha testified that during the first eighteen months of Robinson's life, he was not in daycare and spent most of his time at the Property in various rooms, including the basement, where Robinson'sgrandfather lived, and Tiesha's bedroom, where Robinson also slept. Tiesha and Moses both testified that there was chipping, peeling, and flaking paint on the interior and exterior of the house when they first moved in and throughout their tenancy. Robinson also admitted into evidence an ARC Environmental report from an inspection of the Property conducted on June 10, 2013. The ARC report identified lead-based paint above the Maryland standard (> .7 mg/cm²) on the front porch post, the porch ceiling, the basement door, the basement jam, and other areas in the basement. Jaclyn Blackwell-White, M.D., a pediatrician, was Robinson's medical expert in the Underlying Action. She explained how lead poisoning occurs, how it may be detected in children, and the harm it can cause. Upon being asked when Robinson was first exposed to lead, Dr. Blackwell-White responded that "I can only say some time around or before nine months of age."
On September 19, 2014, after a five-day trial, the jury returned a verdict in Robinson's favor, awarding $1,270,000 in economic damages and $818,330 in non-economic damages. The Dackmans moved for remittitur, for judgment notwithstanding the verdict, and/or for a new trial. The motions for judgment notwithstanding the verdict and/or for a new a trial were denied. The court granted the motion for remittitur, in part, reducing the economic damages award to $1,000,000 and the non-economic damages award to $530,000. The reduced judgment was entered on November 3, 2014 ("the Underlying Judgment").
The Underlying Judgment was affirmed by this Court in an unreported opinion. See Dackman v. Robinson, No. 2035, Sept. Term 2014 (filed Aug. 31, 2018). The Court ofAppeals granted the Dackmans's petition for writ of certiorari and affirmed. Dackman v. Robinson, 464 Md. 189 (2019).
Penn National and CX Re undertook the Dackmans's defense in the Underlying Action, subject to a reservation of rights. Penn National issued the Dackmans a Commercial General Liability policy ("CGL") for an initial term from June 1, 1996 to June 1, 1997, which was extended to August 1, 1997, and an umbrella policy for the same period ("the Penn Policies"). CX Re issued the Dackmans three consecutive one-year CGL policies, which ran from August 1, 1997 to August 1, 1998 ("CX Policy 1"), August 1, 1998 to August 1, 1999 ("CX Policy 2"), and August 1, 1999 to August 1, 2000 ("CX Policy 3"), respectively.
The standard form CGL policies all covered the Property. Coverage A of each policy provides, in pertinent part:
(Emphasis added). The "coverage territory" is anywhere within the United States and an "occurrence" is defined as "an accident, including continuous or repeated exposure to substantially the same general harmful conditions."
As we shall discuss in detail, infra, the three CX Policies also include a specific endorsement narrowing coverage arising from lead contamination, as well as an exception to that exclusion.
On October 2, 2014, after the jury verdict but before the post-trial motions were ruled upon, Robinson filed this declaratory action against the Dackmans, Penn National, and CX Re. Robinson asked the court to declare that Penn National and CX Re are jointly and severally liable and obligated under their insurance contracts to pay all sums that the Dackmans are legally obligated to pay Robinson.
Penn National and CX Re moved for summary judgment, arguing that Robinson's injuries did not trigger coverage under their respective policies. In its motion, Penn National argued that Robinson's injury occurred on or around December 3, 1997, which was after the Penn Policies' period ended (August 1, 1997), and therefore coverage was not triggered. Penn National relied upon Dr. Blackwell-White's testimony at the trial of the Underlying Action and the date of Robinson's first elevated blood lead level. According to Penn National, because the "occurrence," i.e., Robinson's continuous exposure to lead paint, was outside the policy period, it had no obligation to indemnify theDackmans. Alternatively, Penn National argued that, if the court found that Robinson's injury occurred within the policy period, Penn National was at most liable for 12.04% of the entire judgment based on its pro rata time-on-the-risk allocation from February 11, 1997 until August 1, 1997, or 171 out of 1,420 days3 of total lead exposure.
Robinson opposed Penn...
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