Topic of Seminar: "Lead Paint Defense 101".
Date of Seminar: Friday, April 12th, 2013.
Location of Seminar:
Boca Raton Resort & Club
501 East Camino Real
Boca Raton, Florida 33432
Featured Speaker: Charles Jerome Ware
Attorney and Author
Baltimore, Maryland
The
national law firm of Charles Jerome Ware, P.A., Attorneys and
Counsellors, is one of Maryland's premier lead paint defense firms.
Along
with its expertise in lead paint defense work, the firm is very highly
regarded in the areas of criminal defense and civil litigation, medical
malpractice and wrongful death, personal injury and transactional legal
matters.
Attorney Charles Jerome Ware is renowned and
consistently ranked among the best attorneys and legal counsellors in
the United States.
[GQ Magazine, The Washington Post, The Baltimore
Sun, The Columbia Flier, USA TODAY, The Howard County Sun, The Anniston
Star, The New York Times, et al.]
The
national law firm of Charles Jerome Ware, P.A., Attorneys and
Counsellors is: "Still working. Still committed. Still here to make a
difference."
Lead paint lawsuits by tenants against
landlords have increased during the past few years as the public has
become more aware of the dangers created by lead paint.
Lawyers
who represent injured children or residential landlords should
investigate the facts to determine the identity of potentially liable
defendants, the cause or causes of the injury, the potential defenses to
the claim, which experts to utilize, and the different types of
damages available in the case.
How Much in Damages Can Be Expected?
Damages
recoverable in lead paint suits are similar to those recoverable in
other types of personal injury litigations: loss of earning capacity,
medical expenses, and pain and suffering. Parents may have a claim for
loss of consortium in some jurisdictions. Also, some jurisdictions
allow for the recovery of punitive damages if the facts of the case
establish the elements for the award.
The largest dollar claim for damages generally falls under the category of vocational limitations.
In
most cases, plaintiffs allege that the exposed child will be
restricted in vocational options as an adult due to irreversible
injuries caused by the exposure to lead that permanently disable the
affected child. As a result, the child's earning capacity as an adult
will be diminished.
In an attempt to mitigate loss of
earning capacity damages, defendants may present evidence that the
parents possess modest or below-average intelligence, together with
expert testimony that children usually exhibit a level of intelligence
that mirrors their parents.
The assessment by the
defendant on vocational damages may focus on the child's home
environment and the parents' child-rearing practices. These factors may
strongly affect a child's cognitive behavior and development.
Defense
counsel may argue that it is better to assess a child's future earning
capacity on familial elements rather than on lead exposure.
Maryland Lead Law
Maryland Environmental Article 6-8 - "The Lead Poisoning Prevention Program" Statute
Maryland
Environmental Article 6-8, also referred to as Maryland Housing Bill
760, "The Lead Poisoning Prevention Program" statute, was signed into
law in May 1994 and became fully effective on February 24, 1996.
The
law is intended to make all privately owned pre-1950 rental housing
units safer for children, while also helping rental property owners and
managers to avoid costly lead poisoning litigation by complying with
specific lead hazard reduction measures or a dust testing procedure set
forth in the statute. This statutory provision applies to all such
housing units and, at an owner's option, to rental units built after
1949.
In essence, the law sharply limits the rights of
children and their representatives to traditional tort damages for lead
poisoning, provided that: (1) the property owner has satisfied certain
housing unit registration requirements; and (2) the unit has either
passed lead dust tests or undergone a set of "risk reduction measures"
which must be verified by an independent, certified third party who
performs a visual inspection When the unit meets this standard, the
owner is entitled to a limited tort immunity.
However,
if a child living in the unit develops an elevated blood lead level
which exceeds 20 micrograms of lead per deciliter of blood, the owner
has the option of making a "qualified offer" to the child and his or her
legal representative.
A qualified offer is, in
effect, a settlement of that child's potential lead poisoning claim and
provides remedial compensation.
Under the provisions
established in House Bill 760 for the qualified offer, the owner and his
or her insurance company would: (1) offer to relocate the child's
family to a housing unit that has been certified as "lead-safe,"
including payment of a rent differential if the "lead-safe" unit rents
at a higher monthly rate; and (2) pay for any necessary medical
treatment to mitigate the effects of lead poisoning when the treatment
is not covered by a health insurance plan or public medical assistance.
Relocation
expenses are payable until the poisoned child reaches age six, subject
to a $9,500 cap. Out-of-pocket medical expenses are payable until the
poisoned child reaches the age of 18, subject to a $7,500 cap.
Since
a major reason for enacting House Bill 760 was the widespread and
routine application of lead liability exclusions in general liability
policies covering rental housing units, the statute adds provisions to
the Maryland Insurance Code which limit the circumstances under which
these exclusions would be effective. Therefore, access to insurance and
limited liability are the primary incentives or benefits to owners of
pre-1950 units who meet the statutory risk reduction standards.
Additionally, the systematic reduction of lead-based paint hazards in
these older units is meant to be the primary means for preventing lead
poisoning in the state.
In summary, Maryland House
Bill 760 takes on some of the most difficult public health, housing and
liability issues posed by childhood lead poisoning to provide a measure
of safety for children and a relief from the threat of litigation for
rental property owners.
Jackson, et al. v. The Dackman Company, et al.
No. 131, September Term 2008 (Md. Oct. 24, 2011)
On October 24, 2011, the Maryland Court of Appeals in
Jackson v. Dackman,
struck down as invalid a statutory provision in Maryland’s Reduction of
Lead Risk in Housing Act (“Act”) that provided immunity from liability
to landlords if: (1) they achieved full compliance with certain
requirements under the Act including registration and timely renewal of
rental properties constructed prior to 1950; compliance with applicable
risk reduction and response standards; and compliance with notice
requirements to tenants; and (2) they had opportunity to make a
qualified offer of up to $17,000 for reasonable relocation and medical
expenses.
In light of the
Dackman decision,
landlords have found themselves facing a great deal of uncertainty and
many are concerned that they may now be potentially exposed to huge
liability claims, even if they previously had been fully compliant with
the Act’s provisions.
Charles Jerome Ware, P.A., Attorneys and Counsellors can provide winning defense representation for:
- Defense of Lead Paint Cases
- Asset Protection
and can assist lead paint insurance carriers and claims representatives with:
- Defense of Lead Paint Cases
- Presentations on Maryland’s Evolving Lead Paint Laws
Comparing State and Federal Laws
Federal
and state laws address lead poisoning issues in slightly different
ways. A shared feature is that each law requires that specific
information be given to current and new tenants. Both Federal and
Maryland law require landlords to give to each tenant the pamphlet
“Protect Your Family from Lead in Your Home”. Maryland law also requires
distribution by landlords of an additional pamphlet entitled “Lead
Poisoning Prevention - Notice of Tenants’ Rights”.
For
detailed information about the federal law and how to obtain copies of
the federally mandated pamphlet, call the National Lead Clearinghouse at
1-800-424-LEAD (5323) or the Coalition to End Childhood Lead Poisoning
at 410-534-6447.
Additionally, for detailed information
about the Maryland law and how to obtain copies of the state-mandated
“Notice of Tenants’ Rights” call the Maryland Lead Poisoning Hotline at
1-800-776-2706, or TDD (410) 631-3009, or the Coalition to End Childhood
Lead Poisoning at 800-370-LEAD.
Maryland Lead Poisoning Prevention Program
In
1994 the General Assembly established the Lead Poisoning Prevention
Program for the purpose of reducing the incidence of childhood lead
poisoning while maintaining the stock of affordable rental housing.
This program requires owners of older residential rental properties to
meet certain risk reduction standards. It also provides more affordable
insurance and the protection of limited liability for owners who
comply. It is administered by the Maryland Department of the
Environment (MDE). For more information call the Lead Poisoning Hotline
at 1-800-776-2706, or TDD (410) 631-3009.
Read the Law: MD Code, Environment § 6-801- 6-852; Article 48A, Secs. 734-737; Real Prop. § 8-208.2
Following is a summary of the law:
The owners of all
rental dwelling units built before 1950 must comply with this law.
Owners of units built between 1950 and 1978 may choose to comply and
thus benefit from limited liability.
The law exempts
rental units owned or operated by federal, state, or local government or
by a public, quasi-public, or municipal corporation, provided the
property is subject to standards that are at least as strict as the
standards established by this law.
[www.nchh.org/Policy/MarylandLeadLaw;
www.pklaw.com/lead paint defense; www.peoples-law.org/Lead Paint in
Maryland;
articles.baltimoresun.com/2010-12-02/health/bs-md-rockind-appeal;
www.mde.state.md.us/programs/ Lead Poisoning
Prevention/Pages/Programs/Land Program/Lead Coordination/index.aspx;
www.americanbar.org/newsletter (Spring 1997)]
