Md. court weighs state’s liability when defending employees, immunizing itself

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ANNAPOLIS – Maryland must be held liable for the full damages awarded when it defends a sued state employee who is later found liable for gross negligence on the job, a plaintiffs’ lawyer told Maryland’s top court Tuesday in seeking to recover an $18.5 million judgment in the slaying of a prison inmate feet away from a guard.

Attorney Cary J. Hansel called it a “conflict of interest” for the attorney general’s office to defend an employee and then, after losing the case, seek to limit the state’s liability under the Maryland Tort Claims Act while leaving the client liable for the rest.

To avoid the conflict, the state must be held liable for the unpaid balance, Hansel told the Court of Appeals. To rule otherwise would permit the state to “game the system,” he said.

“The government must stand on even footing with other litigants before the court,” he said.

But Maryland Solicitor General Steven M. Sullivan said the General Assembly made clear in the MTCA that the state’s liability is at most $200,000 per claimant.

“They (the legislature) could have but they obviously didn’t” want the state to be fully liable in cases of gross negligence, Sullivan told the judges. “The state is a unique body. It is a sovereign political entity with sovereign immunity.”

Judge Glenn T. Harrell Jr. appeared to side with the state, saying the attorney general’s role in defending state employees is perhaps akin to an insurance company keeping its policy’s promise of defending the client but preserving the company’s statutory rights.

Harrell, a retired judge sitting in place of Michele D. Hotten, said that the attorney general’s office could have avoided the conflict by providing private counsel for the guard, Larry Cooper, whom the state fired after he stood by while Kevin Johns murdered fellow inmate Philip E. Parker on a prison bus in February 2005.

Parker was killed after he had testified at a sentencing hearing for Johns in Hagerstown. Parker, Johns and 35 other inmates were returning at night to the Maryland Correctional Adjustment Center in Baltimore.

Johns strangled Parker by standing up, looping his elbow around Parker’s neck and sitting down again. The strangulation happened 15 minutes from their destination and guards did not discover Parker until their arrival, according to trial testimony.

Parker was more than halfway through serving his three-and-a-half year sentence for attempted robbery when he was killed. Johns committed suicide in prison in 2009.

Parker’s family sued the state and Cooper in Baltimore City Circuit Court, where they were awarded $18.5 million after Cooper was found liable. However, Judge Sylvester B. Cox said Cooper’s actions were merely negligent and limited the family’s award to the MTCA cap of $200,000 per claimant.

Remanded case

But in 2015, the Court of Appeals reinstated the jury’s finding of gross negligence. Writing for the high court then, Judge Shirley M. Watts said “Parker’s murder was accomplished in the face of Cooper’s total disregard for his duty as a correctional officer and indifference to the consequences to Parker.”

On remand, Cox reduced the $18.5 million award to $1.8 million, citing Maryland’s cap on noneconomic damages and applied the MTCA to the state’s share of the damages. The intermediate Court of Special Appeals upheld Cox’s decision in an unreported opinion in April, prompting Parker’s family to seek review by the Court of Appeals.

Hansel argued Tuesday the cap on noneconomic damages should not apply in cases of gross negligence and that the $18.5 million award should be reinstated.

But Hansel added regardless of how it rules on the damages-cap issue, the court should not limit the state’s liability to the MTCA in light of its conflicted defense of Cooper, said Hansel, of Hansel Law PC in Baltimore. Rather, the state should indemnify Cooper and pay the award, he said.

The state has “entered the land of conflict,” Hansel told the court, adding the state cannot now say “‘Those rules don’t apply to us. We have sovereign immunity.’”

But Sullivan said the state is “applying precise statutes” in its application of the MTCA.

“This representation (of Cooper) does not give rise to liability,” he added.

The Court of Appeals is expected to render its decision by Aug. 31 in the case, Melissa Rodriguez et al. v. Larry Cooper et al., No. 27 September Term 2017.

Hotten did not publicly disclose the reason for her recusal.