Choice of Law: D.C. Wrongful Death Act Applies in Case Brought by Maryland Resident for Death that Occurred in D.C.

Herbert v. District of Columbia, 808 A.2d 776 (D.C. 2002). Opinion by Wagner, joined by Terry and Reed.

FACTS: Off-duty D.C. police officer shot and killed young man from Maryland in responding to a disturbance involving vehicle in which decedent was riding, in the District of Columbia. Mother of decedent brought claims in D.C. under D.C. wrongful death act, D.C. Code § 16-2701, and D.C. Survival of Actions Act, D.C. Code § 12-101. Plaintiff dismissed survival act claim and proceeded only on wrongful death claim, but asserted she was entitled to damages for loss of son's companionship under Maryland wrongful death act, Md. Code Cts. & Jud. Proc. § 3-904. Trial court denied applicability of Maryland law. Jury awarded damages for $1,511 for funeral bills. Plaintiff appealed choice of law ruling.

OUTCOME: Choice of law ruling AFFIRMED.

HOLDING: D.C. wrongful death law appropriately applies to case where the injury and death occurred in D.C., the wrongful conduct occurred in D.C., and the employment of the person causing death was by the D.C. government. Decedent's residence in Maryland does not counterweigh the first three factors. Court follows holding of Tramontana v. S.A. Empresa de Viacao Aerea Rio Grandense, 121 U.S. App. D.C. 338, 345, 350 F.2d 468, 475 (1965), cert. denied, 385 U.S. 943 (1966).

Court applies four-part choice of law test in Restatement (Second) of Conflict of Laws (1971) § 145, comment d:
(A) the place where the injury occurred;
(B) the place where the conduct causing the injury occurred;
(C) the domicile, residence, nationality, place of incorporation and place of business of the parties, and
(D) the place where the relationship is centered.

Other factors important here are that under Maryland's statutory choice of law rule for death cases, Maryland court would apply law of state where wrongful conduct occurred, Md. Code Cts. & Jud. Proc. § 3-903(a), and that D.C. death act specifically applies to acts "done or happening within the limits of the District," and that the recoverable damages under that act are an intrinsic part of the statute.

Attorney Cannot Enforce Fee Lien against WMATA

Watters v. WMATA, 295 F.3d 36(D.C. Cir. 2002). Opinion by Garland, joined by Tatel and Williams.

FACTS: After 3 Ω years of representation, client was apparently dissatisfied with proposed $55,000 settlement of her personal injury case against WMATA. She fired attorney Keith Watters and six weeks later settled her case with a new attorney, Bonita Rudd, for $60,000. Watters in meantime sent WMATA a letter asserting a lien of one-third of $55,000. WMATA ignored purported lien and paid entire settlement to client and new attorney. Watters sued WMATA for breach of contract and for failing to honor equitable lien. Trial court found WMATA liable for failing to honor lien.

OUTCOME: Judgment against WMATA REVERSED.

HOLDING: WMATA has sovereign immunity against claims for enforcement of equitable liens such as an attorney's lien on settlement funds. WMATA Compact among D.C., Virginia and Maryland extended those jurisdictions' sovereign immunity to WMATA with narrow exceptions, under Section 80 of the Compact, for WMATA's "contracts and for its torts and those of its directors, officers, employees and agents committed in the conduct of any proprietary function." An attorney's lien is not a contract with a third party like WMATA, nor is it a tort. Breach of a lien is not an actionable tort unless the attorney could have placed a lien on WMATA's property in the first place, which under the Compact he could not have.

Police Shooting: Eight-Second Blaze of Bullets Justified Compensatory Damages, but not Punitive

District of Columbia v. Jackson, __ A.2d __ (D.C. 2002). Opinion by Farrell, joined by Wagner and Reid.

FACTS: Police Emergency Response Team was called to an apartment where a man named Hicks was holding his mother at knifepoint, threatening to kill her unless he could see his ex-girlfriend. After negotiations failed, team of six officers forced open apartment door. Hicks was holding his mother from behind, and when he raised the knife in position as if to stab her in the chest, one officer fired a shot that hit Hicks in the face, though not fatally. When Hicks began to get up and reached for the knife, three other officers fired ñ over a span of no more than eight seconds ñ a total of 21 shots, 13 of which hit Hicks, including seven in the back. Hicks died. At trial, plaintiff claimed police had fabricated the story of threat to the mother to justify their conduct. Jury rejected this theory but found that the three officers who fired the 21 shots had used excessive force. Jury awarded plaintiff $2,149,998 in compensatory damages and $3,999,000 in punitive damages. Compensatory damages were for decedent's eight seconds of pain and suffering and his 13-year-old daughter's loss of services. Trial court remitted compensatory award to $180,000 and let punitive award stand.

OUTCOME: Punitive damages REVERSED; compensatory award, as remitted, AFFIRMED.

HOLDING:

(1) Jury was justified in finding that officers had committed assault and battery on Hicks. Testimony was that he was on all fours, that there were pauses between the rounds of shots, and that Hicks had dropped the knife.
(2) Same facts that justified compensatory award could not support punitive damages, which required clear and convincing evidence that officers had shot Hicks with evil motive or actual malice. The manner of entry and the initial shot by the first officer were not malicious, and failure of police to restrain themselves during a period of no more than eight seconds, just after officers had seen Hicks about to stab his mother, could not support finding of malice.
(3) Court declines to decide whether expert was required for the plaintiff to prove lack of reasonableness of officers' conduct, and says the issue might depend on whether the defendant had an expert on reasonableness.
(4) Remittitur was justified where only damages were decedent's brief conscious pain and suffering and loss of services for 13-year-old daughter who did not live with decedent and was not financially supported by him.

BRIEFS

Auto Insurer Has No Obligation to Give PIP Benefits to Insured Who Is Member of HMO Until HMO Benefits Are First Exhausted. Carter v. State Farm Mut. Auto. Ins. Co., 808 A.2d 466 (D.C. 2002). Court holds that an HMO is a "provider of insurance coverage" under the D.C. No-Fault Act and therefore those benefits are primary to any auto policy PIP benefits.

Trial Court Should Have Vacated Dismissal of Lawsuit Where Reason Attorney Failed to Appear for Initial Status Conference Was that He Had No Notice of Conference. Lester v. District of Columbia,, 806 A.2d 206 (D.C. 2002). Conference. Trial court abused discretion in failing to grant Rule 60(b) motion to vacate dismissal, even where record shows attorney was not diligent in failing to realize the problem sooner. Factors arguing for granting relief to plaintiff include: (1) lack of actual notice to plaintiff or his counsel of the scheduling order, (2) "our preference for trial on the merits," (3) attorney's prompt action once problem was found, and (4) lack of unfair prejudice to the defendant where the date of filing motion to vacate was still within the original three-year statute of limitations on the case.