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Bayshore Industries Inc. v. Ziats

Decided: June 12, 1962.

BAYSHORE INDUSTRIES, INC. ET AL.
v.
ZIATS



Appeal from the Circuit Court for Cecil County; Rollins, J.

Brune, C. J., and Henderson, Horney, Marbury and Sybert, JJ. Brune, C. J., delivered the opinion of the Court.

Brune

This is an appeal by the defendants below from a summary judgment entered by the Circuit Court for Cecil County in a suit based upon an award for temporary, total disability made by the Workmen's Compensation Commission in favor of the plaintiff-appellee against her former employer and its insurer.

The plaintiff filed a claim for compensation for an injury which occurred in October, 1957. The insurer raised five issues before the Commission: accidental injury; causal relation; nature and extent of disability; average weekly wage; and limitations. A hearing on the claim was scheduled for December 9, 1959, and the then counsel for the claimant (plaintiff) wrote to the Commission on December 1st requesting that the hearing be limited to the one issue of limitations. The hearing was postponed several times, and was reset for March 9, 1960. On February 11, 1960, the claimant's then counsel again wrote to the Commission suggesting that the hearing be limited to the one issue of limitations and also wrote to counsel for the insurer making the same suggestion. The latter agreed. No actual approval of this limitation of the issue to be then heard is shown or appears to have been given by the Commission, but at the opening of the hearing on March 9, 1960, then counsel for the claimant stated: "The only issue is whether the claim is barred by the Statute of Limitations." No comment thereon by the Commissioner who was conducting the hearing appears in the record before us. The record does show that the claimant stated the nature of her claim and her version of the accident which she said had occurred. That is all of the transcript of the hearing which appears in the record before us, though the appellee's brief tells us that it is not all of the testimony at that hearing sustaining the Commission's finding. What the rest was we do not know.

Following the hearing the Commission, acting through a single Commissioner, Miss Brown, made an award dated March 24, 1960. In it she stated that a hearing had been held on March 9, on the five issues above listed and made findings that the employer and insurer were estopped from pleading limitations, that the claimant had sustained an accidental injury on October 7, 1957, arising out of and in the course of her employment, that she had been temporarily totally disabled since October 11, 1957, and made an award to the claimant for medical expenses and an award of compensation at the rate of $26.67 "payable weekly, beginning October 11, 1957 during the continuance of such disability." The insurer promptly protested this award on the ground that the hearing should have been limited to the one issue of limitations and sought a review and a hearing on the other issues. This was denied by Commissioner Brown and an appeal was taken to the Superior Court of Baltimore City. This appeal was later transferred to the Circuit Court for Harford County. The employer and insurer also sought review of Commissioner Brown's award by the Commission en banc, but the Commission affirmed the award in October, 1960. We are told that this was during the pendency of the appeal to court, and we are also told that no action had been taken on this appeal prior to the entry of the summary judgment appealed from in this case. The amount of that judgment is $4,973.33, which is the maximum award of $5,000 allowable for temporary, total disability, less the amount of one "token" weekly payment.

Though Section 56 (a) of Article 101 of the Code (1957) provided that "[a]n appeal shall not be a stay,"*fn1 only the one payment appears to have been made under the award of March 24, 1960; and notwithstanding that the amount accrued from October, 1957 to the date of the award would

apparently have exceeded $3,300, the claimant seems to have taken no action to enforce the award until after the maximum amount payable on temporary total disability had accrued.

When she did file her suit, she filed with the declaration a motion for summary judgment, supported by her affidavit reciting the award, but it does not appear that a certified copy (or any copy) of the award was attached and incorporated by reference. A copy does, however, appear in the appellant's appendix. The defendants filed pleas described below in response to the declaration and the plaintiff's motion for summary judgment and affidavit in support thereof. They appended to the pleas their own motion for summary judgment and the affidavit of their counsel in support thereof, and with them they filed seven exhibits, each of which was specifically referred to in the affidavit. The defendants' exhibits included letters from the plaintiff's original counsel seeking to limit the issue to be tried first to limitations and a copy of the statement to the same effect made at the hearing. The supporting affidavit asserted that the stipulation to limit the issue to the one question was entered into on the suggestion of the claimant's counsel to save her from unnecessary expense if that issue should be determined against her and that both the plaintiff's original counsel and her second counsel felt themselves and their client bound by the original agreement to restrict the issue at the hearing of March 9, 1960. The plaintiff filed no reply to the defendants' motion for summary judgment.

The defendants' pleas were: first, the general issue; second, a special plea of "payment in accordance with the award to the extent legally required under all the circumstances" [a defense not further explained]; third, "further legal and equitable pleas" by which they asserted (a) that, contrary to the allegations of the plaintiff's motion they did have a real defense and that there was a genuine dispute as to material facts, (b) that they had been denied due process of law in that the Commission had determined certain issues not before it over the objection of the defendants, who were not prepared for trial thereof; and (c) that the plaintiff was estopped

to bring the suit. The defendants' motion for summary judgment alleged that there was no genuine dispute as to the truth of their defenses or as to any material fact alleged therein and ...


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