Circuit Court for Baltimore County Case # 03-C-06-010932
ON MOTION FOR RECONSIDERATION AND REQUEST FOR BOND PREMIUM COSTS
Bell, C.J., Harrell, Battaglia, Greene, Barbera, McDonald, Eldridge, John C. (Retired, Specially Assigned), JJ.
Respondents are residents of the Jacksonville community in Baltimore County, Maryland. They were awarded compensatory and non-economic damages by a jury in the Circuit Court for Baltimore County in 2009 flowing from an Exxon contractor's puncture of an underground gasoline feed line on 13 January 2005 at an Exxon Mobil-owned gasoline service station, which went undetected for approximately a month. The undetected 26, 000 gallons of gasoline leaked into the local underground aquifer and contaminated allegedly the source of the wells supplying water to the eighty-seven households of Respondents. After the collective judgments of the trial court in favor of more than 200 individual plaintiffs, totaling $146 million, was affirmed in part and reversed in part by the Court of Special Appeals, Exxon Mobil Corp. v. Ford, 204 Md.App. 1, 40 A.3d 514 (2012), Respondents and Exxon Mobil ("Exxon" or "Petitioner") petitioned successfully to this Court. In a unanimous Opinion filed on 26 February 2013, we reversed in part and affirmed in part the judgment of the Court of Special Appeals, resulting in part in reversal of the awards for damages of fear of contracting cancer, future costs of medical monitoring (although we recognized, for the first time in Maryland, the possibility of such a claim), and the judgments awarding damages for diminution in property value as to those Respondents whose wells lacked any toxic contamination. Exxon Mobil Corp. v. Ford, __ Md. At __, __ A.3d at (slip op. at 67-68). We also reversed and remanded for a new trial the remaining judgments for damages for diminution in property value. Id.
Respondents filed a Motion for Reconsideration on 17 April 2013, largely re-arguing the merits of the questions presented and decided previously. Exxon's response arrived on 6 May 2013, together with its Amended Request for Bond Premium Costs seeking reimbursement in the amount of $920, 566. Although we shall deny the Motion for Reconsideration, it is appropriate to address further one contention raised by Respondents.We deny also Exxon's request.
Respondents argued in their motion, among other things, that, in our directions on remand to the trial court regarding their claims for property damages, they were limited unfairly to possible recovery only for diminution in market value of their properties. Respondents contend that, because they "never made an election between pursuit of diminution in market value or loss of use and enjoyment[, ]" (emphasis in original) they should have the opportunity on remand to elect between pursuing property damage for diminution in market value or loss of use and enjoyment. The bases for Respondents' argument are (1) the trial judge in Ford, unlike the trial judge in Exxon Mobil Corp. v. Albright, __ Md. At __, __ A.3d at __ (2013) (a related case, arising from the same acts by Exxon, decided by the Court on the same day as Ford) did not provide Respondents with an express opportunity to elect between either measure of property damages at trial; and, (2) Respondents in Ford "never took a position on the permanency of damage to [Respondents' properties] that was inconsistent with an award of damages for loss of use and enjoyment." We disagree.
As the trial drew near to submission to the jury, the trial judge requested on 14 January 2009 that Exxon and Respondents submit to him their proposed jury instructions. Respondents' proposed jury instruction on property damages (based on Maryland Civil Pattern Jury Instruction 10:21) reflected Respondent-initiated strike-outs for damages for loss of use and enjoyment. The pertinent sections of Respondents' proposed jury instruction read as follows:
In an action for recovery of damages for damaged property you shall consider the following:
b. Conversion, Loss or Destruction
You shall award to the Plaintiffs the reasonable fair market value of the property immediately before it was damaged,
was wrongfully taken, lost or destroyed, plus interest rate at the rate of (insert rate) percent a year from (insert date) minus the current reasonable fair market value of the property until the date you return your verdict.
Where the cost of repair to the plaintiff's damaged property is more than its fair market value, the award to the plaintiff shall be the market value of the property before it ...