United States District Court, D. Maryland
PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY, Plaintiff,
JACOB DACKMAN & SONS, LLC, et al., Defendants.
RICHARD D. BENNETT UNITED STATES DISTRICT JUDGE.
case arises out of a lead paint lawsuit filed by defendant
Daniel Heggie (“Heggie”) in the Circuit Court of
Maryland for Baltimore City against his former landlords,
defendants Jacob Dackman & Sons, LLC and Elliot Dackman
(“the Dackman parties”). Daniel Mathew
Heggie, Jr. v. Jacob Dackman & Sons, LLC, , Case No.
24-C-13-006788 (Cir. Ct. Balt. City) (“the Underlying
Litigation”). Following a jury trial in that case,
judgment was entered against the Dackman parties in the
amount of $1, 006, 469.00 (“the Underlying
Court, plaintiff Pennsylvania National Mutual Casualty
Insurance Company (“plaintiff” or “Penn
National”) seeks a declaratory judgment regarding the
extent of its obligation to indemnify the Dackman parties
pursuant to a commercial general liability policy it issued
to them on June 1, 1991, and which subsequently was renewed
through August 1, 1997. (ECF No. 1.) Specifically, Penn
National asserts that it is only liable for $165, 606.72 of
the Underlying Judgment against the Dackman parties based on
the “pro rata time-on-the-risk” principle set
forth in Pennsylvania Nat. Mut. Cas. Ins. Co. v.
Roberts, 668 F.3d 106 (4th Cir. 2012), a case arising
out of this Court. Pennsylvania Nat. Mut. Cas. Ins. Co.
v. Attsgood Realty, JFM-09-2650, 2010 WL 2998681. It is
undisputed that Penn National already has paid this amount to
Heggie. (ECF No. 10 at ¶ 4.) While defendant Heggie does
not dispute that Roberts governs the outcome of this
case, he asserts that the pro rata time-on the-risk
calculation should be based on “the limited period of
time that [Heggie] was being injure
d by lead-based paint-and not, as Penn National
alleges, the entire time he was simply being
exposed to  lead-based
paint.” (ECF No. 29-1 at 3) (emphasis in original.)
Thus, Heggie argues that Penn National must indemnify the
Dackman parties for a total of $620, 991.37, and therefore
should pay him an additional $455, 384.65 toward the total
judgment entered in the Underlying Litigation.
pending before this Court is Penn National's Motion for
Summary Judgment (“Plaintiffs' Motion”). (ECF
No. 26.) During a teleconference on September 13, 2017, the
parties confirmed that no additional factual discovery is
required; that this Court should render its decision based on
the record developed in the Underlying Litigation; and that
in rendering its decision on plaintiff's pending Motion
for Summary Judgment, this Court should rule as a matter of
law on the overall merits of this declaratory judgment
action. (ECF No. 33.) No additional hearing is necessary.
See Local Rule 105.6 (D. Md. 2016). For the reasons
stated below, Penn National's Motion for Summary Judgment
is DENIED to the extent it seeks to limit its liability to
$165, 606.72. It is further ADJUDGED that Penn National is
liable under the insurance contract for 25% of Heggie's
damages (amounting to $251, 617.25) based on the “pro
rata time-on-the-risk” principle set forth in
Roberts. Accordingly, Penn National is liable to
Heggie for an additional $86, 010.53 toward the Underlying
National issued an insurance contract to the Dackman Parties,
contract number 307-0351437, for the contract period June 1,
1991 to June 1, 1992, which was renewed annually and in
effect through August 1, 1997. (ECF No. 1 at ¶ 8.) The
insurance contract provided benefits in connection with
certain real estate identified in the insurance contract,
including, among other properties, 2315 East Hoffman Street
in Baltimore, Maryland (the “Premises”).
(Id. at ¶ 10.) The Insurance Contract included
a commercial general liability coverage part. (Id.
at ¶ 11.)
Daniel Heggie (“Heggie”) was born on October 2,
1993 and began living at 2315 East Hoffman Street on January
12, 1994, when he was approximately three and one-half months
of age. (ECF No. 26-1 at ¶¶ 1-2; ECF No. 29-1 at
¶¶1-2.) Heggie's tenancy there ended
permanently when he vacated the Premises on September 9,
1998. (Id. at ¶ 2; id. at ¶ 2.)
It is undisputed that the Premises contained chipping,
peeling, and flaking lead-based paint during Heggie's
tenancy there. (ECF No. 26-1 at ¶ 5.)
November 12, 2013, Heggie filed a lawsuit in the Circuit
Court of Maryland for Baltimore City styled Daniel Mathew
Heggie, Jr. v. Jacob Dackman & Sons, LLC, , Case
Number 24-C-13-006788, alleging, inter alia, that
the Dackman Parties had caused him to sustain certain
personal injuries as a result of exposure to lead in paint on
the Premises. (ECF No. 1 at ¶ 13.) The evidence
presented at trial in the Underlying Litigation was that
Heggie first exhibited an elevated blood lead level
(“BLL”) on August 18, 1995. (ECF No. 26-1. at
¶ 7; ECF No. 29-1 at ¶ 3.) Subsequent tests
revealed that Heggie also had elevated BLLs on August 18,
1995, July 8, 1997, April 13, 1999, and February 13, 2001.
(Id. at ¶¶ 7-8, 28; id. at
¶¶ 3-5.) Heggie's medical causation expert, Dr.
Daniel Levy, M.D., opined that Heggie's elevated BLLs
were caused by his exposure to lead paint in the premises.
(ECF No. 26-1 at ¶ 26.) Dr. Levy was unable to opine
whether Heggie was exposed to lead paint after he vacated the
Premises. (Id. at ¶ 30.) However, Dr. Levy
testified that: “What the general trend was when
[Heggie] moved out of [the Premises]…is that the lead
levels gradually came down, that the implication of that to
me is that there was not a continuing source of
exposure.” (ECF No. 29-1 at ¶ 7) (citing ECF No.
26-8 at 112, Apr. 20, 2016 Trial Tr. at 112:7-10.) At the
conclusion of the jury trial in the Underlying Litigation,
judgment was entered against the Dackman parties in the
amount of $1, 006, 469.00. (ECF No. 26-1 at ¶ 51.)
of the Federal Rules of Civil Procedure provides that a court
“shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(c). A material fact is one that “might
affect the outcome of the suit under the governing
law.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). A genuine issue over a material fact
exists “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.”
Id. In considering a motion for summary judgment, a
judge's function is limited to determining whether
sufficient evidence exists on a claimed factual dispute to
warrant submission of the matter to a jury for resolution at
trial. Id. at 249.
paint or “continuous trigger” cases such as this,
“Maryland courts determine an insurer's liability
through a “pro-rata allocation by ‘time on the
risk.'” Pennsylvania Nat. Mut. Cas. Ins. Co. v.
Roberts, 668 F.3d 106, 111 (4th Cir. 2012). Under this
principle, “[e]ach insurer is liable for that period of
time it was on the risk compared to the entire
period during which damages occurred.” Mayor &
City Council of Baltimore v. Utica Mut. Ins. Co., 145
Md.App. 256, 313, 802 A.2d 1070, 1104 (2002) (quoting
Domtar, Inc. v. Niagara Fire Insurance Co., 563
N.W.2d 724, 733 (Minn. 1997)).
undisputed that Penn National is contractually obligated to
indemnify the Dackman parties pursuant to an insurance policy
in effect from June 1, 1996 to August 1, 1997-that is, 426
days. (ECF No. 26-1 at ¶¶ 37-38.) It is also
undisputed that the calculation of Penn National's
liability is governed by the “pro rata
time-on-the-risk” principle set forth in
Roberts, 668 F.3d 106. (ECF No. 26-1 at ¶ 45;
ECF No. 29-1 at 2-3.) Under Roberts, the
“insurer is liable for that period of time it was on
the risk compared to the entire period during which
damages occurred.” Roberts, 668 F.3d 106, 113
(emphasis in original) (quoting Utica, 145 Md.App.
256, 802 A.2d 1070, 1103).
National asserts that the “entire period during which
damages occurred” is the 2, 589 day period from January
12, 1994-when Heggie moved into the Premises-to February 13,
2001-the date of Heggie's final elevated BLL. (ECF No.
26-1 at 22-25.) Thus, Penn National asserts that its
“pro rata ...