United States District Court, D. Maryland
Lipton Hollander, United States District Judge
insurance dispute, plaintiff Allstate Insurance Company
(“Allstate”) has filed a declaratory judgment
action against defendants Jam #32 Corp. (“Jam
#32”); Dear Management & Construction Company
(“Dear Management”); and Stanley Rochkind,
individually and as trustee of the assets of both Dear
Management and Jam #32. See ECF 1; see also
ECF 4 (“Amended Complaint”). Allstate has also
sued Da'Quan Terrel Roberts and Sha'Quan Roberts
(collectively, the “Tort Plaintiffs”), who were
the plaintiffs in a lead paint action that they filed against
Rochkind in February 2016 in the Circuit Court for Baltimore
City. See Roberts v. Wyman Park Co., No. 24-C-16-949
(the “Tort Case”). In the Tort Case, the Tort
Plaintiffs alleged injury from lead paint exposure in
connection with a property owned, maintained, and/or managed
by Rochkind. See ECF 1-2 (the “Tort
in June 1988, Allstate issued a Personal Umbrella Policy (ECF
1-3, the “Policy”) to Rochkind, who owns and
manages residential properties in Baltimore. ECF 1, ¶
12. The Policy, which provided excess personal liability
coverage to Rochkind, was continually renewed over the next
decade. Id. But, on June 13, 1999, Allstate modified
the terms to exclude coverage for claims arising from lead
paint exposure. Id. Then, on or about June 13, 2000,
Allstate cancelled the Policy. ECF 1-3 at 8. Allstate now
seeks a declaration that it has no duty to defend or
indemnify Rochkind for injuries allegedly sustained by the
Tort Plaintiffs arising from lead paint exposure on or after
June 13, 1999, i.e., the effective date of the lead
exclusion. Id. ¶ 11.
to Allstate, Mr. Roberts' total lead exposure was 2678
days, and it insured Rochkind for 1381 days. Therefore,
Allstate claims that its total liability is 51.57% of any
damages awarded against Rochkind (1381/2678). ECF 31-1 at 10.
According to Allstate, Rochkind is liable for the remaining
48.43% of any judgment in favor of Mr. Roberts. Id.
Allstate's view, Ms. Roberts' total lead exposure was
1913 days, and it insured Rochkind for 616 days. Therefore,
Allstate contends that its total liability is 32.20% of any
damages awarded against Rochkind (615/1913). ECF 31 at 11.
According to Allstate, Rochkind is liable for the remaining
67.8% of any judgment in favor of Ms. Roberts. Id.
motions are now pending. First, Allstate has moved for
summary judgment (ECF 31), supported by a memorandum of law
(ECF 31-1) (collectively, the “Summary Judgment
Motion”) and two exhibits. ECF 31-3; ECF 31-4.
Defendants filed an opposition (ECF 36), supported by four
exhibits. ECF 36-1 to ECF 36-4. Allstate replied on January
8, 2018. ECF 37.
exhibits docketed at ECF 31-3 and ECF 31-4, which are Mr.
Roberts' and Ms. Roberts' respective answers to
interrogatories, contain personally identifiable information.
Therefore, on May 2, 2019, the Court, sua sponte, directed
the Clerk to seal these exhibits. See ECF 45.
Plaintiff is directed to file a redacted copy of each
exhibit, due by May 21, 2019.
January 19, 2018, Allstate also filed a supplement, stating
that the day before, Magistrate Judge A. David Copperthite
“granted summary judgment in Allstate's favor in an
identical case.” ECF 39 (citing Allstate Ins. Co.
v. Blue, ADC-18-1199, 2019 WL 266281, at *4 (D. Md. Jan.
18, 2019)). In response, defendants moved to strike
Allstate's supplement. ECF 41 (the “Motion to
Strike”). Allstate opposes the Motion to Strike. ECF
have also moved to stay the suit until the Maryland Court of
Special Appeals decides Robinson v. CX Re, No.
01888, Sept. Term 2016, involving the proper method of
allocating damages resulting from lead paint exposure. ECF 43
(the “Motion to Stay”). Allstate opposes the
Motion to Stay. ECF 44.
Motions are fully briefed and no hearing is necessary to
resolve them. See Local Rule 105.6. For the
foregoing reasons, I shall deny the motions.
February 17, 2016, in the Circuit Court for Baltimore City,
Mr. Roberts sued Wyman Park Co. (“Wyman Park”);
Homewood Realty, Inc. (“Homewood”); Stanley
Sugarman, individually and on behalf of Wyman and Homewood;
JAM #32; Dear Management; and Rochkind, individually and on
behalf of JAM #32 and Dear Management. Roberts v. Wyman
Park Co., No. 24-C-16-949; see ECF 4, ¶ 9.
On December 16, 2016, the complaint was amended to add Ms.
Roberts as a plaintiff. ECF 1-2; see ECF 4, ¶
9. Mr. Roberts, who is now 24-years of age, and Ms. Roberts,
now 21-years of age, alleged unfair and deceptive trade
practices, battery, and negligence. ECF 1-2.
was not a party to the Tort Case, and the parties do not
state whether Allstate provided a defense to Rochkind in the
suit. See ECF 1-2. During the pendency of the Tort
Case, the parties engaged in discovery. During discovery, Mr.
Roberts stated that he resided at 919 N. Collington Avenue,
Baltimore, Maryland from the time of his birth on April 2,
1995, until an unspecified date in September 1995. ECF 31-3
at 2. Mr. Roberts resided there with his aunt, Sally Baldwin,
and his mother, Melvina Dukes. Id. at 1-2. According
to the Tort Plaintiffs, the property contained lead paint.
ECF 1-2, ¶ 10. The property was allegedly owned or
operated by defendants Wyman Park, Homewood, and Sugarman.
Id. ¶ 3.
Roberts resided at 1635 N. Spring Street, Baltimore, Maryland
from September 1995 through 2002. ECF 31-3 at 1. Ms. Roberts
resided there from the time of her birth on October 5, 1997
through 2002. ECF 31-4 at 1. Ms. Baldwin, Ms. Dukes, the Tort
Plaintiffs' father, Chester Roberts, and their sister,
Ja'Quana Roberts, also lived at the Spring Street
residence. ECF 31-3 at 1-2; ECF 31-4 at 1-2, 8.
to the Tort Plaintiffs, the property at 1635 N. Spring
Street, “contain[ed] lead based paint in a dangerous
condition.” ECF 31-3 at 4; ECF 31-4 at 4. Consequently,
they were “exposed to and ingested lead-based paint,
chips, flakes and dust.” ECF 31-3 at 8; ECF 31-4 at 9.
And, the property was allegedly owned or operated by
defendants JAM, Dear Management, and Rochkind. ECF 1-2 ¶
Tort Plaintiffs assert that they had elevated blood lead
levels while residing at the property. Mr. Roberts alleged
that, “[b]ased on the medical records obtained, the
first elevated blood level is reported from a blood sample
drawn 9/7/1996, indicating a blood lead level of 8
μ/Pb/dL.” ECF 31-3 at 5. He also asserted that while
living at N. Spring Street, his blood lead levels ranged from
between 8 and 9 μ/Pb/dL. Id. at 8. Ms. Roberts
“was diagnosed with elevated blood lead levels”
throughout the period. ECF 31-4 at 9. She provided her blood
lead levels with respect to six dates: 6 μ/Pb/dL on April
9, 1998; 7 μ/Pb/dL on October 25, 2000; 5 μ/Pb/dL on
September 10, 2001; 4 μ/Pb/dL on August 21, 2002; 3
μ/Pb/dL on November 5, 2003; and 0 μ/Pb/dL on March 15,
2005. Id. at 5.
according to the Tort Plaintiffs, they “suffered brain
damage as a result of lead toxicity, ” but have
“not yet been completely evaluated to determine the
extent of [their] injuries.” ECF 31-3 at 8; ECF 31-4 at
noted, Allstate's request for declaratory judgment arises
out of a Personal Umbrella Policy issued to Rochkind.
See ECF 1-3. The Policy covered Rochkind's
properties from June 13, 1988 until June 13, 2000. ECF 1-3 at
8; see also ECF 31-1 at 2. However, effective June
13, 1999, Allstate added a lead exclusion to the Policy.
Id. at 17-19.
Policy (ECF 1-3) “applies to an
occurrence anywhere in the world while the
insurance is in force.” Id. at 10. An
“occurrence” is “an accident or continuous
exposure to conditions.” Id. Further, it
provides: “Allstate will pay when an
insured becomes legally obligated to pay for
personal injury or property
damage caused by an
occurrence.” Id. at 12. The
Policy defines “personal injury, ” in relevant
part, to include “bodily injury, sickness, disease or
death of any person.” Id. at 11.
Choice of Law
asserts that Maryland law governs the legal issues in this
diversity case. ECF 31-1 at 7-8. Defendants do not contest
the point; they assume, without discussion, that Maryland law
applies here. See ECF 36.
action based upon diversity of citizenship, a federal court
must apply the substantive law of the state in which it sits,
including that state's choice of law rules. Klaxon
Co. v. Stentor Elect. Mfg. Co., 313 U.S. 487, 496-97
(1941); see Colgan Air, Inc. v. Raytheon Aircraft
Co., 507 F.3d 270, 275 (4th Cir. 2007); Ground Zero
Museum Workshop v. Wilson, 813 F.Supp.2d 678, 696 (D.
Md. 2011); Baker v. Antwerpen Motorcars, Ltd., 807
F.Supp.2d 386, 389 n.13 (D. Md. 2011).
contract claim, Maryland courts follow the rule of lex
loci contractus, applying the substantive law of the
state where the contract was formed, unless there is a
choice-of-law provision in the contract. Erie Ins. Exch.
v. Heffernan, 399 Md. 598, 618, 925 A.2d 636, 648
(2007); Am. Motorists Ins. Co. v. ARTRA Group, Inc.,
338 Md. 560, 573, 659 A.2d 1295, 1301 (1995); see also
Cunningham v. Feinberg, 441 Md. 310, 326, 107 A.3d 1194,
1204 (2015); Lewis v. Waletzky, 422 Md. 647, 657
n.8, 31 A.3d 123, 129 n.8 (2011). “For choice-of-law
purposes, a contract is made where the last act necessary to
make the contract binding occurs.” Konover Property
Trust, Inc. v. WHE Assocs., Inc., 142 Md.App. 476, 490,
790 A.2d 720, 728 (2002) (citing Commercial Union Ins.
Co. v. Porter Hayden Co., 116 Md.App. 605, 672, 698 A.2d
1167, 1200 (1997), cert. denied, 348 Md. 205, 703
A.2d 147 (1997)).
Policy does not appear to contain a choice of law clause.
See ECF 1-3. Nor is it clear that the Policy was
executed in Maryland, although the Property and the insureds
are located in Maryland. But, “[t]ypically,
‘[t]he locus contractus of an insurance policy
is the state in which the policy is delivered and the
premiums are paid.'” Porter Hayden, 116
Md.App. at 673, 698 A.2d at 1200 (citation and some internal
quotation marks omitted). This is because delivery of the
policy and the payment of the premium are ordinarily the last
acts necessary to make an insurance policy binding. See
Aetna Cas. & Sur. Co. v. Souras, 78 Md.App. 71, 77,
552 A.2d 908, 911 (1989).
event, because the parties implicitly agree that Maryland law
governs their claims, [the Court] need not inquire further
into the choice-of-law questions.”
Vanderhoof-Forschner v. McSweegan, 215 F.3d 1323
(Table) at *2 n.2 (4th Cir. 2000) (citing American Fuel
Corp. v. Utah Energy Dev. Co., 122 F.3d 130, 134 (2d
Cir. 1997) (“[W]here the parties have agreed to the
application of the forum law, their consent concludes the
choice of law inquiry.”)). Accordingly, I shall apply
the substantive law of Maryland.