In personal injury cases, the employee and the employer needed to be named as defendants

by | Nov 2, 2022 | Firm News | 0 comments

There are a thousand ways to commit legal malpractice, including not suing the proper party.   A person suffered serious personal injuries when he was by a Montgomery County police officer, who had run a right light.  The victim’s attorney timely provided written notice of the client’s intention to sue the county and the police officer pursuant to the Local Government Tort Claims Act (Courts & Judicial Proceeding at section 5-524).   

Two weeks prior to the expiration of the 3-year statute of limitations, the attorney inexplicably filed suit against only Montgomery County.  The County eventually offered to settle the case for its liability limits of $30,000.   By operation of Courts & Judicial Proceeding section 5-524, Montgomery County had partially waived its immunity for actions for damages arising out of the negligence use of a motor vehicle driven by an employee up to $30,000 in damages per person or $60,000 per accident. 

If the attorney had sued the police officer, Montgomery County would have been vicariously liable for the police officer’s negligence up to $400,000 in damages under the LGTCA (Courts & Judicial Proceeding section 5-303(b)(1).   

The attorney attempted to amend the client’s complaint to add the police officer.  However, the trial court ruled and the Court of Special Appeals affirmed that the client’s claims against the police officer were barred by the 3-year statute of limitations.  See Linz v. Montgomery County, __ Md.App. ___ (November 1, 2022).

The attorney candidly acknowledged that the police officer should have been sued in the original complaint.  Id. at footnote 5.

As a result of the attorney’s failure to sue the police officer, the client’s damages were capped at $30,000.  If the attorney had sued the police officer, the client’s damages would have been capped at $400,000.

Practice pointer: In a negligence claim against an employee, always sue both the employee and the employer.  The employee is responsible for causing the injuries, and the employer is vicariously liable for the acts and omissions of its employee committed in the course and scope of employment.  The employer usually has a greater ability to pay damages due to insurance and/or available assets.




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