source: Caselaw Access Project

author: REED, J.

license: Public Domain

text:
    137 A.3d 299
    Jenny J. COPSEY, et al. v. John S. PARK, M.D., et al.
    No. 2170,
    Sept. Term, 2014.
    Court of Special Appeals of Maryland.
    May 31, 2016.

      Thomas M. Wochok of Fairfax Station, VA (Cathrin V. O’Donnell, Salsbury, Clements, Bekman, Marder & Adkins, LLC, Baltimore, MD, Brian Nash, Nash & Associates, LLC, William E. Artz, Andrew J. Waghorn, Arlington, VA), on the brief, for appellant.
    Michael K. Wiggins (J. Kristen Wiggins, Wharton Levin, Ehrmantraut & Klein, PA, on the brief) Annapolis, MD, for appellee.
    Panel: KRAUSER, C.J., NAZARIAN and REED, JJ.

       Judge Timothy Meredith did not participate, pursuant to Md. Rule 8-605.1, in the Court's decision to report this opinion.

   REED, J.

This case involves a medical malpractice action by the wife, minor daughters, and mother of Lance Copsey, deceased, against John S. Park, M.D. The appellants assert that Dr. Park negligently misread Mr. Copsey’s MRI/MRA six days before he suffered a massive, and ultimately fatal, stroke. Over the appellants’ objections, the trial court permitted Dr. Park to present evidence of negligence by subsequent treating physicians and instructed the jury on superseding cause. In the end, however, the jury did not reach the question of superseding cause because they found Dr. Park’s reading of the MRI/MRA non-negligent (i.e., that Dr. Park was not an actual, much less a proximate, cause of Mr. Copsey’s death). Appellants timely appealed and present a single question for our review, which we rephrased:

1. Did the circuit court err in admitting evidence of the negligence of subsequent treating physicians and instructing the jury on superseding causation?

For the following reasons, we answer this question in the negative. Therefore, we affirm the judgment of the circuit court.

Factual And Procedural Background

On February 4, 2010, Mr. Copsey presented to the emergency room of the Anne Arundel Medical Center following an incident on a racquet ball court in which he fell and hit the back of his head. He did not lose consciousness in connection with the fall, but nevertheless complained of nausea and headaches. He was released after being treated and undergoing a head CT scan, which was reported as normal.

Mr. Copsey presented to the Anne Arundel Medical Center emergency room again on May 26, 2010. He indicated that he had been experiencing intermittent, minutes-long episodes of dizziness since that morning. Another CT scan was performed on his head, but again the results were normal. Therefore, he was instructed to call his internal medicine physician the next day to schedule a “close” follow-up appointment and to return to the emergency room should his symptoms worsen.

Mr. Copsey was seen by his primary care physician, Aditya Chopra, M.D., on June 1, 2010. In addition to complaining of difficulty walking, nausea, and headaches, he indicated that the vertigo he began experiencing on the day he last presented to the emergency room had not gone away. Dr. Chopra prescribed Meclizine and a Z-Pack, suggested a follow-up with an ear, nose, and throat doctor should the symptoms not improve, and advised consulting an ophthalmologist. In accordance with Dr. Chopra’s advice, Mr. Copsey consulted ophthalmologist Ross D. Elliott, M.D., on June 2, 2010. Dr. Elliott determined there was no ophthalmological etiology for Mr. Copsey’s symptoms and, in turn, recommended both a neurologic consultation and a neuroradiologic evaluation. These were performed on June 4, 2010, by Dr. Chopra, who found multiple abnormalities consistent with central nervous system involvement and sent Mr. Copsey promptly to the emergency room.

Per Dr. Chopra’s advice, on the afternoon of June 4, 2010, Mr. Copsey presented back to the emergency room of the Anne Arundel Medical Center. He complained of vertigo of approximately a week’s duration and also reported experiencing numbness in the right side of his face, right arm, and right leg, headaches, mild shortness of breath, minutes-long episodes of double vision, and trouble walking. Mr. Copsey’s initial emergency room evaluation was performed by Charles Iliff, M.D., who then consulted with neurologist Larry Blum, M.D. It was decided that a head CT scan and a brain MRI/MRA would be performed.

The CT scan and MRI/MRA were interpreted on June 4, 2010, at 4:02 p.m. and 6:45 p.m., respectively, by the named appellee, John S. Park, M.D. Dr. Park’s impressions were of a normal non-contrast head CT and brain MRI and a normal intracranial MRA. Specifically, regarding the CT scan, MRA, and MRI, correspondingly, he found:

There is no evidence of acute intracranial hemorrhage, infarction, mass effect, or midline shift. No abnormal extra-axial fluid collections are identified. The ventricles, sulci, and cisterns are normal. There is no acute injury to the skull base or calvarium.
There is normal anatomy of the circle of Willis with no evidence of aneurysm, anteriovenous malformation, or abnormal vessel cut-off. No hemodynamically significant stenosis is identified. Incidental note is made of fenestration of the left vertebral artery.
There is no evidence of acute intracranial hemorrhage, infarction, mass effect, or midline shift. No abnormal extra-axial fluid collections are identified. The ventricles, sulci, and cisterns are normal. The flow voids at the skull base are normal. There is no acute injury to the skull base or calvarium.

Dr. Blum later reviewed the MRI and MRA images interpreted by Dr. Park and confirmed they did not reveal any abnormalities. In fact, Dr. Blum suspected Mr. Copsey’s symptoms were merely sequelae of migraine equivalents. Mr. Copsey was diagnosed with migraines, cluster migraines, vertigo, hypercholesterolemia, and mildly elevated blood pressure, but it was also noted on his discharge summary dated June 6, 2010, that he was “otherwise doing fine.”

Mr. Copsey was seen by Dr. Chopra for an outpatient evaluation on June 7, 2010. Mr. Copsey reported having no chest pain, dizziness, shortness of breath, cough, nausea, vomiting, diarrhea, constipation, aches or pains, headache, or burning urination. Dr. Chopra noted no neurological deficit and instructed Mr. Copsey to return to the emergency room and/or follow up with Dr. Blum should his symptoms return, which they did the very next day. Therefore, on June 9, 2010, Mr. Copsey returned to Dr. Blum for a follow-up evaluation.

At his follow-up on June 9, Mr. Copsey reported the return of his diplopia, or double vision, and headaches, and also indicated that he had begun experiencing hiccups and trouble swallowing for the first time. The onset of the latter two of these symptoms was particularly concerning to Dr. Blum. Therefore, he ordered another brain MRI, this time requesting an urgent interpretation.

Mr. Copsey proceeded directly to the Anne Arundel Medical Center where this, the second MRI of his brain, was performed. Vijay Viswanathan, M.D., interpreted the image and concluded the following:

1. Ill-defined new band-like signal abnormality within the right lateral medulla which is nonspecific but is concerning for acute infarction. This is a new finding since the prior study dated June 4, 2010.
2. This could be suggestive of lateral medullary syndrome/Wallenberg syndrome.
3. Left vertebral artery abnormal flow void which is nonspecific. It is difficult to appreciate the connection between right medullary abnormality and left vertebral artery abnormality. Clinical correlation advised.
4. No evidence of intraorbital pathology.

Dr. Viswanathan interpreted the MRI at 4:02 p.m. and dictated his report at approximately 4:42 p.m. However, he did not notify the on-call neurologist, Damanhuri Alkaitis, M.D., of his findings until approximately 10:30 p.m. Dr. Blum recounted this delay in a hospital note dated June 10, 2010, the day after the MRI was performed, as follows: “I had noted in my requisition that I requested an urgent call-back from the radiologist, but that did not transpire.” Dr. Blum could have, however, accessed Dr. Viswanathan’s impression earlier either by logging into the Medical Center’s computer database or following up with the radiology department. Instead, he opted to review the MRI films himself, which he did at approximately 6:00 p.m. His interpretation of the films was that “[t]he MRI scan did not disclose [any] abnormalities.” Therefore, he sent Mr. Copsey home for the night.

Mr. Copsey had already been sent home by the time Dr. Viswanathan notified Dr. Alkaitis of the MRI results at 10:30 p.m. on June 9, 2010. Dr. Alkaitis did not take any action regarding the results that night, nor did anyone advise Mr. Copsey that a lateral medullary infarct had been discovered. At approximately 4:00 a.m. on June 10, 2010, Mr. Copsey awoke to use the bathroom and suffered a major stroke. His wife found him lying on the floor unable to get up and had him rushed to the Anne Arundel Medical Center emergency room, where he arrived at approximately 5:44 a.m. A promptly-performed brain CT scan showed a right medullary hypodensity indicative of an acute stroke. Mr. Copsey’s already poor condition deteriorated considerably at approximately 11:00 a.m. on June 10, 2010. He was subsequently transferred to Johns Hopkins Hospital, where, on the morning of June 11, 2010, after receiving an angioplasty and stent in his right vertebral artery, he became unresponsive with pinpoint pupils, no corneal or gag reflexes, and lack of movement in his extremities. He passed away on June 13, 2010, at 6:20 p.m.

On September 27, 2011, the appellants filed survival and wrongful death actions in the Circuit Court for Anne Arundel County against Drs. Park, Viswanathan, Blum, and Alkaitis. The appellants alleged that between June 4 and June 10, 2010, each of the four doctors “negligently failed to timely diagnose [Mr. Copsey’s] evolving stroke and refer him for timely and appropriate treatment.” The appellants sought to hold all four defendants jointly and severally liable. However, the appellants entered into pre-trial settlements with Dr. Blum and Dr. Alkaitis and, on September 17, 2014, the day after the trial began, voluntarily dismissed Dr. Viswanathan, leaving Dr. Park to stand trial as the sole defendant.

On August 26, 2014, the appellants filed two pre-trial motions in limine. The first was to preclude Dr. Park from raising as a defense that the negligence of subsequent treating physicians was a superseding cause, while the second was to exclude all evidence relating to Dr. Blum and Dr. Alkaitis’ prior status as defendants or pre-trial settlements. On the first day of trial, after hearing arguments from both sides, the Honorable Paul G. Goetzke denied both motions. The trial lasted seven days. Finally, on September 24, 2014, the jury returned a verdict in favor of Dr. Park. This timely appeal followed.

Discussion

I. Admissibility of Evidence of Negligence by Subsequent Treating Physicians (and Properness of the Superseding Cause Instruction)

A. Parties’ Contentions

The appellants argue the trial court erred in denying both of their pre-trial motions in limine. As for their first motion, which was to exclude all evidence relating to Dr. Blum and Dr. Alkaitis previously being defendants in the case before entering into settlement agreements, the appellants assert the trial court’s denial was based upon unsound reasoning. Specifically, the appellants contend the trial court’s statement that evidence relating to Dr. Blum and Dr. Alkaitis’ prior status as defendants and settlement agreements would be probative on the issue of bias should they be called as witnesses proved inapropos when Dr. Park never called them to testify.

The appellants also argue the trial court erred in denying their second motion in limine, which, again, was to exclude all evidence relating to the alleged negligence by subsequent treating physicians Blum, Viswanathan, and/or Alkaitis. The appellants assert that this evidence is inadmissible because, pursuant to Martinez ex rel. Fielding v. The John Hopkins Hospital, 212 Md.App. 634, 70 A.3d 397 (2013), negligence by subsequent treating physicians is insufficient as a matter of law to establish superseding cause. They contend that once Drs. Blum, Viswanathan, and Alkaitis were no longer parties to the case, evidence of their alleged negligence became unfairly prejudicial and irrelevant as to whether Dr. Park negligently interpreted Mr. Copsey’s head CT scan and brain MRI/MRA on June 4, 2010. The appellants argue that under Maryland law, the actions of joint tortfeasors need not be simultaneous. They point to an abundance of case law, as well as to § 879 of the Restatement (Second) of Torts, as supporting their assertion that Dr. Park was a joint tortfeasor because his negligence combined, albeit not simultaneously, with foreseeable acts of negligence by others to create an indivisible harm. Therefore, the appellants contend he was jointly and severally liable for Mr. Copsey’s death, and that the trial court abused its discretion in allowing him to pursue the superseding cause defense by admitting evidence of the alleged negligence of subsequent treating physicians.

The appellants argue the trial court, by admitting the subject evidence of the motions in limine, invited the jury to draw a number of impermissible inferences, including: That Dr. Alkaitis was solely liable because he had the last chance to save Mr. Copsey’s life; that multi-million dollar settlements had already been obtained against Dr. Blum and/or Dr. Alkaitis; and that the reason why Dr. Blum and/or Dr. Alkaitis were no longer defendants was because they were dismissed by the court for lack of evidence. Because the possibility exists that the jury’s verdict derived from one or more of these inferences, the appellants pray we grant their motion for a new trial.

The appellees preliminarily argue the issue raised on appeal — whether the trial judge erred in admitting evidence of the negligence of subsequent treating physicians and instructing the jury on superseding cause — is moot. They point out how the jury, in finding Dr. Park was non-negligent in his reading of the head CT scan and brain MRI/MRA, never decided whether the negligence of Drs. Blum, Viswanathan, and Alkaitis constituted a “superseding cause” so as to absolve Dr. Park of liability. Therefore, the appellees assert the evidence contested in this appeal is moot because it had no bearing on the jury’s verdict, and that even if the trial court admitted this evidence in error, the error was harmless.

On the issue of mootness, we agree with the appellees that, ordinarily, when a jury has found that the defendant did not breach the standard of care, whether the court erred in giving a causation instruction, or in admitting evidence supporting the causation instruction, would be moot. Here, however, the appellants argue that the evidence of negligence by the subsequent treating doctors “contaminated” the jury’s consideration of whether Dr. Park breached the standard of care, which is the one issue the jury actually decided. This argument is sufficient to remove any problem with mootness.

Secondarily, the appellees contend the trial court’s decision to admit the subject evidence of the two motions in limine was proper. They argue it is the province of the jury to weigh evidence and that the jury was free to accept or reject the notion that the negligence of subsequent treating physicians broke the chain of causation between Dr. Park’s reading of the radiological images on June 4, 2010, and the acute, and ultimately fatal, stroke Mr. Copsey suffered six days later. The appellees assert this appeal is predominantly motivated by the appellants’ taking for granted that the jury would be sympathetic to their unfortunate situation and therefore find in their favor. Ultimately, however, the appellees contend this case came down to a classic “battle of the experts.” They argue the jury trusted their experts more than the appellants’ because their experts reviewed the CT scan and MRI/MRA images blindly, whereas the appellants’ were informed exactly where the abnormalities were before being asked to provide their assessment of whether Dr. Park provided a negligent impression. The appellees assert the jury naturally trusted the experts who viewed the images in the manner Dr. Park would have viewed them over those who viewed the images through the lens of hindsight.

Finally, the appellees contend that superseding cause is a question for the jury as long as the facts admit more than one inference regarding whether unforeseeable intervening acts of negligence occurred. The appellees point to Dr. Blum’s failure to follow up on the “urgent” interpretation he requested from the radiology department on June 9, 2010, Dr. Viswanathan’s failure to notify a physician of his critical MRI findings until 10:30 p.m. on June 9, 2010, and Dr. Alkaitis’ failure to do anything after being notified of Mr. Copsey’s possible impending infarct as acts of intervening negligence which a reasonable jury could have determined “unforeseeable.” The appellees take this argument one step further. They argue Dr. Park was entitled to demonstrate not only that the negligent acts of Drs. Blum, Viswanathan, and/or Alkaitis were superseding causes, but also that this group of subsequent treating physicians was solely responsible for Mr. Copsey’s death. Pursuant to Martinez, 212 Md.App. 634, 70 A.3d 397, the appellees assert Dr. Park had a right to present evidence of negligence by subsequent treating physicians because he completely denied liability. The appellees contend that if the trial court had precluded this evidence, then the jury would have been left to assume, based on an incomplete story ending in a patient’s death, that Dr. Park was to blame.

B. Standard of Review

We recently took up the issue of whether evidence of third-party negligence is admissible in medical malpractice actions. See Martinez, 212 Md.App. at 661-79, 70 A.3d 397. We outlined our standard for reviewing this issue as follows:

Evidentiary rulings will not be disturbed “absent error or a clear abuse of discretion.” Thomas v. State, 429 Md. 85, 97, 55 A.3d 10 (2012) (citations omitted). “[A]ll relevant evidence is admissible. Evidence that is not relevant is not admissible.” Md. Rule 5-402. Further, the Maryland Rules provide that:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
Md. Rule 5-403.
When determinations of relevancy are “the ultimate issue,” appellate courts are “generally loath to reverse a trial court[J” Tyner v. State, 417 Md. 611, 616-17, 11 A.3d 824 (2011) (citations omitted). The trial court’s consideration of prejudice or confusion of the issues “will be accorded every reasonable presumption of correctness.... ” Cure v. State, 421 Md. 300, 331, 26 A.3d 899 (2011) (citations omitted). Thus, an abuse of discretion exists when the “decision under consideration [is] well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable.” North v. North, 102 Md.App. 1, 14, 648 A.2d 1025 (1994). “Trial judges do not, however, have discretion to admit irrelevant evidence.” Schneider v. Little, 206 Md.App. 414, 447, 49 A.3d 333 (2012), cert. granted, 429 Md. 303, 55 A.3d 906 (2012) (citing State v. Simms, 420 Md. 705, 724, 25 A.3d 144 (2011)).

Martinez, 212 Md.App. at 657-58, 70 A.3d 397.

Regarding whether the trial court erred in generating a jury instruction on superseding cause, “[Md. Rule 4-325(e) ] ‘has been interpreted to require that a requested instruction be given only when there is evidence in the record to support it.’ ” Flores v. State, 120 Md.App. 171, 193, 706 A.2d 628 (1998) (quoting Hof v. State, 337 Md. 581, 612, 655 A.2d 370 (1995)). When reviewing whether the evidence in the record supports a the trial court’s decision to generate a certain jury instruction, an appellate court must “determine whether ... [there exists] that minimum threshold of evidence necessary to establish a prima facie case that would allow a jury to rationally conclude that the evidence supports the application of the legal theory desired.” Bazzle v. State, 426 Md. 541, 550, 45 A.3d 166 (2012) (quoting Dishman v. State, 352 Md. 279, 292, 721 A.2d 699 (1998)).

C. Analysis

The crux of Appellant’s argument is that Dr. Park could not, as a matter of law, have been absolved of liability by the negligent acts of subsequent treating physicians. We disagree and shall explain.

In Martinez, we took up the issue of whether evidence of prior third-party negligence is admissible in a medical malpractice action where the defendant asserts a complete denial of liability. 212 Md.App. 634, 70 A.3d 397. The plaintiff, who was ten days overdue for the birth of her first child, “elected to have a natural birth at home[ ] with the assistance of ... a registered nurse midwife[.]” Id. at 640, 70 A.3d 397. She spent over 19.5 hours in labor with her baby’s head facing the wrong direction before deciding to go to the hospital. Id. at 640-41, 70 A.3d 397. Once at the hospital, the attending physicians determined that an “urgent” Caesarean section was required. Id. at 642, 70 A.3d 397. The baby’s “condition at birth was poor,” id. at 643, 70 A.3d 397, and he was ultimately diagnosed with “cerebral palsy, retardation, and other disorders.” Id. The plaintiff “filed a pre-trial motion in limine seeking to exclude testimony regarding ... Midwife Muhlhan’s alleged [negligence].” Id. at 645, 70 A.3d 397. The trial court granted the plaintiffs motion, reasoning that any negligence possibly committed by the midwife was irrelevant to whether or not the hospital’s agents negligently treated the plaintiff upon her arrival. Id. at 647-48, 70 A.3d 397. We reversed. We held that “evidence of both negligence and causation attributable to a non-party is relevant where a defendant asserts a complete denial of liability[,]” id. at 664, 70 A.3d 397, and that “the [h]ospital was entitled to try to convince the jury that not only was it not negligent and not the cause of Martinez’s injuries, but that [the midwife] was negligent and did cause the injuries.” Id. at 665, 70 A.3d 397 (emphasis in original).

The parties to the present case dispute what effect our holding in Martinez has on the trial court’s decision to admit evidence pertaining to the negligence of Drs. Blum, Viswanathan, and Alkaitis, and understandably so. In Martinez, the alleged third-party negligence occurred before the plaintiff presented to the hospital. Here, on the other hand, we have a physician who was permitted to present evidence of negligence by subsequent treating physicians at the same medical center. However, just like the defendant in Martinez, Dr. Park, in addition to claiming that Drs. Blum, Viswanathan, and Alkaitis were superseding causes, completely denied liability. Therefore, the reason why evidence of third-party negligence was admissible in Martinez applies here as well-because without it, “the jury [would have been] given a materially incomplete picture of the facts, which [would have] denied [Dr. Park] a fair trial.” Id. at 666, 70 A.3d 397. Our holding in Martinez that “evidence of both negligence and causation attributable to a non-party is relevant where a defendant asserts a complete denial of liability,” id. at 664, 70 A.3d 397, was unqualified. Therefore, we reject the appellants’ argument that because the negligence of Drs. Blum, Viswanathan, and Alkaitis occurred after Dr. Park’s reading of the MRI/MRA on June 4, 2010, Martinez somehow does not apply.

We now turn to whether Dr. Park’s alternative defense of superseding cause has any bearing on the admissibility of the contested evidence. We hold that it does not. Likewise, we hold that the trial court did not err in instructing the jury on superseding causation.

The appellants are correct in that “[t]he classic examples of legally foreseeable negligence by treating physicians arose in automobile cases where doctors aggravated, or failed to cure, injuries caused by the negligent driver.” The appellants are also correct that this principle has been “extended to failure to diagnose cases ... where subsequent healthcare providers fail to avoid the harm set in motion by the initial misdiagnosis.” However, their assertion that any negligence by Dr. Park in his reading of the MRI/MRA on June 4, 2010, would have rendered him per se liable for the subsequent negligence of Drs. Blum, Viswanathan, and Alkaitis is a mischaracterization of the law regarding consecutive tort liability. This is because in cases involving acts of negligence by subsequent treating physicians, the liability of the initial treating physician can be cut off if subsequent negligence by another physician constitutes a superseding cause.

In Thomas v. Corso, 265 Md. 84, 288 A.2d 379 (1972), the Court of Appeals held that there was sufficient evidence for the jury to conclude the defendant on-call doctor was negligent when he failed to promptly report to the hospital to treat a patient who had been struck by a car. The on-call doctor defended himself on the grounds that the nurses at the hospital negligently failed to call him back an hour later to tell him that the patient had gone into shock and therefore needed the immediate attention of a doctor. Id. at 94, 288 A.2d 379. The Court of Appeals, however, held that the undisputed evidence that the on-call doctor was notified that the patient had been struck by a car, had an abrasion on his forehead, and was complaining of numbness in his right thigh was sufficient, notwithstanding the alleged negligence of the nurses, to support the jury’s determination that the on-call doctor was liable. Id. at 99, 288 A.2d 379. Corso does not, as the appellants contend, stand for the proposition that a negligent treating physician is liable per se for the negligence of subsequent treating physicians. Rather, the Court of Appeals’ holding in Corso was that the evidence was sufficient to permit the jury’s finding that the on-call doctor “was one of the direct and proximate causes of [the patient’s] death, concurrent with the negligence of the nurses.” Id. at 103, 288 A.2d 379. Interestingly enough, the defendant doctor in Corso was permitted to present testimonial evidence of the nurses’ subsequent negligence in an attempt to prove he was not liable. Id. at 100-01, 288 A.2d 379.

Mehlman v. Powell, 281 Md. 269, 378 A.2d 1121 (1977), is also instructive regarding the present appeal. In that case, the plaintiffs sued a hospital and two of its doctors for negligently causing the death of a patient. Id. at 271-72, 378 A.2d 1121. The jury returned a verdict against all three defendants, and one of the doctors — Dr. Ruben Cosca — appealed. Id. at 272, 378 A.2d 1121. One of his arguments on appeal was that the trial court erred in denying his motion for directed verdict, in which he argued he was not a proximate cause of the patient’s death because his negligence was followed-up by negligent omissions of others. Id. at 1124. The Court of Appeals held that the trial court did not err in denying the motion for directed verdict and upheld the jury’s finding that the subsequent acts of negligence were not superseding causes exonerating Dr. Cosca from liability. Id. The Court did not, however, hold that it is error for a trial court to permit a defendant physician who was the first to allegedly provide negligent treatment to a patient to present evidence of negligence by subsequent treating physicians.

We agree with the appellees that Dr. Park was entitled to pursue the superseding cause defense, and thus to present evidence of negligence by Drs. Blum, Viswanathan, and Alkaitis. “It is well established that, ‘unless the facts admit of but one inference ... the determination of proximate cause ... is for the jury.’ ” Pittway Corp. v. Collins, 409 Md. 218, 253, 973 A.2d 771 (2009) (quoting Caroline v. Reicher, 269 Md. 125, 133, 304 A.2d 831 (1973)). A superseding cause is said to have “arise[n] primarily when ‘unusual’ and ‘extraordinary’ independent intervening negligent acts occur that could not have been anticipated by the original tortfeasor.” Pittway, 409 Md. at 249, 973 A.2d 771. We have also noted that

Section 442 of the Restatement (Second) of Torts, which reads as follows, establishes the test that has been applied in Maryland courts for determining when an intervening negligent act rises to the level of a superseding cause:
(a) the fact that its intervention brings about harm different in kind from that which would otherwise have resulted from the actor’s negligence;
(b) the fact that its operation or the consequences thereof appear after the event to be extraordinary rather than normal in view of the circumstances existing at the time of its operation;
(c) the fact that the intervening force is operating independently of any situation created by the actor’s negligence, or, on the other hand, is or is not a normal result of such a situation;
(d) the fact that the operation of the intervening force is due to a third person’s act or to his failure to act;
(e) the fact that the intervening force is due to an act of a third person which is wrongful toward the other and as such subjects the third person to liability to him;
(f) the degree of culpability of a wrongful act of a third person which sets the intervening force in motion.

Id. at 248, 973 A.2d 771.

Applying this test to the case at bar, it is clear that the trial court did not err. The evidence of negligence by Drs. Blum, Viswanathan, and Alkaitis was relevant to whether Dr. Park was a proximate cause of Mr. Copsey’s death. Furthermore, the negligent acts committed by subsequent treating physicians on June 9, 2010, met the “minimum threshold of evidence necessary to establish a prima facie case that would allow a jury to rationally conclude that the evidence supports the application of the [superseding cause defense].” Bazzle, 426 Md. at 550, 45 A.3d 166 (quoting Dishman, 352 Md. at 292, 721 A.2d 699). Therefore, just as the court did not err in admitting the evidence of subsequent negligent acts, nor did it err in generating the superseding cause instruction.

While no Maryland case is completely indistinguishable from the case at bar, we find guidance in cases from other jurisdictions such as Siggers v. Barlow, 906 F.2d 241 (6th Cir.1990). In that case, Dr. Barlow negligently misread x-rays that revealed a severely fractured wrist on July 27, 1986. Id. at 242. Later that same day, a radiologist caught the mistake. Id. The radiologist’s written report was sent to the emergency room on August 1, 1986, but the physician on duty at that time failed to notify the patient. Id. at 243. On September 8, 1986, the patient reported back to the emergency room when the pain in his wrist became “unbearable.” Id. Surgery was subsequently performed, but not within the “undisputed ... post-injury “window’ period of about 7 to 14 days during which time [permanent wrist damage could have been prevented].” Id. The jury returned a verdict in favor of the patient, but the trial court subsequently granted Dr. Barlow’s motion for judgment notwithstanding the verdict, and the Sixth Circuit affirmed. Id. at 243, 248. In doing so, the Court explained that

[although the risk of harm to [the patient] as created by Dr. Barlow’s initial misdiagnosis was great, this risk of harm did not materialize until 7 to 14 days after the injury occurred. Up until this post-injury window period closed, surgery could have been performed on the wrist to restore it to virtually its previous normal condition. An adequate amount of time thus existed for Dr. Robertson to notify [the patient] of the misdiagnosis before the risk of harm reached an emergency stage (i.e., before the risk of harm became a resulting harm).

Id. at 245. We reference this case merely as additional support for our holding that the trial court in this case did not err in admitting evidence of negligence by subsequent treating physicians nor in generating the superseding cause instruction. Where the facts admit more than one inference, the determination of superseding causation is best left to the jury.

We, therefore, hold that the circuit court did not err in admitting evidence pertaining to the negligence of subsequent treating physicians. Furthermore, we uphold the jury’s verdict in favor of the appellee and affirm the judgment of the circuit court.

JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANTS.

      . Appellants presented the following question verbatim:

      1. Did the trial court err by admitting evidence of the negligence of subsequent treating physicians and instructing the jury on superseding causation, where such concurring negligence resulted in an indivisible injury (death) and could not have amounted to a superseding cause, as a matter of law?

      . “If the tortious conduct of each of two or more persons is a legal cause of harm that cannot be apportioned, each is subject to liability for the entire harm, irrespective of whether their conduct is conewring or consecutive." (emphasis added).

      . See Underwood-Gary v. Mathews, 366 Md. 660, 668, 785 A.2d 708 (2001) (noting that it is a "well-settled principle of tort law that ‘a negligent actor is liable not only for harm that he directly causes but also for any additional harm resulting from normal efforts of third persons in rendering aid, irrespective of whether such acts are done in a proper or a negligent manner.’ ” (quoting Morgan v. Cohen, 309 Md. 304, 310, 523 A.2d 1003 (1987))).


text:
    137 A.3d 310
    MARYLAND INSURANCE ADMINISTRATION v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    No. 2496,
    Sept. Term, 2014.
    Court of Special Appeals of Maryland.
    June 1, 2016.

      Brandy J. Gray & J. Van Lear Dorsey (Brian E. Frosh, Atty. Gen., on the brief) Baltimore, MD, for appellant.
    Melissa D. McNair & Michael J. Budow (Budow and Noble, PC, on the brief) Bethesda, MD, for appellee.
    Panel: BERGER, REED, and LAWRENCE F. RODOWSKY (Retired, Specially Assigned), JJ.

      Judge Kevin F. Arthur did not participate, pursuant to Md. Rule 8-605.1, in the Court's decision to report this opinion.

   LAWRENCE F. RODOWSKY, J. (Retired, Specially Assigned).

At issue here are the applicability of the personal injury protection (PIP) coverage provisions and the validity of the owned but uninsured exclusion from PIP coverage in an automobile liability policy issued by the appellee, State Farm Mutual Automobile Insurance Company (State Farm) to its named insured, Alaskan Bundue-Conteh (the Claimant). These proceedings arise on the Claimant’s complaint to the Maryland Insurance Administration (MIA) that State Farm had denied his claim for PIP benefits. Applying certain trade practice enforcement provisions, MIA agreed with the Claimant on the merits and, in final agency action, imposed a penalty on State Farm by ordering payment of the benefits with statutory interest. In an action for judicial review, the Circuit Court for Baltimore City reversed. This appeal followed. For the reasons set forth below, we shall affirm the circuit court.

The facts are undisputed. The Claimant was the owner of two automobiles. His 1997 Jeep Grand Cherokee was insured by State Farm under an automobile liability policy that included PIP coverage. He also owned a 2006 Ford Crown Victoria that he drove as a taxicab. It was insured for liability with Amalgamated Casualty Insurance Co. under a policy that did not contain PIP coverage. On November 14, 2011, while Claimant was occupying his taxicab, it was rear-ended by another automobile, causing Claimant personal injuries. Claimant is seeking a recovery of PIP benefits under a policy covering an owned motor vehicle that he was not occupying at the time of the accident. That State Farm policy contains the exclusion from PIP coverage that is set forth below:

“Exclusions
“THERE IS NO COVERAGE:
“3. FOR YOU OR ANY RESIDENT RELATIVE WHILE OCCUPYING A MOTOR VEHICLE OWNED BY YOU OR ANY RESIDENT RELATIVE AND WHICH IS NOT INSURED UNDER THE LIABILITY COVERAGE OF THIS POLICY.”

There are a number of provisions of the Insurance Article of the Maryland Code that are relied upon in the arguments of the parties. Some of those statutes are set forth below. Unless otherwise noted, all references are to sections of Maryland Code (1997, 2011 Repl.Vol.), Article, “Insurance,” Title 19, “Property and Casualty Insurance,” Subtitle 5, “Motor Vehicle Insurance — Primary Coverage.”

“§ 19-501. Definitions.

“(a) In general. — In this subtitle, the following words have the meanings indicated.
“(b) Motor Vehicle. — ...
“(2) ‘Motor vehicle’ does not include:
“(ii) a taxicab as defined in § 11-165 of the Transportation Article[.]
“(c) Motor vehicle accident. — (1) ‘Motor vehicle accident’ means an occurrence involving a motor vehicle that results in damage to property or injury to a person.”

“§ 19-505. Personal injury protection coverage — In general.

“(a) Coverage required. — Unless waived in accordance with § 19-506 of this subtitle, each insurer that issues, sells, or delivers a motor vehicle liability insurance policy in the State shall provide coverage for the medical, hospital, and disability benefits described in this section for each of the following individuals:
“(1)....
“(i) the first named insured, and any family member of the first named insured who resides in the first named insured’s household, who is injured in any motor vehicle accident, including an accident that involves an uninsured motor vehicle or a motor vehicle the identity of which cannot be ascertained[.]
“(c) Exclusions. — (1) An insurer may exclude from the coverage described in this section benefits for:
“(ii) the named insured or a family member of the named insured who resides in the named insured’s household for an injury that occurs while the named insured or family member is occupying an uninsured motor vehicle owned by:
“1. the named insured[.]”

“§ 19-513. Limitations on recovery of benefits.

“(d) Payment of benefits — Coverage under subtitle not in effect. — (1) The insurer under a policy that contains the coverages described in §§ 19-505 and 19-509 of this subtitle shall pay the benefits described in §§ 19-505 and 19-509 to an individual insured under the policy who is injured in a motor vehicle accident:
“(i) while occupying a motor vehicle for which the coverages described in §§ 19-505 and 19-509 are not in effect[.]”
MIA held that State Farm violated §§ 19-505 and 19-513.

Standard of Review

Where, as here, the facts are undisputed, our review of the agency decision is “limited to determining if there is substantial evidence in the record as a whole to support the agency’s findings and conclusions, and to determining if the administrative agency’s decision is premised upon an erroneous conclusion of law.” United Parcel Serv., Inc. v. People’s Counsel, 336 Md. 569, 576, 650 A.2d 226, 230 (1994). Further, the expertise of the agency in interpreting the statute which it administers should be respected. Board of Physician Quality Assurance v. Banks, 354 Md. 59, 69, 729 A.2d 376, 381 (1999).

Questions Presented

MIA makes two submissions which we have converted into questions presented.

I. Does the plain meaning of the statutory provisions relating to mandatory PIP coverage require that State Farm pay PIP benefits to its insured?
II. Did MIA correctly determine that the owned but uninsured exclusion did not permit State Farm to deny PIP benefits to its Insured?

Discussion

I

Much of the ground covered by the first issue has been plowed in Nasseri v. Geico General Ins. Co., 390 Md. 188, 888 A.2d 284 (2005). There, the named insured under a GEICO automobile policy, covering the insured’s private motor vehicle, was injured in an automobile collision while driving a taxicab that was owned by a third party. The GEICO policy included PIP coverage but the policy on the taxicab did not. GEICO denied the insured’s claim for PIP benefits, relying on the policy’s exclusion for injuries in an uninsured automobile which was available for the regular use of the insured. The Court held that PIP benefits must be paid by GEICO. Essentially, the Court said that, unlike automobile liability coverage that follows the insured vehicle, PIP coverage follows an insured individual.

PIP coverage was not negated by the exclusion relied upon by GEICO because the exclusion was broader than the authorizing statute, § 19 — 505(c)(l)(ii) 1, which required the vehicle occupied by the insured at the time of the collision to be owned by him, as opposed to being available for the insured’s regular use.

Despite Nasseri, MIA argues that, because a taxicab is excluded from the definition of “motor vehicle,” the Claimant was not occupying a motor vehicle within the meaning of § 19-505(c)(l)(ii), the authorization for the owned but uninsured exclusion from PIP. The argument undertakes to prove too much.

MIA seems to argue that, because the authorization permits exclusion from PIP of injuries to certain persons “occupying an [owned,] uninsured motor vehicle,” and because a taxicab is, by definition, not a motor vehicle, the exclusion cannot apply. Nasseri, however, explained the purpose of the definition. It was enacted by Ch. 655 of the Acts of 1977,

“ ‘[for] the purpose of exempting certain vehicles, as defined in the Vehicle Laws, from certain required primary coverage insurance provisions; and subdividing a section.’
“Consequently, the purpose of Ch. 655 was simply to provide that the compulsory automobile liability insurance policies on taxicabs and certain other vehicles did not have to contain policy provisions for PIP and some other statutory coverages. The purpose was not to negate required PIP and other required coverages, under policies on all other types of motor vehicles, whenever a taxicab happened to be involved in an accident with another type of motor vehicle.”

390 Md. at 195-96, 888 A.2d at 288.

The definitional statute tells us that a taxicab is not required to carry PIP coverage as primary insurance for taxicab occupants, but it does not tell us whether the taxicab occupant’s policy does or does not provide secondary coverage.

MIA similarly contends that Claimant was not occupying a taxicab that was “uninsured” within the meaning of § 19 — 505(c)(l)(ii) because the taxicab was covered for liability in at least the minimum amounts required by law. In this respect, the agency’s opinion looked to, and relied heavily upon, § 19-509(a) which defines an “uninsured motor vehicle.” Section 19-509 deals with uninsured motorist coverage. This definition applies only to § 19-509 and has no effect on the exclusion from PIP authorized by § 19-505(c)(l). In the context of § 19 — 505(c)(1), “uninsured” refers to uninsured for PIP which ordinarily (and absent express waiver) will manifest itself in the automobile liability policy of the claimant by the absence of the owned vehicle from the declaration of vehicles insured against liability.

As recognized in Nasseri, PIP coverage follows an insured, even into a taxicab, principally because of two statutes, each of which uses the term “motor vehicle” as an element of coverage. The requirement for a motor vehicle liability insurer to provide PIP, found in § 19-505(a), applies to “an insured who is injured in any motor vehicle accident, including an accident that involves an uninsured motor vehicle.” Nasseri held that the claimant there was involved in a motor vehicle accident, because the other vehicle was not a taxicab, 390 Md. at 193, 888 A.2d at 287, and the claimant-occupied taxicab was an “uninsured [for PIP] motor vehicle.” Id. Similarly, § 19-513(d)(1)© requires a PIP insurer to pay those benefits “to an individual insured under the policy who is injured in a motor vehicle accident ... while occupying a motor vehicle for which [PIP] coverages are not in effect.”

II

Having determined in Nasseri that the claimant’s driving a taxicab was not a valid basis for denying PIP, the Court nevertheless was required to decide whether the scope of the coverage was restricted by an authorized exclusion. In Nas sen, the exclusion was unauthorized (policy’s “regular use” scope broader than statute’s “owned” scope).

Here, MIA asserts that the Claimant “was not occupying an uninsured motor vehicle because his taxicab had the required vehicle insurance.” But, the taxicab in Nasseri also had the required (liability) insurance. That did not shortcut the need for the Court to analyze the PIP exclusion in the policy on which the PIP denial was based against the statutorily permissible exclusions.

While we recognize that MIA’s opinion on the correct interpretation of the statutes it administers is entitled to some deference, we conclude on de novo review of the issue of law before us that MIA has not given effect to the legislative intent. The history of this issue begins with Pennsylvania Nat’l Mutual Casualty Ins. Co. v. Gartelman, 288 Md. 151, 416 A.2d 734 (1980).

The automobile policy in that case included an owned but uninsured exclusion applicable to PIP and to uninsured motorist coverages. Gartelman pointed out that the statutes at that time did not authorize such exclusions. In response, the General Assembly enacted Chapter 573 of the Acts of 1982, at the urging of the insurance industry. See Nasseri, 390 Md. at 200 n. 11, 888 A.2d at 291 n. 11. Chapter 573 authorized an owned but uninsured exclusion for uninsured motorist coverage as Maryland Code (1957, 1986 Repl.Vol.), Article 48A, § 541(c)(1), today § 19-509(f)(l) and a similarly worded exclusion for PIP coverage as Maryland Code (1957, 1986 Repl. Vol.), Article 48A, § 545(c), today § 19-505(c)(l)(ii).

Maryland appellate courts have sustained applications of the uninsured/underinsured motorist (UM/UIM) exclusion. Government Employees Ins. Co. v. Comer, 419 Md. 89, 18 A.3d 830 (2011), involved a claimant who incurred over $200,000 in medical expenses due to injuries suffered in an accident on his motorcycle. The tortfeasor had $100,000 of liability coverage and the claimant’s policy on his motorcycle provided an additional $50,000 in UM/UIM. A policy on an automobile owned by the claimant’s father, in whose household the claimant resided, had single limit UM/UIM coverage of $300,000. The claimant sought a judgment declaring that, as an insured under his father’s policy, he was entitled to UM/UIM benefits, although his motorcycle was not insured under the father’s policy. The father’s policy contained the following UM/UIM exclusion:

“Bodily injury sustained by an insured while occupying a motor vehicle owned by an insured and not described in the declarations and not covered by the bodily injury and property damage liability coverage of this policy is not covered.” (Emphasis omitted).

The Court of Appeals reversed a judgment in favor of the claimant, despite the general language in the policy affording coverage, explaining:

“Comer’s and the Circuit Court’s reliance upon the basic uninsured/underinsured coverage provision, and the paragraph dealing with primary/excess insurance, is misplaced. These two provisions, standing alone, may well indicate excess coverage for Comer under the GEICO policy. The two provisions, however, do not stand alone. The nature of an exclusion, dealing with a more specific circumstance, is to modify, or create an exception to, the broader coverage provisions. If the two coverage provisions of the GEICO policy did not arguably cover Comer’s claim, there would be no need to consider any exclusions.”

Id. at 95, 18 A.3d at 833.

The Court held that “[t]he exclusion is not ambiguous and clearly precludes coverage of Comer’s claim under the GEICO policy.” Id. at 96, 18 A.3d at 834. Section 19-509(f)(l) authorized the exclusion. Id. at 97-98, 18 A.3d at 835. One of the rationales on which it is bottomed is set forth below.

“One purpose of exclusion 4 in the GEICO policy, as well as a purpose of § 19 — 509(f)(1), is obviously to prevent a family, owning several motor vehicles, from insuring only one or two of them with an insurer, leaving the other vehicles uninsured, or underinsured under a different policy, and being able to claim uninsured or underinsured motorist benefits from the first insurer even though no premium was paid to the first insurer for coverage of the other vehicles. An interpretation of the Insurance Code that would allow this would be unreasonable.”

Id. at 98, 18 A.3d at 835.

This Court had reached the same conclusion on similar facts in Powell v. State Farm Ins. Co., 86 Md.App. 98, 585 A.2d 286 (1991). We said that present § 19-509(0(1) recognized an owned but uninsured exclusion for UM/UIM because,

“[t]o hold as appellant also urges, i.e., that his wife’s vehicle was not uninsured because it was covered under another policy, would be to permit an owner to buy excess coverage under one policy for one vehicle at a relatively small premium and coverage under a separate policy for his other vehicles at a lesser cost, and have the excess coverage of the first policy apply to the vehicles covered under the subsequent policies.”

Id. at 110, 585 A.2d at 291. The Court of Appeals, in Comer, concurred with our opinion in Powell and quoted, with favor, the above language from Powell.

MIA has not presented us with any principled distinction between the statutory authorization of an owned but uninsured exclusion from UM/UIM coverage and the statutory authorization for an owned but uninsured exclusion from PIP coverage. Nor do we discern any, particularly in view of the lock-step authorization with which the General Assembly has treated the two exclusions. For these reasons, we affirm.

JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY AFFIRMED. COSTS TO BE PAID BY APPELLANT.

      . The Court in Nasseri said:
      "The language of the Insurance Article, as well as numerous opinions by this Court, make it clear that an insured, who has PIP coverage under a policy on the insured's motor vehicle, and who is injured in an accident while occupying a different motor vehicle owned by someone else, is ordinarily entitled to PIP coverage under the policy on the insured's vehicle. If the vehicle occupied by the insured also has PIP coverage, that coverage will be primary and the coverage under the policy on the insured’s vehicle will be secondary. If the occupied vehicle has no PIP coverage, the coverage under the insured’s policy will be primary. See, e.g., Bishop v. State Farm Mutual Auto Insurance, 360 Md. 225, 236-238, 757 A.2d 783[, 789-790] (2000); MAIF v. Perry, 356 Md. 668, 671-672, 676-677, 741 A.2d 1114, 1115-1116, 1118-1119 (1999); Travelers Ins. Co. v. Benton, 278 Md. 542, 543, 365 A.2d 1000, 1002 (1976) (The statute ‘provides, with respect to a person insured under a policy providing PIP coverage who is injured in an accident while occupying a motor vehicle for which such coverage is not in effect, that the PIP benefits shall be payable by the injured party’s insurer providing such coverage') (internal quotation marks omitted). See also Pennsylvania Nat’l Mutual Casualty Insurance Company v. Gartelman, 288 Md. 151, 154-157, 416 A.2d 734, 736-739 (1980).”
      390 Md. at 196, 888 A.2d at 288.

      . Section 19-509(a) reads:
      “(a) 'Uninsured motor vehicle’ defined. — In this section, 'uninsured motor vehicle' means a motor vehicle:

        "(1) the ownership, maintenance, or use of which has resulted in the bodily injury or death of an insured; and
      "(2) for which the sum of the limits of liability under all valid and collectible liability insurance policies, bonds, and securities applicable to bodily injury or death:
      "(i) is less than the amount of coverage provided under this section; or
      "(ii) has been reduced by payment to other persons of claims arising from the same occurrence to an amount less than the amount of coverage provided under this section.”

      . Section 19 — 509(f)(1) reads:
      "(f) Exclusions. — An insurer may exclude from the uninsured motorist coverage required by this section benefits for:
      “(1) the named insured or a family member of the named insured who resides in the named insured’s household for an injury that occurs when the named insured or family member is occupying or is struck as a pedestrian by an uninsured motor vehicle that is owned by the named insured or an immediate family member of the named insured who resides in the named insured’s household!;.]"


text:
    137 A.3d 317
    1ST TEAM FITNESS, LLC, et al. v. Francesco ILLIANO.
    No. 0136,
    Sept. Term, 2015.
    Court of Special Appeals of Maryland.
    June 1, 2016.

      Christopher Young (Kristen M. Lohmeyer, Business & Technology Law Group, Columbia, MD, and Richard M. Kremen and Kristy Grace, DLA Piper LLP, Baltimore, MD), all on the briefs, for appellant.
    Samantha Z. Smith (Timchula & Smith PA, on the brief) Westminster, MD, for appellee.
    Panel: BERGER, REED, LAWRENCE F. RODOWSKY (Retired, Specially Assigned), JJ.
   LAWRENCE F. RODOWSKY, J. (Retired, Specially Assigned).

Appellant, 1st Team Fitness, LLC (1st Team) brought this action, directly and derivatively, on behalf of Pozzuoli, LLC (Pozzuoli), against the appellee, Francesco Illiano (Illiano). Each of these parties was a fifty percent member in Pozzuoli. On counts charging intentional misrepresentation-concealment or non-disclosure, constructive fraud, breach of contract and conversion-embezzlement, the Circuit Court for Carroll County, at a bench trial, awarded Pozzuoli, LLC (hereinafter sometimes called the Gym) compensatory damages of $527,831, of which $263,915 were awarded directly to 1st Team. Appellant is aggrieved because the circuit court did not award punitive damages or counsel fees or litigation expenses.

The circuit court also appointed a receiver for Pozzuoli, LLC. By a separate brief, Pozzuoli, through its receiver, joins in requesting a reversal and remand on the punitive damages issue.

Illiano has cross-appealed and asserts that the circuit court abused its discretion in failing to find a discovery violation by 1st Team, arising out of its allegedly untimely disclosure of the opinion expressed by the accounting expert called by 1st Team at trial.

For the reasons hereinafter set forth, we shall affirm.

Background Facts

Illiano, through BAIA, LLC, owned the premises located at 1311 South Main Street in Mt. Airy. In March 2009, Illiano, through his then solely owned LLC, Pozzuoli, acquired a franchise from SNAP Fitness, Inc. (SNAP Fitness) to operate a SNAP fitness center on the lower level of those premises. The facility opened in September 2009. One Hundred Forty Thousand Dollars in startup costs were loaned to the Gym by Illiano from funds obtained from other business entities that he owned, wholly or partially. The Gym hired a manager and engaged Donald Caparotti (Don) and Diane Caparotti (Diane), who are husband and wife, to be fitness trainers. The Caparottis rendered those services through their LLC, 1st Team. It initially was paid 75% of the training fees with the remaining 25% retained by the Gym.

The original manager’s services, however, proved unsatisfactory and, effective January 1, 2010, the Caparottis and Illiano entered into the agreement that underlies this litigation, namely, the operating agreement for Pozzuoli, LLC by and between Illiano and 1st Team. Its relevant features included:

• Illiano and 1st Team each had 50% interests in the Gym. The operating agreement recited initial cash capital contributions of $100 per member, but those amounts were not actually paid. 1st Team paid no monetary consideration for its 50% interest.
• Don and Diane would manage the fitness center, ordinarily working no less than a combined 50 hours per week, for which they would retain 100% of the personal training fees.
• Illiano would be the managing member. In his sole discretion, he would determine the amount of cash available for distribution.
• Illiano had “full, exclusive and complete discretion, power and authority in operating the [Gym’s] business,” including “determining] the accounting methods and procedures of the [Gym].”
• Illiano was to “keep ... full and true books of account, in which shall be entered fully and accurately each transaction of the [Gym].”
• The books of account were to be open to inspection by members during regular business hours and were to be available online if the Managing Member maintained the books in a manner allowing that access.
• There was no restriction on members engaging in other businesses and the Gym was unrestricted in dealing with businesses owned by or affiliated with a member.
• Each member had a right of first refusal in the event of a sale of the other member’s interest.
• The members agreed that Illiano had loaned $140,000 to the Gym prior to the date of the Operating Agreement.

After several months of operations, the Caparottis began fielding complaints from vendors and employees that they had not been paid. Nor was the couple receiving payment for personal training. In April 2010, they first received financials for the Gym and thereafter received them sporadically. None of the reports had supporting details. After repeated requests for a meeting, the Caparottis met with Illiano in early 2011, but the same circumstances continued.

For some eighteen months after June 2011, 1st Team received no financials, despite repeated requests. Personal training fees were received only intermittently.

In November 2012, Illiano met with Don and Diane and advised that he was discussing selling the Gym to SNAP Fitness. The couple objected and asserted that they would exercise the right of first refusal that 1st Team had under the Operating Agreement. Illiano agreed that he would not sell and he broke off the negotiations.

On Sunday, March 3, 2013, Illiano asked Don to meet in the former’s office. Illiano told Don that he had sold the Gym to SNAP Fitness. The circuit court found as a fact that Illiano told Don that “it’s nothing personal, I can’t afford to lose my empire.”

The “Empire”

English is not Illiano’s first language. He testified with a “heavy accent.” Since coming to the Mt. Airy area, he has acquired numerous business interests. Interests held by Illiano as of January 1, 2010, were:

• BAIA, LLC, owning real estate assessed in excess of $13,000,000;
• Ridgewill, LLC, owning interests in two commercial properties that are leased;
• The Mt. Airy Inn, a restaurant;
• Napoli, Inc., a pizza restaurant;
• Lenanos, LLC, owning the Mt. Airy Green Turtle, a restaurant; and
• Germantown Green Turtle, a restaurant.

Illiano has “silent partners” in BAIA, Lenanos, the German-town Green Turtle and the Mt. Airy Inn, but he controls each of the companies.

Illiano views each component of the “empire” as a company owned by him. Illiano testified that if there were bills to be paid by one company, but it did not have cash to pay the bill, he would take the money from another company and put it back later. From a bookkeeping standpoint, this was recorded through an account that was added to the QuickBooks computerized accounting system utilized by the companies. That account was labeled “Due to/from Frank.” The bookkeeper employed by Illiano Properties, which was the management corporation for the “empire,” testified that there were twenty entities wholly or partially owned by Illiano. That witness also testified that she did not handle the intra-company transfers of funds and explained, “Frank would take care of those kinds of transactions himself.” She would cut checks at his direction. The “Due to/from Frank” account had been used for at least ten years since the QuickBooks system was initiated.

The Empire In Peril

On direct examination, Illiano had testified that the reason for the sale of the Gym was its lack of profitability. On cross-examination, he was impeached by certified copies of court records of creditors’ suits against businesses in the empire. Illiano’s lender, on February 14, 2013, entered a confessed judgment against him, his wife and various of his companies for roughly three-quarters of a million dollars. Illiano acknowledged that immediately after those judgments were entered, he contacted SNAP Fitness to sell the Gym. He was also sued by at least one other bank. In addition, the federal and state governments imposed tax liens.

The Sale

The sale of the Gym closed Friday, March 1, 2013, pursuant to documents executed that day. It was a sale of the assets of Pozzuoli. The purchase price was $410,000. After deductions for the payoff of leases on equipment ($144,211.55) and for a holdback, Pozzuoli netted a total of $260,958.45 that was wired by SNAP Fitness to the Gym’s account at Damascus Community Bank.

At the meeting between Illiano and Don on Sunday, March 3, following the sale, the former told the latter that one-half of the net proceeds from the sale, after expenses and liabilities, was approximately $55,000. Illiano requested that Don execute a release on behalf of 1st Team, before paying 1st Team’s share of the net proceeds. Don refused, and the share was not paid.

After this matter was in litigation, Illiano produced four statements that purported to account for the $410,000 paid for the assets of Pozzuoli. In addition to the payoff of $144,211.55 on the equipment lease and holdback offsets of $4,830, the statements claimed expenses for legal fees, property taxes, a $63,667 balance on “Loan to Frank,” reconciliations with the landlord (BAIA, LLC), a brokerage/consulting fee of 10% (to an Illiano company) and “unbilled” startup costs for the Gym claimed to have been paid by Illiano Properties. The 1st Team share of the net, after expenses, per these statements, ranged from $61,352.76 to a loss of $21,407.16.

The damages theory adopted by the court did not require addressing the legal enforceability of these offsets, claimed by Illiano, against the amounts wired to Pozzuoli by SNAP Fitness, as we explain below.

The Damages Calculation

The Caparottis engaged a forensic accountant, Andrew Runge, to analyze the accounting for the sale proceeds. This ultimately led him to the “Due to/from Frank” bookkeeping account and to the Pozzuoli checking account at Damascus Community Bank. The buyer had wired $255,788.45 on March 1, 2013, to the Pozzuoli checking account. That same day, Pozzuoli purchased, for eight dollars, a Treasurer’s check for $200,000 payable to BAJA, LLC. The net of $5,170 from the asset purchase holdback was wired to Pozzuoli’s bank account no later than May 13, 2013. On May 30, 2013, a Treasurer’s check was purchased from that account for $5,000, payable to “Illiano Property, Inc.”

Mr. Runge analyzed the Pozzuoli checking account for the period beginning with 1st Team’s acquisition of a 50% interest in the Gym, i.e., from January 1, 2009. In the three years between March 2010 and March 2013, there were sixteen checks drawn, totaling $422,612, for which a Pozzuoli business purpose was not noted in the records. Of these, fifteen were payable to Damascus Community Bank, almost all of which were to purchase Treasurer’s checks. The Treasurer’s checks, in turn, were payable to entities in the “empire.” Mr. Runge was “unclear as to why [Treasurer’s checks] would be employed other than to potentially obviscate [obfuscate] the source of these funds.”

Runge’s analysis of the “Due to/from Frank” account on the books of Pozzuoli, for a comparable period, lists, in small, single-spaced print, over three 8 pages, transactions that are classified as “Withdrawals” or “Infusions.” There was a total of $567,949.97 in withdrawals. “[B]ased on what [he] was able to verify or look at,” Runge opined that “that $567,949.97 went out of the account and there was not documentation provided to demonstrate that that was in fact a valid expense of Pozzuoli.” Runge’s analysis totaled the infusions at $282,702.04. These had been deposited to the Pozzuoli account “and looked like [they were] not revenue attributable to Pozzuoli.” Runge also opined that additional credits against the excess of withdrawals over infusions should be given for one-half of Pozzuoli’s net income shown on its tax returns for 2010-2012 and for the $140,000 agreed upon in the operating agreement statement as Illiano’s startup loans. Thus, the net claim against Illiano on the transactions processed through the “Due to/from Frank” account on the books of Pozzuoli was $105,219.

Thus, the judgment awarded to 1st Team was $422,612 + $105,219 x 1/2 = $263,915.

The Fact Findings

The circuit court decided this case in a fifty-two page opinion. It found that Illiano’s “breaches and misrepresentations” included the following (exhibit references omitted):

“1) Failure to keep and maintain full and true books of account;
“2) Extreme mismanagement of company funds, books and records in violation of common law fiduciary duties;
“3) Failure to provide 1st Team Fitness access to the Pozzuoli online QuickBooks account;
“4) Failure to provide 1st Team Fitness access to the financial and accounting records of Pozzuoli, despite many repeated requests;
“5) Failure to deposit or invest all Pozzuoli funds in the company name;
“6) Taking $105,219 in excess withdrawals from the Pozzuoli bank account;
“7) Causing $422,612 in funds to be removed from the Pozzuoli bank account, which transactions were not entered into the Pozzuoli accounting records;
“8) Causing $422,612 in Pozzuoli funds to be deposited into not fewer than nine (9) other companies owned by Defendant, most of which Defendant testified had no business relationship with Pozzuoli LLC;
“9) Intentionally commingling Pozzuoli funds with his other business entities;
“10) Treating business funds as his own personal funds, including treating the Pozzuoli bank account as his own;
“11) Failing to disclose his actions, much less seek majority or supermajority consent, with regard to the sale of the Pozzuoli assets to SNAP Corporate;
“12) Causing all or substantially all of the Pozzuoli assets to be sold to SNAP Corporate;
“13) Failing to disclose to SNAP Corporate during deal discussions of the existence of 1st Team Fitness as a member in Pozzuoli; (Defendant testified that he always treated 1st Team Fitness as a member and at his deposition, claimed he didn’t realize 1st Team Fitness was not a member until the lawsuit was initiated, some four (4) months after [representing to SNAP] that he was the sole member);
“14) Creating unsubstantiated expenses to be subtracted from the sale proceeds in an effort to increase his share of the proceeds;
“15) Creating more unsubstantiated expenses to drive the Sales Price Less Expenses values down as the litigation continued;
“16) Taking a guaranteed payment in the amount of $45,799 in 2011 not also paid to 1st Team Fitness;
“17) Refusing to turn over any money from sales proceeds to 1st Team Fitness until the release was signed; (Defendant testified he did require the Caparottis to sign the release before he would give them any money from the sale);
“18) Failing to pay any portion of the sales proceeds from the March 1, 2013 asset sale to 1st Team Fitness;
“19) Causing substantially all of the sales proceeds from the asset sale to be transferred to his company BAIA, LLC;
“20) Causing the sales proceeds to be further transferred from BAIA, LLC’s bank account to eight (8) other entities owned by Defendant, most of which Defendant testified had no business relationship with Pozzuoli LLC.”

Nevertheless, with respect to 1st Team’s claim of fraud, in the sense of intentional misrepresentation, concealment or non-disclosure, the court found:

“The Court also concludes that, however ill-advised Illiano’s actions were, Plaintiffs have not proven that they were done with the knowledge that the representations were false. Rather, the Court concludes that Illiano acted under the woefully misguided belief that he or his entities were entitled to withdraw funds from Pozzuoli as he saw fit, that he was entitled to sell all of Pozzuoli’s assets, and that he was further entitled to create expenses of sale to justify that which he believed would result in a proper distribution of the sale proceeds.”

Specifically relating to its conclusion not to award any punitive damages, the court explained:

“The Court declines to find that Illiano acted with actual malice, and thus declines to award punitive damages in this case. A party seeking punitive damages must prove actual malice by clear and convincing evidence. Darcars Motors of Silver Spring, Inc. v. Borzym, 150 Md.App. 18, 43-[5]3[, 818 A.2d 1159, 1173-1179] (2003), aff’d., 379 Md. 249[, 841 A.2d 828] (2004). An award of punitive damages must be based upon actual malice, in the sense of evil or wrongful motive, intent to injure, ill will, or fraud. Tierco Md., Inc. v. Williams, 381 Md. 378, 849 A.2d 504 (2004). A breach of fiduciary duty alone does not establish actual malice. Bresnahan v. Bresnahan, 115 Md.App. 226, 693 A .2d 1 (1997).
“It is true that the Court found that Illiano breached his fiduciary duty to Plaintiffs, and that such breach of fiduciary duty constituted intentional misrepresentation toward the Plaintiffs. Those findings alone are not sufficient to support a claim for punitive damages. A finding of fraud or deceit based on a defendant’s actual knowledge that his representations were false coupled with an intent to deceive can and normally will justify an award of punitive damages. Ellerin [v. Fairfax Sav., F.S.B., 337 Md. 216,] 240-41[, 652 A.2d 1117, 1129 (1995) ]. However, where a defendant’s fraud or deceit is premised not on his actual knowledge o[f] falsity, but on his reckless disregard or indifference as to the truth of his representations, punitive damages are generally not recoverable. Id., at 235[, 652 A.2d at 1126]. Similarly, other conduct, recognized by the law and sometimes labeled ‘fraud,’ falls short of the act of deliberate deception required for actual malice in this context, and is not sufficient to sustain a punitive damages award. [Id.] at 235-36[, 652 A.2d at 1126]. For example while ‘constructive fraud’ has been recognized for certain purposes in Maryland, it does not necessarily involve the type of dishonest or immoral conduct that is required to support an award of punitive damages. Id.
“As indicated above, the Court finds that Illiano’s actions, while done with an intent to deceive, where carried out with reckless indifference to and not actual knowledge that his representations were false. Accordingly, the Court declines to award punitive damages to the Plaintiffs.”

Additional facts will be set forth in the discussion of particular issues.

Questions Presented

Appellant, 1st Team, asks:

“I. Did the Circuit Court commit error by holding the record did not support a finding of actual malice?
“II. Did the Circuit Court commit error by failing to award attorneys’ fees under the common fund doctrine?”

Appellant Pozzuoli asks if the court applied the correct legal standard for awarding punitive damages.

On his cross-appeal, Illiano asks:

“Did the trial court abuse its discretion in refusing a continuance and allowing the testimony of the Appellant’s expert to opinions which were never disclosed in pre-trial discovery?”

DISCUSSION

I

Appellants seek a remand, with directions to hold a hearing on, inter alia, punitive damages. 1st Team’s argument focuses on two counts of the complaint, Count IX, Conversion/Embezzlement, and Count VI, Breach of Fiduciary Duty. As to Count IX, the court found that “Illiano’s actions, while done with an intent to deceive, [were] carried out with reckless indifference to and not actual knowledge that his representations were false.”

On the alleged claim for breach of fiduciary duty, as Count VI was labeled, the court held, citing Kann v. Kann, 344 Md. 689, 690 A.2d 509 (1997), that that claim did not constitute a stand-alone cause of action, at .least where only monetary damages were sought as the remedy. Thus, no damages, compensatory or punitive, were awarded on that count.

There must be an award of compensatory damages, however, on each count that is sought to be the basis for an award of punitive damages. See Caldor, Inc. v. Bowden, 330 Md. 632, 662-63, 625 A.2d 959, 973-74 (1993); Montgomery Ward & Co. v. Keulemans, 275 Md. 441, 340 A.2d 705 (1975); Potomac Elec. Power Co. v. Smith, 79 Md.App. 591, 639-40, 558 A.2d 768, 792-93 (1989) (holding that award of funeral expenses in personal representative’s action satisfied the compensatory damage predicate for a punitive damage award on survival claim), overruled on other grounds by United States v. Streidel, 329 Md. 533, 620 A.2d 905 (1993). Consequently, we consider only appellant’s argument based on the conversion claim.

The principles controlling the award of punitive damages were set forth in Owens-Illinois, Inc. v. Zenobia, 325 Md. 420, 601 A.2d 633 (1992), where the Court said:

“ ‘[T]he purposes of punitive damages relate entirely to the nature of the defendant’s conduct.’ Schaefer v. Miller, 322 Md. [297,] 321, 587 A.2d [491,] 503 [ (1990) ]. Whether the tort occurred before or after the formation of a contractual relationship should not determine whether actual or implied malice is required for allowing an award of punitive damages. Rather, the availability of a punitive damages award ought to depend upon the heinous nature of the defendant’s tortious conduct.
“Awarding punitive damages based upon the heinous nature of the defendant’s tortious conduct furthers the historical purposes of punitive damages — punishment and deterrence. Thus, punitive damages are awarded in an attempt to punish a defendant whose conduct is characterized by evil motive, intent to injure, or fraud, and to warn others contemplating similar conduct of the serious risk of monetary liability.”

Id. at 454, 601 A.2d at 649-50 (citations omitted).

The Court also addressed the standard of proof.

“Use of a clear and convincing standard of proof will help to insure that punitive damages are properly awarded. We hold that this heightened standard is appropriate in the assessment of punitive damages because of their penal nature and potential for debilitating harm. Consequently, in any tort case a plaintiff must establish by clear and convincing evidence[,] the basis for an award of punitive damages.”

Id. at 469, 601 A.2d at 657.

In Scott v. Jenkins, 345 Md. 21, 690 A.2d 1000 (1997), Judge Karwacki, writing for the Court some five years after Zenobia, in a case in which punitive damages were awarded by a jury that found the defendant liable for battery and false imprisonment, said: “Lest there be any remaining doubt, in order to recover punitive damages in any tort action in the State of Maryland, facts sufficient to show actual malice must be pleaded and proven by clear and convincing evidence.” 345 Md. at 29, 690 A.2d at 1004. The punitive damage award in that case was stricken for failure to have plead sufficient facts.

1st Team’s argument emphasizes that the court’s finding of Illiano’s liability for conversion included the net proceeds of the sale. There was no contract authorizing a ten percent broker’s fee as a cost of sale and no documentation for certain other charges. The court found that “[b]y creating false expenses, Illiano intentionally appropriated the sales proceeds and paid them to himself or nine (9) of his other business entities.”

Illiano refers us to the litigation culminating in Darcars Motors of Silver Spring, Inc. v. Borzym, 379 Md. 249, 841 A.2d 828 (2004), a conversion case tried to a jury, in which an award of punitive damages was affirmed. There, the Court said, “Where the defendant converts property with a consciousness of the wrongfulness of that conversion, he or she possesses the requisite improper motive to justify the imposition of punitive damages.” Id. at 266, 841 A.2d at 838. But, in Beall v. Holloway-Johnson, 446 Md. 48, 72, 130 A.3d 406, 420 (2016), the Court said, “Reliance on an embedded ‘malice implicit’ in the elements of the intentional torts of the battery and Article 24 violations claims pushes our jurisprudence on punitive damages too far.” And further:

“Because we have restricted punitive damage awards to cases where the conduct is ‘characterized by knowing and deliberate wrongdoing,’ a standard of ‘malice implicit’ would expose inappropriately defendants to punitive damages without requiring a plaintiff to prove actual malice and the required specific intent to injure by clear and convincing evidence.”

Id. at 73, 130 A.3d at 420. This rationale applies to the intent satisfying a prima facie case of conversion.

Even if we assume, arguendo, that the record in this case was sufficient to permit a trier of fact to find the requisite improper motive “to support awarding punitive damages,” the trier of fact did not award punitive damages. In his exposition for this Court on inferred malice in conversion cases, Darcars Motors of Silver Spring, Inc. v. Borzym, 150 Md.App. 18, 818 A.2d 1159 (2003), Judge Moylan explained that “the circumstances surrounding the conversion and the manner in which it was committed frequently provide a factual predicate from which actual malice can be, though it need not be, inferred.” Id. at 34, 818 A.2d at 1168 (emphasis added).

The Court of Appeals relied upon the same principle as an alternative ground of decision in Adams v. Coates, 331 Md. 1, 626 A.2d 36 (1993). That case presented what was in essence an action for accounting between partners. The Court, assuming that breach of fiduciary duty could be treated as a tort that could be the springboard for punitive damages, held:

“In any event, the trier of fact has discretion to deny punitive damages even where the record otherwise would support their award. See Nast v. Lockett, 312 Md. 343, 349, 539 A.2d 1113, 1116 (1988), overruled on other grounds, Zenobia, 325 Md. at 460, 601 A.2d at 652; Dennis v. Baltimore Transit Co., 189 Md. 610, 616, 56 A.2d 813, 816 (1948) (citing Sloan v. Edwards, 61 Md. 89, 100 (1883)); Maryland Civil Pattern Jury Instructions 10:6(a), at 226 (1984) (‘If you award plaintiff damages to compensate him for the actual ... [losses] he suffered, you may, but are not required to, award him an additional amount as punitive damages.’ (Emphasis added)).”

Id. at 15, 626 A.2d at 43.

The Darcars Motors litigation also made plain that, even if the case for punitive damages may be considered by the trier of fact, the trier of fact must be convinced to the level of clear and convincing persuasion that actual malice motivated the tort. 379 Md. at 267, 841 A.2d at 839. “As a function of persuasion, the juror must feel that the circumstances of the tort were so egregious or the motivation of the tortfeasor so outrageous as to call for the sterner sanction.” Holloway- Johnson v. Beall, 220 Md.App. 195, 223, 103 A.3d 720, 739 (2014), aff'd in part and rev. in part on other grounds, 446 Md. 48, 130 A.3d 406 (2016). Here, 1st Team was unable to convince the trier of fact to that level of persuasion.

The receiver for Pozzuoli attempts to cast an entirely different light on the record. That appellant’s position is that the court committed an error of law. The argument is that the fifty-plus page opinion erroneously explains why the court could not award punitive damages, even though the court may have been desperately straining to do so. The court’s opinion undercuts the receiver’s position. The portion of the opinion that directly addresses punitive damages opens: “The Court declines to find that Illiano acted with actual malice[.]” To “decline” connotes the rejection of that which is offered or available. Further, the court cited to Darcars Motors from both appellate courts, so the court was well aware that its ultimate verdict must be by clear and convincing persuasion. But, as the court fully explained, it was not persuaded that Illiano acted with actual malice.

We note, moreover, that there was evidence tending to prove that Illiano’s conversion of 1st Team’s property was not motivated by actual malice against it, Don or Diane. Don testified that, at the March 3, 2013 meeting, Illiano told him that the sale of the Gym assets was “nothing personal” but was done to save the “empire.” In addition, Illiano offered $55,000 in payment of 1st Team’s share of the net proceeds, upon execution of a release, but Don declined. It was only after the relationship was in litigation that Illiano began asserting setoffs. Even then, the four accountings of the net sale proceeds consistently presented a $63,667 item, labeled, “Balance on Loan to Frank,” as a setoff against 1st Team’s share. Illiano explained that that setoff was the balance, after partial payments by Pozzuoli of $76,333, on the $140,000 loan by (or through) Illiano to start the Gym. Thus, the argument that the four accountings present spurious setoffs and thereby evil motive is ambiguous.

There was no error or abuse of discretion in the court’s declining to award punitive damages.

II

Ordinarily, under the “American rule” on attorney’s fees, each party pays its own counsel fees and expenses. Accubid Excavation, Inc. v. Kennedy Contractors, Inc., 188 Md.App. 214, 230, 981 A.2d 727, 737 (2009). 1st Team’s other contention, however, is that the legal fees and litigation expenses incurred by it should be paid out of the common fund created by the litigation. Dobbs, Law of Remedies, § 3.10(2), at 393 (1993), explains the common fund rule:

“When a prevailing plaintiffs litigation produces or preserves a fund in which others share, those who share in the fund must share as well in the cost of producing it. They are therefore responsible for a proportionate part of the attorney fee and other reasonable costs of the litigation. This burden is imposed by deducting the fee from the fund itself and then distributing the fund to those entitled to it.”

(Footnote omitted).

The issue arises procedurally out of the following facts. 1st Team sued in its own right and derivatively on behalf of Pozzuoli. In its written closing argument, 1st Team submitted:

“Plaintiffs request!, inter alia,] this Court enter judgment as follows: (1) compensatory damages in the amount of $527,831, entered against Defendant and in favor of Pozzuoli, LLC, AND half of that amount, $263,915, awarded against Defendant and in favor of 1st Team Fitness, LLC; [and] attorneys’ fees based upon 1st Team Fitness, LLC’s derivative actions on behalf of Pozzuoli, LLC under the common-fund doctrine, amount to be determined upon further application to this court[.]”

Illiano did not respond to the attorneys’ fee issue because the court had stated that it would reserve on those issues “until after it had decided the substantive claims.”

The court ordered that judgment be entered in favor of the “Plaintiffs” and awarded compensatory damages “to the Plaintiff, Pozzuoli, LLC in the amount of $527,831, and half of that amount, $263,915 is awarded against Defendant and in favor of 1st Team Fitness, LLC.” One interpretation of the court’s order is that 1st Team could proceed either under a derivative judgment or a direct judgment. The order did not mention counsel fees but stated that “any other relief not expressly granted herein is denied.” 1st Team sought reconsideration, which was denied. Appellant also sought the appointment of a receiver, which was granted.

These two motions by 1st Team reveal that there were no assets of Pozzuoli to be administered; thus, no bond was required. 1st Team requested “that the receiver be directed to compensate Plaintiff 1st Team Fitness, on a priority basis, only behind the administrative claim of the receiver himself, for costs and attorneys’ fees expended to obtain the award.” These fees would be paid from “any funds recovered by the receiver for the estate of Pozzuoli as a result of the legal efforts ... to obtain the award derivatively on behalf of Pozzuoli LLC.”

In other words, 1st Team wants to pass through Pozzuoli all of the payments on the judgment, to the full principal amount of $527,831. Because 1st Team has opted to act under the derivative alternative of the order for judgment, presumably the contention is that 100% of the fee is to be deducted from the collections for Pozzuoli before any distribution would be made to 1st Team and before Illiano could assert that the distribution to him is a wash, because he would be the source of the funds and would be paying himself.

1st Team’s gambit is not an appropriate use of the common fund exception to the American rule. The common fund exception “awards expenses when a plaintiff has successfully maintained a suit, usually on behalf of a class, that benefits a group of others in the same manner as the plaintiff.” W.M. Fletcher, Cyclopedia of the Law of Private Corporations, § 6045, at 312 (2004 rev. ed). The rule “is grounded in restitutionary considerations. Those who share the fund would be unjustly enriched if they could take the benefit without the burden.” Dobbs, Laws of Remedies, § 3.10(2), at 395 (1993).

Here, this litigation resulted in a liability, not a benefit to Illiano. Nor can the result be viewed as a benefit to Pozzuoli in which Illiano would share. Pozzuoli is defunct. It has no assets. 1st Team does not propose to use any recovery from Illiano to reinvest it in Pozzuoli and revive the Gym.

Unlike a case in which a third party is the source of the fund, here the fund is the result of Illiano’s liability. Certainly with respect to the counsel fee, to which 1st Team would accord priority in distribution, the two members of Pozzuoli are not a class that receives the same benefit. 1st Team would have its share of the fee and expenses incurred by the attorneys whom it engaged paid by Illiano, its adversary, through the conduit of the receivership. But, Illiano is subject to the American rule on counsel fees.

Nor are the members of the supposed class treated the same with respect to the distribution to members. Assume that y = the derivative judgment principal amount of $527,831, plus post judgment interest; and x = the allowed amount of counsel fees and costs. Then: (y-x) 2 = the theoretical distribution to each member of Pozzuoli. But, 1st Team would receive its distribution in cash, paid by Illiano, while Illiano would not receive any cash distribution, because he would be the source of the cash to begin with.

Professor Dobbs succinctly dispatches 1st Team’s contention, stating:

“Recovery of fees under the common fund rule is special because it is a recovery against allies, not adversaries. It is not fee shifting but fee sharing.”

Dobbs, supra, § 3.10(2), at 393.

1st Team refers us to Davis v. Gemmell, 73 Md. 530, 21 A. 712 (1891), for the proposition that the common fund rule can apply where a shareholder suffers a detriment, namely, restoring to the corporation an asset wrongly diverted by him. Davis is distinguishable from the instant matter, because the corporation continued in business, all of the shareholders, including the disloyal officer who had appropriated a corporate opportunity, shared equally in the benefit of the recovery, and, under the peculiar facts of that case, the fee was for counsel engaged by the disloyal officer.

In Davis, North Branch Company operated a coal mine. It had three shareholders, William A. Brydon, the majority owner, Thomas Gemmell, and Malcolm Sinclair. Brydon, for his own account, sold $75,000 worth of coal to the Baltimore & Ohio Railroad Co. He had to sue to obtain a judgment for that amount, which he assigned to Henry G. Davis & Co. The minority shareholders in North Branch then sued, contending that the judgment belonged to North Branch, and seeking other relief. The B & O paid the money into court. After an appeal that sustained an injunction, Davis v. Gemmell, 70 Md. 356, 17 A. 259 (1889), the minority shareholders amended their complaint to request, inter alia, that a receiver be appointed and North Branch be wound up. The defendants, Brydon and Henry G. Davis & Co., as well as the corporation, North Branch, “vigorously resisted the appointment of a receiver and the winding up of the corporation.” Davis v. Gemmell, 73 Md. at 535, 21 A. at 713. The circuit court found that the judgment was North Branch’s property and referred the matter to an auditor to state an account distributing the amount of the judgment. The Court declined to order dissolution.

The attorneys who had represented Brydon in the original litigation were allowed a fee out of the fund. The Court reasoned that the minority “stood by and saw the work done, ... and they cannot now be heard in a court of equity to except to that work being paid for out of the fund realized by the labor of these gentlemen, especially when they themselves, these exceptants, are seeking to reap the benefit of that very work and labor.” Id. at 540, 21 A. at 715.

After addressing the claims of other creditors of North Branch, the Court directed that the balance “belongs to the stockholders of the North Branch Company, and must be audited to them ratably, according to their respective holdings of the stock of the company.” Id. at 552, 21 A. at 718. Thus, Brydon shared in the net recovery in proportion to his stock-holdings in North Branch.

Unlike in Davis, it is unclear how Illiano could derive any benefit from the funds procured by 1st Team on behalf of Pozzuoli — a company with no assets and no ongoing operations. The award is purely a liability insofar as Illiano is concerned. Consequently, in the case before us the common fund theory is not available.

Ill

Illiano’s cross-appeal focuses on the “off-the-books” component of the damage calculation. He says that 1st Team’s expert’s opinion at trial should have been limited to a figure opined by that witness at his deposition. On deposition, Runge said that 1st Team’s share of the net proceeds of sale should have been roughly $190,000. Illiano compares $190,000 to the half of $422,612 that Runge used at trial in his damage calculation of the off-the-books transactions. Illiano says that there was a discovery violation because 1st Team did not supplement its discovery and that he was prejudiced thereby. His requested relief is a remand and further proceedings.

The trial was conducted on four days, October 27 through October 30, 2014. On the second day of trial, Runge began his testimony. On direct, 1st Team introduced Exhibit 127, a list of checks drawn on the Pozzuoli account, payable to Damascus Community Bank, and totaling $422,612. Runge explained that he had asked for source documentation but had not received “source documentation that would allow [him] to determine what they were actually for and if they were in fact for valid expenses of Pozzuoli LLC.” There was no objection to Exhibit 127 or to this testimony. Fifty-seven pages of transcript later, on the third page of Runge’s cross-examination, he testified “that what [he] believe[d] that what [1st Team] would be entitled to from the sale is in what I have opined about which is the off book transactions.” (Emphasis added). Illiano then asked for a continuance, claiming surprise because, on deposition, Runge had testified $190,000 was due 1st Team from the proceeds of sale. 1st Team explained that the sale proceeds had been included in a list of off-the-books checks that had been presented as early as June 2014 at a show cause hearing. Illiano said that that list contained checks written after the Gym had closed.

The court refused a continuance and directed that cross-examination proceed. It ruled that “if the Court believes at the conclusion of Mr. Runge’s testimony that the Court should limit his opinions to those which were given in his deposition then I will make a determination that that time.” The plaintiffs case concluded on the third trial day with the balance of Runge’s testimony. Illiano did not move to limit Runge’s damage figure.

Illiano presented the alleged discovery violation in his written post-trial argument. The Court did not explicitly address limiting Runge’s evidence and thereby rejected it, per the last paragraph of its order.

Runge’s deposition had been taken July 14, 2014. Quoted in Illiano’s post-trial argument in the circuit court is the question put to Runge on deposition that produced the response on which the discovery violation argument rests. Counsel asked: “ ‘If the trial in this case were to occur today, what is the amount that you contend is owed to the Caparottis?’ ” (Emphasis added).

There is no discovery violation. Runge was deposed about one month before 1st Team took the deposition of a representative of Damascus Community Bank. Documents produced by the bank revealed that the checks payable to the bank were used to buy Treasurer’s checks made payable to various entities in the “empire.” At trial, Runge explained, “And now, looking at all of this, with all these company transfers, now you need to go back to each one of these individual companies.” “[Yjou’re still stymied because you have to go further and further.” The expert was also waiting for the source documents from Illiano that would explain the legitimacy of the off book transactions. He said “documents were not turned over until a week before trial, a couple of days before trial.” But, he “never received the source documents.”

Even if there were a discovery violation, there is no prejudice to Illiano. Runge tacked into the accounting engagement from the standpoint of investigating the distribution due to Pozzuoli members from the sale proceeds. At trial, he presented those proceeds as part of the larger claim involving disbursements that were paid to Damascus Community Bank without recording in the books of Pozzuoli any purpose, much less one related to that LLC.

There was no surprise or sandbagging. A listing of Pozzuoli checks to Damascus Community Bank was furnished by 1st Team in discovery (Bates No. “Fitness 1765”). 1st Team represents, without contradiction, that that list was produced at a show cause hearing held on June 5, 2014, apparently on alleged discovery violations. That list (Ex. 66 at trial) totaled $451,910.50.

A listing of Pozzuoli checks to Damascus Community Bank was also produced by 1st Team (Ex. 67 at trial) at Runge’s deposition on July 14, 2004. That listing totaled $558,958.50 (and included checks written to Damascus as late as January 9, 2014).

At trial, 1st Team reduced the claim on unsubstantiated disbursements to the bank to $422,612, principally by eliminating a number of checks dated March 2013 and later from the earlier lists (Ex. 127 at trial).

There is no difference, as a matter of Illiano’s liability, between unsubstantiated disbursements from Pozzuoli recorded in the books of the LLC as “Due to/from Frank” and unsubstantiated disbursements from Pozzuoli to Damascus Community Bank. The former disappeared somewhere into the “empire” while, in the latter form of disbursement, we know which province of the “empire” was the destination of each Treasurer’s check. Neither type of transaction informed the court on the business purpose, vis-d-vis Pozzuoli. Illiano could hardly have been prejudiced by 1st Team’s treating, at trial, the “off-the-books” checks as subject to the same legal principles as the “Due to/from Frank” entries.

For all these reasons, we affirm all appeals.

JUDGMENTS OF THE CIRCUIT COURT FOR CARROLL COUNTY ON THE APPEALS OF 1ST TEAM FITNESS, LLC AND OF THE RECEIVER FOR POZZUOLI, LLC, AFFIRMED.

JUDGMENT OF THE CIRCUIT COURT FOR CARROLL COUNTY ON THE CROSS-APPEAL OF FRANCESCO ILLIANO AFFIRMED.

COSTS TO BE PAID 2/3 BY THE APPELLANTS AND 1/3 BY THE CROSS-APPELLANT.

      . The Operating Agreement spells the name of the LLC “Pozzuoli." The preprinted checks for the LLC at Damascus Community Bank spell the name of the LLC "Pozzouli.” We shall use the former spelling, as did the parties and the trial court.

      . The circuit court noted that "Pozzuoli is a city in the province of Naples.”

      . The record does not disclose against whom the liens were imposed. The claims were satisfied by July 2013.

      . The court incorporated the reasons (extensively quoted above) that it had expressed for denying punitive damages on Count III, "Intentional Misrepresentations, Concealment or Non-Disclosure,” and on Count IV, "Constructive Fraud," as reasons for denying punitive damages on Count IX.

      . Runge's damage calculation, accepted by the court, credited the entire $140,000 startup loan, agreed upon in the Operating Agreement, in favor of Illiano against the excess of the withdrawals over infusions in the "Due to/from Frank Account.” This does not mean that the judgment should be increased by $76,333. Runge listed as "withdrawals” items that he could not relate to a Pozzuoli business purpose. Presumably, the part payments on the $140,000 loan are included in the total withdrawals of $567,949.97. If 1st Team’s expert had identified the purpose of the part payments, he would have reduced the $140,000 credit and not treated the loan as unpaid in its entirety.

      . The docket entry records that the judgment is for $527,831 and is in favor of both Pozzuoli and 1st Team.

      . A direct action is one brought by a shareholder "against alleged corporate wrongdoers when the shareholder suffers the harm directly or a duty is owed directly to the shareholder, though such harm also may be a violation of a duty owing to the corporation.” Shenker v. Laureate Education, Inc., 411 Md. 317, 345, 983 A.2d 408, 424 (2009).
      Illiano's failure to distribute to 1st Team its share of the proceeds of the unilateral sale of assets seemingly is an illustration of a direct injury. See Shenker, 411 Md. at 346-47, 983 A.2d at 425.
      "One advantage a derivative action has for the shareholder is that the expenses of the litigation, if successful, may be borne by the corporation, not the shareholder: 'In direct, as opposed to derivative actions, each side will normally be responsible for its own legal expenses.' ” Boland v. Boland, 423 Md. 296, 317, 31 A.3d 529, 542 (2011) (quoting W.M. Fletcher, Cyclopedia of the Law of Private Corporations, § 5938 (2009 Rev. Vol.)).

      . It is the component other than the net of withdrawals over infusions in the "Due to/from Frank” account.

      . Runge's deposition is not in the record extract. Portions are referred to in Illiano’s post-trial written argument.

      . Illiano used the Pozzuoli checking account for transactions after the holdback of the sales proceeds had been deposited and disbursed.