Joseph Antonio v. SSA Security, Inc. , 749 F.3d 227 ( 2014 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1031
JOSEPH ANTONIO; BULAN JULES−ANTONIO; MICHAEL CLARK; CAROLYN
CLARK; THOMAS COOPER; ANGEL FOUNTAIN−COOPER; GREG GIBBS;
NATALIE GIBBS; GEORGE HALEY; YVONNE HALEY; JACQUE
HIGHTOWER; DAWN HIGHTOWER; KHARI JACKSON; BELINDA JACKSON;
HAROLD JEWETT; CYNTHIA JEWETT; MICHAEL JOHNSON; CRYSTAL
JOHNSON; JAGATH KANKANAMAGE; KETH KANKANAMAGE; KEITH
ROBINSON; TAKEYSHA ROBINSON; EVERTON ROWE; BEVERLY ROWE;
ERIK SMITH; SHARON SMITH; LEONARD SWOOPES; EVORA SWOOPES;
KENDALL WALKER; SAMANTHA WALKER,
Plaintiffs - Appellants,
and
DERRICK POTTS; TERRI ROOKARD,
Plaintiffs.
v.
SSA SECURITY, INC., d/b/a Security Services of America,
Defendant – Appellee,
and
JEREMY DANIEL PARADY; PATRICK STEPHEN WALSH; MICHAEL
MCINTOSH EVERHART; ROY THOMAS MCCANN; SECURITY SERVICES OF
AMERICA, LLC; ABM INDUSTRIES, INC.; AARON LEE SPEED,
Defendants.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District
Judge. (8:05-cv-02982-AW)
Argued: January 30, 2014 Decided: April 14, 2014
Before KING, WYNN, and FLOYD, Circuit Judges.
Affirmed in part and question certified to the Court of Appeals
of Maryland by published order. Judge Floyd directed entry of
the order with the concurrence of Judge King and Judge Wynn.
ARGUED: Ruthanne Mary Deutsch, AKIN GUMP STRAUSS HAUER & FELD
LLP, Washington, D.C., for Appellants. Gary Alvin Bryant,
WILLCOX & SAVAGE, PC, Norfolk, Virginia, for Appellee. ON
BRIEF: Isabelle M. Thabault, Megan Whyte, WASHINGTON LAWYERS
COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS, Washington, D.C.;
Steven H. Schulman, Joseph L. Decker, Maka Y. Hutson, AKIN GUMP
STRAUSS HAUER & FELD LLP, Washington, D.C., for Appellants.
Joseph P. Moriarty, J. David Crain, WILLCOX & SAVAGE, PC,
Norfolk, Virginia; Gerry H. Tostanoski, TYDINGS & ROSENBERG,
LLP, Baltimore, Maryland, for Appellee.
______________
ORDER
______________
FLOYD, Circuit Judge:
This case arises out of one of the largest residential
arsons in Maryland history. See Michael E. Ruane & Joshua
Partlow, No Motive Found in Charles Arsons; Eco-Terrorism,
Racism Considered, Wash. Post, Dec. 8, 2004, at B1. Appellants
(Homebuyers) contracted to purchase homes that were later
damaged or destroyed due to the arsons. Following the arsons,
the Homebuyers brought suit against a company that provided
2
security services in the neighborhood, Appellee SSA Security,
Inc., (SSA) alleging various negligence-based claims and a claim
premised on a provision of the Maryland Security Guards Act.
The district court granted summary judgment in SSA’s favor on
these claims. The Homebuyers now appeal, and we affirm in part
and certify a question to the Court of Appeals of Maryland
regarding the Maryland Security Guards Act provision.
I.
Because this case comes to us as an appeal from grants of
summary judgment in favor of SSA, we recite the facts in the
light most favorable to the Homebuyers, as the nonmoving party.
See United States v. Carolina Transformer Co., 978 F.2d 832, 835
(4th Cir. 1992). The Homebuyers are individuals who contracted
to purchase homes in the Hunters Brooke neighborhood in Indian
Head, Maryland. SSA provided security services in Hunters
Brooke from November 12, 2004, to December 6, 2004, when arsons
destroyed many of the homes. SSA employed Aaron Speed and
William Fitzpatrick as security guards, and they worked in
Hunters Brooke at the time of the arsons. SSA first hired Speed
in November 2003 without checking his references. Speed quit in
August 2004 after being reprimanded for “careless and aggressive
conduct,” causing his supervisor to write “not for rehire” on
3
his personnel file. However, in November 2004, SSA rehired
Speed.
Speed conspired with four men to burn, damage, and destroy
houses in Hunters Brooke to prevent racial minority families
from moving to the neighborhood. Speed left his post on
December 3, 2004, to stash the fuel he and his co-conspirators
used to set the fires. Additionally, while Speed was on duty,
he created a map of the neighborhood and determined which houses
had racial minority owners. Fitzpatrick was on duty from 6:00
PM to 5:00 AM on December 5 and 6, 2004. According to the
Homebuyers, Fitzpatrick left his post before his shift ended,
allowing Speed and his co-conspirators to set fire to the homes.
When the arsons occurred, none of the Homebuyers had closed
on or taken possession of their homes. 1 Consequently, developers
U.S. Home Corporation and Patriot Homes, Inc., (collectively,
Developers) owned the properties in question at the time of the
arsons. The Homebuyers’ agreements with the Developers stated,
“All risk of loss or damage to the Property by fire . . . is
assumed by Seller until settlement.”
1
Two plaintiffs—Terri Rookard and Derrick Potts—had taken
possession of their homes prior to the arsons. Their claims
against SSA survived summary judgment, Antonio v. Sec. Servs. of
Am., LLC, No. 05-cv-2982-AW, 2011 WL 3880425, at *6-7 (D. Md.
Aug. 30, 2011), but they settled before trial. Rookard and
Potts are not parties to this appeal.
4
The Homebuyers brought suit against SSA, two of its
corporate affiliates, Speed, and his four co-conspirators. In a
ten-count Amended Complaint, the Homebuyers alleged that SSA and
the individual defendants violated the Fair Housing Act (Count
I), the Maryland Fair Housing Act (Count II), 42 U.S.C. § 1982
(Count III), and 42 U.S.C. § 1985(3) (Count IV). They also
sought to hold SSA, its corporate affiliates, and the individual
defendants liable for tortious interference with contract (Count
IX) and intentional infliction of emotional distress (Count X).
Against SSA alone, the Homebuyers brought claims for negligent
hiring, supervision, and training (Count V); for negligence
(Count VI); under the Maryland Security Guards Act, Md. Code
Ann., Bus. Occ. & Prof § 19-501 (Count VII); and for breach of
contract (Count VIII).
The district court granted SSA and its corporate
affiliates’ motion for summary judgment on Count I, Count II,
Count III, Count IV, Count VIII, Count IX, and Count X. Antonio
v. Sec. Servs. of Am., LLC, 701 F. Supp. 2d 749, 783-84 (D. Md.
2010). It also dismissed SSA’s corporate affiliates, id. at
760-61, and Speed and his co-conspirators from this action.
Although the district court allowed the Homebuyers’ negligence-
based claims and a portion of their Maryland Security Guards Act
claim to remain after its initial grant of summary judgment, id.
at 783-84, it ultimately granted summary judgment in SSA’s favor
5
on these claims following SSA’s renewed motion for summary
judgment, 2 Antonio, 2011 WL 3880425, at *3-7.
On appeal, the Homebuyers ask us to reverse the district
court’s decision to grant summary judgment in SSA’s favor as to
the Homebuyers’ negligence-based claims and their claim stemming
from the Maryland Security Guards Act. They also challenge the
district court’s decision not to certify a question regarding
how to interpret the Maryland Security Guards Act provision at
issue in this case to the Court of Appeals of Maryland. See
Antonio v. Sec. Servs. of Am., LLC, No. AW-05-2982, 2010 WL
2858252, at *9 (D. Md. July 19, 2010). We have jurisdiction
pursuant to 28 U.S.C. § 1291.
II.
We first discuss the Homebuyers’ contention that the
district court erred in granting SSA’s renewed motion for
summary judgment on the Homebuyers’ negligence-based claims. The
2
When the district court ruled on SSA and its corporate
affiliates’ motion for summary judgment, it allowed the
Homebuyers’ Maryland Security Guards Act claim to remain only to
the extent that this claim rendered SSA liable for Fitzpatrick’s
negligence. Antonio, 701 F. Supp. 2d at 770. However, because
the district court determined that the Homebuyers could not hold
SSA liable for negligence when it considered SSA’s renewed
motion for summary judgment, Antonio, 2011 WL 3880425, at *3-7,
it effectively disposed of this remaining portion of the
Maryland Security Guards Act claim.
6
district court reached this conclusion because the Homebuyers
did not own the damaged property or reside in the homes in
question at the time of the arsons and, therefore, suffered only
emotional injuries. 3 Antonio, 2011 WL 3880425, at *4-5. We
review grants of summary judgment de novo and will affirm only
if SSA is entitled to judgment as a matter of law and we discern
no genuine disputes of material fact. See Laber v. Harvey, 438
F.3d 404, 415 (4th Cir. 2006) (en banc).
Although we do not wish to downplay the severity of the
emotional harm that the Homebuyers suffered due to the arsons,
we recognize that, under Maryland law, “a plaintiff ordinarily
cannot recover for emotional injury caused by witnessing or
learning of negligently inflicted injury to the plaintiff’s
property.” Dobbins v. Wash. Suburban Sanitary Comm’n, 658 A.2d
675, 677 (Md. 1995). The Court of Appeals of Maryland
established two exceptions to this general rule in Zeigler v.
3
Maryland recognizes the doctrine of equitable conversion,
whereby “when the vendee contracts to buy and the vendor to
sell, though legal title has not yet passed, in equity the
vendee becomes the owner of the land.” DeShields v. Broadwater,
659 A.2d 300, 307 (Md. 1995) (quoting Himmighoefer v. Medallion
Indus., Inc., 487 A.2d 282, 286 (Md. 1985)). Parties may
prevent equitable conversion via contract by allocating the risk
of loss to the seller, see White v. Simard, 831 A.2d 517, 528
(Md. Ct. Spec. App. 2003), as the Homebuyers and the Developers
did in this case. In light of this contractual provision, the
Homebuyers cannot rely on equitable conversion to claim that
they are the equitable owners of their homes.
7
F Street Corp., 235 A.2d 703 (Md. 1967). First, a plaintiff may
recover for emotional injury if his or her “personal safety
. . . was in jeopardy.” Id. at 705. The Homebuyers, who were
not present in Hunters Brooke on the night of the arsons, do not
contend that the arsons endangered their personal safety. 4 This
first exception therefore does not apply in this case. Second,
“[w]here . . . the act occasioning the injury to the property is
inspired by fraud, malice, or like motives, mental suffering is
a proper element of damage.” Id. The Homebuyers contend that
we should allow their negligence-based claims to proceed due to
this second Zeigler exception.
We consider whether SSA’s behavior triggered the second
Zeigler exception before turning to the issue of whether we may
utilize the exception if Speed and his co-conspirators acted
maliciously. During this discussion, we assume for the sake of
argument that “fraud, malice, or like motives,” id. (emphasis
added), includes gross negligence and that SSA was grossly
4
For this reason, the Homebuyers were not foreseeable
plaintiffs in this case, which provides another basis for
affirming the district court’s decision to grant SSA’s renewed
motion for summary judgment on the Homebuyers’ negligence-based
claims. See Dobbins, 658 A.2d at 680 n.4 (“Because many
plaintiffs who have suffered emotional distress from an incident
were never actually in physical danger or fear for their safety,
courts have often denied recovery for emotional distress using
an unforeseeable plaintiff analysis. . . . Maryland has adopted
this foreseeable plaintiff rule.”).
8
negligent in its hiring, training, or supervision of its
employees. In Abbott v. Forest Hill State Bank, 483 A.2d 387
(Md. Ct. Spec. App. 1984), the Maryland Court of Special Appeals
explained that “[t]o recover [under the second Zeigler
exception], the plaintiff must allege either notice of the
mental distress on the part of the defendant or that the act was
calculated to cause mental distress,” id. at 391. The
Homebuyers do not allege that SSA’s actions were “calculated to
cause mental distress.” Therefore, to succeed, the Homebuyers
must demonstrate that SSA had notice of their mental distress.
Maryland precedent indicates that the required notice must
occur contemporaneously with the defendant’s actions—a
requirement Abbott characterized as “prior notice.” 483 A.2d at
392. The circumstances at issue in Zeigler provide a cogent
example of the “prior notice” requirement. In that case, the
defendants cleared the slope behind the plaintiff’s home,
causing water and debris to flow onto her property. 235 A.2d at
704-05. According to the plaintiff, her husband became so
distraught over the resulting damage to the property that he
developed a nervous condition that caused his death. Id. at
705. The court explained that the plaintiff did not “allege
that the defendants had been warned that their acts were causing
the decedent mental distress,” id., although—like SSA—they
presumably became aware of his distress later. Accordingly, the
9
court declined to hold the defendants liable for the death. Id.
at 705-06.
The Homebuyers allege that they suffered emotional distress
due to SSA’s actions, but they have failed to show that SSA had
any prior notice of their emotional injuries. Thus, even if SSA
was grossly negligent and such behavior constitutes “malice[] or
like motives,” id. at 705, the Homebuyers cannot recover based
on SSA’s actions because there is no evidence that SSA aimed to
cause their injuries or had prior notice that its behavior was
causing distress.
We turn now to the issue of whether the Homebuyers can hold
SSA responsible for their emotional injuries if Speed and his
co-conspirators acted with “malice[] or like motives” and
endeavored to cause the Homebuyers’ mental distress. Maryland
precedent is silent regarding whether courts can render a
defendant liable for emotional injuries based on a third party’s
malice. Therefore, we—as the district court did, see Antonio,
2011 WL 3880425, at *4-5—look to the rationales underlying the
second Zeigler exception to determine whether SSA could be
liable in this case. The Court of Appeals of Maryland laid out
those rationales in Dobbins v. Washington Suburban Sanitary
Commission. First, Maryland has limited recovery for emotional
distress to prevent “feigned claims.” 658 A.2d at 677-78. In
this case, the parties do not dispute that the Homebuyers
10
suffered emotional injuries as a result of the arsons. The
first Dobbins rationale therefore does not support barring
recovery for emotional harm in this case.
Second, Maryland has “limited recovery for emotional
injuries . . . based on the rules concerning foreseeability of
harm, which courts have used both ‘in determining the existence
of a duty owed to the [p]laintiff [and] in resolving the issue
of proximate cause.’” Id. at 678 (third alteration in original)
(quoting Henley v. Prince George’s Cnty., 503 A.2d 1333, 1340
(Md. 1986)). Under Maryland law, injuries are foreseeable when
they are “consequences that ensue in the ordinary and natural
course of events” following the defendant’s action and “ought,
in the light of all the circumstances, to have been contemplated
as a natural and probable consequence thereof.” State ex rel.
Aronoff v. Balt. Transit Co., 80 A.2d 13, 15, 18 (Md. 1951)
(quoting Balt. City Passenger Ry. Co. v. Kemp, 61 Md. 74 (1883))
(internal quotation marks omitted). The Dobbins court explained
that “ordinarily, emotional injuries are not the ‘consequences
that ensue in the ordinary and natural course of events’ from
negligently inflicted property damage,” and “such injuries
should not be contemplated, in light of all the circumstances,
‘as a natural and probable consequence’ of a negligently
inflicted injury to property.” 658 A.2d at 679 (quoting Balt.
Transit, 80 A.2d at 15). Accordingly, assuming that SSA was
11
negligent, the Homebuyers’ emotional injuries were not a
foreseeable result of its actions. This rationale underlying
the second Zeigler exception therefore counsels in favor of not
holding SSA liable for the Homebuyers’ injuries, even if Speed
and his co-conspirators acted with malice.
We understand that the destruction of one’s home is a
terrible experience that causes lasting emotional trauma. The
fact that the Homebuyers lost their homes due to crimes that may
have been racially motivated surely exacerbated their suffering.
We also recognize that, if the Homebuyers’ allegations are true,
SSA acted negligently, at best, by rehiring Speed after deeming
him unsuitable for employment. However, because the Homebuyers
did not own their homes at the time of the arsons and suffered
only emotional injuries, Maryland law prevents their recovery
against SSA. We therefore affirm the district court’s decision
to grant SSA’s renewed motion for summary judgment as to the
Homebuyers’ negligence-based claims.
III.
We turn now to the Homebuyers’ arguments regarding the
Maryland Security Guards Act. The Homebuyers premise their
claim on section 19-501 of the Maryland Business Occupations and
Professions Code, which provides that “[a] licensed security
guard agency is responsible for the acts of each of its
12
employees while the employee is conducting the business of the
agency.” The Homebuyers and SSA disagree regarding the scope of
this provision. The Homebuyers contend that the language “while
the employee is conducting the business of the agency” indicates
that the statute renders SSA strictly liable for any actions a
security guard agency’s employee takes while the employee is on
duty. Under the Homebuyers’ interpretation of the statute, SSA
could be liable for Speed’s and Fitzgerald’s intentional torts
and statutory violations. By contrast, SSA avers that the
provision simply codifies common law respondeat superior
principles, by which an employer is vicariously liable for its
employee’s behavior only if the employee commits the act in
question while acting within the scope of his or her employment
or “in furtherance of the employer’s business and authorized by
the employer.” See Barclay v. Briscoe, 47 A.3d 560, 567-68 (Md.
2012) (quoting S. Mgmt. Corp. v. Taha, 836 A.2d 627, 638 (Md.
2003)) (internal quotation marks omitted). The district court
agreed with SSA’s interpretation of the statute. See Antonio,
701 F. Supp. 2d at 762-66.
Pursuant to Maryland law, “a court of the United States”
may certify a question to the Court of Appeals of Maryland “if
the answer may be determinative of an issue in pending
litigation in the certifying court and there is no controlling
appellate decision, constitutional provision, or statute of
13
[Maryland].” Md. Code Ann., Cts. & Jud. Proc. § 12-603. We
review the district court’s decision to deny the Homebuyers’
request for certification for abuse of discretion. Nat’l
Capital Naturists, Inc. v. Bd. of Supervisors of Accomack Cnty.,
878 F.2d 128, 132 (4th Cir. 1989). However, even if we discern
no abuse of discretion, we may certify the question to the Court
of Appeals of Maryland ourselves. See Anderson v. United
States, 669 F.3d 161 (4th Cir. 2012); Doe v. Pharmacia & Upjohn,
Inc., 122 F. App’x 20 (4th Cir. 2005).
A. Discussion of Maryland Law
To determine whether this question regarding section 19-
501’s import warrants certification to the Court of Appeals of
Maryland, we first consider whether the provision’s meaning “may
be determinative of an issue in pending litigation.” Md. Code
Ann., Cts. & Jud. Proc. § 12-603. For the reasons we lay out in
Part II of this Order, section 19-501 cannot render SSA liable
for negligence. However, as the Homebuyers point out in their
briefs, under their interpretation of section 19-501, “SSA
[c]ould be directly liable . . . not only for actions taken
within the scope of employment, but also for the intentional
torts of its employees and for its employees’ civil rights
violations, without need to prove any additional negligence by
SSA in its hiring, training or supervision.” Notably, the
14
district court dismissed the Homebuyers’ Fair Housing Act, 42
U.S.C. § 1982, 42 U.S.C. § 1985(3), tortious interference with
contract, and intentional infliction of emotional distress
claims against SSA because Speed was not acting within the scope
of his employment when he prepared to execute the arsons.
Antonio, 701 F. Supp. 2d at 773, 775. Under the Homebuyers’
interpretation of section 19-501, SSA could be liable for these
counts even though Speed exceeded the scope of his employment,
indicating that section 19-501’s meaning may be determinative of
these issues.
Second, we evaluate whether we may ascertain section 19-
501’s scope based on a “controlling appellate decision,
constitutional provision, or statute of [Maryland].” Md. Code
Ann., Cts. & Jud. Proc. § 12-603. Maryland’s courts have not
interpreted the statute, so we look first to its plain meaning
to determine whether we can deduce section 19-501’s import
without certifying a question. See Oaks v. Connors, 660 A.2d
423, 429 (Md. 1995) (“[I]f the words of the statute, construed
according to their common and everyday meaning, are clear and
unambiguous and express a plain meaning, we will give effect to
the statute as it is written.” (quoting Jones v. State, 647 A.2d
1204, 1206 (Md. 1994)) (internal quotation marks omitted)). The
Homebuyers emphasize the statute’s use of the word “while,”
15
contending that the inclusion of that word indicates that
section 19-501 is
best read to hold a licensed security guard agency
responsible not only for an employee’s acts in
“conducting the business of the agency”—as understood
in the common law doctrine of respondeat superior—but
also for those additional acts that take place “at the
same time that” the employee is doing so.
In essence, the Homebuyers argue that section 19-501’s plain
meaning renders security guard agencies liable for actions that
their employees commit while on duty, regardless of whether the
employee was furthering the employer’s interests. SSA contends
that the Homebuyers “overlook the common, everyday meaning of
the phrase ‘while . . . conducting the business of the agency,’”
pointing out that employees cannot conduct their employers’
business while they commit crimes. Accordingly, SSA argues that
section 19-501’s plain meaning is coextensive with respondeat
superior. Because these interpretations are equally plausible,
we cannot rely on section 19-501’s plain meaning to interpret
the statute.
“If the meaning of [a statute’s] plain language is
ambiguous or unclear, to discern legislative intent, [the court]
look[s] to the legislative history, prior case law, the purposes
upon which the statutory framework was based, and the statute as
a whole.” Bost v. State, 958 A.2d 356, 361 (Md. 2008). We
first consider whether Maryland’s case law can shed light on
16
section 19-501’s meaning. In an “often-quoted” passage, the
Court of Appeals of Maryland distinguished acts “done while
prosecuting the master’s business” from acts “done by the
servant in furtherance thereof,” implying that the former has a
wider scope than the latter:
The simple test [for determining whether an employer
is vicariously liable for its employee’s acts] is
whether they were acts within the scope of his
employment; not whether they were done while
prosecuting the master’s business, but whether they
were done by the servant in furtherance thereof, and
were such as may fairly be said to have been
authorized by him.
See Sawyer v. Humphries, 587 A.2d 467, 470 (Md. 1991) (quoting
Hopkins Chem. Co. v. Read Drug & Chem. Co. of Balt. City, 92 A.
478, 479-80 (Md. 1914)) (internal quotation marks omitted). The
language “prosecuting the master’s business,” see id., is very
similar to the phrase “conducting the business of the agency,”
Md. Code Ann., Bus. Occ. & Prof. § 19-501. This case law
therefore suggests that the Homebuyers’ position—that section
19-501 is a broad provision that can render a security guard
agency liable even if its employee did not act within the scope
of his or her employment—may be correct.
The Homebuyers also contend that the legislative history of
the Maryland Private Detectives Act, Md. Code Ann., Bus. Occ. &
Prof. § 13-601, supports their interpretation of section 19-501
because the Maryland Security Guards Act stemmed from the
17
Maryland Private Detectives Act. Econ. Matters Comm., Bill
Analysis: H.B. 42, H.D. 410-42 (Md. 1996) (“House Bill 42
separates the current provisions of law governing the
certification of security guards and the regulation of security
guard services from the Maryland Private Detectives Act.”).
Section 13-601 contains the same language that is at issue in
this case but applies to “private detective agenc[ies]” rather
than “licensed security guard agenc[ies].” Compare Md. Code
Ann., Bus. Occ. & Prof. § 13-601, with id. § 19-501.
When it passed the bill that enacted section 13-601 in
1986, the Maryland Senate declined to adopt a proposed amendment
that replaced “while the employee is conducting the business of
the agency” with “if the acts are within the scope of this
subtitle.” Senator Kelly & Md. Ass’n of Contract Guard Servs.,
Amendment to Senate Bill No. 968, S. 396-968 (Md. 1986). The
amendment’s stated purpose was “[c]larif[ying] that agencies are
not liable for acts committed outside the scope of employment.”
Id. In other words, the amendment’s drafters aimed to make
section 13-601’s language mirror the common law rule. The
Senate gave no reason for its decision not to incorporate the
proposed language into the bill.
The Homebuyers urge us to conclude that the Senate’s
decision not to adopt the proposed amendment supports its
interpretation of section 19-501. However, because the Senate
18
did not explain the reasoning behind its choice, we cannot
assume it rejected the amendment because it did not want to
codify the common law rule. As SSA points out in its brief, it
is just as likely that the Senate declined to incorporate the
proposed amendment’s language into the bill because it believed
the existing language already codified respondeat superior. See
Auto. Trade Ass’n of Md., Inc. v. Ins. Comm’r, 437 A.2d 199, 203
(Md. 1981) (“[T]he fact that a bill on a specific subject fails
of passage in the General Assembly is a rather weak reed upon
which to lean in ascertaining legislative intent.”). We
therefore cannot glean section 19-501’s meaning from the
Senate’s decision not to adopt the amendment.
The Homebuyers also contend that the Senate’s statements
regarding section 13-601’s purpose indicate that their
interpretation of section 19-501 is correct. Senate Bill 968,
which included the provision that ultimately became section
13-601, specified that, “for the most part, the proposals under
the bill find their basis in actual law and practice and do not
deviate substantially from the current law as it is now applied.
There is no attempt under the revision to change existing
policy.” S. Econ. & Envtl. Affairs Comm., Summary of Committee
Report, Senate Bill 968: Private Detectives, S. 396-968, at 2
(Md. 1986). The Senate also explained that it intended section
13-601 to “clarify[] provisions of Article 56, Section
19
81(a)(1).” S. Econ. & Envtl. Affairs Comm., Bill Analysis,
Senate Bill 968: Private Detectives, S. 396-968, at 7 (Md.
1986). In 1985, immediately prior to the enactment of section
13-601, article 56, section 81(a)(1) provided that:
The holder of any [private detective or security guard
agency] license issued under the provisions of this
subtitle may employ to assist him in his work and in
the conduct of his business as many persons as he may
deem necessary, and he shall at all times during such
employment be accountable for the good conduct in the
business of each and every person so employed.
Md. Code. Ann., Art. 56, § 81(a)(1) (Supp. 1985). To determine
whether the Senate’s goal of clarifying this provision without
altering its function elucidates the meaning of section 13-601
or section 19-501, we must construe section 81(a).
How section 81(a) worked in practice is far from clear.
Maryland’s courts never interpreted the provision, and other
states’ courts have reached differing conclusions when
interpreting similar language from other statutes. For example,
in Borg-Warner Protective Services Corp. v. Superior Court, 89
Cal. Rptr. 2d 687 (Ct. App. 1999), the California Court of
Appeal considered the meaning of a statute containing the
following language: “A licensee shall at all times be legally
responsible for the good conduct in the business of each of his
or her employees or agents, including his or her manager,” id.
at 689-90 (quoting Cal. Bus. & Prof. Code § 7582.15) (internal
quotation marks omitted). The court held that the statute
20
codified respondeat superior. Id. In Simmons, Inc. v.
Pinkerton’s, Inc., 762 F.2d 591, 595-98 (7th Cir. 1985),
however, the Seventh Circuit construed a similar statute as
rendering security guard agencies strictly liable for their
employees’ torts. Accordingly, the fact that the Maryland
Senate intended section 13-601 “to clarify provisions of article
56, section 81(a)(1)” and not to “deviate substantially from the
current law as it is now applied” sheds little light on the
operation of section 19-501 because we cannot ascertain section
81(a)(1)’s meaning.
Finally, we note that, under Maryland law, “it is a long-
standing rule of statutory interpretation that the common law
will not be repealed by implication.” Suter v. Stuckey, 935
A.2d 731, 743 (Md. 2007). Pursuant to this canon of
construction,
[t]he rules of the common law are not to be . . .
overturned except by clear and unambiguous language.
In order to hold that a statute has abrogated common
law rights existing at the date of its enactment, it
must clearly appear that they are repugnant to the
act, or the part thereof invoked, that their survival
would in effect deprive it of its efficacy and render
its provisions nugatory.
Id. at 744 (quoting Lutz v. State, 172 A. 354, 356 (Md. 1934))
(internal quotation marks omitted). In other words, when the
General Assembly is silent regarding whether a statute abrogates
the common law, Maryland’s courts interpret the statute in
21
conformity with the common law unless (1) “the provisions
can[not] be given full effect without derogation from the common
law” or (2) the “statute deals with an entire subject-matter,”
thereby “abrogating the common law as to that subject.” Id.
The General Assembly was silent regarding whether it intended
section 19-501 to abrogate the common law, and neither of these
exceptions apply in this case. This canon of construction
therefore suggests that Maryland’s courts would interpret
section 19-501 in conformity with the common law.
The existing legal landscape in Maryland offers clues that
support both the Homebuyers’ and SSA’s positions. As we explain
above, Maryland precedent distinguishes acts “done while
prosecuting the master’s business” from acts “done by the
servant in furtherance thereof,” imposing liability only for the
latter acts. Sawyer, 587 A.2d at 470. This language suggests
that section 19-501—which renders security guard agencies liable
for acts their employees commit “while the . . . conducting the
business of the agency”—extends beyond the common law. However,
pursuant to one of Maryland’s canons of statutory construction,
we should interpret section 19-501 in conformity with the common
law because the General Assembly did not explicitly abrogate the
common law when it enacted the statute. In light of these
conflicting indicators of section 19-501’s meaning and the fact
that this issue may be determinative of the success of several
22
of the Homebuyers’ claims, we decline to interpret the statute
and seek the Court of Appeals of Maryland’s guidance. 5
B. Certified Question
For the aforementioned reasons, we certify the following
question to the Court of Appeals of Maryland:
Does the Maryland Security Guards Act, Md. Code Ann.,
Bus. Occ. & Prof. § 19-501, impose liability beyond
common law principles of respondeat superior such that
an employer may be responsible for off-duty criminal
acts of an employee if the employee planned any part
of the off-duty criminal acts while he or she was on
duty?
We acknowledge that the Court of Appeals of Maryland may
reformulate the question. See Md. Code Ann., Cts. & Jud. Proc.
§ 12-604.
C. Parties and their Counsel
Counsel of record for the Homebuyers is Ruthanne M.
Deutsch, Akin Gump Strauss Hauer & Feld LLP, 1333 New Hampshire
Avenue, N.W., Washington, D.C. 20036. Counsel of record for SSA
are Gary A. Bryant, Joseph P. Moriarty, and J. David Crain,
Willcox & Savage, P.C., 440 Monticello Avenue, Suite 2200,
Norfolk, Virginia 23510, and Gerry H. Tostanoski, Tydings &
5
Because we opt to certify the question ourselves, we do
not reach the issue of whether the district court abused its
discretion by declining to certify the question.
23
Rosenberg, L.L.P., 100 East Pratt Street, 26th Floor, Baltimore,
Maryland 21202.
IV.
For these reasons, we affirm the district court’s decision
to grant SSA’s renewed motion for summary judgment as to the
Homebuyers’ negligence-based claims. We also hereby order that:
(1) the above question be certified to the Court of Appeals of
Maryland; (2) the Clerk of this Court forward this Order to the
Court of Appeals of Maryland; and (3) the Clerk of this Court
fulfill any requests by the Court of Appeals of Maryland for all
or part of the record in this case.
AFFIRMED IN PART AND
QUESTION CERTIFIED
24