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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1499 SEPTEMBER TERM, 1998 ___________________________________

HENRY FAITH, ET AL. v. TIMOTHY LEE KEEFER ___________________________________ Hollander, Thieme, Alpert, Paul E., Ret. (Specially assigned) JJ. ___________________________________ Opinion by Hollander, J. ___________________________________ Filed: September 3, 1999

This appeal arises from a fatal automobile accident that occurred in Washington County on January 17, 1997. Thirty-seven

year old Rebecca Faith ("Rebecca" or the "decedent"), a passenger in a vehicle driven by nineteen year old Timothy Lee Keefer ("Keefer"), appellee, was killed when the car collided with a utility pole. action was On April 15, 1997, a wrongful death and survival against appellee in the Circuit Court for

filed

Washington County by the decedent's husband, Henry Faith ("Henry"), individually and on behalf of the decedent's estate and the

couple's daughter, Tricia Nicole, and by Steven Rhyme ("Rhyme"), the ex-husband of the decedent, on behalf of, Daniel Rhyme, the son of Rhyme and the decedent. here.1 After the circuit court granted appellee's Motion for Summary Judgment, appellants timely noted this appeal. They present two The plaintiffs below are the appellants

questions for our consideration, which we have rephrased: I. Did the circuit court err in denying appellants' Motion in Limine, seeking to exclude appellee's belated answers to interrogatories, filed after Keefer had invoked his privilege under the Fifth Amendment? Did the circuit court err in granting summary

II.
1

Appellants' brief only refers to Henry as appellant, while appellee's brief names both Henry and Rhyme as "Plaintiffs/Appellants." But, the Notice of Appeal is captioned: "PLAINTIFF(S) HENRY FAITH, et al." Moreover, the caption of the complaint names the following persons as Plaintiffs: "HENRY FAITH INDIVIDUALLY AND AS HUSBAND OF REBECCA FAITH AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF REBECCA FAITH AND AS FATHER AND NATURAL GUARDIAN OF TRICIA NICOLE FAITH, INFANT AND STEVEN RHYME AS FATHER AND NATURAL GUARDIAN OF DANIEL RHYME, INFANT C/O CHARLES MENTZER [APPELLANTS' ATTORNEY]. . . ."

judgment in favor of Keefer based on contributory negligence, assumption of the risk, and agency? For the reasons that follow, we shall uphold the trial court's denial of appellants' motion in limine, but reverse the award of summary judgment in favor of appellee. Accordingly, we shall

remand the matter to the circuit court for further proceedings. Factual Summary2 Shortly before 1:47 a.m. on January 17, 1997, appellee was driving eastbound on Maryland Route 144 (also known as Western Pike), in a 1989 Ford Mustang GT that was co-owned by Rebecca and her husband, Henry. Western Pike is a two lane roadway with a Two yellow road signs

posted speed limit of 40 miles per hour.

were posted on the approach to a curve in the road, warning of the curve and a maximum speed of 30 miles per hour. As Keefer

proceeded around the bend of the curve, at or near the intersection of Round Top Road, he lost control of the vehicle. The car

collided with a utility pole, causing the pole to snap in half. Rebecca, the vehicle's only passenger, suffered a crushed chest when the side of the vehicle collapsed. Kristine Brown was the first person on the scene.3 She had

Our factual summary is derived largely from the parties' briefs, the police report, the deposition of Deputy Richard Schleigh on May 7, 1998, the deposition of Dr. Howard Weeks on May 7, 1998, and appellee's Answers to Interrogatories.
3

2

The record contains a discrepancy as to the spelling of the (continued...) -2-

been heading westbound on Maryland Route 144 when she saw the Mustang traveling eastbound at an estimated speed of 65 or 70 miles per hour. Moments later, Ms. Brown heard the collision and

immediately turned to check on the condition of the people involved in the accident. She promptly called for medical assistance.

Fire and rescue personnel extricated appellee from the vehicle and transported him to Washington County Hospital. Deputy Richard

Schleigh of the Washington County Sheriff's Department, who was the first police officer at the scene, testified at his deposition on May 7, 1998, that he was notified of the accident at 1:47 a.m. and arrived at the scene at 2:07 a.m. The deputy stated:

When I first arrived I observed a black Mustang. It had damage to the passenger side where it was--had impacted a utility pole. The driver's seat was empty, the passenger['s] seat still had a female occupant in it who was deceased. Deputy Schleigh further testified that there was a prominent odor of alcohol in the car and that "[s]everal Busch Lite 32-ounce beer bottles were found on the passenger side floor." The deputy He also

did not recall whether the bottles were open, however.

reported that a blood sample taken from Keefer at the emergency room revealed that his blood alcohol level measured "0.18 grams of alcohol per 100 millimeters of blood," and that "[d]riving while intoxicated is 0.1" grams of alcohol per 100 millimeters of blood. (...continued) witness's name. In the police report, her name is spelled "Kristine Brown." In the transcript of Deputy Scheleigh's deposition, however, her name is spelled "Christine Brown". -3-

As to the cause of the accident, the deputy stated: The primary cause of the accident was the high speed causing . . . [appellee] to be unable to negotiate the turn of the curve in the road. Secondary would have been the alcohol concentration. It would have impaired his ability to operate the vehicle properly. At his deposition on May 7, 1998, Dr. Howard Meeks, a medical examiner, explained that neither a blood analysis nor an autopsy was performed on the decedent, because "the crushing injury [to Rebecca's] chest wall" was the obvious cause of death. In

addition, Dr. Meeks opined that, based on the "severity of [the] crushed chest," the decedent did not suffer any conscious pain and suffering as a result of the collision; death "occurred instantly upon impact." As a result of the collision, appellee was criminally charged with homicide by motor vehicle while intoxicated, homicide by motor vehicle while under the influence of alcohol, driving while

intoxicated, negligent driving, and driving at an unreasonable speed. Those charges were pending during much of the discovery

phase of the civil suit, and were not resolved until April 1998. On July 21, 1997, appellants' counsel had written to

appellee's counsel, stating:

"Enclosed is a complete set of When you deem it appropriate,

pleadings filed in the above matter. please answer the pleadings[.]"

In his brief, appellee claims that

the "pleadings" included Interrogatories, a Request for Admissions of Fact, and a Request for Production of Documents. On August 7,

1997, appellee filed a Certificate Regarding Discovery, indicating -4-

that he served on appellants' counsel a Response to the Request for Admissions of Fact and Request for Production of Documents.

Subsequently, on November 14, 1997, the circuit court issued a scheduling order requiring completion of all discovery by May 15, 1998. Appellee was deposed on February 16, 1998. the deposition, Keefer's lawyer noted that At the outset of he had advised

appellants' counsel that Keefer intended to invoke his Fifth Amendment privilege because of the criminal charges pending against him. His counsel further noted that, upon the conclusion of the

criminal matter, Keefer would be available to answer any questions concerning the collision. Keefer's attorney said:

I was advised by Mr. Beasley [the attorney representing Keefer in his criminal case] that the criminal trial is scheduled for April of this year, and prior to the criminal trial going forward he was not going to permit Mr. Keefer to answer any questions which might violate his Fifth Amendment right of self incrimination because of the pending criminal trial. Last week I spoke to [appellants' counsel] and advised him that today's deposition might be very short and fruitless because of Mr. Beasley's concerns, and asked if we could postpone it. [Appellants' counsel]... said that he would prefer to move forward. I note that the scheduling order in this matter indicates that discovery cutoff is not until mid-May. Mr. Beasley has advised me that after Mr. Keefer's criminal trial in April [1998] he will permit Mr. Keefer to answer any questions that [appellants] may have with regard to the accident of January 17, 1997. I explained this to [appellants' counsel], and it was his indication that he preferred to go forward with today's deposition. . . . Accordingly, Keefer answered only a few questions. He

testified that the "last two or three weeks that she was alive," -5-

Rebecca lived in a boarding house in Hancock, Maryland, where he also resided. Keefer also said that he had only known the decedent

for "[a] couple of weeks," and acknowledged that they had been involved in a sexual relationship. Thereafter, appellee asserted

his Fifth Amendment privilege each time he was questioned about the collision. Henry was also deposed on February 16, 1998. He averred that

for the two weeks prior to the collision, Rebecca lived at home with him from Monday through Thursday, but on the weekends she resided in an apartment in Hancock, "to get her head straight." Henry also testified that Rebecca had been treated for a drinking problem "during the summer" before the accident. Apparently, the

decedent was required to undergo treatment due to "an alcohol conviction for driving." According to Keefer, in April 1998 he "pled guilty to homicide by motor vehicle while intoxicated as a result of criminal charges brought against [him] for the accident which gave rise to the lawsuit." Thereafter, in correspondence dated May 19, 1998,

appellee's counsel reiterated to appellants' counsel that Keefer was available for deposition. part: Prior to the start of Mr. Keefer's deposition, I advised you that [Keefer's criminal attorney would not permit him to answer certain questions] . . . based on the [p]endency of his criminal trial which was scheduled for April of this year. As you know, Mr. Keefer pled guilty in that matter and was sentenced. -6The letter stated, in pertinent

Pursuant to the agreement placed on the record, Mr. Keefer is now available to answer any questions by way of deposition and I expect to have his signature on the enclosed Answers to Interrogatories in the next several days. * * * I also advised you that I would be preparing a Motion for Summary Judgment. I will probably include, in that Motion, the assumption of risk argument based on the information in Mr. Keefer's Answers to Interrogatories with respect to Ms. Faith's purchase of the alcohol that he drank that evening . . . . Appellants opted not to re-depose Keefer. In their brief,

appellants assert that appellee's "11th hour offer [to re-depose Keefer] was at [appellants'] expense, and was extremely late in [their] preparation for trial." Appellee filed his "Answers to Interrogatories" (the

"Answers") on May 19, 1998, four days after the discovery deadline established by the scheduling order. Although the Answers were

provided nearly ten months after they had been served, and shortly after the May 15, 1998 discovery deadline, appellants had never moved for sanctions or to compel discovery pursuant to Md. Rule 2432. In the Answers, appellee recounted the events that led to the collision. He said:

I cannot remember everything I had done in the twenty-four hour period before this occurrence. However, to the best of my recollection, on the evening before this occurrence [January 15, 1997], I had spent most of the evening drinking beer with Rebecca Faith in her room at the boarding house where we lived. I next saw the decedent, Ms. Faith, the following evening [January 16, 1997] at approximately 9:00 p.m. She picked me up on the -7-

street in Hancock, Maryland and we went to the Dead End Liquor Store, where she purchased a pint and a half of whiskey and a twelve pack of beer. We drove around Hancock and finished the whiskey and the beer. Ms. Faith then drove back to the Dead End Liquor Store where she purchased another half pint of whiskey, which we drank in the bank parking lot in Hancock. . . . We then drove to Shoenagles [a bar] in Little Orleans, Maryland. While there, we continued to drink whiskey and beer until we left Shoenagles at approximately 1:00 a.m. We were returning to our rooming house in Hancock when the accident occurred. In addition, Keefer claimed that although Rebecca knew he was under the legal drinking age, she purchased alcohol for him. He

also asserted that, despite knowing he was intoxicated, Rebecca insisted that Keefer drive home. Appellee stated: "As [he and the

decedent] were leaving Shoenageles [Rebecca] took the keys to her vehicle, threw them on the ground and told [Keefer], `You drive, you're driving me home.'" On June 5, 1998, appellee moved for summary judgment. Keefer

argued that, under the doctrine of imputed negligence, Rebecca, as the passenger and owner of the vehicle, was presumed to have consented to appellee's negligent operation of the vehicle.

Appellee also claimed that, because Rebecca gave him the keys to the vehicle and asked him to drive home, he was acting as her agent. Therefore, under the doctrine of respondeat superior, he

contended that appellee's negligence was imputed to the decedent, thereby barring appellants' recovery. Additionally, Keefer

asserted that appellants' claims failed based on the doctrines of contributory negligence and assumption of risk. -8Keefer's position

was predicated on his contention that Rebecca had asked him to drive "with full knowledge that he was not old enough to drink, but had been drinking with her, alcohol which she had purchased for him for several hours prior to her giving him the keys." On June 23, 1998, appellants filed a "Motion in Limine to Preclude Testimony of the Defendant as to the Occurrence." In

their motion, appellants noted that at Keefer's deposition on February 16, 1998, Keefer "invoked his Fifth Amendment privilege on several occasions each of which was in response to questions about events taking place on the day of the accident." Although

appellants acknowledged that Keefer had an absolute right to invoke the privilege in response to their questions, they argued that, by doing so, Keefer was "preclude[d] . . . from testifying on that particular subject matter in any future proceeding . . . ." Appellants also opposed appellee's summary judgment motion. They argued, inter alia, that appellee "launched a three prong attack against [their] right to a trial . . . based upon facts that can not be put into evidence by [appellee] as he can not now `testify' as to any of the facts, particularly as now set forth in his late responses to discovery." In opposing appellants' motion in limine, Keefer argued that he had not thwarted the discovery process by invoking his Fifth Amendment privilege. He claimed that, at his deposition,

appellants knew that he intended to invoke his Fifth Amendment

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privilege because of the criminal charges then pending against him. Moreover, Keefer noted that his counsel had suggested postponement of the deposition until after the criminal trial, which was then scheduled for April Keefer 1998, but appellants that, chose to the proceed. criminal

Additionally,

claimed

following

proceedings, he offered to resume his deposition. Following a hearing on July 6, 1998, the circuit court denied appellants' motion in limine and granted summary judgment in favor of appellee. As to the motion in limine, the trial court stated:

While at the time of the deposition, criminal charges were pending, the court took the plea in the criminal charges in this case in April of this year, uh, discovery apparently ended in mid-May, so there was time to take another deposition and that's been, apparently, admitted by counsel here that there was discussions concerning depositions. [Appellants], however, elected not to take advantage of that opportunity because [they] felt, uh, under the law, that . . . once he's invoked his Fifth Amendment rights he cannot come forth and testify later. So, apparently there was repeated offers to have another deposition taken, but for reasons stated, [appellants] did not exercise . . . [their] right to do so. Now, as I indicated at the beginning of the deposition transcript, itself, it appears that a discussion did take place indicative of Keefer's desire to invoke the Fifth Amendment at that time, but to be deposed after the plea bargain, which apparently took place in April. I, you know, I think since [appellants were] aware of this situation, and knew the situation [they were] given the opportunity to depose [appellee] again, uh, even though [they] desired to take the initial deposition knowing that the Fifth Amendment privilege was gonna be invoked, and I assume that was for trial tactic purposes, the point is [they have] not done so. This is moot anyway because even though it's after discovery guidelines, deadline, [appellee] did file answers to interrogatories which were attached to the motion for summary judgment. And, of course, in those answers, it discussed the incident and events leading up to it, including the intoxication and the deceased's actions in allegedly -10-

getting [appellee] to operate the motor vehicle when the unfortunate accident occurred. Even though the answers to the interrogatories were filed after the discovery deadline, you know, absent any showing of prejudice to [appellants] because of lateness, I feel [appellee] could testify about the [content] of the interrogatories. With respect to summary judgment, the court said: We have an unfortunate situation. It's obvious to the court that the decedent was, at [the time of the collision], estranged from her family, was living in a boarding house where [appellee] also resided. Without getting into the relationship between the decedent and [Keefer], it is uncontradicted that on the day in question . . . copious amounts of alcohol were consumed during the afternoon and evening hours, and that the alcohol was provided by the . . . decedent . . . . And as contained in the answers to interrogatories, which have . . . not been disputed, and as I said, credibility of the witnesses is not before me at this time, . . . the two individuals then went to [a bar in] Little Orleans . . . . And unfortunately . . . additional alcohol was consumed . . . . The car is owned by the decedent. [Keefer] has the car keys, this court can reasonably infer were given to him by the decedent, and was instructed to drive home. Unfortunately, this tragic accident occurs on the way home. Concerning whether or not there could be, at the time of trial, introduction of . . . whether or not [Keefer] was intoxicated at the time, I think it can reasonably be inferred that people that drink during the afternoon and drink all night, that there's certainly a problem with their ability to operate a motor vehicle. But also I think there's an indication in here that [there would be] testimony concerning a high rate of speed. . . . [T]he burden of proof, at least for the judgment purposes, or motion purposes, has been met under the agency theory and, also, contributory negligence and assumption of risk. We shall include additional facts in our discussion. Discussion I. The Motion in Limine In their challenge to the trial court's denial of their motion

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in limine, appellants maintain that once Keefer invoked his Fifth Amendment privilege at the deposition, he was forever precluded from testifying about the events of January 17, 1997. Appellants

also claim that the Answers should have been excluded because they were not filed within the time provided by the May 15, 1998, discovery deadline or within the time provided by Md. Rule 2-421.4 We shall address these arguments seriatim. Appellants maintain that the Answers should have been excluded because Keefer used his Fifth Amendment privilege as a shield to hinder appellants' preparation for trial and then as a sword to obtain judgment in his favor. To support their contention,

appellants rely on Kramer v. Levitt, 79 Md. App. 575, cert. denied, 317 Md. 510 (1989). There, Levitt and Kramer entered into a

business arrangement, in which Levitt agreed to lend money to certain borrowers, and Kramer and his partner would act as loan brokers, collecting monthly payments, deducting their fee, and remitting the balance to Levitt. Kramer, 79 Md. App. at 577. The

loans were secured by deeds of trust in which either or both of the

Appellants' timeliness argument appears in the body of their brief in one sentence. They state that the court erred when it "failed to exclude Keefer's Answers which were submitted after the discovery deadline and subsequent to Keefer's refusal to answer questions at a properly noted deposition." (Emphasis added). Their remaining discussion concerning the untimeliness of Keefer's Answers is set forth in several footnotes. Although appellants do not clearly articulate that the Answers should have been excluded because they were not filed within the thirty days provided by Md. Rule 2-421(b), we shall assume that this argument is included within the scope of their timeliness argument. -12-

4

brokers were named as trustees.

Id.

In September 1983, the

brokers advised Levitt that they had misappropriated certain funds because of an unexpected reversal of fortune. Id. Thereafter,

Levitt discovered that all of the borrowers had repaid their loans and all of the repaid monies had been misappropriated by the brokers. Id.

Levitt filed suit against both Kramer and his partner, but the latter failed to plead and a default judgment was entered against him. Id. at 578. During the discovery phase, Kramer objected to

Levitt's request for admissions, interrogatories, and document requests, on the ground that a response would "violate his

constitutional rights, including those under the Self-Incrimination Clause of the Fifth Amendment to the Constitution of the United States and Article 22 of the Maryland Declaration of Rights."5 Id.

at 579 (footnote omitted). Levitt moved to compel discovery, but the court denied the motion. Id. At trial, Levitt moved in

limine, seeking to prevent Kramer from calling any witnesses to testify about the transactions that Kramer refused to discuss in Id. at 582. After the trial court granted

the discovery requests.

the motion, Kramer appealed.

The Court of Appeals has recognized that Article 22 of the Maryland Declaration of Rights is in pari materia with the Fifth Amendment privilege against self-incrimination. See Richardson v. State, 285 Md. 261, 265 (1979). Article 22 states: "That no man ought to be compelled to give evidence against himself in a criminal case." -13-

5

In

upholding

the

trial

court,

we

noted

that

"the

Fifth

Amendment privilege against self-incrimination has long been held to be properly asserted by parties or witnesses in civil

proceedings," id., and that it "applies not only at trial, but at the discovery stage as well." Kramer was "not under Id. At the time of discovery, or faced with a criminal

indictment

prosecution or disciplinary action, [but] he could reasonably fear that the information gained from his admissions might furnish a basis for such charges." Id. at 583 (footnotes omitted).

Nevertheless, we recognized that "`if a party is free to shield himself with the privilege during discovery, while having the full benefit of his testimony at trial, the whole process of discovery could be seriously hampered.'" Id. at 587 (quoting 8 C. Wright &

A. Miller, Federal Practice and Procedure: Civil

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