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Maryland Casualty Co. v. Lorkovic6/1/1994
rtions, the Court was immediately struck by the claimant's failure to substantiate her assertions, and stated that "[the claimant] might, with equal force, have argued that the road ran north and south instead of east and west, that the sun was not shining, that it was September instead of May." Id. at 531. Regarding the possibility, for example, that the employee may have fallen asleep, the Court found that "the record is devoid of evidence [that he fell asleep.] Indeed, to quote from the claimant's brief, 'The exact factor that caused him to run off the road is a matter of strict conjecture.'" Id. at 533.
The case sub judice is distinguishable from Smith in that Lorkovic has offered his own sworn testimony that he had a loss of sleep while on his business trip and, therefore, fell asleep on the way home.
Similarly, appellants' reference to Zentz, 11 Md. App. at 1, is unpersuasive. In that case, the Court held that the circuit court's finding that claimant's injuries sustained
in an altercation at work were caused solely by his intoxication was not clearly erroneous because the evidence clearly established that the altercation would not have occurred absent claimant's intoxicated state of mind. Id. at 6-9. In the case sub judice, whether Lorkovic's lost sleep was a contributing cause to his falling asleep at the wheel is a material fact in dispute. Resolution of this dispute is not within this Court's authority.
III
Finally, we address Lorkovic's contention that appellants violated MD. RULE 8-501(h) by failing to provide a table of contents for their record extract and his suggestion that appellants violated MD. RULE 8-206(d) by including their own pretrial information report in the record extract.
Maryland Rule 8-501(m) states that "ordinarily, an appeal will not be dismissed for failure to file a record extract in compliance with this Rule." Lorkovic has not asked for dismissal of this appeal based on that ground, and we do not find that this case is extraordinary. Nonetheless, appellants' failure to provide a table of contents was certainly an inconvenience for this Court and Lorkovic, and it is worthy of admonishment. We sincerely hope and expect that the appellants' attorneys will not make this their regular practice.
Appellants' violation of Rule 8-206(d) is much more serious and disturbing. In Seidel v. Panella, 81 Md. App. 124, 130-31, 567 A.2d 134 (1989), we addressed circumstance in which an appellee attached a copy of the appellants' Rule 8-205 prehearing information report to its brief. We stated that "such conduct was an egregious breach of confidentiality and a blatant violation of Rule 8-206(d). We are inclined to award sanctions, but are unable to do so without a precise statement of the attorneys' fees incurred while responding to the motion to dismiss."
In the case sub judice, unlike Seidel, the pretrial information report included in the record extract is the appellants. Nonetheless, the potential for harm is just as great, since
information in appellants' report could very well contain information regarding the appellee. Indeed, the report form itself states that it is a confidential document. Because Lorkovic has not asked for sanctions, perhaps out of graciousness, we decline to consider imposing any in this case.
Order OF THE CIRCUIT COURT FOR BALTIMORE COUNTY VACATED. CASE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.
COSTS TO BE PAID BY APPELLEE.
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