please the court there are two issues before the court in this case one is whether the law from a bailer in jackson gave timely notice of a claim to its liability carrier minnesota lawyers mutual and the second issue is even if the claim was untimely was minnesota mutual required under maryland law to prove that it was actually prejudiced as a result of the timing of the notice first of all the notice that was provided by baylor and jackson was timely under the terms of the policy and that the political case law the policy it issue here required jackson to give to report a claim as that's defined in the policy to minnesota mutual purposes of this case a claim is defined in the policy as an act error or omission by the insured which has not resulted in a demand for damages but which the insured knows or reasonably should know would support such a demand issue here is the baler in jackson opposed a motion for summary judgment on behalf of its clients the court ultimately granted summary judgment and do it and did so on a number of alternative grounds one of the reasons cited by the court of the circuit court of baltimore city is that some of the factual arguments in the opposition were not supported by an affidavit but the court listed a number of other alternative grounds for the grant of summary judgment i don't distinguish you see why that matters well the reason it matters is because the policy your honor states that a claim is defined as an act error a mission that the attorney knew or reasonably should have known would support a demand for damages at the time summary judgment was granted this alleged error or the lack of an affidavit would not have supported a demand for damages the reason is because the damages that were alleged here the harm to the client the granting of summary judgment against the clients would occurred with or without an affidavit attached that opposition and that's essentially expressly stated by the circuit court for baltimore city in its opinion when it lists alternative reasons for the holding because there were a number of alternative reasons for the holding even if there had been an affidavit supporting these few factual allegations that are addressed their summary judgment would have been granted anyway in that regard the case is similar to another recent case in to a claim for damages to the opinion was unpublished and he did say that it is not presidential well i think it's instructive on the the objective reasonable and reasonable this test you're primarily because the court was reviewing the exact same policy language that we're looking at here the key under this policy is that not every error by a lawyer has to be reported to the carrier and as is reflected in vastly not every error by a lawyer necessarily  a proximate cause of damages to the client and an attorney's reasonable belief that an error caused no harm to the client is a factor to be considered in the objective reason wellness test of whether a reasonable attorney under the circumstances would have believed that her error would support a demand for damages and here it would not for that very reason for the same reason that was that issue in that sleep and so  based on that objective objective lee reasonable test baylor and jackson was not a claim had not arisen at the time of the grant of summary judgment two thousand and six was a very different scenario well i think it goes back to the the language in this particular policy and of course all of these cases are determined based upon the language in the policy in this was language that was drafted of course by minnesota mutual and under the policy language the mere fact that summary judgment was granted did not obligate them to report a claim in fact under the definition of claim a claim didn't necessarily arise at that time the question is whether they had committed an error that would support a demand for damages every time a lawyer has summary judgment granted against their client they didn't necessarily commit an error that would support a demand for damages in the letter from stances but was it the district court that was it that any reasonable trial lawyer in maryland would know the standard  motions and that in an executed affidavit does not satisfy yes that's what the district court said in the opinion so would it depend on what i guess you consider to be the error that was or do you not concede that it was  submit the appropriate supporting documents well we would say into these circumstances we can assume that it was an error the issue is not whether it was an error and the district court pointed out that any reasonable attorney would know what the maryland rules require regarding attaching affidavit and it doesn't that but doesn't the language i guess of the policy refer to x errors or omissions and isn't the error isn't that the error that was pointed out in the district court that any reasonable trial lawyer would not make that well yes the issue is i mean the district court pointed out that that was the error that's at issue here certainly minnesota mutual argues that that's the error and in fact that's the error that ultimately their clients filed suit based upon the question is whether that is an error that would support a demand for damages at that time and that's what gets to the harmless nature of the air in the context of the circuit court's opinion in the underlying litigation the state court's opinion that listing alternative reasons for the summary judgment meaning even if that error had not been committed even if there had been an affidavit that was executed and attached it would have in the there would have we would have had the exact same outcome of the case well it would have granted summary judgment do we know that yes we do but when we get to what changes with the court special appeal when that took the law firm to task for the same reason what changed at that point is that a reasonable lawyer would understand that to mean that it was much more likely at that point the client would bring an action against them would bring a demand for damages that was an act i mean that is that's exactly why i'm having a bit of a problem if you are put on notice when the  think the trial court opinion was very different when it comes to the notion of taking counsel to task or fingerpointing regarding the affidavit the summary judgment was very different then the appellate opinion the appellate opinion based almost entirely on the lack of an affidavit whereas the summary judgment opinion in can be read to essentially insulated counsel from liability because of the issue of causation and the trial for pointed out there were a number of reasons a number of grounds for the holding of the grant of summary judgment only one of which related to the lack of an affidavit and the circuit court opinion based on an objective reading of that opinion makes it absolutely clear that the judge would have done the exact same thing with or without an affidavit what changed with the appellate opinion is that that was based almost entirely on the affidavit question and in fact there was not a suit filed based on the summary judgment when baylor  jackson received the appellate opinion which clearly laid the summary judgment ruling at the feet of counsel they immediately contacted minnesota mutual in fact the same day july ninth two thousand and nine they received the opinion they mediately called their carrier and suit was not filed until after that appellate opinion was issued but even if we assume that the notice was untimely maryland law required minnesota mutual in this case to prove that it was actually prejudiced as a result of the timing of the notice here and that section one thousand one ten of the insurance article of the maryland code which says in and relevant part relevant to this case and ensure may disclaim coverage on liability insurance policy on the ground that the insured has breached the policy by failing to cooperate or by not giving the insurer required knows only if the insurer stablish is by a preponderance of the evidence that the lack of notice has resulted in actual prejudice  insurer in this case minnesota mutual was required to prove actual prejudice they did not do so the prejudice that they argue in this case doesn't qualify as actual prejudice on of the maryland case law and this particular policy contrary to minnesota mutuals argument falls within those policies that the statute is a political two minnesota mutual was required to prove actual prejudice here their contention is that they were not required to either because this is a claims made in reported policy or because notice was a condition precedent to coverage so so if we send it back to the district court to make a specific finding because it sa lawyer no i i don't think a real man would be necessary into the circumstances simply because minnesota mutual here argued that notice was untimely the law required the insurance carrier to prove that it was actually prejudiced and it didn't do that the factors that were cited by the district court in a footnote and its opinion regarding prejudice simply do not qualify as actual prejudice under maryland law it was minnesota mutuals burden to prove that they didn't meet that burden given that they didn't meet their burden of proof  it wouldn't be appropriate under the circumstances of this case to remand the case to give them a second opportunity to meet their burden of proof they failed to meet the burden of maryland case law describes it very clearly that what is required to prove actual prejudice to high standard they had to prove specific ways in which they were impeded in their ability to investigate or defend this case and they didn't do that in fact they did investigate this case they did defend the case for over a year before disclaiming coverage just  weeks before a scheduled mediation in a trial shortly after that so we would argue that every man is not appropriate under the circumstances that was their opportunity minnesota mutual filed this case they moved for summary judgment it was their burden to meet their burden of proof they didn't do that and we would ask the court to reverse the judgment of the circuit court based either on the timing of the notice or on the fact that minnesota mutual failed to prove actual prejudice you see it it's a lot easier there are a lot of letters in there we don't pronounce i'd like to begin if i may by trying to clarify some language that was used in counsel's argument in our briefs were i think fairly clear and deliberate in our use of the language this is not so much a late notice case as it is a trigger case the policy at issue is a claims made and reported policy so in order for the policy to respond to any claim the claim must be made in there are provisions about what constitutes a claim a claim must be made and reported at that point the policy response a claim can be reported during the policy period and still be untimely and still be late and in fact the policy issue has just such a late notice pr that late notice provision states in the event of a claim disciplinary action disciplinary investigation or notice to appear before you board the insured must one give media written notice to us and to forward every demand it goes on to talk about where those demands must be forwarded and i think the facts of this case give us an excellent opportunity to see how the statute can apply to a claims made and reported policy but it applies to the notice provision not to the triggering provision so in this case the policy period runs from august one to august one the hearing before judge kaplan was on aug seventeenth of the first policy year the two thousand and six two thousand and seven policy year the i'm sorry the the hearing was on august seventeenth the opposition was filed on aug eleventh and the decision came down on august twenty second so everything transpired very closely in time in august the policy holders had in till nearly october first of the following year to report that claim and had they reported that claim the two thousand and six policy would have been trigger and then minnesota lawyers mutual would have had to respond and address the claim had they waited until october of two thousand and seven at the very end of september of two thousand and seven to report the claim they could have been seen to have violated the notice provisions and the notice provision which i just read to you states that notice must be given immediately so they could have triggered the policy by reporting during that period yet the notice would could still have been late and it's that argument if minnesota lawyers mutual were trying to raise it it's that argument which would be subject to the one thousand one ten statute requiring prejudice it's not the argument that they failed to report that's a trigger argument and that never occurred it's as if an auto accident for an auto policy didn't happen during the policy period this policy requires for it to be triggered that a claim be made and that it be reported if those things don't happen the policy adjuster and you made an argument in front of the court that the adjuster would have taken steps to put to you to assist in the appeal or to assist in reconsideration we contend that plenty of evidence was submit the we did meet our burden with respect to actual prejudice judged her daughter didn't reach his footnote is footnote identifies the prejudice that we show but he didn't need to reach it because he found that we didn't have to ctual prejudice must be shown then we do think you must remain and for judgment are to be able to enter that fine now if i may address counsel's argument regarding whether a reasonable attorney would have perceived the potential for damages arising out of the failure to submit an affidavit we concur with judg garz decision in that regard that there was plenty of indication by judge kaplan that the attorneys involved committed an error and that that error was such that it could and in fact ultimately did prejudice their client specifically simply because there are multiple opportunities to rule against your client the mout the malpractise that occurred precluded an appeal on the merits because they failed to submit the affidavit because they failed  factual information at all in support of their opposition to motion for summary judgment that failure that error right then and there in two thousand and six was apparent  reasonable attorney that an appeal on the merits could be precluded and that is precisely what happened on appeal the court of special appeals did not reach the merits it found that it found that it did not have to and that the failure to supply an affidavit was sufficient reason to affirm judge kaplan's decision in the jury found that it was reasonable for the attorney in that case the attorneys failure in that case i believe if i recall the thing that's really the attorney failed to include certain property in a divorce settlement agreement and the testimony was that the wife in that case would never have agreed under any circumstances to include that property in the written settlement agreement we take issue with some of the sweeping language in bat's lee regarding the subjective nature and we suggest to the court that under maryland law in maryland lol the standard the proper standard is a reasonable attorney but a reasonable attorney would understand the giver to be understand an error that could give rise to a demand for damages and keep in mind that under maryland law the demand for damages doesn't have to be certainty if of the result and as judge would already indicated in his opinion lawyers lose all the time i'm every case a lawyer wins and a lawyer lose in few of those cases is there an error that rises to the level of something that might give rise to damages and in this case it was clear you've all seen opinions from trial judges as have i this is a rare example of a trial judge it mohnish in counsel for their failure process by which these claims come through is a complicated one for example the notice the first notice that the insurance company had was of the appellate court decision that's the first time they heard about the adjuster looking at the appellate court decision says oh my goodness this is a problem ok this is their first indication that baylor and jackson knew about it they didn't appreciate what had happened three years earlier they didn't have any information about that so they process that claim they do what they're supposed to do and they defend the claim they then rely upon defense counsel to defend the claim to develop the discovery and they review that about three to six months into the litigation as the discovery was proceeding information comes to the insurance company red flags begin to be raised they have to refer the coverage issue to another group they can't have the the agent or the claims handler handling the defense can't be making coverage decisions so then they have to take that whole file give it to another adjuster to review and to and to make that decision the adjuster makes a recommendation and then they seek legal advice and legal counsel so it did take some time but i would suggest that that falls into the category of no good deed possibly going unpunished as th to counsel started by describing this case as a trigger case not a notice case very different than the way he described it in his letter alerting our clients that minnesota mutuals disclaiming coverage which is a page three thirty nine goes to the issue of how a claim is defined in a particular policy and that case a claim was defined as as well as the insured receiving notice of an action or an allegation brought against it in this case claim is defined very differently here claim is defined again as an act error or omission that counsel knew or reasonably should have known would support a demand for damages now under minnesota mutuals argument here and under the district court holding the claim occurred at the time summary judgment was granted it's a separate issue as to when that claim was reported and whether that was a breach of the policy  s what minnesota mutuals really arguing here is that the requirement that a claim be reported to the insurer is the act that triggers coverage in the first place that's the argument that's being made and it simply does not comport with the language of the policy and is also essentially irrelevant under the decision of the maryland court of appeals in the sure would brands case under the language of the policy there is a provision in the policy that specifically defines coverage to page two eighty for the joint appendix and it defines coverage as that minnesota mutual provides coverage for damages due to any claim there's no reference in that coverage provision to reporting a claim this is not a claims made and reported policy it's a claims made policy it says that at the top of it it's a claims made policy it says on the application this is a claims made policy it's reporting a claim is not the act that triggers coverage the claim is the act that triggers coverage the reporting of a claim is an entirely separate requirement which whether even if it's couched as a condition precedent to coverage under the sure would brands decision from the maryland court of appeals it's irrelevant whether it's a condition precedent or whether it's a covenant there the court of appeals clarified clarified maryland law on the application of the statute and specifically said that the effect of the statute is to mandate that a notice provision like this is treated as a covenant and not as a condition so in fact i'm sure would brands the notice provision was expressly described as a cover as a condition in the policy and the court still said by statute it's deemed a covenant not a condition the same is true here there's no principle difference between the policy of the court of appeals in maryland was looking at and sure would brands and the policy that's here there's coverage for a claim separately there's a requirement that the claim be reported within a certain amount of time and under those circumstances under sure we're brands the statute does apply they were required to prove actual prejudice they didn't do that the maryland case law says that the requirement of actual prejudice means that an insurer may not disclaim coverage on the basis of prejudice that's only possible theoretical conjectural or hypothetical nor is it enough to surmise harm that may have occurred by virtue of the passage of time their argument here is purely theoretical it's purely hypothetical and it's essentially an argument that merely because time had passed they were somehow prejudiced as a result of the timing of the reporting here that's not sufficient under maryland law if it was sufficient they would have it would render the prejudice statute effectively meaningless that it was their burden of proof to prove that they didn't do it and we would ask the court to reverse the judgment and to not give them a second chance to attempt to meet their burden and so raskin the court to reverse the judgment