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)
2

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 
3

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 
4

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.
5

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’ negligencebased 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 
6

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.
7

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.
8

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.”).
9

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 
10

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 
11

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 
12

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 
13

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 
14

[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 
15

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,” 
16

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 
17

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 
18

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
19

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 
20

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 
21

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 longstanding 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 
22

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 
23

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.
24

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