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Berg v. Byrd12/4/1998
he CPA, however, was a personal injury claim (hence application of the cap statute in the first instance) which did not arise until appellees sustained personal injury.
Ordinarily, the question of when a compensable claim arises requires a factual determination. See Wood, 119 Md. App. at 48; Grimshaw, 115 Md. App. at 165. In the case before us, the trial court made a factual determination that appellees' negligence claim did not arise until after July 1, 1986. Implicit in such a determination is a factual finding that appellees did not sustain compensable injury as a result of lead exposure until after that date. That finding was not clearly erroneous. Indeed, in our view, the evidence requires a finding that appellees sustained compensable injury after July 1, 1986, and consequently their CPA claim arose after July 1, 1986. Allen's first elevated blood lead level occurred on July 29, 1987, and there is no evidence to support a finding that his blood lead level was elevated above acceptable levels prior to July 1, 1986. Contrary to appellees' contentions, Dr. Klein did not testify that any exposure to lead, no matter how small, causes demonstrable injury to children. Nor did he testify that, in fact, Allen sustained physical injury on or prior to July 1, 1986. Consequently, we agree with the appellants and direct the Circuit Court for Baltimore City to reduce the judgment in this case to $350,000.
CASE REMANDED TO CIRCUIT COURT FOR BALTIMORE CITY FOR ENTRY OF APPROPRIATE ORDER REDUCING JUDGMENT FROM $500,000 TO $350,000. COSTS TO BE PAID BY APPELLEES.
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