UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NATIONWIDE MUTUAL FIRE INSURANCE
COMPANY,
Plaintiff-Appellee,
v.
ARNOLD MEKILIESKY,
Defendant-Appellant, No. 97-2338
and
METRO PROPERTIES MANAGEMENT,
INCORPORATED; MICHAEL KLEIN;
JASMINE WARREN; TONYA GILL,
Defendants.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Joseph H. Young, Senior District Judge.
(CA-96-1502-Y)
Submitted: July 7, 1998
Decided: August 13, 1998
Before WIDENER, WILLIAMS, and MICHAEL, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Lee Baylin, Harry M. Rifkin, LEVIN & GANN, P.C., Baltimore,
Maryland, for Appellant. William Carlos Parler, Jr., Jennifer Silver
Cavey, PARLER & WOBBER, L.L.P., Towson, Maryland, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
This appeal stems from a dispute as to whether an insurance policy
issued by Nationwide Mutual Fire Insurance Company
("Nationwide") to Arnold Mekiliesky covers liability for a pending
lead poisoning case against Mekiliesky. We affirm the district court's
order granting judgment to Nationwide.
In 1990, Mekiliesky purchased insurance from Nationwide to cover
his business, personal home, cars, and four rental properties. In 1991,
Nationwide added a new lead exclusion provision to all of its policies,
which covered Mekiliesky's rental properties. Nationwide added this
endorsement to the policies at the time of the policies' annual review,
and in effect placed its policyholders on notice of the change by mail-
ing a copy of the endorsement, a stuffer highlighting the exclusion,
with a reference to the new endorsement with an asterisk on the
renewal declaration. The notice was mailed in July 1991, to become
effective August 27, 1991.
Tonya Gill began residing at 1602 N. Port Street, one of Meki-
liesky's rental properties, some time between March 1990 and March
1991. Her daughter, Jasmine Warren, born in August 1991, was diag-
nosed in late November 1992 with an elevated blood lead level of 22
micrograms per deciliter. Alleging that Warren was exposed to lead-
based paint at 1602 N. Port Street, on April 20, 1996, Gill filed suit
against Mekiliesky in Baltimore City Circuit Court seeking one mil-
lion dollars in damages.
2
By way of declaratory judgment filed by Nationwide and a subse-
quent counterclaim filed by Mekiliesky, the district court was pres-
ented with the issue of whether Nationwide was under a legal duty to
indemnify or defend Mekiliesky in the Warren case. Applying Mary-
land law, the district court concluded that Nationwide's mailing con-
stituted sufficient notice of the lead exclusion, that Mekiliesky was
sent and that he received the mailing, and that the exclusion became
effective August 27, 1991. Because Gill did not allege nor did the evi-
dence show lead exposure to Warren prior to the effective date of the
exclusion, the court further found that Nationwide did not have a duty
to defend Mekiliesky. The court, therefore, granted judgment to
Nationwide.
We review the district court's conclusions of law de novo.
Yarmouth Sea Prods. Ltd. v. Scully, 131 F.3d 389, 393 (4th Cir.
1997). We first address whether Nationwide sent the documents signi-
fying the policy change, namely the endorsement and stuffer, to
Mekiliesky and whether Mekiliesky received them.* Mekiliesky con-
tends that he did not receive the pertinent documents because he can-
not locate them in his case files. Under Maryland law, a presumption
of delivery and receipt of mail arises when the material in question
is properly mailed. See Benner v. Nationwide Mut. Ins. Co., 93 F.3d
1228, 1234 (4th Cir. 1996) (citing Border v. Grooms, 297 A.2d 81,
83 (Md. 1972)). Evidence of ordinary business practices concerning
the mailing of notices is sufficient to create the presumption of both
sending and receiving. See id. While the presumption may be rebutted
so as to create a question of fact, testimony by the addressee that he
did not receive, or does not remember receiving, the material is not
conclusive. See id. at 1234-35. The trier of fact should consider this
factor along with all the other evidence presented in the case.
In this case, Nationwide presented testimony that documents were
mailed to all Maryland policyholders in accordance with the compa-
ny's normal procedure. Nationwide's underwriting designee specifi-
cally testified as to the exact nature of the company's "normal
_________________________________________________________________
*Because the Appellant does not claim error with respect to the court's
determination that Nationwide's endorsement and stuffer sufficiently
placed its policyholders on notice of the change in coverage, we do not
address this issue.
3
procedure" with regard to new endorsements and stuffers. The court
heard considerable testimony from Nationwide personnel, including
Mekiliesky's Nationwide agent, and Mekiliesky's office manager,
who was responsible for dealing with insurance matters for Meki-
liesky. In light of all the evidence presented, we cannot find error in
the court's determination that the relevant documents were sent to and
received by Mekiliesky.
As noted by the district court, in Maryland the duty to defend is
broader than the duty to indemnify, because the duty to defend is trig-
gered if the policy, the complaint, and any extrinsic evidence reveals
the potentiality that the claim could be covered under the policy. See
Litz v. State Farm Fire & Cas. Co., 695 A.2d 566, 569-70 (Md.
1997). Here, in order for Nationwide's duty to defend to have been
triggered, Warren had to have been exposed to the lead-based paint
prior to August 27, 1991, the effective date of the lead exclusion. The
complaint does not allege lead exposure by Warren at any time prior
to that date. Furthermore, there was no evidence that Warren's mother
had an elevated lead level during pregnancy or that Warren had symp-
toms of lead poisoning when she was born. Expert testimony was also
introduced that given the half life of lead in the human body, the lead
in Warren's system on the date of diagnosis, November 24, 1992, was
likely due to a fairly recent exposure. In light of the complaint and
all of the extrinsic evidence presented, we agree with the court's
determination that no potentiality of coverage over the subject claim
existed and therefore Nationwide did not have a duty to defend or
indemnify Mekiliesky in the Warren action.
Accordingly, we affirm the order of the district court granting judg-
ment to Nationwide. We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials
before the court, and oral argument would not aid the decisional pro-
cess.
AFFIRMED
4