Holy Cross Hospital of Silver Spring, Inc. v. Maryland Employment Security Administration

421 A.2d 944, 288 Md. 685, 1980 Md. LEXIS 231

• Court: Court of Appeals of Maryland
• Decided: November 6, 1980
• Docket: [No. 103, September Term, 1979.]
• Status: Published

Opinions

Smith, J.,

delivered the opinion of the Court. Eldridge, Cole and Davidson, JJ., dissent. Davidson, J., filed a dissenting opinion at page 701 infra, in which Eldridge and Cole, JJ, join.

In this case appellee Employment Security Administration (ESA) erroneously paid out a substantial sum in benefits to a former employee of appellant Holy Cross Hospital of Silver Spring, Inc. (the employer or Holy Cross). We are concerned with the question of whether that sum comes within the purview of Maryland Code (1957, 1979 Repl. Vol.) Art. 95A, § 8 (d) (2) requiring a nonprofit organization electing pursuant to the statute in lieu of paying the regular tax "to pay to the Executive Director for the unemployment insurance fund an amount equal to the amount of regular benefits and one half of the extended benefits paid, that is attributable to service in the employ of such nonprofit organization” and thus whether Holy Cross is obliged to reimburse ESA for the sum erroneously so paid.¹ We conclude that since the sum paid here was attributable solely to error of the agency there is no liability on the part of the employer. Hence, we shall reverse the holding of the Court of Special Appeals in Maryland Empl. Sec. v. Holy Cross Hosp., 43 Md. App. 406, 405 A.2d 766 (1979), and direct that it affirm the judgment of the Circuit Court for Montgomery County.

Prior to the enactment of Chapter 790 of the Acts of 1971 nonprofit employers were not subject to the provisions of the unemployment insurance law. Art. 95A, § 8 (d) (2) as enacted by that chapter specified:

Any nonprofit organization which, pursuant to § 20 (g) (7) of this article is or becomes subject to this article on or after January 1, 1972, shall pay contributions under the provisions of subsections (a), (b) and (c) hereof, unless it elects in accordance with this paragraph, to pay to the Executive Director for the unemployment insurance fund an amount equal to the amount of regular benefits and one half of the extended benefits paid, that is attributable to service in the employ of such nonprofit organization, to individuals for weeks of unemployment which begin during the effective period of that election.

Holy Cross made the election referred to in § 8 (d) (2). The controversy here involves its former employee who filed a claim in December 1974 for unemployment insurance benefits. Holy Cross claimed that the employee here was discharged "for gross misconduct, specifically, taking a heavy object and lunging at his supervisor and chasing him down the hall with the intention, supposedly, of inflicting severe pain.” Since Code (1957, 1969 Repl. Vol.) Art. 95A, § 6 (b) specifies that an employee guilty of gross misconduct shall be disqualified from receiving unemployment compensation until he earns ten times his weekly benefit amount, the employer contended that no benefit should be paid. ESA initially found him guilty of misconduct, not gross misconduct. This had the effect of disqualifying the employee from benefits for a period of nine weeks. The employer appealed. ESA’s referee found what took place to be gross misconduct, thus effectively denying benefits to the employee. Nevertheless, ESA continued to make payments to the disqualified employee. The amount paid to him after that decision was $2,269.50. ESA now seeks reimbursement from the employer for the sum erroneously paid.²

When the employer was unsuccessful in convincing ESA that it had no liability for reimbursement for benefits paid as a result of agency error, it took the controversy to the Circuit Court for Montgomery County. There Judge Cahoon in a well-reasoned and comprehensive opinion reversed the decision of the Board of Appeals of ESA.

In the circuit court, the Court of Special Appeals and here the employer has pointed to the definition of "benefits” appearing in Art. 95A, § 20 (b) in support of its position that it has no liability for this overpayment. There the term is defined as "money payments payable to an individual, as provided in this article . . . .” (Emphasis added by the employer.) Its argument is that the overpayment simply is not a benefit provided by Art. 95A. The Court of Special Appeals rejected this argument, saying:

The lower court, in reaching its conclusion that a reimburser employer was not liable for benefits erroneously paid, relied heavily on the definition of "benefits” contained in § 20 (b), which is "money payments payable to an individual, as provided in this article....” The court reasoned that "fi]f what was paid to the claimant was not payable under the Act, it was not a benefit paid.. .We consider this conclusion a dubious one in light of the language of § 8 (d), which deals specifically with reimburser employers and states, in pertinent part:

"Benefits paid to employees of nonprofit organizations shall be financed in accordance with the provisions of this subsection.” (Emphasis added.)

It is therefore apparent that under § 8 (d) the critical reference is to benefits "paid” rather than benefits "payable.” [Id. 43 Md. App. at 409.]

This argument of the employer has much to be said for it. However, we need not base our decision upon that specific point.

We have found but five states in which appellate courts have considered an issue analogous to the case at bar, California, Delaware, Florida, Idaho, and Oregon. The relevant cases we have located are Carleson v. Cal. Unemployment, 64 Cal. App. 3d 145, 134 Cal. Rptr. 278 (1976); Unemp. Ins. Appeal Bd. v. Wilm. Medical Center, 373 A.2d 204 (Del. 1977); Baptist Hospital, Inc. v. White, 313 So. 2d 106 (Fla. App. 1975), and the somewhat analogous case of City of Stuart v. McMullian, 340 So. 2d 1209 (Fla. App. 1976), relying on Baptist Hospital; Department of Employment v. St. Alphonsus Hospital, 98 Idaho 283, 561 P.2d 1316 (1977), and Mann Home v. Morgan, 19 Or. App. 853, 529 P.2d 964 (1974). Only Mann can be said to give any support to the position espoused by ESA. In that case benefits had legitimately and legally been paid to certain employees who had left their employment voluntarily and without good cause. For this they were disqualified from receiving benefits for a specified period. The court said it "infer[red] that the three employees in question had served out their respective periods of disqualification as provided in ORS 657.176, and had duly requalified themselves for benefits.” Id. 19 Or. App. at 855. A statute provided that "[bjenefits paid to an individual for unemployment immediately after the expiration of a period of disqualification for having left work of an employer voluntarily without good cause shall not be charged to that employer.” ORS 657.471 (3). At issue was whether this provision was applicable only to the experience rating of taxpaying employers or whether it was also applicable to reimbursing employers. The court pointed to the fact that adopting the construction urged by the employer "would result in the payment of benefits from the Fund without a corresponding payment of taxes or reimbursement of the Fund by the employer with respect to these former employees,” and said it "w[ould] not give an interpretation to a statute which produces an inconsistent or unreasonable result.” Id. 19 Or. App. at 857. Prior to the court’s decision in that case a change was made in the statute specifying that the provision was not applicable to reimbursing employers. Thus, the court also said:

On February 16, 1973, when the above amendment was before the House Committee on Labor and Industrial Relations, the committee minutes show that a spokesman for the Employment Division, which was the proponent of the amendment, appeared before the committee and testified as follows:

"Federal law requires that reimbursing nonprofit employers reimburse the Fund for all of regular benefits and one-half of extended benefits applicable to wages paid by such nonprofit unit. While this fact is stated in present [ORS] 657.505(7)(a), a new section, Section 4 of this 1973 Act, is being added to insure that all are aware that reimbursing employers cannot be relieved of benefit charges regardless of the circumstances involved.” Minutes, House Committee on Labor and Industrial Relations, February 16, 1973. [Id. at 858.]

In some situations, as in this case, the amendment may be a declaration of the meaning of the statute. Layman v. State Unemp. Comp. Com., 167 Or. 379, 117 P.2d 974, 136 ALR 1468 (1941); Kaiser Cement v. Tax Com., [250 Or. 374, 443 P.2d 233 (1968)].

From our examination of the legislative history of ORS 657.504, which expressly excludes reimbursing employers from the provisions of ORS 657.471, it is evident that the legislature was merely declaring existing law, and explicitly telling all nonprofit organizations that reimbursing employers are not relieved of benefit charges. [Id. at 858-59.]

In Carleson the cash amount involved was but $72.00. Obviously, the parties were litigating over principle. The California statute is very similar to ours. The court there pointed out:

In its decision ... the [State Unemployment Insurance] Board stated as follows: "We adopt the referee’s statement of facts and reasons for decision. We agree with his conclusion that amounts erroneously paid to the benefit claimant in excess of his potential maximum award are not 'benefits ... paid based on base period wages with respect to employment for the entity.’ Such amounts are beyond the statutorily defined limit for which additional cost reimbursement can be charged under the provisions of Unemployment Insurance Code section 803(b) (1). [¶] If the Legislature has left the Department without a fund against which it can charge these payments, the Department should address its grievance to the Legislature.” [³] [Id. 64 Cal. App. 3d 148, 134 Cal. Rptr. 280 (Emphasis in court’s opinion).]

It also said:

In sustaining the Regents’ demurrer to the Department’s petition, the trial court stated: "Well, I don’t think that a payment that is made by a computer by mistake is a benefit, so I am inclined to sustain the demurrer.” [Id. 64 Cal. App. 3d 149, 134 Cal. Rptr. 280.]

It further said:

Reimbursement employers are exempt from liability for federal unemployment tax. Accordingly, only tax rate employers fund the administration of the unemployment insurance system. [id. 64 Cal. App. 3d 152, 134 Cal. Rptr. 282.]

The court differentiated between what it called "anticipated overpayments,” referring to an overpayment which might take place by virtue of an initial allowance of benefits followed by a denial on appeal, as took place here, and "error overpayments,” as also took place here. The court observed, "If the decision allowing benefits is finally overturned on appeal, 'anticipated overpayments’ are not charged against the tax rate employer’s reserve account. . . .” Id. 64 Cal. App. 3d 153, 134 Cal. Rptr. 283. (A similar provision exists in Maryland law. See Code (1957, 1979 Repl. Vol., 1979 Cum. Supp.) Art. 95A, § 8 (c) (2) (ii)).⁴ It concluded, "Any amount exceeding the maximum amount of allowable benefits does not constitute 'benefits paid based on base period wages;’ and a reimbursement employer has no obligation to pay such amounts. . . .” Id. 64 Cal. App. 3d 156, 134 Cal. Rptr. 284.

The Delaware case had a slightly different twist. In Wilmington Medical Center the issue presented was whether a nonprofit employer which had elected the reimbursement method of assessment was chargeable for unemployment compensation benefits paid to former employees who left such employ without entitlement to compensation but who later became eligible for compensation. The court said it "agree[dl with the Superior Court that such payments are not chargeable, for the reasons stated in that Court’s opinion,” referring to Wilmington Med. Ctr. v. Unemployment Ins. App. Bd., 346 A.2d 181 (Del. Super. 1975), as well as the reasons stated in its own opinion. The Delaware statute required reimbursements for benefits paid "attributable to service in the employ of such nonprofit organization, to individuals for weeks of unemployment which begin during the effective period of such election.” 19 Del. C. § 3345 (c) (3). The lower court stated:

To interpret the phrase "attributable to service” as meaning any compensation based upon earlier paid wages despite an intervening § 3315 disqualification would violate the apparent intent of the Legislature by imposing costs upon nonprofit organizations for what in the ordinary case of business employers would not be classified as compensated unemployment. [Id. 346 A.2d at 183. |

The Supreme Court of Delaware said:

An examination of the Federal Statute mandating unemployment coverage for nonprofit employers, 26 U.S.C. § 3309 (1970), and legislative history pertinent thereto, 2 U.S.C.C.A.N. pp. 3606-49 (1970), impels the conclusion that such compensation was not intended to be chargeable to a nonprofit employer. As no statutory definition of "attributable to service,” nor relevant Delaware legislative history exists we apply the mode presently used for calculating other employer assessments, which excludes payments to employees leaving without entitlement, from calculation of the assessments. [Id. 373 A.2d at 205.]

In Baptist Hospital an employee left its employment for what he believed would be a better paying job. He was discharged by the subsequent employer prior to earning the minimum amount required in order to make him eligible to draw unemployment compensation from its account. When he applied for unemployment compensation he was paid $405.00 chargeable to that subsequent employer’s account before the error was discovered. The Division of Employment Security then demanded that the hospital reimburse it for the sum erroneously paid. The Florida statute was similar to the California, Delaware, and Maryland statutes. The court said in holding the hospital not liable for the erroneous disbursement:

The provisions of the foregoing statute specifically provide that the reimbursement employer pay benefits attributable to service in its employ and only authorizes the Division to bill the reimbursement employer for benefits attributable to service in its employ. The statute does not make any provision for a reimbursement employer paying the Division for payments which the Division erroneously or incorrectly paid. Thus, there is no statutory authority for the Division to charge a reimbursement employer with payments erroneously made. [Id. 313 So. 2d 107.]

It has been suggested that the language appearing in Senate Report No. 91-752, 91st Congress Second Session (1970), reprinted in [1970] U. S. Code Cong. & Ad. News 3606 at 3618 evidences that Congress intended that reimbursers bear the risk and, therefore, the loss occasioned by agency errors which result in erroneous payments to former employees of nonprofit organizations. The committee report was concerned with the amendments to the Federal Unemployment Tax Act which were intended to bring nonprofit organizations such as the employer here within its provisions. It said that "nonprofit organizations would be allowed to adopt a form of self-insurance. . . .” A construction interpreting the statute to make all such employers selfinsurers and thus to make the employer here responsible was rejected by the Secretary of Labor in Department of Labor v. State of Delaware Department of Labor et al., Conformity Proceedings ETA-1 (1979), where he said:

To understand the Senate Report’s language as interpreting section 3309 (a) (2) of FUTA to require "pure self-insurance” (i.e., strict liability) of reimbursing employers is to read too much into the language of the report. [Id. at 9.]

In that case the Department of Labor had taken issue with the fact the States of Delaware, New Jersey, and New York, after enacting "legislation permitting non-profit organizations and State and local governmental entities to elect the reimbursement method of financing unemployment compensation costs in lieu of the payroll tax contribution method required to be used by profit-making employers,” had "[i]n their interpretation and implementation of their laws ... determined that, under certain circumstances, reimbursing employers need not reimburse the unemployment compensation fund for compensation paid out of that fund.” Id. at 3. The decision of the Delaware Supreme Court in Wilmington Medical Center was one of the interpretations in controversy. Thus, it is perhaps relevant to state that the administrative law judge said in his opinion:

For the reasons below, I find the rationale of Wilmington Medical Center v. Unemployment Insurance Appeal Board, 346 A.2d 181 (Delaware, [Super.] 1975), affirmed 373 A.2d 205 (1977), dispositive of the issues here presented. Accordingly, I find and conclude that the respective State laws concerning reimbursing employers (including the interpretation and implementation of said laws) are in conformity with FUTA and in substantial compliance with FUTA. [Id. at 5 (Emphasis in original).]

He reasoned, "A payment made illegally, improperly, or as the result of mistake or fraud is not a benefit which is 'payable’ to a claimant. On the contrary, it was never payable which is the reason it constitutes an overpayment.” Id. at 6.

The Secretary of Labor said in his opinion:

The States have argued that section 3309 (a) (2) of FUTA requires reimbursement only of compensation attributable under the State law to service with the reimbursing employer. Therefore, since their laws do not attribute to service with the employer certain compensation paid out as an overpayment due to fraud, or due to computer error or other mistakes, or paid out due to service with a subsequent employer, reimbursing employers in their States are not required by section 3309 (a) (2) to reimburse such compensation.

In its Statement of Exceptions and elsewhere in the record the Department of Labor has contended, in essence, that such a procedure constitutes "noncharging” of employers, and that the concept of "noncharging,” while relevant to contributing employers, is not relevant to reimbursing employers, which, it has contended, are required by section 3309 (a) (2) to be self-insurers. [Id. at 3-4.]

The Secretary further said in his opinion:

With respect to the statutory language, the recommended decision [of the administrative law judge] stated, in relevant part:

"Stated simply, the determination of whether compensation benefits paid are 'attributable to service’ with a reimbursing employer (and, accordingly, should be charged to the account of said employer for purposes of reimbursement) is committed by the plain terms of section 3309 (a) (2) to the States in the administration of their respective statutes. This is dispositive of the instant proceeding.

"It is recognized that one State may enact legislation charging reimbursing employers for benefits in a particular situation that would not be chargeable to such employers in another State.”

I agree with the above-cited passage of the recommended decision. I therefore find, as a matter of law, that (1) a reimbursing employer must always fully reimburse the State unemployment fund whenever compensation, which is attributable to service with such employer, is paid out of such fund, (2) whether the compensation paid out is attributable to service with such employer is a matter to be determined under the provisions of the unemployment compensation law of the State, which reasonably interpret and implement section 3309 (a) (2) of FUTA, (3) the provisions of State law in issue in this case, whereby compensation is not considered attributable to service with the reimbursing employer when it is paid out due to service with a subsequent employer, or when it is an overpayment due to fraud, or due to computer error or other mistake, are reasonable interpretations and implementations of section 3309 (a) (2) of FUTA, and (4) a reimbursing employer may be relieved from reimbursing compensation paid out of the State unemployment fund with respect to its former employees whenever it is reasonably determined under such provisions of the State unemployment compensation law that the compensation paid out was not attributable to service with the reimbursing employer. [Id. at 6-8 (Emphasis in original).]

Although we find persuasive the holdings of the California, Delaware, and Florida courts and the decision of the Secretary of Labor, this case must be determined upon the basis of construction of the Maryland statute.

In Police Comm’r v. Dowling, 281 Md. 412, 418-19, 379 A.2d 1007 (1977), we set forth a number of the holdings of this Court relative to statutory construction. They include that the cardinal rule of statutory construction is to ascertain and carry out the real legislative intent; in determining that intent we consider the language of an enactment in its natural and ordinary signification; a corollary to this rule is that if there is no ambiguity or obscurity in the language of a statute, there is usually no need to look elsewhere to ascertain the intent of the General Assembly; a court may not insert or omit words to make a statute express an intention not evidenced in its original form; the General Assembly is presumed to have had, and acted with respect to, full knowledge and information as to prior and existing law and legislation on the subject of the statute and the policy of the prior law; and, absent a clear indication to the contrary, a statute, if reasonably possible, is to be read so that no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless, or nugatory. See also Messitte v. Colonial Mortgage Serv., 287 Md. 289, 293-94, 411 A.2d 1051 (1980); In Re James S., 286 Md. 702, 705, 410 A.2d 586 (1980); Board v. Stephans, 286 Md. 384, 388, 408 A.2d 1017 (1979); Harbor Island Marina v. Calvert Co., 286 Md. 303, 311, 407 A.2d 738 (1979); and Baltimore Gas & Elec. v. Department, 284 Md. 216, 219, 395 A.2d 1174 (1979). We have said many times that statutes should be interpreted in a manner which avoids absurd, illogical, or unreasonable consequences. See, e.g., Francois v. Alberti Van & Stg. Co., 285 Md. 663, 670, 404 A.2d 1058 (1979); Curtis v. State, 284 Md. 132, 149, 395 A.2d 464 (1978); Grosvenor v. Supervisor of Assess., 271 Md. 232, 242, 315 A.2d 758 (1974); Coerper v. Comptroller, 265 Md. 3, 6, 288 A.2d 187 (1972); Pan Am. Sulphur Co. v. State Dep’t, 251 Md. 620, 627, 248 A.2d 354 (1968), and cases there cited.

In determining whether Holy Cross has liability we must look at § 8 (d) (2) as a whole. What is required of a nonprofit reimbursing employer is that it pay "an amount equal to the amount of regular benefits and one half of the extended benefits paid, that is attributable to service in the employ of such nonprofit organization . .. .” (Emphasis added.)

The Congress and the General Assembly obviously intended to favor nonprofit organizations such as the employer here. Otherwise, there would have been no reason for providing them the option of being responsible for claims of their former employees in lieu of paying the regular tax. To hold as ESA would have us to do would make possible the potentially absurd result of the nonprofit organization’s being potentially liable for errors and machinations which could run into many thousands of dollars. Suppose, for instance, that through computer error a number of checks were issued to a claimant which contained three additional zeros to the left of the decimal point. If our statute had words in it similar to that added in California after the Carleson decision to the effect that the sum paid by the employer to ESA should include sums paid "due to any computational or other error of any type by [ESA] whether or not such error could be anticipated,” ⁵ then it could be said legitimately that nonprofit employers making the election did so with full knowledge that agency error could cripple them financially. However, no such language appears in the Maryland statute. The payment here was attributable solely to agency error, not to service in the employ of the nonprofit organization. The employee was found ineligible for compensation by reason of gross misconduct relative to his employment by the nonprofit organization. As we see it, the plain meaning of the statute is that the employer shall be liable only for those payments made which are attributable to service in its employ. Since the payment made here was as a result of ESA’s error and not as a result of service in the employ of Holy Cross, it follows that the Court of Special Appeals erred. We understand the intent of this statute to be that nonprofit employers should be insurers against unemployment, not insurers against governmental error. We realize full well that the result of this decision may be to impose the loss upon the fund to which regular employers contribute. However, when the loss is spread out over all of the contributing employers, it will have but an infinitesimal effect upon any single employer.⁶

Judgment reversed and case remanded to the Court of Special Appeals for passage of an order affirming the decision of the Circuit Court for Montgomery County; appellee to pay the costs.

1 . Since the incident here in question took place.in December 1974 it would be the statute as it appeared at that time which would be applicable. The critical words in Code (1957,1979 Repl. Vol.) Art. 95A, § 8 (d) (2) read as they did in 1974.

2 . The employer took no issue with its liability for the sum of $623 paid to the employee prior to the final decision of the referee. It is the attempt to charge it for payment of benefits as a result of agency error after the finding of the referee with which it takes issue.

3 . Apparently the California department concerned with unemployment insurance did "address its grievance to the [California] Legislature” because two years later the California law was amended to include in the sums required to be paid by a nonprofit employer such as Holy Cross those amounts "due to any computational or other error of any type by the Employment Development Department or the Department of Benefit Payments, whether or not such error could be anticipated.” Cal.Unempl. Ins.Code § 803 (c) (West Supp. 1980).

4 . We emphasize that the employer in this case does not claim that it should not reimburse the State for what the California court called "anticipated overpayments.” In this instance the "anticipated overpayment” is the sum of $623 paid to the employee prior to the final decision of the referee. The employer has reimbursed ESA for this sum without protest.

5 . Cal.Unempl.Ins.Code § 803 (c) (West Supp. 1980).

6 . Cognizance is taken of the dissenting opinion.

The dissent says, "An examination of the phrase 'benefits paid’ contained in § 8 (d) (2) in context and in relation to § 20 (b) and § 17 (d) of the statute reveals that the phrase 'benefits paid’ may have two different meanings.” The term "benefits” is defined in § 20 (b) as meaning "the money payments payable to an individual, as provided in this article, with respect to his unemployment.” Because of the provision in § 17 (d) relative to recoupment of benefits "[w]hen any person has received any sum for benefits for which he is found by the Executive Director to have been ineligible,” the dissent finds an ambiguity. What the dissent fails to note, however, is that the preamble to the definition embodied in § 20 (b) is "unless the context clearly requires otherwise . ...” In 8 17 (d) the context does clearly require otherwise. Thus, the difference in meaning between "benefits” as used in § 8 (d) (2) and its use in 8 17 (d) cannot be the basis for finding an ambiguity.

The fact that a state legislature elsewhere in its wisdom has seen fit to change a statute can hardly be taken as indicating what the statute meant without change nor does it demonstrate the meaning of the words in our particular statute. We have nothing here akin to that which took place relative to the Maryland version of the Uniform Declaratory Judgment Act, originally enacted by Chapter 294 of the Acts of 1939. In a series of decisions, as pointed out by Judge Collins for the Court in Schultz v. Kaplan, 189 Md. 402, 407, 56 A.2d 17 (1947), this Court held "that where there exists an immediate cause of action between the parties for which one of the common remedies of law or equity is adequate and available, a proceeding for a declaratory judgment is not appropriate within the contemplation of that Act.” Then, however, the General Assembly passed Chapter 724 of the Acts of 1945 reenacting that Act with a preamble specifying that "lijt [was] the sense of the General Assembly that the real legislative intent in the passage of the Uniform Declaratory Judgment Act, was that the existence of another adequate remedy at law or in equity should not preclude a judgment for declaratory relief in cases in which it was appropriate,” specifying that it was its intent and desire in reenacting that statute "so to change the wording of the Act that it clearly and unmistakably expresses the intention which the General Assembly believe[d] was sought to be expressed in the passage of the Act.”