Court Allows Plaintiff Opportunity To Prove Common Law Marriage: Margaret Conway died on April 12, 2017, due to colon cancer. In February 2021, Thomas Zadnik filed a wrongful death complaint against Dr. Ambinder and Johns Hopkins Medicine, Dr. Ambinder’s employer. The Maryland medical malpractice complaint alleged that Dr. Ambinder, who treated Ms. Conway from October 2010 to April 2013, committed medical negligence in his treatment of Ms. Conway. Mr. Zadnik also alleged that he and Ms. Conway were married.
Dr. Ambinder filed a motion to dismiss and/or for summary judgment based on lack of standing. A Maryland wrongful death action may generally only be brought by a spouse, child, or parent of the decedent. Md. Code (1974, Repl. Vol. 2020), § 3-904(a)(1) of the Courts and Judicial Proceedings Article (“CJP”). Dr. Ambinder argued that because Mr.
Zadnik was not married to Ms. Conway, he lacked standing to bring a wrongful death action.
Mr. Zadnik’s response to Dr. Ambinder’s motion was an affidavit from Mr. Zadnik, wherein he described the highlights of his relationship with Ms. Conway, including his recounting of the private marriage ceremony. Mr. Zadnik also attached to his response an additional summary of a doctor’s appointment wherein the doctor refers to Mr. Zadnik as Ms. Conway’s spouse. The trial court granted the defendant’s motion to dismiss and/or for summary judgment, and Mr. Zadnik appealed.
The Appellate Court of Maryland stated in its reported Opinion filed on May 23, 2023: “Although common law marriage has never been part of Maryland law, Maryland recognizes marriages that are “valid where contracted” … Resolution of this appeal requires us to examine the requirements for creating and proving the existence of a common law marriage in Pennsylvania. Pennsylvania abolished common law marriage in 2005, but continues to recognize common law marriages that were created on or before January 1, 2005.”
“In Pennsylvania, “[a] common law marriage can only be created by an exchange of words in the present tense, spoken with the specific purpose of creating the legal relationship of husband and wife[,]” commonly referred to as verba in praesenti … A party claiming a common law marriage must prove its existence by clear and convincing evidence … On the other hand, if evidence of verba in praesenti is not available, a party may present evidence of “constant cohabitation and a reputation of marriage which is not partial or divided but is broad and general” to create a rebuttable presumption that the marriage existed … Pennsylvania law is clear, however, that the “rebuttable presumption is ‘one of necessity’ to be applied only in cases of the party’s ‘inability to present direct testimony regarding the exchange of verba in praesenti.’”
“In many cases where there is only one surviving putative spouse, that spouse is not able to testify regarding verba in praesenti because of the Dead Man’s Statute … A wrongful death action “is not brought in a derivative or representative capacity to recover for a loss or injury suffered” by the decedent, but instead is for the benefit of the person bringing the action … Accordingly, it cannot “increase or diminish the estate of the decedent” … Because the Dead Man’s Statute is not applicable in this wrongful death action, it does not preclude Mr. Zadnik’s verba in praesenti testimony.”
“Because Mr. Zadnik can testify concerning the exchange of verba in praesenti, the presumption based on cohabitation and reputation is irrelevant … Contrary to the circuit court’s analysis, Mr. Zadnik’s testimony does not need to be
accompanied by proof of cohabitation and reputation and may be sufficient on its own to prove the existence of a common law marriage, depending on whether the trier of fact deems his testimony credible.”
The Appellate Court of Maryland held: “If a factfinder finds Mr. Zadnik’s testimony credible, his description of this exchange of words, in and of itself, occurring in Pennsylvania prior to January 1, 2005, could prove by clear and convincing evidence that he and Ms. Conway created a common law marriage … Mr. Zadnik’s affidavit and answers to interrogatories describing his exchange of vows with Ms. Conway was sufficient for summary judgment purposes to establish a genuine dispute of material fact regarding whether he and Ms. Conway were married under Pennsylvania common law. Accordingly, we reverse the grant of summary judgment and remand for further proceedings.”
Source Zadnik v. Ambinder, M.D., No. 803 September Term, 2022.
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