                               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)
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


                                             2
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



                                         3
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.



                                           4
     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’ negligence-

based 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

                                       5
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.



                                        6
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.



                                            7
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.”).



                                      8
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

                                          9
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

                                           10
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

                                            11
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

                                              12
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

                                            13
[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

                                            14
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,”



                                           15
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


                                        16
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


                                           17
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

                                             18
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

                                             19
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

                                               20
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 long-

standing 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


                                            21
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

                                       22
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.



                                           23
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




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