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Marboah v. Ackerman

June 30, 2005

JOHN B. MARBOAH A/K/A CHARLES A. BOATENG, APPELLANT,
v.
ALAN J. ACKERMAN, ET AL., APPELLEES.



Appeals from the Superior Court of the District of Columbia. (CA2801-02). (Hon. Jeanette J. Clark, Trial Judge).

The opinion of the court was delivered by: Schwelb, Associate Judge

Argued March 10, 2005

Before SCHWELB and GLICKMAN, Associate Judges, and DUNCAN-PETERS, Associate Judge, Superior Court of the District of Columbia.*fn1

This legal malpractice case is based on a claim by plaintiff John Brobbey Marboah that defendants Alan J. Ackerman, Esq., and Ackerman's now-dissolved law firm, Stien, Braunstein & Associates, P.C. (SBA), negligently permitted the statute of limitations to expire without filing a workers' compensation claim on Marboah's behalf with the Virginia Workers' Compensation Commission. Marboah appeals from an order of the trial court awarding summary judgment in favor of the defendants. Because Marboah was an illegal alien -- a fact that he fraudulently concealed from his employer, the Commission, the defendants, and the court -- he was ineligible under then-current Virginia law to recover workers' compensation. Accordingly, even assuming, arguendo, that the defendants were negligent in representing Marboah, he suffered no compensable loss as a result of their negligence, and he is not entitled to any recovery.

At the time of the accident for which he was seeking workers' compensation, Marboah was ineligible for any award under Virginia law because, as an illegal alien who had overstayed his visa, he was not an "employee" at all for purposes of the state's workers' compensation statute. Marboah intentionally and fraudulently concealed his ineligibility from his employer and from the workers' compensation carrier by using the social security card and number of a man named Charles A. Boateng and by pretending that he was Boateng. In his deposition almost four years later, Marboah referred to Boateng as his "ghost identity." Marboah maintained his masquerade for more than three years.

Because Marboah was barred by law from receiving compensation benefits, he presented his claim in the name of Charles A. Boateng. Believing that the injured person was in fact Boateng, the employer and the employer's compensation carrier accepted the claim in that name and under Boateng's social security number. Marboah could obtain benefits, however, only if the Virginia Workers' Compensation Commission remained unaware of two key facts: first, that the claimant, who purported to be Charles A. Boateng, was really an ineligible illegal alien named Marboah; and second, that Marboah had fraudulently concealed his true identity and his ineligibility from his employer and from the employer's carrier. Furthermore, because exposure of the truth would have been fatal to Marboah's claim and would have rendered him ineligible for compensation, Marboah felt compelled to adhere to his false story, so that his initial false statements snowballed with the passage of time. Marboah's misrepresentations to the employer and to the carrier regarding his true identity and illegal status were followed by further lies to his original attorneys (defendants Ackerman and SBA), to his present counsel, to the Immigration and Naturalization Service (INS),*fn2 and to the Superior Court.*fn3

"To decide this case we need look no further than the maxim that no man may take advantage of his own wrong." Glus v. Brooklyn E. Dist. Terminal, 359 U.S. 231, 232-33 (1959). This principle is "[d]eeply rooted in our jurisprudence," and has been applied "in many diverse classes of cases by both law and equity courts." Id. It is not easy to envisage a more apt example of an attempt by a man to take advantage of his own wrongful acts "and [to] become the richer for it," Riggs Nat'l Bank of Washington, D.C. v. District of Columbia, 581 A.2d 1229, 1253 (D.C. 1990), than Marboah's series of deceptions as his claim for compensation progressed. At every point, telling the truth -- namely, that he was an illegal alien named Marboah, and thus not an employee eligible for compensation -- would have precluded recovery. Consequently Marboah lied, representing to all concerned that his name was Charles Boateng, that he was legally in this country, and that he was therefore eligible for workers' compensation. In light of the Glus maxim, and because "no court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act," Hunter v. Wheate, 53 App. D.C. 206, 208, 289 Fed. 604, 606 (1923); see also Breezevale, Ltd. v. Dickinson, 783 A.2d 573, 574 (D.C. 2001) (en banc) (quoting Hunter), we affirm the award of summary judgment.

I.

Marboah was born in Ghana. He is a citizen of the Netherlands. A woman who has lived with him as his wife resides in this country with one of his children; the child was born in Virginia and is a United States citizen.*fn4

In October 1998, Marboah came to the United States under the Visa Waiver Pilot Program (VWPP), which permits nationals of certain countries, including the Netherlands, to enter the United States, as tourists only, for no more than ninety days. Individuals who visit the United States under the VWPP are not permitted to engage in gainful employment, and Marboah acknowledged that he was aware of this fact.

In December 1998, while he was still lawfully in the United States, Marboah met Charles A. Boateng at a social gathering. According to Marboah, Boateng had a valid work visa. Out of what Marboah supposed to be "remorse" for Marboah's plight in being unable to work, Boateng gave Marboah his (Boateng's) social security card so that Marboah could use it in order to find employment. Marboah testified at his deposition that he never saw Boateng again and did not know his whereabouts. In any event, before his visa had expired, Marboah contrived to use a false identity (that of Boateng) to secure employment, when he knew that working in the United States would contravene the terms of his visa. Moreover, contrary to a representation that he necessarily made to obtain his visa -- namely, that he proposed to visit the United States for no more than ninety days -- Marboah obviously intended to remain and work in this country indefinitely. Marboah was thus well aware that ninety days following his arrival he would become an illegal alien.

In February 1999, by which time he had already overstayed his ninety-day visa, Marboah, using Boateng's name and social security number, secured employment with Smoot Lumber Company, in Alexandria, Virginia, in the name of Charles A. Boateng. Marboah took some tests and filled out a series of employment forms, all in the name of Charles A. Boateng. Marboah also used Boateng's social security card, and he did not reveal his real name to his employer.

A few weeks later, on April 7, 1999, while working for Smoot Lumber, Marboah was struck in the head with a steel pipe and seriously injured. He filed a compensation claim with Smoot Lumber's compensation carrier, Liberty Mutual, again using the name and social security number of Charles A. Boateng. On April 22, 1999, Marboah, continuing to hold himself out to be Charles A. Boateng, retained defendants Ackerman and SBA to represent "Boateng" in connection with "Boateng's" claim for any compensation benefits to which he was entitled as a result of the accident that had occurred fifteen days earlier. Marboah signed the retainer agreement as Charles A. Boateng. Marboah never advised his attorneys that he was really John B. Marboah, that he was an illegal alien not eligible for workers' compensation, or that he was using another man's social security card and number.

Marboah's claim (ostensibly filed by "Boateng") was accepted as compensable by Smoot Lumber's workers' compensation carrier, Liberty Mutual. Marboah never apprised Liberty Mutual of his true identity, and, having no reason to question the claimant's eligibility or his assertion that he was in fact Boateng, Liberty Mutual paid compensation benefits to "Boateng," designated a panel of physicians to examine "Boateng," and paid "Boateng's" medical expenses. Although the compensation benefits and payment of medical expenses were intended for "Boateng," and although, as an illegal alien, Marboah had no right to the payments, it appears to be undisputed that Marboah retained the money that he was paid.*fn5

Following his accident, Marboah remained in the United States illegally for approximately three more years. In early April 2002, Marboah left the United States and traveled to Amsterdam. He returned on April 19, 2002. He left the country again on June 21, 2002, and flew to Toronto, Ontario. When he attempted to return to the United States, Marboah, who was using his true name, was interviewed under oath in Toronto by an officer of the INS. During this interview, Marboah stated, inter alia,

Q: Do you swear that all the statements you are about to make will be the truth and nothing but the truth?

A: Yes.

Q: Who is your employer and what is your ...


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