BATTAGLIA, J.

In this case, we are tasked with reviewing a decision of the State Board of Contract Appeals, which determined that Milliman, Inc., Appellant, ("Milliman"), had breached contracts to provide actuarial services1 to the Maryland State Retirement System, Appellee, ("the System"), allegedly resulting in approximately $73 million in losses to the System as a result of a claim that the System had filed against Milliman pursuant to Section 15-219.1 of the State Finance and Procurement Article, Maryland Code (2001, 2006 Repl.Vol.);2 the claim asserted that Milliman had understated the contributions required to fund three of the State's ten retirement and pension systems because of the actuary's misinterpretation of a particular data code.

In the initial round of the administrative action, the Retirement System Procurement Officer determined that Milliman had "failed to comply with its contractual duties and responsibilities," and that the System was entitled to recover "$34.2 million in contributions that would have been received but for Milliman's errors, and $38.8 million in lost income that would have been earned on those contributions." Thereafter, Milliman appealed to the State Board of Contract Appeals, which heard the claim de novo and determined that in failing to detect and correct the coding error for a period of twenty two years, the actuary had substantially breached its contracts with the System, causing the three affected retirement funds to be significantly underfunded, amounting to $34,208,960 in lost contributions and $38,756,188 in lost interest on those contributions.

Milliman filed a petition for judicial review in the Circuit Court for Baltimore City, which affirmed the Board's findings that Milliman had breached its contracts with the System and affirmed the award of lost investment earnings, but reversed the Board's award of amounts equaling lost contributions. We granted certiorari prior to any proceedings in the intermediate appellate court to consider the following questions:

The State Retirement and Pension System presented a conditional cross-petition, which we also granted, in which one question was posed:

Milliman, Inc. v. Maryland State Retirement and Pension System, 417 Md. 125, 9 A.3d 1 (2010). We shall hold that Milliman is liable to the System for repeatedly misinterpreting a data code associated with survivors' benefits, irrespective of whether the System met funding goals during the contracts. We shall further hold that because the State was not a party before the Board of Contract Appeals, whether the measure of damages should reflect the State's use and benefit of contributions not made to the System as a result of Milliman's errors is not properly before us. In addition, we shall hold that the System was not negligent in the development or transmission of data provided to Milliman and, therefore, contributory negligence does not bar the System's recovery. Finally, we shall hold that the Circuit Court erroneously reduced the Board's damage award by $34,200,000, representing lost contributions, and therefore, shall vacate the judgment of the Circuit Court and shall direct that the Board's decision be affirmed.

Introduction

A state or local government retirement system is designed, fundamentally, to fund the long term cost of providing benefits to employees. Thomas P. Bleakney, Retirement Systems for Public Employees 33 (Univ. of Penn. Press 1972). The latter is so, because, "there is a time lag between the accruing of pension rights and the payment of benefits." Id. at 14. Retirement benefits are funded by the interplay of three sources, namely, contributions from the employer, contributions from the employee, and investment income. Employer contributions are calculated, moreover, so that over the long run, annual contributions plus investment earnings are sufficient to pay out the promised benefits. The Top 10 Advantages of Maintaining Defined Benefit Pension Plans, http:// www.macrs.org/news/96-the-top-10-advantages-of-maintaining-defined-benefit-pension-plans.html (last visited July 16, 2011). In this way, the financial workings of a public employee retirement system have been compared to a water network, with the

Bleakney, supra, at 106-07.

Actuaries come into a retirement process because they focus primarily on "analyzing the financial consequences of future uncertain events." Michael A. Bean, Probability: The Science of Uncertainty 6 (American Mathematical Society 2001). In the pension context, actuaries perform complex calculations to ensure that employer contributions are sufficient to fully satisfy the liabilities of a fund over time, despite fluctuations in investments and the steadily growing number of retirees. The Top 10 Advantages of Maintaining Defined Benefit Pension Plans, http://www. macrs.org/news/96-the-top-10advantages-of-maintaining-definedbenefit-pension-plans.html (last visited July 16, 2011). In formulating estimates of employer contributions, "planning for error is part of the calculation," and actuaries often employ "a degree of conservatism in [their] assumptions," erring on the side of over-funding rather than under-funding. Rhoades, McKee & Boer v. United States, 43 F.3d 1071, 1075 (6th Cir. 1995).

In Maryland, the State Retirement and Pension System is composed of ten independent retirement systems,3 although only three were the subject of the challenge initiated by the State against Milliman, those being the Judge's Retirement System, the State Police Retirement System, and the Law Enforcement Officers' Pension System, all of which are managed by a Board of Trustees, which includes the Secretary of Budget and Management, the State Comptroller, the State Treasurer, and elected or appointed representatives of each retirement system. Pursuant to Section 21-125(a) of the State Personnel and Pensions Article, Maryland Code (1993, 2004 Repl.Vol.),4 the Board of Trustees "shall designate an actuary" to:

The designated actuary is required to make an annual "valuation of the assets... of the funds of the several systems," upon which the State's (the employer's) contributions to the System are based:

Section 21-125(b) of the State Personnel and Pensions Article. Moreover, Section 21-304 of the State Personnel and Pensions Article establishes a statutory goal for the System to have its obligations to participants fully funded by the year 2020, as follows:

Background

Milliman contracted with the System beginning in 1982 to provide actuarial valuations for each of the State's retirement and pension systems and continued to serve as actuary by additional contracts effective July 1, 1990, July 1, 1993, and August 5, 1998, to terminate as they did, August 4, 2006. The contracts required Milliman to perform valuations of the various funds, as well as an "annual certification of the employer contribution rate required to fund each retirement system for the coming year." Milliman assured the System that the actuary "subscribe[d] to the concept that the annual actuarial valuations are the cornerstone of all financial planning of a retirement system. As such we take great care in assuring that all technical aspects of the valuation are completed."

In 2004, Milliman discovered, through a "replication audit,"5 a coding error affecting the three retirement systems, in which the actuary failed to include in its calculations benefits payable to surviving spouses of judges and police officers. Thereafter, Milliman reported its discovery of the valuation errors to the System and indicated that liabilities for the three affected systems had been understated by more than $130 million. To provide expert advice concerning the longstanding actuarial error, the System retained the Hay Group, "a global human resource management consulting firm," which examined Milliman's work and determined that "Milliman's errors did result from their failure to apply reasonable standards of care as would have been expected of an actuary at that time."

By formal authorization of its Board of Trustees, the System approved the filing of an administrative claim against Milliman pursuant to Section 15-219.1 of the State Finance and Procurement Article, Maryland Code (2001, 2006 Repl.Vol.).6 The Retirement System Procurement Officer determined that Milliman had breached its actuarial responsibility, resulting in $73 million in losses to the System, and Milliman appealed to the Board.

The Board of Contract Appeals determined that Milliman substantially breached its contracts with the System by failing to exercise reasonable care and diligence in interpreting data in connection with the three affected retirement systems, in contravention of the professional actuarial standard of care:

The Board also found that Milliman had misinterpreted retirement code "00," resulting in an understatement of contributions necessary to fund three of the State's ten retirement and pension funds:

Specifically, the Board found that the affected retirement systems were not on track to achieve full funding by the statutory 2020 date, but instead, that "the State Police retirement system was funded at a level of 84% of liability, judges at 74%, and local law enforcement at 60%," so that increased contributions to make up for those deficiencies became necessary. The Board determined that the sum "needed to make [the System] whole from the losses sustained as a result of Milliman's errors," included approximately $34 million in deficient contributions plus $38.8 million in lost interest on those contributions during the twenty-two year period:

In so doing, the Board rejected Milliman's argument that the System was not damaged insofar as the taxpayers would fund any deficiency, because that "perspective subvert[ed] the entire function and purpose of actuarial analysis":

The Board also concluded that, because the State was not a party to the proceeding, Milliman's contention that any losses sustained by the System as a result of Milliman's calculation errors must be offset by assets that purportedly remained in the State's General Fund, was without merit:

Finally, the Board concluded that the System was not contributorily negligent, because it was ultimately Milliman's professional obligation to "understand the data" and seek clarification from the System:

After Milliman sought judicial review in the Circuit Court for Baltimore City, the judge affirmed the Board's decision involving Milliman's breach, but determined that the Board erred in calculating damages to include both lost contributions and lost interest on those contributions:

Discussion

Our role in reviewing the final decision of an administrative agency, such as the State Board of Contract Appeals, is "limited to determining if there is substantial evidence in the record as a whole to support the agency's findings and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law." Maryland Aviation Admin. v. Noland, 386 Md. 556, 571, 873 A.2d 1145, 1154 (2005), quoting Board of Physician Quality Assurance v. Banks, 354 Md. 59, 67-68, 729 A.2d 376, 380 (1999). In doing so, our task is to decide whether the Board's determination was supported by "such evidence as a reasonable mind might accept as adequate to support a conclusion." People's Counsel for Baltimore County v. Surina, 400 Md. 662, 681, 929 A.2d 899, 910 (2007); see also Mayor of Annapolis v. Annapolis Waterfront Co., 284 Md. 383, 398-99, 396 A.2d 1080, 1089 (1979) ("The heart of the fact-finding process often is the drawing of inferences made from the evidence.... The court may not substitute its judgment on the question whether the inference drawn is the right one or whether a different inference would be better supported. The test is reasonableness, not rightness."). As a result, a reviewing court must "defer to the agency's fact-finding and drawing of inferences if they are supported by the record." Motor Vehicle Admin. v. Shea, 415 Md. 1, 14, 997 A.2d 768, 775-76 (2010), quoting Motor Vehicle Admin. v. Delawter, 403 Md. 243, 256-57, 941 A.2d 1067, 1076 (2008). Moreover, a reviewing court "must review the agency's decision in the light most favorable to it; ... the agency's decision is prima facie correct and presumed valid." Noland, 386 Md. at 571, 873 A.2d at 1154, quoting CBS v. Comptroller, 319 Md. 687, 698, 575 A.2d 324, 329 (1990). When we review the decision of an administrative agency, we look "through the circuit court's ... decision[], although applying the same standard of review, and evaluate[] the decision of the agency." Shea, 415 Md. at 15, 997 A.2d at 776, quoting People's Counsel for Baltimore County v. Loyola College in Md., 406 Md. 54, 66, 956 A.2d 166, 173 (2008).

In addressing the first question raised by Milliman, it appears that we must confront a twofold issue, the first being whether there was substantial evidence supporting the Board's finding of underfunding, and second, whether the damages emanating from the underfunding were caused by errors in Milliman's actuarial recommendations.

In our initial review, we consider the record as a whole to determine whether the Board's findings are supported by substantial evidence. Najafi v. Motor Vehicle Administration, 418 Md. 164, 173, 12 A.3d 1255, 1261 (2011); Critical Area Commission v. Moreland, 418 Md. 111, 122-23, 12 A.3d 1223, 1230 (2011). In addition to numerous exhibits supporting its underfunding contention, the System also called various individuals including Major Morris Krome, an elected member of the Board of Trustees representing the Maryland State Police Retirement System, who testified as follows:

In addition, Brent Mowery, an actuary versed in pension matters employed by the Hay Group, testified that Milliman's errors caused each of the affected systems to be underfunded pursuant to the statutory funding goals, as follows:

Finally, Dr. Ann Melissa Moye, a member of the System's Board of Trustees in 2004, testified that the three affected retirement systems were significantly underfunded at levels ranging from 60 percent to 84 percent, as follows:

Milliman asserts, relying on the testimony of Dr. Kim Nicholl, an actuary employed by Price, Waterhouse, Coopers, that the "System was not damaged because the coding issue resulted in it having made slightly fewer contributions in the past, because Milliman's funding recommendations over its tenure as actuary led the State to make more contributions than were necessary to the System." Dr. Nicholl testified that Milliman's recommended contribution rates fell within "the range of reasonableness."

The Board, however, credited the testimony and evidence presented by Major Krome, Mr. Mowery, and Dr. Moye rather than that of Dr. Nicholl regarding whether Milliman erred or not. Clearly, there was substantial evidence upon which the Board relied to support its finding that the System had suffered losses totaling $73 million and that the affected systems were thereby underfunded as a result of Milliman's coding errors.

To address the second question, namely, how to measure damages caused by errors in actuarial recommendations related to pensions systems, we lack statutory guidance as well as precedent. As a result, we turn to analogous decisions from our sister states to seek assistance.

In Dardaganis v. Grace Capital Inc., 889 F.2d 1237 (2d Cir.1989), the Trustees of the Retirement Fund of the Fur Manufacturing Industry entered into an agreement with Grace Capital, Inc., in which Grace became investment manager of the assets of the retirement fund and promised to "manage the [Fund's] Account in strict conformity with the investment guidelines promulgated by the Trustees." Id. at 1239. Pursuant to the investment guidelines, Grace was prohibited from investing more than fifty percent of fund assets in common stocks. During an eight month period, however, Grace invested more than fifty percent of fund assets in common stock, exceeding the fifty percent ceiling each month by an average of fifteen percent. The Trustees refused to increase the ceiling above fifty percent, and Grace was fired when the common stock holdings increased to approximately eighty percent of the portfolio.

Thereafter, the Trustees brought suit, alleging that Grace had breached a fiduciary duty embodied in 29 U.S.C. § 1104(a)(1)(D),7 by failing to adhere to the common stock ceiling. The federal district court granted the Trustees' motion for partial summary judgment on the issue of liability, holding that Section 1104's requirement that fiduciaries abide by the plan documents together with the agreement's provision that Grace manage the fund "in strict conformity with the investment guidelines," required the court to conclude, as a matter of law, that "[a]ny violation of the terms of [the] [a]greement constitute[d] a breach of Grace Capital's fiduciary duty under § 1104(a)(1)(D) and create[d] liability to the Fund." Dardaganis, 889 F.2d at 1239. The district court awarded damages by comparing what the plan actually earned with what it would have earned had Grace invested only fifty percent of the fund's account in equities.

On appeal, Grace asserted that "even if [it] breached a duty, there were no `losses' to the plan, because the sum of the Fund's assets and the cash withdrawn to meet Fund obligations increased during their tenure." Dardaganis, 889 F.2d at 1243. The Second Circuit Court of Appeals affirmed the trial court, reasoning that the Fund has suffered losses as a result of Grace's breach, and any award of damages should take into account the financial position the beneficiaries would have occupied, but for the breach:

Id. at 1243. In Dardaganis, therefore, an investment manager was required to compensate a fund for losses stemming from a breach of the standard of care, no matter whether the fund's assets grew as a whole, to place the fund in the position it would have been in but for the breach.

We also find helpful to our analysis an unpublished opinion of the California intermediate appellate court, Board of Trustees v. Mercer, 2003 WL 21481021, 2003 Cal. App. Unpub. LEXIS 6236 (Cal.Ct.App. 2003), in which the Board of Trustees for the San Luis Obispo County Pension Trust as well as the County of San Luis Obispo filed a claim against their former actuary, Mercer, for professional negligence. In the case, presenting factual circumstances remarkably similar to the present case, the trust paid a defined benefit and was funded by contributions from the county and its employees and income from the investment of trust assets. Mercer was the trust actuary from 1980 through 1996, when the actuary discovered errors in the computer program it used in preparing actuarial valuations for the trust, including an assumption that plan participants would have no surviving spouses. As a result, Mercer failed to account for the payment of survivors' benefits, such that "the trust's future liabilities were underestimated and its assets were overestimated." Id. at *1, 2003 Cal.App. Unpub. LEXIS 6236 at *3.

At trial, Mercer admitted breaching the actuarial standard of care, but disputed liability, because "in spite of its errors, the trust was fully funded" and therefore, "suffered no damages." Id. at *2-3, 2003 Cal. App. Unpub. LEXIS 6236 at *6-7. The trial judge determined that the trust suffered a loss of investment income on the nearly $11 million the county under-contributed to the fund. The appellate court affirmed, rejecting Mercer's contention that the award of lost interest would amount to "an impermissible windfall." Id. at *4, 2003 Cal.App. Unpub. LEXIS 6236 at *12. Instead, the court recognized that although the "county may derive an incidental benefit from Mercer's payment of damages to the trust, as will county employees and all taxpayers living within the county," awarding damages for lost investment income would place the county in the position it would have been in had Mercer properly valued the pension's assets and liabilities. Mercer suggests that whether a pension fund is fully funded is immaterial in calculating damages, when an actuary has miscalculated pension obligations.8

In the present case, Milliman breached its contracts with the System by misinterpreting the "00" code over a period of twenty-two years, thereby causing the System to inadequately plan for the costs of retirement benefits to surviving spouses of judges and police officers. Milliman attempts to diminish its culpability for the errors because the System has met its funding goals, as in Dardaganis and Mercer; the reality is, however, that but for Milliman's miscalculations, the three affected systems would have been more robust. We agree with the Board that to accept Milliman's argument would enable a highly trained, skilled professional to escape liability on the basis of fortuitous economic changes and better than anticipated investment returns, rather than suffer the consequences of the breach of its standard of care.9

In this regard, the Board relied upon four standards applicable to actuaries during the contract term, including the historical Guides to Professional Conduct adopted by the American Academy of Actuaries, which provides that

and also Actuarial Standard of Practice (ASOP) No. 4, pertaining to recommended practices for data analysis, which states that

ASOP No. 4 further provides that the actuary should verify the reasonableness of plan data:

Finally, the Board relied upon ASOP No. 23, pertaining to data quality:

We agree with the Board that Milliman breached the articulated standards of care by failing to verify the reasonableness of the information provided regarding the code through inquiry of the System, as early as 1982.

Milliman also advances two arguments regarding the relationship of the System and the State, in order to limit its exposure in the present case. Milliman initially contends that the System and the State are the same entity, such that any award of damages "must reflect that the State always retained the use and benefit of contributions not made to the System." The State, however, was not a party before us, nor before the Board, which noted the absence of the State as a party. In an analogous scenario, in Hashmi v. Bennett, 416 Md. 707, 7 A.3d 1059 (2010), we precluded a physician who had been adjudicated as negligent from seeking contribution from three alleged "joint tortfeasors" who were not joined as parties in the original action, because the latter did not have an opportunity to participate in the primary case. In the present case, we similarly cannot countenance Milliman's assertion of "offset" against the State, for the retention of "the use and benefit of contributions not made to the System," because the State was not joined as a party in the proceeding before the Board.10

Alternatively, Milliman argues that if the State and the System are regarded as distinct bodies, then the System has failed to demonstrate damages, because the State is obligated to "pay the accrued unfunded liability relating to the coding issue over a period of years." Essentially, Milliman asserts that taxpayers are obligated to fund the retirement systems, so that despite the actuary's repeated errors, outstanding pension liabilities will be funded.

We agree with the Board's assessment that the System and the State are certainly interrelated, because, inter alia, the State serves as guarantor of System pension liabilities, as follows:

Section 21-302 of the State Personnel and Pensions Article. As further emphasized by the Board, however, funds held by the System are wholly distinct from other State funds. Because we have never had occasion to consider the identity of the System and the State, we again find succor in decisions from other jurisdictions which have faced analogous scenarios.

In Day v. New Hampshire Retirement System, 138 N.H. 120, 635 A.2d 493 (1993), Day was diagnosed as having "work-related tendinitis in both wrists" while working as a toll attendant for the Department of Transportation. Although Day received workers' compensation benefits, she was denied "accidental disability retirement benefits" from the retirement system. Id. at 494. Day petitioned for a hearing and the retirement board again denied her benefits, reasoning that she had failed to demonstrate that her injury was work-related and that she was permanently incapacitated from performing her duties. When Day sought judicial review in the trial court, the trial judge determined that the retirement system and the department of labor were in "privity," so that the retirement system was collaterally estopped from relitigating the issues that had already been determined in the workers' compensation proceeding. Id. at 494-95.

On appeal, the retirement system asserted that it was not in privity with Day's employer, the Department of Transportation, and the New Hampshire Supreme Court agreed, reversing the judgment of the trial court. In so doing, the court held that "because of the distinct identity, constituency and interests of the retirement system, it is not in privity with executive agencies of the State, including the [D]epartment of [Transportation," noting salient features of the retirement system, as follows:

Day, 635 A.2d at 496-97 (citations omitted). The court further emphasized that because the retirement system is a contributory one, the impact of disbursements may be felt by all participating employers and employees, so that even if the State's interests were well represented in the workers' compensation proceedings, "the same cannot be said of the interests of the members of the retirement system, nor of the many contributing employers other than the State." Id. at 497.

Similarly in Traub v. Board of Retirement of the Los Angeles County Employees Retirement Association, 34 Cal.3d 793, 195 Cal.Rptr. 681, 670 P.2d 335 (1983), a probation officer employed by Los Angeles County sought a service-connected disability pension, claiming psychiatric disability. The Retirement Board determined that the probation officer was disabled, but granted only the lesser retirement allowance for "disability that is not service-connected," and a referee affirmed the Board's decision. Id., 195 Cal.Rptr. 681, 670 P.2d at 337. Thereafter, the probation officer sought judicial review in the trial court, which also affirmed the Board's decision, reasoning that the officer's "psychiatric condition" arose out of his wrongful termination, "not from the job activities." Id. On appeal, the probation officer argued that "the required connection between disability and employment was conclusively established, under res judicata principles, by a decision of the Workers' Compensation Appeals Board," which awarded him benefits for "injury to his emotional state." Id. The Supreme Court of California rejected that argument, because "the requisite privity between the county, against which the award was made, and the county Retirement Board, appear[ed] to be lacking." Id., 195 Cal.Rptr. 681, 670 P.2d at 338. The court reasoned that a Retirement Board does not act as an agent for the county, but as administrator of the county retirement system, "an independent entity established pursuant to [county law]." Id. The court also emphasized that funding for the system comes from both governmental employers and from employees, so that any adjudication of a claim for benefits "may have economic impact upon the membership of the association," as well as upon the county. Id.

As in Day and Traub, the Board in the present case recognized that the System and the State are distinct entities, so that the State's General Fund is not just a pot in which the System may dip:

Thus, we agree with the Board that the State and the System are distinct entities for the purpose of calculating damages as both lost contributions and lost interest on those contributions due the System as a result of Milliman's contractual breaches.11

Finally, Milliman argues that the System was contributorily negligent in providing a "confusing" definition of the "00" code. Initially, Milliman asserts that the Board's finding that the System accurately reflected "the meaning of its codes as a part of its data dictionary" was not supported by substantial evidence. The System presented testimony by Brent Mowery, a pension actuary employed by the Hay Group, regarding Milliman's obligation to carefully review the System's data and correct any misunderstandings:

Milliman also offered evidence regarding its allegation that the System was contributorily negligent, in the form of testimony by Dr. Thomas Delutis, a consultant in the area of "business process improvement" and "computing solutions," as follows:

The Board credited the testimony of Mr. Mowery, an actuary versed in the pension arena, rather than that of Dr. Delutis, who was not an actuary, regarding whether the data provided by the System was sufficient. Clearly there was substantial evidence upon which the Board relied to support its finding that the System was not contributorily negligent in providing the code to Milliman, given Milliman's professional obligation to review and interpret the data.

In asserting that the System was contributorily negligent as a matter of law, Milliman principally relies upon Wegad v. Howard Street Jewelers, Inc., 326 Md. 409, 605 A.2d 123 (1992), in which the jewelry store was seeking damages against an accountant for failing to detect the embezzlement of funds by a store employee. The jewelry store sought a specific jury instruction indicating that a client "can rely on the accountant's knowledge and skill" and that "[i]t is not contributory negligence for a client to follow an accountant's instructions, or rely on his advice." Id. at 412, 605 A.2d at 125. We disagreed and reasoned that the jewelry store owners were uniquely situated to uncover the criminal actions of their employee, such that the "jury could have found that the extent of the [owner's] reliance on [the accountant] was not reasonable." Id. at 422, 605 A.2d at 130.

Wegad is wholly distinguishable, because unlike the jewelry store owners who were uniquely situated to uncover their employee's embezzling, Milliman, rather than the System, was the entity that was in a better position to detect and correct the coding error. The Board found that Milliman should have detected the coding error when it compared its 1982 calculations with the previous year's performed by another actuary and noted that "although the number of State Police retirees increased from 288 to 339 or 341, their total retirement liability decreased from $67 million to $65 million." Similarly, as the Board noted, Milliman should have discovered the error when the actuary "performed its first valuation for DNR police, a system established July 1, 1990, but instead, Milliman merely duplicated its earlier coding error." Unlike the jewelry store owners in Wegad, Milliman had a professional obligation to interpret the data provided by the System.12

More apt to our analysis is Hill v. Wilson, 134 Md.App. 472, 760 A.2d 294 (2000), in which our colleagues on the Court of Special Appeals considered whether a patient was negligent in his claim against a physician, for the physician's alleged failure to properly diagnose and treat a serious infection. The physician contended that the patient was contributory negligent, because the patient was directed to return for treatment if his condition worsened and had failed to do so. The intermediate appellate court held that the trial judge did not err in denying the physician's motion for summary judgment, because the physician failed to demonstrate "some prominent and decisive act [by the patient] which directly contributed to the accident and which was of such a character as to leave no room for difference of opinion thereon by reasonable minds." Id. at 492, 760 A.2d at 305, quoting Campbell v. Montgomery County Bd. of Educ., 73 Md.App. 54, 64, 533 A.2d 9, 14 (1987).

In the present case, although the Board noted that the System may have employed greater clarity in defining the various codes, the Board determined that the System provided ample explanation of the "00" code involving the three affected retirement systems when it provided to Milliman "its written Annual Valuation Record," as well as "employee brochures describing retirement payment provisions." To the extent that the coding may have been confusing, Milliman bore an express duty, as the Board opined, to solicit "further clarifying information until it accurately understood the information provided to it by the client."

Our final task is to consider the System's certiorari question, namely whether the Circuit Court erred in reducing the Board's damage award for lost contributions in the amount of $34,200,000. In an oral opinion, the Circuit Court determined that the System failed to demonstrate that the $34,200,000 in lost contributions "no longer exist[s]" so that the Legislature could not fund the losses sustained by the System as a result of Milliman's breach. Because the State was not a party to the proceeding before the Board, or for that matter, before the court, whether any damage award by Milliman should be offset by an amount retained by the State was not properly before the Circuit Court. See Hashmi, 416 Md. at 707, 7 A.3d at 1059. Therefore, the Circuit Court erred in reducing the Board's award of damages to the System by $34,200,000 in lost contributions. As a result, we shall vacate the judgment of the Circuit Court and direct that the Board's decision be affirmed in its entirety.

JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY VACATED, AND CASE REMANDED TO THAT COURT WITH DIRECTIONS TO AFFIRM THE DECISION OF THE STATE BOARD OF CONTRACT APPEALS. COSTS IN THIS COURT AND IN THE CIRCUIT COURT FOR BALTIMORE CITY TO BE PAID BY APPELLANT.

HARRELL, J., dissenting, in which MURPHY and ADKINS, JJ., join.

The Maryland Code requires the Maryland State Retirement and Pension System ("the System") to employ the services of an actuary to "give technical advice ... on the operation of the funds," among other duties. Maryland Code (1993, 2009 Repl. Vol., 2010 Supp.), State Personnel and Pensions Article, § 21-125(a).1 Pursuant to the statute, each year, the State contributes to an "accumulation fund," which the System stewards and uses to meet obligations to employee-members. See §§ 3-501, 21-302-308. The State bases these contributions on the actuary's estimates.

In the present case, the actuary hired by the System, Milliman, Inc. ("Milliman"), committed a long-running mathematical error that caused a contribution shortfall of $34 million. In addition to this shortfall, the System alleges (and the Board of Contract Appeals's and the Majority's opinions agree) that the total damages should include an additional $39 million, representing the interest the System would have reaped through investment of the contribution shortfall. That total—$73 million—is not a proper or accurate calculation of damages as a matter of law, as I see it. Although I grant that the System is a "special" appendage of State government, vested with a somewhat unique degree of independence, for purposes of calculating damages here (if not more), there is no legally- or logically-sound reason to treat the System and the State as separate entities.

Because the System and Milliman did not specify how damages should be calculated in the instance of a breach of the contract, we should put the parties in the position they would have been but for the breach. To do so, we should not blind ourselves to the reality that the State and the System are part of a single government and that, together, they did not suffer a contributory loss, as the State continued to collect and enjoy the same amount of revenue, irrespective of Milliman's error. The fact that the System was unable to invest the $34 million simply leaves open the possibility of limited damages—the difference in the rate of investment return attributable to the two governmental units. According to Milliman, that amounts to $24.7 million.

I.

Before this Court, Milliman argues that any damages calculation should take into account that the State and the System are one entity, even though the State, as such, was not a named party to this litigation. The facts of the present case indicate that the State did not change its behavior, save for retaining the $34 million in other areas of the government and not the System. Stated another way, the State collected the same amount of revenue, but simply used the money in other contexts, outside the retirement system. Thus, Milliman posits that there must be more limited damages than was awarded by the Board of Contract Appeals.

A. The State and the System's Ineradicable Interconnectedness

To "determin[e] whether a statutorily-established entity is an agency[,] instrumentality," or mere appendage, "of the State for a particular purpose," like the calculation of damages, we have "repeatedly recognized that there is no single test...." A.S. Abell Pub. Co. v. Mezzanote, 297 Md. 26, 35, 464 A.2d 1068, 1072 (1983). Instead, "[a]ll aspects of the interrelationship between the State and the statutorily-established entity must be examined in order to determine its status." Id. (citations omitted); see e.g., A.S. Abell Pub. Co., 297 Md. at 39, 464 A.2d at 1074 ("After examining all aspects of the interrelationship between the State and [the Maryland Insurance Guaranty Association ("MIGA")], including the degree of control exercised by the State over MIGA's operation, we are persuaded that MIGA is an agency or instrumentality of the State [and, therefore,] within the scope of the Public Information Act.").2

Through Title 21 of the State Personnel and Pensions Article, the Legislature created a "State Retirement and Pension System" to "provide benefits ... for [State-employee] participants in the several systems." § 21-101(b). Although the Legislature created an uncompensated Board of Trustees to run much of the System, it retained significant managerial oversight and discretion. MARYLAND STATE RETIREMENT AND PENSION SYSTEM, COMPREHENSIVE ANNUAL FINANCIAL REPORT 24 (2010), http:// www.sra.state.md.us/Agency/Downloads/ CAFR/CAFR-2010.pdf ("The System is fiscally dependent on the State by virtue of the legislative and executive controls exercised with respect to its operations, policies, and administrative budget."). Indeed, under the statute, the State is obliged to "pay[] ... all allowances and other benefits"; to "creat[e] and maint[ain]... reserves in the accumulation fund[]"; to "credit[] ... regular interest to the annuity savings fund[]" and to "pay[all]... expenses for administration and operation of the several systems." § 21-302(a)(1)-(4) (emphasis added). To that end, the Governor and the Legislature require the Board to submit an annual budget report, § 21-109, which they consult discretionarily in their preparation of the State Budget.3 Moreover, while the Board is empowered to hire an actuary, like Milliman, the General Assembly reserved the power to hire its own "Legislative Auditor" to "conduct an annual or biennial fiscal and compliance audit of the [System's] accounts and transactions ...." § 21-127.

The State's paternal role with regard to the System does not end there. The General Assembly designated the State Treasurer, not the Board of Trustees, "[a]s the custodian of ... the accumulation, annuity savings, and expense funds of the several systems ... and the assets of the Board of Trustees." Payments from these funds must follow regulations formulated by the Board, but approved ultimately by the State Treasurer. § 21-124(a)(2). The Legislature also entrusted the State Treasurer with the job of physically "safeguarding]" the System's assets. § 21-124(b). The State discloses these assets in its own financial statements. See COMPREHENSIVE ANNUAL FINANCIAL REPORT at 24.

Such oversight and reservation of authority is understandable, given that the General Assembly—rather than the Board of Trustees, employees, or any other group(s)—is responsible for the welfare of the System. The State pays into the System not only as an "employer," but also as the only guarantor of risk and loss. Indeed, as a last resort, the statute requires the State to "pay to the accumulation fund... at least an amount that when combined with the amount in the accumulation fund ... is sufficient to provide the allowances and other benefits payable out of the fund ...." § 21-302(c). The System does not have a separate power to raise funds, outside of investing profitability the State's and employees' contributions. § 21-108(c).

This scheme reveals that the System is merely an extension of the State (i.e., part of a single government), not simply because it was created by the Legislature, but because of the close, ongoing, and managerial presence of the State in the activities of the System. To refer to the System at large is to refer to the State, at least for the purpose of calculating damages. Los Angeles County Employees Retirement Association v. Towers, Perrin, Forster & Crosby, 2002 WL 32919576, at *15, 2002 U.S. Dist. LEXIS 27916, at *50 (C.D.Ca.2002) ("[W]hile the separateness of [a retirement system] and [a c]ounty is recognized for a number of purposes, this separateness is not absolute and does not pervade every aspect of the relationship. For certain functions [including the calculation of damages], [the retirement system] and the [c]ounty should be considered the same entity.").4

B. The Extent of the System's Damages

Any measure of damages resulting from a contractual breach must be based on the facts at hand and the realities of the parties' situations. In the present case, Milliman misstated the amount that the State should provide to the System under statutory contribution formulae. As a result, the State did not contribute an extra $34 million, spread out over twenty-two years.5 For purposes of context, those contributions would be $1.5 million per year if spread out evenly. In response to Milliman's faulty underestimation, the State did not seem to change accordingly its revenue-collection practices. This is not surprising, considering that the State, in the same timespan, contributed many billions of dollars—$1.3 billion in fiscal year 2010 alone. Such a minuscule annual amount of "missing" contributions did not affect the System's target funding goal and, therefore, did not alter the State's behavior.

Although an appendage of the State, i.e., the System, did not possess for its immediate use the $34 million, the State at large did. The true impact of the calculation error was that the State, and not the System, retained and invested (or applied) the $34 million elsewhere. Thus, proper damages would be the difference in the investment return only.

The story of damages would be written differently, of course, if the error had caused the employee-members not to make $34 million worth of contributions. In that instance, no one would enjoy the use of the $34 million—that is to say, the State's financial statements would be missing $34 million. That is not the case here.

When calculating damages flowing from a contractual breach (absent a contractual agreement governing the calculation of damages in the event of breach), courts endeavor to put the parties in the position that they would have been but for the breach. St. Paul at Chase Corp. v. Manufacturers Life Ins. Co., 262 Md. 192, 250, 278 A.2d 12, 40 (1971) ("The Court should endeavor to place the injured person, so far as possible, by monetary award, in the position he would have been if the contract had been properly performed." (internal quotation marks and citation omitted)). As this Court stated:

St. Paul at Chase Corp., 262 Md. at 240, 278 A.2d at 35 (internal quotation marks and citation omitted). To do so, we must judge not what the non-breaching party wants to recover, but what he/she/it should recover in light of the facts at hand.

In the present case, the parties did not establish in their contract how damages would be calculated in the event of a breach. As such, we must determine how to make the non-breaching party whole, in light of what "may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract...." Id. Given that the State, as a single government, was not deprived of the use of the $34 million, the proper damages amount—i.e., the amount needed to fulfill the State's expectations—is the difference in the investment return. Such a calculation has the added benefit of approximating what the parties would have expected reasonably. Milliman was being paid $100,000 a year for its actuarial services and would not have expected reasonably to pay for damages, totaling almost $100 million, for damages not suffered actually as a result of its actions. If the State/System thought a breach should lead to a windfall, whereby the actuary would match sums already in the State coffers, then it should have specified as much in the contract; it did not.

II. The Majority Opinion's Main Underpinnings

A. The State Is Not a Party to the Proceeding

The Majority opinion dispatches with any consideration of the State's role by pointing out that "[t]he State ... was not a party before us, nor before the Board [of Contract Appeals]...." Majority op. at 162, 25 A.3d at 1007. The Majority finds supportive in this regard a medical malpractice case in which, according to the Majority opinion, "we precluded a physician who had been adjudicated as negligent from seeking contribution from the three alleged `joint tortfeasors' who were not joined as parties in the original action, because the [three tortfeasors] did not have an opportunity to participate in the primary case." Majority op. at 163, 25 A.3d at 1007 (analyzing Hashmi v. Bennett, 416 Md. 707, 7 A.3d 1059 (2010)).

The instructive value of Hashmi is far from evident. Here, we confront a breach of contract, involving a government claim against a private contractor. Hashmi was also a medical malpractice case, involving only private and distinct (legally and biologically) parties. Moreover, in Hashmi, we held that a tortfeasor-physician could not seek contribution from other alleged tortfeasors primarily because the hospital release protected them. See Hashmi, 416 Md. at 724-25, 7 A.3d at 1069-70. We then stated in the alternative (and, thus, arguably in dicta) that a post-trial "judicial determination" of contribution would deprive the alleged tortfeasors of "notice or... an opportunity to defend," in violation of the Maryland Rules. Hashmi, 416 Md. at 725, 7 A.3d at 1070 ("Even if we were to determine that the ... [r]elease was ambiguous, we would not countenance the separate, post-trial proceeding Dr. Hashmi proposes [of the other alleged tortfeasors]...."); Hashmi, 416 Md. at 729, 7 A.3d at 1072 (citation omitted).

In the present case, Milliman is not trying to reduce possible damages by seeking contribution from the State as a joint tortfeasor; it is arguing that there are little to no damages in the first instance, given the fact that the non-breaching party did not suffer, in fact, an actual loss. Indeed, Milliman is asking this Court (fairly in my estimation) and the Board of Contract Appeals not to blind itself to certain facts when determining the proper measure of damages to make a non-breaching party whole. Ordinarily, I would rebuff contentions that the State lacked notice and an opportunity to defend itself, but doing so credits Hashmi with an unjustifiable amount of applicability—comparing the present case to Hashmi is like forcing a round peg into a square hole. Rather, I will address the premise of the Majority opinion's damages calculation—that the State and the System are not part of a single entity.

B. The State and the System Are Not One Legal Entity.

Acknowledging that "we have never had occasion to consider the identity of the System and the State," the Majority opinion considers in depth two foreign cases—Day v. New Hampshire Retirement System, 138 N.H. 120, 635 A.2d 493 (1993), and Traub v. Board of Retirement of the Los Angeles County Employees Retirement Association, 34 Cal.3d 793, 195 Cal.Rptr. 681, 670 P.2d 335 (1983). Both cases involve a government employee who was awarded, by an administrative adjudication, workers' compensation benefits and then attempted to use that decision to estop collaterally the retirement system from denying similar benefits. Day, 635 A.2d at 494; Traub, 195 Cal.Rptr. 681, 670 P.2d at 337. In each case, the respective court concluded that, for purposes of collateral estoppel, the workers' compensation board and the retirement system were not "in privity." Day, 635 A.2d at 497; Traub, 195 Cal.Rptr. 681, 670 P.2d at 338. They noted that any payout to the government employee would come not just from the State, but also the employees who contributed to the retirement system. Day, 635 A.2d at 497; 670 P.2d at 338. Those employees were not represented in the initial workers' compensation decision. See Day, 635 A.2d at 497.

The present case does not involve the sometimes perplexing world of collateral estoppel. Rather, we confront the issue of contractual damages flowing to the State/System (including employees, who contributed voluntarily to a State-created and -managed fund). We need not concern ourselves with "privity"; we need only determine (as we did supra) that the State and System are one entity for purposes of evaluating the true financial injury in this case. See A.S. Abell Pub. Co., 297 Md. at 35, 464 A.2d at 1072. Nevertheless, even if the "oneness" of the State and System—for purposes of calculating damages—depends on a finding of privity, such evidence exists in the record. The State, System, and employees all possessed the same interest in the $34 million. The State is obliged to make up any shortfalls in the System; the System has a duty to govern toward fiscal solvency; and, the employees want to secure their retirement future.6 In short, their interests are aligned sufficiently.

C. Maryland Has Not Adopted the "Unitary Creditor" Doctrine.

Milliman argues that the State and the System are one legal entity and that, as a result, it "should be allowed to recoup or offset the benefit of the funds retained by the State against any damages claimed by the System...." (Emphasis added.) As part of this claim, Milliman refers to the federal "unitary creditor" doctrine, a principle which allows federal agencies to "set off debts owed by one agency against claims that another has against a single debtor." Turner v. Small Bus. Admin., 84 F.3d 1294, 1296 (10th Cir.1996) (en banc). A classic illustration is where Agency 1 owes money to a person, but that person owes money simultaneously to Agency 2. The agencies and individual debtor are permitted to setoff those claims.

Transposed to the present context, such a claim fits awkwardly, as we are not dealing with a company that simply owes money to the government, whether we define that government as the State or the System. I believe that the "set-off" claim may be better understood under ordinary contract law and damages canons, as explained supra. Nonetheless, the argument may be made that, should the System receive a judgment for all contributions and investment interest, Milliman would be able to assert a claim against the State. Thus, Milliman should be able to skip a step and simply have its own claim heard in the same action.

Indeed, in a case remarkably similar to the one at bar, the U.S. District Court for the Central District of California allowed an actuary who committed mathematical errors, which caused a county government to underpay its retirement system, to argue for such a setoff. Towers, Perrin, Forster & Crosby, 2002 WL 32919576, at *9, 2002 U.S. Dist. LEXIS 27916, at *29. The actuary, in particular, claimed that:

Towers, Perrin, Forster & Crosby, 2002 WL 32919576, at *1, 2002 U.S. Dist. LEXIS 27916, at *3. "Even in the absence of the precise articulation of the claim to be setoff against [the one at hand]," the court held that a setoff defense is appropriate in light of the ultimate goal of "eliminat[ing] a superfluous exchange of money between the parties...." Id. (internal quotation marks omitted).

To so conclude, the court needed to find sufficient mutuality between the actuary and the government—enter the unitary creditor doctrine. This reliance, the Majority opinion concludes, renders the decision wholly-inapplicable to the present case, as "we have not ascribed" to that doctrine. Majority op. at 163, 25 A.3d at 1008 n. 10. I disagree respectfully.

In Lomax v. Comptroller of Treasury, 323 Md. 419, 420, 593 A.2d 1099, 1100 (1991), we considered a case where a state school teacher, Mary Lomax, received retirement benefits from the System. The Comptroller of the Treasury ("Comptroller") obtained a judgment and lien against Lomax for unpaid income tax. Id. "In an attempt to satisfy this judgment against Lomax, the Comptroller filed with the Clerk of the Circuit Court for Baltimore County a request for writ of garnishment to be served on the ... System[]...." Id. We held that the State could effectuate such an inter-governmental maneuver, explaining that:

Lomax, 323 Md. at 426-27, 593 A.2d 1099 (emphasis added).

This is the most classic form of the unitary creditor doctrine, where one agency (i.e., the System) owes money to a debtor, but that debtor owes money to another agency (i.e., the Comptroller). Indeed, these were similar to the facts of the case in which the U.S. Supreme Court adopted originally the unitary creditor doctrine—Cherry Cotton Mills v. United States, 327 U.S. 536, 105 Ct.Cl. 824, 66 S.Ct. 729, 90 L.Ed. 835 (1946). See Turner, 84 F.3d at 1296-97 ("[T]he Court's language [in Cherry Cotton Mills] clearly indicates that agencies of the United States government are deemed a unitary creditor...."); Turner, 84 F.3d at 1296 ("[I]n Cherry Cotton Mills ... the Supreme Court made clear that the United States has a right to effect interagency setoffs."). As a further indication that this Court adopted the unitary creditor concept in Lomax, we quoted there Munsey Trust Co., a case which relies explicitly on Cherry Cotton Mills to conclude that an agency need not pay a contractor who owed a greater sum of money to another agency. See Munsey Trust Co., 332 U.S. at 240, 67 S.Ct. at 1602, 91 L.Ed. at 2028.7,8,9

III.

My reservation with the Majority opinion stems from its disregard of otherwise accessible and dispositive contract axioms, the polestars of the damages question. When a party claims a loss, it must demonstrate the reality of that loss—the State asks for another $34 million, despite previously collecting and enjoying the same. Moreover, I fail to see how the set-off and unitary creditor principles—if necessary to bring into focus the full damages issue—are not applicable to the present case. I harbor also some hesitation regarding our eagerness to declare agencies, especially those that depend on State Government funds, as separate and unique entities, approximating corporate subsidiaries. But see Maryland Transportation Authority v. Maryland Transportation Authority Police Lodge # 34 of the Fraternal Order of Police, 420 Md. 141, 21 A.3d 1098 (2011) (holding that the Maryland Transportation Authority did not have total autonomy such that it could bargain collectively, even though the Legislature delegated to it a great deal of authority, including the ability to raise revenues through tolls).

In my opinion, we should direct a remand to the Board of Contract Appeals with instructions to recalculate damages to reflect the fact that the State and the System are a single entity. Practically speaking, the Board of Contract Appeals should determine and then limit damages to the difference between what the State earned, in fact, and what the System would have earned, with respect to a return on investment of the $34 million in "missing" contributions.

Judge Murphy and Judge Adkins authorize me to state that they join the views expressed in this dissenting opinion, except that Judge Adkins does not subscribe to footnote 8.