Maryland Injury Lawyer Blog

I have been writing a bit lately about Metro Verdicts Monthly Verdicts. There really is a wealth of information in this publication. This week, I reconnected with a defense lawyer I have not spoken to in years who I used to workout with in Howard County at the Columbia Athletic Club. (Interesting, this month's publication reported that this attorney's client got hit with a $199,396 verdict in a Prince George's County personal injury case where the defendant only offered $90,000.)

Every month, on the cover of Metro Verdicts is a graph of some kind comparing settlement amounts in different regions or different types of injuries. This month, they had a fascinating graph comparing fractured shoulder injury verdicts and settlements in Maryland and Virginia since 1987, omitting defense verdicts. The average fractured shoulder verdict or settlement in Maryland was $154,800 whereas, in Virginia, it was only $52,500. This is a remarkable disparity that I think would surprise a lot of personal injury lawyers in Maryland and Virginia. It is the first comparison of any kind that I have seen that comparing verdicts in Maryland and Virginia. I would like to see more data and comparisons like this. It would be invaluable to personal injury lawyers, especially in cases where the auto accident occurred in one location but the personal injury lawsuit could be rightfully filed in one of several jurisdictions.

The Maryland Court of Special Appeals had occasion this month to consider the scope of what constitutes a resident relative for the purposes of uninsured motorist coverage in Mundey v. Erie Insurance Group.  In this case, a Prince George's County man who had been living with his grandmother in Waldorf, Maryland (Charles County) for almost a year was found by the Maryland intermediate appellate court not to be resident relative of his parents who lived in Lusby, Marylandand therefore his parents' uninsured motorist coverage with Erie Insurance could not be applied to his auto accident.

Apparently, the Plaintiff, who the Court noted was not a full-time student, lived with his grandparents for the 11 months preceding the auto accident. During that time, the Plaintiff visited his parents' home approximately four to six times, spending the night on Thanksgiving and Christmas. On these holidays, Plaintiff slept on an extra bed in his younger brother's room because his bedroom had been converted for other uses after he left. Erie Insurance's accident lawyers argued that under these facts, the Plaintiff should not be deemed a resident relative and could not recover from Erie Insurance for his personal injuries from his auto accident under his parents' uninsured motorist policy. Plaintiff's personal injury lawyer, Waldorf attorney Michael J. Schreyer, contended that "resident," as defined in Erie Insurance's policy, limits the statutorily required uninsured/underinsured motorist coverage and constitutes an impermissible exclusion from coverage, thus violating the public policy goals of Md. Code Ann., Ins. § 19-509

The Maryland Court of Special Appeals disagreed with Plaintiff's attorney, ruling that Plaintiff was not a "resident" of his parents' Lusby home as defined by their insurance contract with Erie Insurance. The court reasoned that according to the policy language,Plaintiff would be a resident only if he physically lived in his parents' household, is under the age of 24, and attends school full-time. Writing for the court, Judge J. Frederick Sharer found that the"undisputed evidence before the Prince George's County Circuit Court clearly established that appellant failed to meet either definition of 'resident' because he did not physically live in his parents' home and did not attend college."

While our Maryland auto accident lawyers would certainly prefer a different result, this decision by the Maryland Court of Special Appeals would appear to be in line with the language of the Erie Insurance policy and Maryland law on who is a resident relative Our personal injury lawyers have a resident relative case pending in Baltimore County Circuit Court where we expect a very different result because, unlike this case, the injured party was a listed insured on the insurance policy. But in this case, it was more difficult to argue insurance coverage as a resident when the injured victim was clearly not a resident of the home in question.

A Hawaii jury yesterday awarded $5.6 million in a personal injury medical malpractice case to a man who had a screwdriver placed in his back instead of a titanium rod. The facts in this medical malpractice case are incredible. The surgeon, Dr. Robert Ricketson, who lost his medical license in Oklahoma and Texas amidst allegations of drug use before coming to Hawaii, began surgery on a patient and realized after two hours of surgery that the titanium rod that was to be inserted in the patient's back was nowhere to be found. Dr. Ricketson chose to use a screwdriver instead of the titanium rod. A nurse who was assisting Dr. Ricketson urged him to wait because a titanium rod was being sent from another island. He asked the nurse to leave the operating room. Not surprisingly, the screwdriver snapped in just few days. Three failed corrective surgeries later, Arturo Iturralde, a Baptist minister, was rendered a parapalegic.

Under Hawaii's comparative fault system, the jury found that Dr. Ricketson was 65% liable for medical bills and pain and suffering damages and the hospital was 35% responsible. The hospital was found responsible for letting Dr. Ricketson perform surgery at their hospital in spite of the evidence that he was not a responsible physician and because the nurse was also blamed for the failure to make sure the rod was ready before the surgery began. The total award for compensatory damages was approximately $2.2 million. The jury also awarded $3.5 million in punitive damages against Dr. Ricketson.

Realistically, the patient's estate and wrongful death beneficiaries (he died in 2003, two years after the surgery) beneficiaries will collect $770,000 from the hospital. Dr. Ricketson was uninsured and acted as his own attorney at trial.

Interestingly, this case would turn out much differently in Maryland. First, there would not be a punitive damages award given the lack of actual malice which is required in Maryland for a punitive damages claim. See Owens-Illinois, Inc. v. Zenobia , 325 Md. 420 (1992). It is unlikely a Maryland medical malpractice attorney would even plead punitive damages in a case like this. In contrast, Hawaii's punitive damages standard is merely whether the "defendant has acted wantonly or oppressively or with such malice as implies a spirit of mischief or criminal indifference to civil obligations." AMFAC, Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 138 (1992).

But in this case, the plaintiff's medical malpractice lawyer willl recover only $770,000 for his client because of Hawaii's comparative negligence law does not allow for joint and severable liability. In Maryland, a jury would have found that both parties were "substantial contributing causes of the injury" and the plaintiff's lawyer could choose which Defendant he/she wanted to collect from for the injured party's recovery. Accordingly, the Plaintiff would be able to recover, had this case occurred in Maryland, approximately $900,000 (limited by Maryland's cap on pain and suffering) from the hospital instead of $770,000

Last month, I wrote a bit about Jury Verdict Research, which conducts studies of jury verdicts around the country. A recent Jury Verdict Research study of truck accidents from January 1996 to January 2005 found that truck accident victims recover damages in 60% of personal injury trials and receive a median compensatory award of $90,000. The average truck accident case involving a disc injury, usually a herniated disc, was $122,532. In contrast, the average median verdict in a head-on truck accident case the study was $532,034.

Today, the Maryland Senate had a hearing on SB718 which would require judges to order all persons convicted of, or granted probation for, certain alcohol-related offenses, to drive only motor vehicles which are equipped with an ignition interlock system for not less than 3 months (first offense) and not less than 1 year (subsequent offenses). An ignition interlock system is a device which is attached to a car's dashboard and has a small handheld alcohol sensor (which must be blown into). The car will not start if the driver's blood-alcohol level is above a certain level. These systems are highly accurate and very difficult to circumvent. Thirty seven states now use these devices as part of their drunk driving prevention efforts. These devices are currently used in Maryland by judges who sentence drunk drivers. This new legislation, if passed, would require Maryland judges order this type of monitoring in all cases that qualify.

Criminal lawyers might object but from a Maryland accident lawyer's perspective, this is would be a great development. Our lawyers have handled too many drunk driving fatalities to not support any reasonable effort to get drunk drivers off our highways.

The New Jersey Superior Court, Appellate Division, ruled last month in Dolores Kleiber v. State Farm Ins. Co. that the trial court properly entered summary judgment in favor of State Farm in a lawsuit filed by a State Farm insured seeking a declaratory judgment that Plaintiff was entitled to additional optional uninsured motorist (UM) coverage because her insurer failed to offer her optional coverage when she moved from Florida to New Jersey shortly before an auto accident she had in the fall of 1999 with an uninsured driver.

The New Jersey Superior Court, Appellate Division, ruled the trial court did not err in entering summary judgment in favor of an insurer in an insured's action seeking a declaratory judgment that she was entitled to additional optional uninsured motorist (UM) coverage because her insurer failed to offer her optional coverage when she moved from Florida to New Jersey.

Plaintiff's attorney's argument was a stretch, contending that because the policy was issued in Florida, State Farm was obligated to offer her additional coverage because State Farm knew she would be driving her car in New Jersey. Accordingly, she claimed that if she had been informed that she was required to obtain insurance in New Jersey, she would have obtained $100,000 in optional UM coverage.

The Appellate Division disagreed, holding that because New Jersey only requires 15/30 coverage under N.J.S.A. 17:28-1.1(a), there was no evidence that Plaintiff would have purchased additional UM coverage.

In 2004, the Maryland legislature passed a bill that requires an insurer to offer to the first named insured under a motor vehicle liability policy "liability coverage for claims made by a family member in the same amount as the liability coverage for claims made by a nonfamily member under the policy or binder." 2004 Maryland Laws, Chap. 127, Section 1.

But this Maryland law does not require insurance companies to "offer" the insurance in the same sense the Plaintiff claims above. This definition of offer means "making available" as opposed to the affirmative burden Plaintiff's auto accident lawyer sought to place on State Farm in this case. I think it is dangerous to place the burden on insurance companies to take affirmative action in offering coverage, particuarly based on conversations the insured had with the insurance company. Moreover, I think Plaintiff's claim that she would have bought coverage if it had been offered is speculative at best. Accordingly, I think the court made the right ruling in this New Jersey case, and I suspect a Maryland court would similarly hold.