Maryland Injury Lawyer Blog

There are two challengers running against three incumbent Circuit Court judges in Baltimore City: lawyer Nicholas J. Del Pizzo, III and Maryland District Court Judge Emanuel Brown. These candidates present a formidable challenge to the sitting judges Gale E. Rasin, John C. Themelis and Barry G. Williams. In particular danger is Judge Williams. Why are these sitting judges in danger? Judicial philosophy? Their record on the bench? No, these judges are in danger because they are alphabetically challenged. It would not be the first time in Maryland a sitting judge has arguably lost because of where their last name fell in the alphabet. In recent years, alphabetically challenged sitting Judges Alexander Wright Jr., Rodney C. Warren and Donna Hill Staton have lost close elections.

The only issue judges face of any interest to the general electorate is their position on sentencing. Anne Arundel County Circuit Court Judge Paul G. Goetzke won an election in Anne Arundel County on this issue. But arguably a campaign promise to “be tough on crime” or taking a position on the death penalty is evidence of bias that should disqualify a candidate from sitting in criminal cases. Supreme Court Justice John Paul Stevens told the American Bar Association exactly this in 1996. In Anne Arundel County, the public defenders’ office, I am told, routinely asks Judge Goetzke to recuse himself for this reason.

Judge Goetzke denies this motion. I agree with him (and disagree with Justice Stevens) that he should not be required to recuse himself in such cases. The Supreme Court has said judicial candidates have free-speech rights as does any other candidate. Republican Party of Minnesota et al. v. White, 536 U.S. 765 (2002). But in a concurring opinion in this case, Justice Sandra Day O'Connor said, "If the state has a problem with judicial impartiality, it is largely one the state brought upon itself by continuing the practice of popularly electing judges." I think she was exactly right. I think Maryland is bringing upon themselves this system where the issues are either where one sits alphabetically or issues that judicial candidates should not be debating.

I do not blame Mr. Del Pizzo or Judge Brown for running in this election in Baltimore. They are operating within the existing system. I will also admit that our firm has in the past supported a few judges running against the incumbent judges because we thought they would make a particularly excellent judge (or because the qualified candidate was a friend). But just because the system may work in isolated instances, does not mean the system works for the greater good.

For years, the Maryland's Conference of Circuit Court Judges has lobbied the Maryland legislature to change the way judges are elected. Specifically, they have asked for a law that would institute “up-or-down” retention votes as opposed to competitive elections. I am not a big fan of the up or down vote because I think it is meaningless. I also think there should be a way to get off the bench judges who are incompetent or abusive to parties and/or attorneys and I think an “up-or-down” vote is tantamount to a lifetime appointment (which I also oppose).

Here is what I would propose: a commission of lawyers and judges appointed by the governor who get together biannually (or maybe every five years) and vote not to retain the bottom 5% of judges. Jack Welch popularized this type of plan at General Electric. Each year, Welch would fire the bottom 10% of his managers. The Maryland Judiciary is certainly not General Electric. But I think the same principle would hold true and would serve the purpose of not requiring judges to campaign but also make them at least somewhat accountable. Do I think my plan will come to fruition? No. I think we will continue to elect judges in Maryland for the next 100 years. On the bright side, there will certatinly be plenty of drama in the seven jurisdictions with contested judicial elections this year: Baltimore City, Baltimore County, Carroll County, Harford County, Howard County, St. Mary's County and Talbot County.

Newday reports that Roseart Industries is voluntarily recalling of 3.8 million toys that were marketed to children three years of age and older. Roseart says consumers can return the toys in exchange for replacement toys for older children. The U.S. Consumer Product Safety Commission had collected reports of 34 incidents involving the toy, including the death of a 20-month-old child who tragically swallowed magnets from the toy. There was also a three-year-old boy who required surgery after swallowing the magnetic part of the toy.

Those 34 complaints probably represent 3400 or more incidents because the reporting rate to the Product Safety Commission is so low. There is no question that companies like Roseart have a duty to make their products safe. But we as parents also have a duty to report unsafe toys to the Product Safety Commission so that other children are not put at risk.

As I indicated yesterday, my post today is on a trial we had last month in Baltimore, Maryland. Our client was making a left on a light turning red and hit a car coming in the opposite direction making a right turn. These are tough cases in Maryland, Virginia, the District of Columbia, Alabama and North Carolina because these five jurisdictions still have contributory negligence as opposed to comparative negligence. As lawyers who do not practice in these jurisdictions will remember from law school, any contributory negligence on the part of the Plaintiff is a complete bar to recovery. But the case was from a Baltimore lawyer who refers a lot of personal injury cases. When in doubt, we are willing to take a chance when the case comes from one of our loyal referring lawyers.

AIG offered a whopping $5,000 to settle the case. One of our lawyers, Rod Gaston, tried the case. The jury found both parties negligent. Again, contributory negligence is an absolute bar to recovery. But the jury went on to award the Plaintiff $118,000. The judge did what he was required to do and entered a verdict on behalf of the Plaintiff for $118,000.

Naturally, AIG's attorney filed a post trial motion to revise the verdict. Here is our response. Our first argument is that the verdict is not a contradiction because there was no mention of whether the contributory negligence was the proximate cause of the accident. Rod argued vigorously in closing that if Plaintiff's conduct was negligent, it was not the proximate cause of the accident.

The second issue is whether a jury can render inconsistent verdicts. I briefed a similar issue in a criminal context in my first law school moot court assignment. (I still remember the name of my fictional client, Darryl Dare, who I am pleased to say, beat the rap.) I wrote then, and now, that the law in Maryland has long been that verdicts may be inconsistent in both civil and criminal cases. Defendant's lawyer cites one case in a master/servant context that did not allow inconsistent verdicts, but we contend that case should be limited to the master/servant context because the fundamental fairness principles associated with finding only one mutually inclusive defendant liable in a master/servant context are very different from the longstanding Maryland case law on inconsistent verdicts generally.

I have been working this week to continue to make additions to the Personal Injury Attorney Help Center on the Miller & Zois website. Today I added a transcript of a trial cross examination of Defendant's medical doctor for a case I am trying in Prince George's County next month. I have redacted the name of the doctor primarily because I like the guy personally. The transcript reads very well for Plaintiff. The doctor comes off like a hired gun who is a professional expert in the most extreme sense of the word. He claims to treat patients outside of the legal context as a contractor for another doctor but then said that he would not be surprised if that same doctor did not know he was doing non-legal related work. He is treating patients for another doctor yet he is not surprised that this same doctor would not know he was treating these patients? It makes no sense.

If you read the transcript, you will also be amazed at the extremes this doctor will go to discount the prospect of evidence that does not support his claim. Incredibly, he says if anything happened and it is not in the medical records, it did not happen. Accordingly, you cannot construct a hypothetical that would be relevant to his opinion. It is really incredible testimony.

I also added a few other motions and a deposition of a defendant doctor in a medical malpractice case that one of our lawyer, Rod Gaston, took last month. Tomorrow, I'm going to blog on the post trial issues I just briefed in a case Rod tried last month that I think are very interesting.

The Maryland Daily Record reported yesterday that U.S. District Judge Richard D. Bennett dismissed the complaint filed by prison inmate Byron Smoot against hip-hop mogul Russell Simmons, finding that Simmons and co-defendant Missouri based Kellwood Company lacked the requisite minimum contacts with Maryland that would make them amenable to jurisdiction in Maryland. The Court’s 14 page opinion can be found here.

As an interesting footnote to this case, in 1999 Smoot began a romantic relationship with the prison psychologist. Smoot and a convicted murderer escaped later that year by climbing over the prison’s fence. They ran into town and made a phone call to the prison psychologist. The men were caught two days later after a massive manhunt. The psychologist pled guilty to an accessory charge for housing the men and was sentenced to six months in prison. HBO had a series years ago called “Oz” where the prison doctor fell in love with one of the inmates. I remember thinking the plot seemed a bit outlandish. But this story sounds equally bizarre.

Coming back from this soap opera to Maryland law, Maryland’s long arm statute allows jurisdiction of defendants to the fullest extent possible under federal law under the due process clause. I am handling an accident where a Missouri truck driver is a defendant. We sought jurisdiction in Maryland based on Defendant’s affidavit that he had four or five truck deliveries a year in Maryland. In the alternative, we asked for permission for our attorneys to conduct discovery to fully understand Defendant’s general contacts with Maryland as opposed to relying simply on the affidavits. But the Baltimore City Circuit Court judge who heard the case denied both requests.

I am of the opinion that if a truck driver regularly drives through a jurisdiction, he is availing himself to that jurisdiction. I cannot see how it is a violation of due process to be amenable in a jurisdiction that you regularly frequent when there is jurisdiction if your are served with process the first time you happen to be in the jurisdiction. See Burnham v. Superior Court, 495 US 604 (1990). But 99% of the case law on this subject disagrees with me.

The New York Times reported yesterday that the FDA will announce this week an effort to write guidelines detailing the kind of industry ties that are permitted for those who serve on its powerful advisory boards. The new rules, which are being debated internally and will have to go through a public comment period, are an effort to codify how the agency grants “waivers,” which allow experts with financial ties to drug makers to serve on the boards. The agency has almost complete discretion in granting waivers in a process that is mysterious to outsiders and confusing even to insiders.

If you have ever attended or reviewed a transcript of one of these FDA advisory board meetings, you can see they set forth all conflicts at the beginning of the meeting. It is incredible, typically every advisory board member has multiple conflicts on the drug they are asked to evaluate and consider for safety. This was permitted by informal waivers that could be granted for reasons that were never made clear to the general public. Accordingly, the FDA had absolute discretion in granting waivers. There is no question that the FDA must do a better job of keeping its advisory boards free from the pharmaceutical industry’s financial influence.

The rumors circulating on these new rules sound like they will be a great improvement. Reportedly, the FDA would make it virtually impossible for experts who get money from drug makers’ marketing departments to serve on FDA advisory boards.

The rules would also loosen other restrictions. Experts with ties to pharmaceutical companies through their academic institution may no longer need a waiver.

This is a difficult issue. Certainly, if a drug manufacturer is pouring a lot of money into your university, it may increase the expert’s power and authority within the university, leading to financial and other intangible gain. But there are very few academic experts engaged in research who do not have significant ties to the pharmaceutical industry. So it is a difficult balancing test. I’m not sure that these rules will solve the problem, but it is good to know the FDA is at least acknowledging the problem and looking for creative solutions.

I've gotten a few emails this week asking why I have not written more blog posts after the two postings on Monday. The Maryland Personal Injury Blog will be back to my usual pace next week. This week I have been working on a new blogging project with a number of fantastic lawyers around the country, lead by Dave Swanner in South Carolina. Dave publishes the South Carolina Trial Blog which is one of the leading blogs for personal injury lawyers in the country and one of the motivations for the Maryland Personal Injury Lawyer Blog. More details on this new blog to follow in the coming weeks.

With my initial work on this project near completion, you can expect to see me posting again next week on a daily or near daily basis.

An Arkansas woman whose husband died of smoke inhalation and burns in a camper fire resulting from a refrigerator defect settled her lawsuit against Norcold Refrigerators and a camper dealership for $7 million last week.

The cause of the fire was cracked tubing in the camper's Norcold refrigerator, which resulted in the leaking of flammable hydrogen. Norcold apparently knew of the potential fire hazard as early as 1999 and notified federal officials that it would be recalling more than 40,000 refrigerators. Much like the “FDA approved the drug” defense I have been blogging about in recent months, Norcold contended that it followed federal regulations in conducting the recall.

But the Plaintiff did not receive a recall notice until 6 years after Norcold knew of the defect. Norcold could have found the owners of all the campers by checking their Vehicle Identification Numbers (VIN), but it did not do that until late 2004, too late to get notice out to the Plaintiff. In a tragic irony, Plaintiff received the recall notice seven months after the accident.

Plaintiff’s attorney in this case deserves a lot of praise. This is the only lawsuit ever filed against this company for this product, although you can be virtually certain it has killed many others (and there are still 12,000 of these refrigerators that have not yet been recalled). Many of the best products liability and medical malpractice cases our lawyers have had were accident cases like this, the cases that other lawyers rejected because they really did not want to turn over a lot of stones to figure out what really happened. But it is the turning of these stones that brings about not only justice for the individual Plaintiff, but it further provides the checks and balances that are required to make sure that companies keep their products safe. You can bet next time Norcold has a problem with one of its products that creates a public safety risk, they will respond with a lot more haste and diligence than they did in this case.

The Baltimore County Bar Association offering a seminar on Wednesday, September 13, 2006 8:00 a.m. called "Maryland vs. Pennsylvania: A Primer on Pennsylvania Law" at the Baltimore County Circuit Court in Towson, Maryland. The program will compare and contrast Maryland and Pennsylvania laws regarding damages in personal injury cases, PIP claims and workers' compensation claim. The seminar is also available to attorneys who are not members of the Baltimore County Bar Association.

From my experience with Pennsylvania personal injury cases, the law is very different from handling injury cases in Maryland. For Maryland lawyers who have been relying on their knowledge of Maryland law in handling their Pennsylvania accident cases, this seminar should be of great assistance.

Merck scored a much needed victory on Thursday when Atlantic City, New Jersey jurors decided that the drugmaker's Vioxx painkiller did not cause a 68-year-old woman's heart attack.

Vioxx was once a $2.5 billion-a-year blockbuster for Merck, who now faces more than 13,000 Vioxx-related lawsuits. Merck now has a 3-4 record after seven trials. An eighth trial is under way in Los Angeles.

My take on this litigation: Merck was painfully close to not only civil but criminal negligence in putting and keeping this drug on the market. But it does not make individual cases a slam dunk by any stretch because the vast majority of cases have significant causation problems. Reading between the lines of the facts in this New Jersey case, the jury found that the plaintiff, 68 years old, would have suffered the same heart attack even if she had not taken Vioxx.

Interestingly, the jury found that while Merck failed to warn the plaintiff about the heart risks of taking Vioxx, it did adequately warn her doctor of such risks. In Maryland and in most states, under the learned intermediary doctrine, the manufacturers of pharmaceutical drugs and medical devices are discharged of any duty of care to patients by providing warnings to the prescribing doctors.

This rule strikes many people as antiquated in 2006 because pharmaceutical companies are now ferociously marketing to the end users, as evidenced by turning on the television or opening up a magazine. New Jersey became the first court to accept this argument in Perez v. Wyeth Laboratories, Inc., 734 A.2d 1245 (N.J. 1999), ruling that advertising prescription drugs directly to end users “alters the calculus of the learned intermediary doctrine” such that the rule does not apply.

Apparently to provide some sense of balance, the court further ruled that if the pharmaceutical company complied with FDA advertising, labeling, and warning requirements (see my blog post on this issue), the rebuttable presumption will be that there was no failure to warn. A rebuttable presumption is a hard thing to overcome but the New Jersey jury in this Vioxx case apparently felt that the Plaintiff’s lawyers overcame this rebuttable presumption.

The Maryland Court of Appeals has adopted the learned intermediary doctrine. But in a case that sounds similar to Perez, the court in Rite Aid v. Levy-Gray, 391 Md. 608 (2006) declined earlier this year to extend the doctrine to those cases in which a pharmacy is disseminating information concerning the properties and efficacy of a prescription drug. Specifically, the Maryland Court of Appeals found that the learned intermediary doctrine does not preclude a pharmacy from being held liable when it provides a package insert that could provide the basis for such a warranty as a matter of law. In other words, a pharmacy may not use the learned intermediary doctrine as a shield. The logic of this case leads me to believe that the Maryland Court of Appeals rule similarly to the court in Perez.

Going back to the Vioxx litigation, because I think the plaintiff's pharmaceutical lawyers have smartly pushed the best cases first, it pains me to say that I predict that Merck's winning percentage will continue to increase over time. This is not because Merck was not negligent, but because of the difficultly in linking their negligence to heart disease, a common problem among individuals who were taking Vioxx because it is typically older people who needed Vioxx to combat arthritis. Because heart disease is so prevalent in older people, juries are going to struggle to determine whether the cause of a stroke or heart attack was from Vioxx or because of heart disease unrelated to the Vioxx.

Back in March I reported data I found in Metro Verdicts Monthly of interest to personal injury accident lawyers in Maryland on the value of fractured shoulder injuries. Earlier this month, I reported on a Metro Verdicts Monthly chart that provided the median settlement value for rotator cuff injuries. In the new issue that I was handed just 10 minutes ago, the subject is ankle fractures. I have spent a lot of time dealing with foot and ankle surgeries from a medical malpractice case I had against the New England Patriots and their team doctors that settled last year. Over the course of that case, I probably met with a half dozen of the best foot and ankle surgeons in the country.

One of these elite foot and ankle surgeons is Mark Myerson, who is the treating doctor in a Baltimore City case I have set for mediation tomorrow. Dr. Myerson was at Union Memorial Hospital, but left a few years ago and is now associated with Mercy Hospital. Both hospitals are among the best in the world for foot and ankle surgery.

The median settlement values for ankle fracture injuries are:

District of Columbia: $66,000

Maryland: $88,000

Two points of interest in this data: first, don't get an ankle fracture in Virginia. It is amazing to me how low these Virginia verdicts are. Second, it is interesting that Maryland ankle fracture verdicts are 33% higher than Washington, D.C. verdicts, given that the Maryland median was much less than Washington, D.C. for both fractured shoulder and rotator cuff verdicts.

In 2002, Federal Tort Claims Act News (who knew there was such a publication?) wrote an article about how Jury Verdict Research Case Evaluation Software was predicting the values of verdicts in a particular slip and fall case with an ankle fracture. In this case, the jury predicted a probable verdict of $117,600 with only a 33% chance of success on liability (maybe a tough slip and fall case on liability).

As a point of comparison, it provided the following JVR nationwide analysis of ankle injuries:

Award Median: $91,925

Award Range: $1-$5,250,804

All of this is of interest for my mediation tomorrow. But I think my case is worth four or five times more than this median for the following reasons:

1. Venue in Baltimore City;

2. Attractive, intelligent, personable, young woman;

3. Accident occurs as Plaintiff is driving back from re-enlisting in the U.S. Army;

4. Head-on collision with a commercial truck;

5. Permanent injury;

6. Plaintiff’s expert is one of the top foot surgeons in the U.S.; and

7. Defendant has no expert.

I would have a hard time drawing up a better set of facts. Accordingly, I think my client is entitled to a recovery that far exceeds these median settlement values. Unfortunately, I think that when you have great intangible facts like some of these are, it is difficult to settle the case. If the case does settle, usually intangibles do not crystallize in the defendant's personal injury lawyer’s mind (or more importantly, the insurance adjuster's mind) until just before or during trial.

Last week, I wrote a blog entry about the details of a deposition I took in a truck accident case that day. I received the truck driver's deposition today and put in on our Maryland Attorney Help Center. If you are interested in taking a look at it, click on the link "truck driver's deposition" above.

On Friday, I gave a small diatribe about the foolishness of allowing a doctor’s medical malpractice lawyers, after getting hit with a $28 million medical malpractice verdict, to bring back the jurors to essentially cross examine them on their answers during voir dire. I explained that Maryland lawyers would not be able to pull this type of stunt under Maryland law and why I thought Maryland’s law prohibiting the losing lawyers from bringing back jurors after a trial was prudent. I wrote that I hoped the Florida court would treat this case similarly to the approach a Maryland court would take.

Of course, this was a jinx. The Associated Press reports that Florida Circuit Court Judge Debra S. Nelson did order the jurors back to court, questioning them about their answers during voir dire. After two hours of argument after this questioning, the judge threw out the $28 million verdict and ordered a new trial because three of the jurors did not respond affirmatively to the Plaintiff’s malpractice attorney’s question during voir dire about prior lawsuits in which they were involved.

Ironically, these jurors did not fail to disclose claims they had brought, making them appear more plaintiff-friendly. Instead, they withheld information about lawsuits that had been filed against them. How the withholding of this evidence would prejudice a doctor accused of malpractice is a mystery. Believe me, if the doctor’s lawyers had been told during jury deliberations exactly what these jurors had withheld, these lawyers would not have thought for a second that their chances of prevailing had diminished in even the slightest way.

Again, I think the message this sends to both plaintiffs’ lawyers and defense lawyers is if you do not like the outcome and the stakes are high enough, attacking the jurors after the verdict may be an all-purpose palliative to the bite of an adverse verdict. In fact, in a case like this, there is no reason the lawyers could not have researched the jurors after they were selected, determined that they would not forthright during voir dire, and then put that information in their pocket pending the outcome of the case. This second-guessing of jurors by allowing them to be questioned about their voir dire responses is bad law in my opinion. I am glad Maryland has some protections to avoid what I think is an injustice in this case.

I generally support the wide discretion judges are given in these kinds of situations but I hope this verdict is reinstated on appeal.

Happy 4th of July weekend! For the holiday, I am posting some random facts interspersed with a few opinions from the perspective of one Maryland lawyer. I am blithely stealing this format from a number of authors, most notably John Eisenberg, who writes for the Baltimore Sun sports section.

Fact: There are more fatal car and truck accidents on July 4th than any other day of the year. An average of 161 people die in car and truck crashes nationally. The second worst day for crash deaths is July 3.

Opinion: If you do not need to be driving around this weekend, don’t. If you are out on the road, drive defensively and be extra vigilant for careless and drunk drivers.

Fact: On an average, there are more than 6 million car accidents on the roads of the United States annually.

Opinion: Poor drivers get into more car accidents where they are not at fault because they are less able to avoid a collision that a good driver might avoid.

Fact: About 40% of car accident fatalities occur because of a drunken driver.

Opinion: More severe penalties for drunk driving – particularly for habitual offenders – would reduce this number considerably.

Fact: According to the World Health Organization, 1.2 million people die from traffic injuries around the world each year.

Fact: Approximately 700,000 American soldiers have died during foreign wars in American history.

Fact: The car and truck accident death toll has historically been the highest in Southeast Asia, comprising around 30 percent of all global motor vehicle accident fatalities.

Fact: The lowest rate of death due to Motor Vehicle Accidents in the country is found in Massachusetts and New York with 8.8 per 100,000 people

Fact: Wyoming, with 34 people killed in traffic accidents per 100,000 residents, more than twice the national average, is the most dangerous state in the nation.

Fact: In contrast, there are 6 deaths per 100,000 people in England.

Opinion: If people in Wyoming drove more fuel efficient cars, the death rate in Wyoming from car accidents would be a great deal higher.

Opinion: As we all correctly fret over our energy consumption and our dependency on foreign oil, making cars more fuel efficient is invariably going to lead to more car accident and truck accident deaths in the United States.

Fact: Twenty-six out of 31 “red” states had a higher than the national average death rate from vehicle accidents. In contrast, 2 out of 20 “blue” states had a higher than average rate of death due to motor vehicle accidents.

Opinion: I think the red/blue state disparity is because of the higher number of miles logged in red states. If you remember those blue/red maps from Bush-Gore in 2000 or Bush-Kerry, the map of the country was overwhelmingly red even though both elections were close.

Fact: The Washington Post reports today that laws that set strict conditions before teenagers can get a license reduces fatal car crashes involving 16 year-old drivers by up to 21%.

Fact: Sixteen year-old drivers were involved in 957 fatal car accidents that killed 1,111 people in 2004.

Fact: There are approximately 1 million lawyers in the United States

Fact: The pass rate for new lawyers taking the bar in Maryland is 72%.

Fact: The pass rate for the Japanese bar exam is 2%.

Fact: Maryland plaintiffs prevailed in 83% of auto accident personal injury cases.

Fact: The average jury award in Maryland car accident personal injury cases was $11,277.

Opinion: Maryland's jury verdicts are distorted by the defense lawyers from State Farm and Allstate, the two largest auto insurance providers in Maryland, who routinely "bump up" District Court claims to Circuit Court.

Opinion: Allowing defense lawyers in Maryland to bump up what are essentially small claims cases slows down the civil justice system, particuarly in Baltimore City.

Fact:: There are 32 Baltimore City judges.

Opinion: Most Baltimore City judges would prefer a higher amount in controversey in Baltimore City auto accident cases.

Fact: Plaintiffs prevailed in only 8% of medical malpractice cases in Maryland.

Fact: The average jury award in medical malpractice cases was $808,772.

Fact: T. Michael Preston, executive director of MedChi, the Maryland state doctors' association, reports that the average paid medical malpractice claim in Maryland was $387,077 in 2003.

Fact: The tort system cost about $260 billion in 2004 in direct costs, which translates into $886 per person.

Fact: I wish everyone a happy and safe 4th of July weekend!

The Maryland Court of Appeals last month issued another opinion interpreting Maryland Insurance Code Annotated Section 19-509 in State Farm Mut. Auto. Ins. Co. v. DeHaan. In this case, the Plaintiff's night got off to a great start: the Baltimore Ravens won their first Super Bowl over the New York Giants, a night everyone in Baltimore remembers. On his way home from a party, Plaintiff stopped at a Shell Station in Baltimore County (near the old Westview drive-in movie theater) in his 1989 Chevrolet Blazer, which was insured under a State Farm automobile insurance policy that had $10,000.00 coverage in Personal Injury Protection benefits (PIP) and $100,000.00 coverage in uninsured motorist benefits.

After arriving at the gas station just after 1:00 a.m., Plaintiff put his keys on the driver's side floorboard and entered the convenience store portion of the Shell station to make a purchase. Upon returning to his vehicle, Plaintiff found someone sitting in his car. The intruder shot him and drove away.

Plaintiff was taken to Maryland Shock Trauma Center and suffered substantial injuries and incurred approximately $70,000.00 in medical expenses. The bad guy, who shockingly did not have any insurance, was caught and convicted of attempted murder. Plaintiff 's personal injury attorney brought an uninsured motorist coverage claim to recover for his client's injuries in Howard County Circuit Court.

The trial court granted Plaintiff's lawyer's motion for summary judgment that Plaintiff should receive both his PIP benefits and the uninsured motorist provisions of the car insurance policy. After the ruling was granted, State Farm paid Plaintiff the amount covered under the PIP provision, but appealed the trial court's decision regarding the uninsured motorist claim, arguing that the trial court erred in concluding that the insured's injuries arose out of the "use" of an automobile. The Maryland Court of Special Appeals agreed, affirming the Howard County trial court's ruling.

The Maryland Court of Appeals reversed, ruling that the fact that the assailant was in the vehicle and was in control of the vehicle at the time of the incident did not constitute "use" under Maryland Code Ann., Ins. § 19-509 (2006) because the instrumentality of the injuries Plaintiff suffered was the handgun and not the use of the automobile.

The Maryland Personal Injury Lawyer Blog is written for plaintiffs and their lawyers. But, honestly, while I think the law should include this kind of injury under a insured's uninsured motorist coverage, I do not think this accident, however unfortunate, comes within the scope of Maryland Code Ann., Ins. § 19-509 (2006). Accordingly, I agree with the Maryland Court of Appeals' opinion.