Maryland Injury Lawyer Blog

A Maryland District Court has denied a class action on behalf of Maryland residents who own certain model years of Ford Explorers, Mercury Mountaineers and Ford Windstars.

This is not a personal injury lawsuit; plaintiffs' lawyers claimed front seats in the class vehicles are defective because they are prone to collapse rearward in moderate speed rear-impact collisions. In fact, the proposed class action would exclude everyone who has actually suffered an injury.

Plaintiffs' suggested class is individuals who own vehicles that cannot withstand 20,000 inch-pounds of torque without deforming backwards. (Admittedly, I don't fully understand this but let's proceed on pretending that I do.) Judge Benson Everett Legg denied Plaintiffs' request for a class, disagreeing with Plaintiffs' lawyers' assertion that the complexities of twenty-three different seating system configurations can be resolved through a standard as simple as one safety benchmark. The opinion acknowledges that design changes that make a car safer in one accident might make the car less safe in another. In other words, the court's message to the Plaintiffs' lawyers was "it is a little more complicated than that."

Judge Legg also made an interesting point on a collateral estoppel issue that personal injury victims might face in bringing a product liability claim after an accident caused by this alleged defect:

Additionally, around the country, consumers have brought personal injury suits involving the seatback rigidity issue, winning some and losing others. If the instant case were to proceed as a class action and the jury returned a verdict for Ford, a class member who was subsequently injured in a class vehicle would be collaterally estopped from claiming that the vehicle’s seats were defective because they lacked sufficient rigidity. Such a class member, who has relatively relatively little to gain from the instant class action, might be precluded thereafter from prosecuting a substantial personal injury claim.

In other words, if you are in the class and Ford wins the consumer class action lawsuit, you might later be estopped from bringing a product liability claim for your injuries because the issue of whether the product was defective was already litigated between the parties. Very interesting point. Judge Legg leaves open the issue of certifying a more narrowly defined class. But this problem will still exist no matter how narrowly the class is defined.

I get the idea of these types of claim, I really do. Ford is required to make safer vehicles because someone is minding the store when they make a defective product. This improves public safety. Still, I am uneasy with the idea of a class action to fix a defect for everyone but the people that actually get hurt. It sounds like the only ones who really profit in that case are the lawyers. Is this necessarily a bad thing in the big picture? No. But it does not exactly give you a warm and fuzzy feeling either.

You can find the full opinion here.

The Maryland Daily Record has an interesting article today on the Maryland Automobile Insurance Fund (MAIF).

For out-of-state readers, MAIF is a unique animal: a state-run insurance company for drivers that cannot get car insurance from private insurers. Most states deal with this problem by forcing private insurance companies to insure high-risk drivers. In Maryland, we have created a huge state-run insurance company to insure the risk.

To me, MAIF is like stare decisis. I don't think we would make the decision all over again to create a state agency. One good piece of evidence: no other state has followed suit and created their own version of MAIF. But now that we have it, there is no inertia to tear it down.

The Daily Record article talks about efforts in the Maryland legislature to essentially stop MAIF from acting like an insurance company. What's the problem? Insurance companies are threatened by MAIF because they are stealing market share. One of the lobbyist quoted in the article complaining about MAIF works for Agency Insurance, which also insurers a lot of high risk drivers. This isn't the first time an insurance company that markets to high risk drivers has complained about MAIF. (See this September 2, 2008 post.)

These same insurance companies also grab on to the up-with-people populist sentiment against bonuses for anyone connected to public funding, pointing to the $1.2 million in bonuses MAIF paid last year. They jump on the fact that MAIF Executive Director M. Kent Krabbe is the one who recommended the bonuses to the board and that Krabbe got $36,000 for himself.

I'm as big of a MAIF critic as anyone is. I think they are just plain obstructionists when it comes to paying valid claims and I think their approach often costs them money. They won't try a high risk case but they also won't offer their policy limits until after they spend a fortune in legal fees defending the case. I have said in the past I don't disagree with insurance companies' tactics of playing hard ball with personal injury lawyers in an effort to maximize their profits. Too many Maryland accident lawyers settle at the first sight of money or a potential trial. But hanging around in a wrongful death case - which they have done multiple times with us - when I know they are just going to offer the policy before trial - is just a poor business strategy. (This is one wrongful death case involving MAIF that settled just before trial, just to give you an idea.) Good companies have more than one gear. MAIF just has the one. At some point, turning the boat north and speeding up when there is an iceberg in your path is a bad idea. Particularly when your plan is to jump off when the iceberg gets real close.

Continue reading "MAIF" »

The Maryland House of Delegates passed House Bill 825 on a 97-36 vote, raising the minimum limits of automobile coverage in Maryland from $20,000.00/$40,000.00 to $30,000.00/$60,000.00.

The bill now goes to the Maryland Senate.

John Bratt's Baltimore Injury Lawyer Blog provides more details on this bill.

The Maryland Court of Appeals found today in a 5-2 opinion in a lead paint case that an individual member of a Maryland limited liability corporation (LLC) can be personally liable for torts personally committed on behalf of the LLC.

The case, Allen v. Dackman, is a classic Baltimore lead paint case, another saga in the tragedy of children suffering brain injuries as the result of ingesting chipping, flaking, and/or peeling lead-based paint.

The owner defendant sought refuge from personal liability because his acts were on behalf of his creatively named LLC, Hard Assets. The trial judge granted summary judgment. The Maryland Court of Special Appeals, in an opinion by Judge Zarnoch, affirmed:

No member shall be personally liable for the obligations of the limited liability company, whether arising in contract, tort or otherwise, solely by reason of being a member of the limited liability company. Thus, appellants cannot succeed in imputing the alleged negligent acts of Hard Assets to appellee.

The Maryland Court of Appeals disagreed, finding that a person can be held responsible for the torts committed on behalf of the LLC, finding that the lead paint landlord could be personally liable for Plaintiffs' injuries because a reasonable jury could find that he was an “owner” of the property, as the Housing Code defined that term.

I did not find any of this earth shattering because this has always been Maryland law for corporations. However appealing it might be to me personally as a member of an LLC, the logic of giving LLC members additional protection for torts does not make sense to me.

So Plaintiffs get another shot at putting on a case against the landlord individually. This is going to be an interesting case to try to a jury. Children claiming brain damage are almost invariably sympathetic but tenants in this case were not actually paying tenants. So there could be some "how can you sue the guy when he was not even the landlord?" sentiment from the jury (assuming there is no successful motion in limine to exclude that evidence).

The take home lesson here for landlords is that you cannot have property, even vacant or property that is not rented, that has chipping, peeling, or flaking paint. The lesson for doctors, lawyers and every other profession in this case: get insurance.

Brian Brown argued the case for Plaintiffs; James R. Benjamin, Jr. (Whiteford, Taylor, and Preston) argued on behalf of the Defendant.

You can find the full opinion here.

In a 6-1 opinion, the Maryland Court of Appeals decided Blondell v. Littlepage, affirming the Court of Special Appeals decision which rejected a tort and breach of contract lawsuit brought by a lawyer against a malpractice lawyer regarding a case he referred to her.

The lawyer referred a cancer misdiagnosis case involving an allegedly misread mammogram to a malpractice lawyer. Both lawyers agreed to a fee split. The original lawyer had already filed the malpractice lawsuit on behalf of the Plaintiff, before referring the case out. I'm not sure what the referring lawyer was thinking when he filed suit. Perhaps he was hoping the case would settle or maybe he later decided the client would be better served with a lawyer who focuses on malpractice cases. The court does not indicate the reason for the referral.

Anyway, the case settled for a lot less that the pretrial judge recommended, which upset the referring lawyer, as did the suggestion allegedly made by the malpractice lawyer to the client, that the referring lawyer's failure to timely file the case with the court decreased the settlement value of the case. The malpractice lawyer went so far as to give the client names of legal malpractice lawyers to bring a claim against the referring lawyer.

Continue reading "Lawyer v. Lawyer Lawsuit Decided By Maryland Court of Appeals" »

Tomorrow, the Maryland House of Representatives will vote on House Bill 825 which would raise the minimum limits of automobile coverage from $20,000.00/$40,000.00 to $30,000.00/$60,000.00.

Is $30,000 enough coverage for a significant accident? Of course not. Maryland has had 20/40 limits since 1972. This is 102,000/204,000 in 2010 dollars. But Rome was not built in a day and this bill is good step in the right direction.

As odd as it is for me to be carrying water for insurance companies, it is worth noting that the only way to protect yourself from an uninsured or underinsured motorist is to make sure you have adequate uninsured motorist coverage. The relatively modest increase in premium is worth the additional protection.

The New York Times has a story about encouraging doctors to admit their own mistakes. The UCLA surgeon who wrote the article does not contend that admitting medical mistakes should take the place of civil accountability. In fact, she suggests - as some recent literature has indicated - that being forthcoming about medical errors may decrease the number of medical malpractice lawsuits.

I'll admit that while I was reading this story I was circling around ready to pounce when the author suggested that we needed to eliminate malpractice lawsuits in order to get doctors to be able to freely admit mistakes. So let's just pretend, channeling my inner Glenn Beck, the author made that contention so I can refute it. In my defense, I'm not exactly creating a straw man. This argument has been made countless times, that it is somehow safer for patients for health care providers to be able to treat patients in a lovey environment where there is no risk of responsibility for medical errors.

First, let's admit that we are all loathe to admit mistakes. I don't think taking away the risk of a malpractice lawsuit - for which the doctor has insurance in most cases - is going to substantially change the frequency of admission of medical errors.

More importantly, where is the justice in being exculpated for causing a life altering injury because you admit you did something wrong? If a driver crosses the center line and kills someone, can we just move on if the driver admits a mistake? (Bonus argument: accidents are a "known risk" of driving a car, right?) How about if personal injury lawyers who blow a statute of limitations can avoid responsibility by making the grandiose admission that it is all their fault? Wouldn't that help lawyers understand their mistakes? What? Lawyers should buy a calendar? Well, yeah, that would be a good idea too.

Continue reading "Medical Errors and Admitting Mistakes" »

DePuy Orthopaedics, a division of Johnson & Johnson, is removing its DePuy ASR metal-on-metal hip replacement system that reportedly has a high failure rate. Our lawyers are now investigating these claims around the country.

Experts are questioning why DePuy did not recall the DePuy ASR hip replacement system because it had a design defect that made it difficult to implant the hip replacement device properly. Specifically, orthopedic doctors question whether ASR cups were not designed too shallow. Like Zimmer implants, there is a real question as to whether the lure of profits pushed DePuy to offer a "better product" without properly testing whether the device would be safe and effective.

According to the New York Times, the F.D.A. has received about 300 complaints on the ASR involving patients in the United States who received it since 2008. The vast majority of these 300 patients who received ASR hip implants had to have the device replaced, requiring another difficult operation for patients.

If you believe you may have a potential DePuy hip implant lawsuit, our lawyers are now investigating these claims. Call 800-553-8082 or get a free online consultation.

A Houston personal injury lawyer has threatened the city of Houston, a concession company and Continental Airlines, claiming it is their fault he left his Polo coat behind at an airport food court.

Normally, when a lawyer is under attack for doing something stupid, foolish, insane or [fill in your own adjective here], he is identified as a personal injury lawyer when he is really not. But, alas, I Googled the guy and he certainly a personal injury lawyer.

Well, maybe this is like the McDonald's case where the facts are taken completely out of context. But, alas, his demand letter is on line and it is exactly what it appears to be: he's mad because no one grabbed the coat that he left.

In that case, I have another defense. If a congressman tickles his staffer, no one assumes that everyone in Congress is a tickler. Why is everyone so quick to judge one personal injury lawyer on what another personal injury lawyer does? Why is the whole profession implicated?

The answer to my question is simple: that is the way it is. And while no one hates Congress because of their propensity to tickle staffers, people do hate personal injury attorneys because of the perception they are trying to bully their way into money to which they are not entitled (which is rarely, but sometimes, true). So sometimes you have to take your lumps and move on.

A wrongful death lawsuit has been filed against a Chattanooga, Tennessee bar after a car accident killed a woman just a few days before Christmas. The case is an interesting twist on the classic dram shop case. The suit alleges that the bar gave its employees free alcohol and allowed one man to leave the bar obviously intoxicated. The employee stayed at the bar and drank "free alcohol" after his shift ended at 3 a.m. Around 7:00 a.m., the defendant struck and killed a pedestrian, an employee on her way to work at Unum Insurance. The defendant, stand up guy that he apparently is, fled the scene and tried to fake a carjacking. Apparently this is an insurmountable stunt to pull off when you are drunk.

What really adds teeth to the Plaintiff's wrongful death lawsuit is a city ordinance prohibiting bar workers from drinking where they work, even when off duty. Clearly, the violation of the ordinance was a factor in causing this woman’s death. If the case goes to trial, there are going to be arguments by defense lawyers about the purpose and intent of the statute and whether this was the harm that the ordinance was trying to avoid. But I would suspect it was at least a purpose, if not the purpose, of the statute.

Maryland has rejected dram shop and social host liability in DWI accident claims. Going against the grain as a parent and lawyer who handles accident cases, I have believed and written in the past that I oppose dram shop liability claims in Maryland.

I’m not so sure anymore. I would really like to see data as to the number of wrongful deaths that occur in Maryland from DWI/DUI accidents where the person became intoxicated at a bar, or even at a bar where they are employed. Of course, the more salient question is one on which we will never get a definitive answer: how many deaths have occurred as the result of a server in a bar or restaurant who knows a patron (or employee) is drunk but does nothing to stop them?

Continue reading "Dram Shop in Maryland" »

Note: a special welcome to Point of Law readers. I disagree with many of the philosophical views presented at Point of Law and Overlawyered. Then why do I read both of these blogs every day? Because they are informative, well presented posts that make me occasionally question my own views. I hope to have you as a reader of the Maryland Injury Lawyer Blog and I hope my blog does for you what Point of Law and Overlawyered does for me.

Insurance companies hate being named in an uninsured motorist case. Why? Because unlike most car accident trials, if the jury knows an insurance company is paying the damages, jurors become less concerned that the defendant is footing the bill themselves. Jurors intuitively expect there is insurance available to cover the verdict but they are never quite sure. On several occasions, I have had jurors ask me after trial if the defendant has to pay the verdict. “That nice Mr. Smith does not have to pay this personally, does he?”

In Maryland, the law is clear that in a straight uninsured motorist case without the tort defendant participating in the trial, the insurance company may be named. The definitive case on this is King v. State Farm. In that case, a pedestrian Plaintiff appealed an unsatisfactory jury verdict in Baltimore City in an underinsured motorist case where the tort defendant had offered their policy limits (the verdict was less than the underlying policy). The Maryland Court of Special Appeals reversed because the trial judge did not allow the Plaintiff to identify the fact that the defendant was an insurance company.

The unknown issue in Maryland is whether the underinsurance carrier can be named if the defendant driver who caused the accident remains as a defendant in an an uninsured or underinsured motorist case. I think the answer to the question is pretty obvious because the exact same logic and rationale largely applies.

One of our accident lawyers, however, recently lost this argument on a case that went to verdict. The judge bought the argument that mentioning the underinsurance carrier might lead the jury to think that there must be a lot of insurance which might lead them to award more than they should. Is this possible? Sure. But it seems equally possible the jury would feel sorry for the defendant with so little insurance. Besides, what separates an insurance company from any other large defendant who the jury also knows has a lot of money?

My opinion: when you balance this uncertainty against the insanity of having lawyers representing unidentified parties, it seems like a pretty easy call. It seems to me that the legal system artificially keeps enough from jurors as it is.

I summarized two new Court of Appeals of Maryland opinions elsewhere last week: Benway v. Maryland Port Authority and Darby v. Marley Cooling . Benway deals with a procedural issue with respect to when a party can file a summary judgment motion. Darby deals with an interesting Maryland workers' compensation issue (that I did not fully understand because I have never handled a workers' comp claim).

I think this is the first time on this blog I ever used "Court of Appeals of Maryland" instead of "Maryland Court of Appeals." The former is technically correct but it just sounds strange to me. I'm heading back to Maryland Court of Appeals.

The Maryland Court of Special Appeals addressed last week an issue that our personal injury clients in malpractice and accident cases have occasionally expressed: is my settlement or verdict my money or marital money I have to share with my spouse?

In Murray v. Murray, the court was faced with, ironically I guess, a lawyer who had reached a settlement after filing a lawsuit against her former law firm alleging that the firm engaged in discriminatory and retaliatory practices in firing her. (I would have been interested in learning more about the underlying lawsuit.) You know the rest of the story. The settlement came after she and her husband were separated but before they were divorced and the lawyer spouse wanted all of the money for herself.

The Maryland Court of Special Appeals found that the portion of a settlement that compensates a claimant spouse for lost wages or earning capacity during the marriage, medical expenses paid from marital funds, or for joint loss of consortium, is marital property subject to equitable distribution. Pain and suffering damages are not marital property.

This is an easy enough rule to formulate but there is a problem in its application. Personal injury settlements do not allocate between economic and non-economic damages. This issue is one that personal injury lawyers frequently tackle in a variety of contexts, most notably, in dealing with medical liens. How much of the settlement was for medical bills? The insurance company does not (and cannot) delineate.

The Maryland rule the court underscored in Murray is that it is for the finder of fact to determine how the settlement should be apportioned. Interestingly, the trial court rebuked the Montgomery County trial judge who found that the husband in this case did not prove any of the property at issue should be classified as martial property:

In its Opinion and Order, the court found that the settlement agreement did not “delineate what the $550,000 represents, other than a settlement.” Ironically, it blamed [Defendant] for failing to carry his “burden to identify and value the [proceeds] he seeks to classify as marital,” concluding “there simply is no credible evidence from which the court can conclude that this sum is marital.” [Defendant] complains that his cross-examination into the status of the settlement funds was unduly restricted. We agree.

The take home message for Maryland personal injury lawyers advising clients is that you cannot give them a definitive answer as to how much their spouse will get out of their settlement. But you can tell them that the spouse gets half of any part of a settlement that is determined to be for (1) present or future lost wages that were incurred during the marriage, (2) medical bills, and (3) joint loss of consortium. The plaintiff spouse does get to keep their own pain and suffering damages, which should be the largest portion of most personal injury settlements. How to apportion what part of a settlement falls into what category is a subject of argument until it gets to a finder of fact who is required to engage in the difficult task of apportioning the settlement.

You can find the full case here.