Maryland Injury Lawyer Blog

A hospital did not breach a duty of care as a matter of law to a police office who was injured responding to a traffic accident allegedly caused by a just-released colonoscopy patient, Massachusetts' highest court has ruled, affirming the trial court below.

The police officer responded to an emergency report of a pedestrian-automobile accident. On his way to the scene of the reported accident, Plaintiff's police car was hit by another car, causing what were apparently pretty serious injuries. The pedestrian involved in the accident to which the Plaintiff was responding had earlier that day undergone sedation after a colonoscopy at Brockton Hospital. Plaintiff's theory of the case was had the hospital provided an escort for the patient/pedestrian, he would not have had to respond and the accident would not have occurred.

Specifically, Plaintiff argued that a duty of care existed under two theories to back door the foreseeability problem: (1) a "special relationship" the hospital had with the patient and with Plaintiff, (2) a voluntary assumption of a duty of care by the hospital to protect third parties from harm caused by "impaired" patients.

The case generated some attention. Amicus briefs filed by the Massachusetts Academy of Trial Attorneys in support of Leavitt, and by the Massachusetts Defense Lawyers Association and the Professional Liability Foundation, Ltd., in support of the hospital.

The Massachusetts high court found that both theories were not distinctions from the duty and foreseeability problem in finding that a hospital owes a duty of care to a nonpatient third party to prevent a sedated patient from causing injury after the patient leaves the hospital.

Whether negligence extends to "an innocent third-party bystander" was recently decided in Maryland in Gourdine v. Crews. In that case, the family of a man killed in an auto accident brought a lawsuit against Eli Lily claiming that his death was caused by a diabetic who blacked out while under treatment with two insulin medications.

Continue reading "New Massachusetts Opinion on Duty and Foreseeability" »

Esquire (via Overlawyered) has videos of the five worst lawyer ads. It is worth taking the time to watch these. If you do nothing else today, click on the last one, the California Switchblade. Transcendent unintentional comedy. If you are having fun, go to YouTube. There are, by my math, about a zillion more.

Last month, I expressed shock over a van that advertised for a personal injury lawyer that could generously be described as tacky. I've grown up a great deal in the last month. When I read the story of the lawyer living in that personal injury lawyer advertising van and parking it in the hospital parking lot, I'm not going to blink.

The lure of a settlement loan is clear: up front money. The interest rate for settlement loans? Imagine the interest rate that Gazzo (Rocky Balboa’s loan shark boss in Rocky I) must have charged. Then double it.

How do they get around usury laws that say you can’t take advantage of other people? How are these settlement loans not a dictionary definition of predatory lending? The backdoor is that the outcome of a car accident claim or lawsuit is theoretically uncertain. Yet our firm has a large number of auto accident claims where I could show up for trial drunker than Otis from Mayberry and still get money damages from the jury. Every single time. So getting enough to pay back the principal of the loan is fairly certain. Yet the theoretical uncertainty allows most settlement loan providers to charge whatever they want.

Vulnerable accident victims tend to ignore how much money they will owe tomorrow because they are focused on the lure of cash today. Our lawyers discourage our clients from taking these loans.

Interestingly, National Lawsuit Funding provides on its website a copy of an Ohio appeals decision that I think takes a logical view of these loans.

Before I get angry emails, note that I don’t think every lawsuit loan company charges usury rates and never performs a necessary function for some accident victims. But I am saying most do. Here is a sample settlement loan prepayment plan that I just received yesterday for a case (which precipitated this blog post/rant). It underscores the insanity of the terms of some personal injury lawsuit loan agreements.

Here is what cannot be disputed: I would own a baseball team if I started one of these companies. Recession proof business with virtually guaranteed returns.

The Maryland Court of Special Appeals in a 2-1 decision today affirmed a Frederick County trial court’s grant of summary judgment to Erie Insurance in an underinsured motorist lawsuit.

The nutshell: State Farm paid its $100,000 liability policy in a serious injury car accident case. Plaintiff sought payment under his $250,000 uninsured/underinsured motorist policy with Erie Insurance. Erie claimed that it was entitled to a workers’ compensation setoff of $246,305.66, representing the workers compensation benefits the car accident victim received because he was working at the time of the accident. The Plaintiff claimed the setoff should be $27,396.28 because this was the amount of the workers’ compensation lien.

Continue reading "Workmen's Compensation Uninsured Motorist Setoff: New Opinion for the Maryland Court of Special Appeals" »

Warren Buffett's Berkshire Hathaway took a bath this year. But in Buffett's annual letter to shareholders, he seems pumped about how GEICO is faring in the car insurance market. Buffett noted that under GEICO chief executive Tony Nicely, GEICO did its part to keep Berkshire Hathaway profitable, increasing GEICO's market share to 7.7% of the auto insurance market last year (over 19% in Maryland). Buffett makes clear in his report that he is bullish on GEICO:

As we view GEICO's current opportunities, Tony and I feel like two hungry mosquitoes in a nudist camp. Juicy targets are everywhere.

This is a funny quote but, then again, everything sounds a little funnier when coming from a billionaire.

One thing is for sure: GEICO's business model in recent years has included a willingness to absorb more litigation costs because GEICO is far more willing to eschew reasonable settlements in favor of forcing injured accident victims to file a lawsuit than GEICO was seven years ago. I don't say this derisively. Obviously, this business model is working for GEICO. But it does create a lot more work for Maryland accident lawyers and delays justice for injury victims.

The New York Times has a good article today on Independent Medical Examination doctors, including a doctor referred to by New York injury lawyers as "Doctor Says-No." We have a number of IME doctors in Maryland that must be related to him because they have the exact same last name.

The New York Times would not have written this story if it did not have examples of patients possessing the great weapon of the modern age: "I've got it on tape." The article has examples of doctors who told the patient one thing in the evaluation - which the patient's taped with their phones - and put the opposite conclusion in the report.

In Maryland, our lawyers are seeing a new wave of IME doctors replacing the old guard of discredited doctors that juries stopped believing long ago. Below are a few tools to fight for your clients to get fair defense medical exams.

My colleague John Bratt (author of the Baltimore Personal Injury Lawyer Blog) is in the middle of a battle in a Montgomery County case where the expert is refusing to meet the very same conditions imposed against this same expert by a judge in another case we had with him in Montgomery County. In another accident case my colleague Rod Gaston has with the same doctor, the doctor was ordered to produce his financial records. Bizarrely, the insurance company withdrew the doctor but he still filed an interlocutory appeal. I'm looking forward to finding out who has been paying his legal fees for all of this. My bet: the insurance company.

(Note: I have fixed the New York Times link, as requested. Thanks to all for bringing it to my attention.)

Continue reading "IME Doctors Caught on Tape" »

Maryland Senate Bill 468 passed today in the Maryland Senate. It increases - from $10,000 to $20,000 - the maximum amount in controversy in a civil action in which a party may not demand a jury trial. In other words, defendants would only be able to "bump up" cases between $20,000 and $30,000 from District Court to Circuit Court.

Currently, any case pled in District Court for more than $10,000 can be bumped up to a jury trial. This practice, which is mostly done by insurance companies in personal injury car accident cases, leads to massive numbers of car accident cases before Maryland juries in cases that should be streamlined into District Court trials.

In fact, auto insurance companies are the problem in getting this bill passed; small businesses, for example, did not oppose this bill. Why are auto insurance companies opposed to this bill? It saves them legal costs to be sure. Is it because insurance companies get better results in front of juries than judges? No. The motive is much more nefarious: they want personal injury lawyers to have to spend time and resources in accident cases if the lawyers and their clients refuse the insurance companies' below market settlement offers in smaller cases.

Moving this bump up number from $10,000 to $20,000 is not a panacea, but it will help circuit courts in Maryland focus their energies on more serious cases.

There is a battle now in the Maryland state legislature about whether Maryland should increase the minimum jurisdictional amount before a defendant can remove a case from District Court to Circuit Court. Defense lawyers for State Farm and Allstate, the two largest auto insurance providers in Maryland, routinely "bump up" District Court claims to Circuit Court if the amount in controversy is more than $10,000.

So what happens is we have a large volume of cases where insurance defense lawyers in Maryland are seeking jury trials in cases that do not belong in Circuit Court. Why? Do they think a jury will give them a more fair trial? Ironically, for the jury-hating insurance companies who continue to argue that juries are out of control, trust in juries is at least one reason insurance companies seek jury trials in Maryland auto accident cases (at least in some Maryland counties where juries are more conservative).

But the primary reason why insurance companies seek jury trials in smaller auto accident cases in Maryland is because it tortures Maryland auto accident lawyers. The insurance companies do this, not motivated by spite – well not primarily anyway, but because it is a good global tactic. A significant number of auto accident lawyers in Maryland are reticent to file a lawsuit. The threat of getting a small case going through the Circuit Court ringer is even more daunting to many Maryland injury lawyers. I’m not saying it should be. But it is for those seeking the path of least resistance.

Continue reading "Circuit Court Removal by Insurance Companies in Maryland Car Accident Cases" »

It is much easier to comment on the content of other people's writings than writing commentary that is original and interesting. So let's go that route today. This is what I've been reading:

Generally, I dislike trying personal injury cases with high-low agreements that contain the size of the verdict. If you are going to force us to take the case to trial, I would prefer to have the chance of the upside. My gut level reaction is no deal.

But the problem with this bravado is clients. Our law firm has a decent volume of personal injury cases which means our lawyers are able to spread the risk of the possibility of a bad outcome at trial. Clients have just one case, so their risk calculus is very different. An added force of inertia for high-low agreements that tends to make the numbers more reasonable for injury victims is that insurance companies do want to limit the possibility of a verdict in excess of policy limits.

Continue reading "High-Low Agreements in Personal Injury Cases" »

Take a look at this Time Magazine article on auto accident lawsuits. The article has the usual stuff: insurance company complaints about high verdicts, people faking injuries, jackpot justice, the backlog in the courts, and the fact that most personal injury victims only receive small settlements. Here are a few quotes:

The automobile accounts for half to three-quarters of personal-injury suits, fully 25% of all civil cases brought to state law courts. In Chicago, more than 50,000 auto cases are awaiting trial. In Los Angeles, auto liability cases have nearly tripled in the past decade. In New York City, more than 90,000 new cases come up each year. Across the country, Americans pay out $6.5 billion a year in automobile insurance premiums—yet in the past decade the insurance companies have suffered a net loss of more than $850,000 on this business.

Getting his case to the jury so that [the auto accident victim can recover] may take four years in New York City, three years in Boston, over 2½ years in Honolulu or Detroit. Courts in Los Angeles have held the delay to less than two years. In Miami the wait is less than six months—an interval many lawyers consider too short to allow the medical evidence to "ripen." But in Chicago, at the other extreme, the traffic jam is backed up for a staggering 5½ years.

The article underscores the frustration the general public has with the whole thing: car insurance companies, the courts, car accident lawyers, and accident victims. Oh, one more thing worth mentioning. The article was published in Time over 45 years ago.

Continue reading "Car Accident Lawsuits: Time Magazine Article" »

The Baltimore Sun had an article on Sunday about the unfairness of the nature and the speed of lawsuits hospitals are filing against patients for unpaid hospital bills. The numbers are staggering: Maryland hospitals have filed 132,000 lawsuits in the past five years for unpaid bills, a third of which have been filed in Baltimore City District Court.

We have had personal injury and even medical malpractice clients sued by Maryland hospitals, often over incredibly small bills, even after the client has signed an assignment of funds to be paid out of their settlement. The collection lawyers hired by the hospitals are often running collection mills so getting a person on the phone typically takes an Act of Congress if you want to talk about a case.

I don’t know what the answer is. The hospital is entitled to be paid. But so many decent people are getting pounded, often at a time in their lives when they most need a break.

John Bratt has a Baltimore Injury Lawyer Blog post about a defense lawyer asking a question in an auto accident case for the sole purpose of embarrassing a witness. The question had no relevance to the accident or the Plaintiff's injuries from the accident.

It is hard for a lawyer to ask questions that intrude into a person’s painful or embarrassing moments even when they are relevant. I asked questions as a defense lawyer in wrongful death cases that I still feel ashamed of to this day. I still remember exactly how it feels to ask an AIDS patient or his family questions about the patient's sexual practices. Awful. But I was obligated to do it because it was relevant to how that person contracted AIDS.

In John's case, I can't imagine what goes on inside the mind of a lawyer who clearly does not have to ask a question like this but does so, anyway, for sport to embarrass or humiliate another human being.

I’ve always said you can tell a lot about a person by the way they treat the waiter. You can also tell a lot about the type of person a lawyer is by the questions they ask the victim in deposition.

The Baltimore Sun reports today that Maryland Insurance Commissioner Ralph S. Tyler ordered nine premium finance companies - companies that finance the Maryland Automobile Insurance Fund premiums, which consumers are still required to pay in full - to stop charging ridiculously high finance charges. Two of these finance companies also must refund money to consumers because, incredibly, they charged interest on policies that were never issued. The Baltimore Sun article suggests this will save MAIF’s customers about $100 a year.

These finance companies exist due to a quirk in the law that requires MAIF to make customers pay in full for their premiums. Since most consumers cannot afford this, these drivers turn to predatory lending companies. Everyone from MAIF itself to Ralph Tyler has argued that MAIF should allow its insured drivers to pay premiums over time, like virtually all of the rest of us.

Unfortunately, MAIF drivers, who typically have bad driving records and/or bad credit histories, have no lobbyists in Annapolis. MAIF’s competitors (particularly, as this blog discusses, State Auto) and these finance companies do have lobbyists, which is why this nonsense has been allowed to continue. Hopefully, 2009 is the year that the Maryland legislature finally gets its act together and gets rid of this nonsense.

Related Posts:

• Private Insurers Claim They Can't Compete with MAIF 9/2/08

• Whose Your Daddy? Do MAIF Lawyers Work for Client or for MAIF 5/8/07

• Fraud at MAIF: 1/16/06

I have received a number of calls from clients with personal injury claims against AIG fearing their claims are unprotected.

Yesterday, we got a call in one of our AIG cases. Someone from Resolute Systems called and said that AIG had given them the assignment of settling large cases. They are setting up settlement conference days in Philadelphia for some pending AIG cases. We were given November 5-6 as dates for these mediations.

I suspect AIG is looking to capitalize on the panic and induce below market settlements. I have no proof of this.

The reality is that the financial problems at AIG are not with the 70 AIG insurance companies. In fact, these are independent marketable assets that would likely continue to be maintained should AIG declare bankruptcy. Practically, I think a bailout bill will get passed to solve the AIG problem. But either way, the chance of claims being impacted by all of this is a relatively remote possibility.

I think people with claims are understandably concerned. Certainly, no one in their right mind would agree to a structured settlement with AIG. But I think the risk of claims not being paid is relatively low, both because of the safeguards that are in place in every state to secure claims, and because I think the AIG insurance companies will continue in some form no matter what the outcome of the bailout.

Maryland Insurance Commissioner Ralph Tyler was kind enough to be a guest speaker at my insurance law class at the University of Baltimore last year and said his most important job is making sure Maryland insurance companies are solvent. Last year, the most important part of Ralph Tyler’s job was not on anyone’s radar screen. Now, it is front and center.

These are scary economic times for a lot of people. But insurance companies have been doing quite well. I understand the concerns of people who have pending AIG claims, but I think the doom and gloom talk about AIG claims will not be prophetic.

Last year, my Dad was in an auto accident where the Defendant admittedly ran a red light. Believing in his superhuman ability to drive an automobile, he did not have collision insurance on his car.

The insurance company, which shall remain nameless (Ameriprise), denied liability claiming that my father did not react quickly enough to avoid the accident Ameriprise's theory of the case was that Dad is 71 years-old and therefore must have reacted too slowly to avoid the accident. What Ameriprise didn’t know is that my father was driving home from playing three grueling sets of tennis in the summer heat with me. I'll bet money he can react better than the Ameriprise adjuster that denied the claim.

So I sent them a draft complaint and discovery in the case and they quickly changed adjusters, accepted liability, and threw in $500 for his injury claim even though he never sought any medical treatment (which we never would have asked for had they simply paid on the property damage claim).

But the whole thing got me to thinking about the incredible disadvantage property damage victims find themselves facing in these situations. No halfway decent accident lawyer is going to consider getting into a property damage liability dispute case. So property damage victims are forced to file a lawsuit on their own. In Maryland, if the claim is over $5,000, there are procedural requirements that are going to slip up the vast majority of property damage claims made by plaintiffs.

I do not have any remedy to this problem but I did put together a list of tips for those that find themselves in a similar situation handling your own property damage claim without a lawyer that you can find by clicking on the link in this paragraph.

The News-Democrat (St. Louis and Southwestern Illinois) has a story about accident lawyers trying to get access to car and truck accident police reports in an effort to obtain clients. These personal injury lawyers look through these police reports on automobile accidents, get the names and addresses of people who have been injured and might have a lawsuit, and then write them a letter soliciting their case.

"Insurance companies can immediately contact people after an accident, and people should have the option to know what their rights are, if they want to talk to a lawyer," said Michael Hupy, a Milwaukee accident lawyer who uses this technique to attract new clients. "Many people still think you have to pay a fee to talk to a personal injury lawyer."

Is this ambulance chasing or, as Mr. Hupy suggests, simply a means of giving personal injury lawyers access equal to that of the insurance companies to accident victims?

While I agree with everything Mr. Hupy’s says, I’m still going to go with ambulance chasing. When accident lawyers send these cold call letters, it forever alters the perception of personal injury lawyers and their victims in the eyes of its recipients. This bad perception of accident lawyers as ambulance chasers is also the fuel for tort reform.

I wrote at one point, “I’m not necessarily saying it should be illegal.” But upon further reflection I do think there should be an ethical rule against soliciting accident victims by direct mail because you found their name in an accident report. In fact, I could argue that the rule to not advertise in a manner which would degrade his or her dignity as a lawyer already applies these letters.

When I first started practicing law, I thought some of the attorney ethical rules were mumbo jumbo because they are a little self aggrandizing. I have never thought lawyers were superior to plumbers, car mechanics or Indian chiefs. So why should lawyers have different rules than anyone else? The answer is because the public perception of lawyers is always on a tight rope. Personal injury lawyers are selling injury victims down the river when they do not adhere to the highest ethical standards.

The Baltimore Injury Lawyer Blog last week published a comment written by a State Farm in-house counsel, issuing a rebuttal of sorts about a trial John Bratt tried against State Farm last month.

John's verdict in this case was 8 times the State Farm offer. State Farm's lawyer argued in his comment that it was not a big win for us because the jury only gave the plaintiff her medical bills. The crazy thing is that we agree. John did not view it as a big win, he asked for and was hoping for a lot more. But if we get a verdict that is 8 times the State Farm offer and both our lawyers and State Farm's lawyers think they won, what exactly does that say about the fairness of their offer? I think it calls into question the accuracy of the evaluations State Farm is making in Maryland accident claims.

The message, as always, for Maryland accident lawyers with claims against State Farm and other like minded insurance companies: try more cases.

Interesting data from Jury Verdict Research on the median and average values of wrongful death cases where the decedent is female. The overall average compensatory award for wrongful death of an adult female over the last eight years in the United States is $2,990,032 ($1,102,976 is the median).

Age is a big variable when looking at median and average female wrongful death values. The average wrongful death verdict for a female between 18 and 24 is 2,990,032 ($1,102,976 median). For females between 30 and 39, women who are far more likely to have left behind children, the median wrongful death verdict escalates to $5,605,127 ($2,500,000 median). For women over 80, the average wrongful death verdict plummets to $1,314,241 (322,920 median).

I always find it maddening when insurance companies discount the value of human life in wrongful death cases because of the age of the decedent. If you are eighty years-old and you are killed, those last 10 years of seeing your kids as adults, your grandchildren coming of age and everything else that comes with it are incredibly valuable years. But these numbers, regrettably, demonstrate that there is some logic to their thinking when it comes to how juries value wrongful death cases.

Approximately 62% of the non motor vehicle wrongful death claims in this study are medical malpractice and wrongful death claims – particularly with older patients - so it is reasonable to assume that many of these wrongful death verdicts were compromise verdicts.

Related Posts:

How Lawyers and Insurance Companies Value Personal Injury Cases (summary and report on settlements and verdicts by injury type)

Value of Personal Injury Cases in Washington D.C. (District of Columbia settlements and verdicts)

Valuing Cases in Virginia (average settlements and verdicts in Virginia)

Personal Injury Verdicts Across the Country (personal injury verdicts in your state)

Wrongful Death Settlements and Verdicts in Maryland (wrongful death values)

Value of Wrongful Death Motor Vehicle Accident Cases in Maryland (average settlements and verdicts)

These are some personal injury related links from around the country this week:

The Burlington Times News has an article about North Carolina’s decision to require North Carolina doctors to report all medical malpractice payments greater than $25,000.00. These results will be released to the public. The article notes that only 4% of the doctors in North Carolina in the last seven years have made malpractice payments.

Legal Newsline.com has an article on how medical malpractice damage caps in Texas have decreased malpractice premiums. As I have written before, in spite of what a lot of medical malpractice lawyers have argued, this cause-and-effect relationship is textbook economics. I think it is also true that the quality of patient care in Texas is falling dramatically because there are no repercussions when a doctor seriously harms a patient.

The Baltimore Injury Lawyer Blog has a post on John Bratt’s recent auto accident trial in Montgomery County.

Pharalot reports that the FDA will now be compile quarterly a list of drugs that have been identified as having potential safety concerns. Can anyone argue this is a bad idea?

The new Maryland Accident Lawyer Blog has a post on the Maryland Court of Special Appeals’ recent ruling in a wrongful death car accident case that took the lives of a man and his three children.

The Illinois Trial Practice Weblog has a post about the top 10 rules of evidence every lawyer must know. (Top 10 lists are irresistible.) The same blog also has a good post on videotaping your opponent’s deposition.

Does Sarah Palin support the idea of jury nullification?

The Baltimore Sun reports that the FDA may not be properly screening drugs for the potentiality of the medications inducing suicide. Plaintiffs’ product liability lawyers who have been looking at these issues for the last 20 years are Captain Renault-like stunned to learn that the FDA (and the drug companies) has not properly focused on the risk of drugs – particularly antidepressants – and suicidal thoughts and ideations.

Finally, the Torts Prof Blog continues to put together a comprehensive list of personal injury links from around the country.

The Baltimore Sun reports that car insurance companies in Maryland are resisting the Maryland Automobile Insurance Fund's (MAIF’s) car insurance rate-lowering proposal because MAIF’s plan to lower rates puts the private sector at risk. After a hearing in Baltimore, Maryland Insurance Commissioner Ralph S. Tyler delayed ruling on some insurance companies’ objections to MAIF lowering their rates.

Let me get this straight. Car insurance companies cannot compete with a non-subsidized state run agency. Was Marx on to something? No, we all saw the Beijing Olympics; capitalism seems to be working just fine.

Is this really where we are? Private car insurance companies need protection from competition by MAIF? I’m not sure what the private insurance companies’ arguments are on this issue. The only argument offered by the Baltimore Sun was provided by Hal S. Katz, president of Baltimore-based Interstate Auto Insurance (IAICO). Also specializing in writing Maryland car insurance polices for drivers that have a history of trouble, IAICO complained that MAIF does not enforce its requirement that it provide car insurance only to drivers who have been rejected by two private companies.

My response to IAICO is, so what? Why can’t IAICO compete with MAIF on a level playing field without having to run to Ralph Tyler to complain that MAIF’s prices are too low? The average MAIF policy now costs $2,400. It is not like they are giving car insurance away. Either IAICO is not running their business very well, or - and this is the more likely explanation - it does not want any competition to interfere with its gouging of Maryland drivers with shady driving records or credit scores, often the people that most need the lower rates that come with competition.

Also, if MAIF has a $170 million surplus, as the Baltimore Sun reports, would it be a bad idea for MAIF to stop writing 99% of its policies at 20/40/15? If MAIF is a quasi state owned company (MAIF is not even an insurance company as defined by Maryland law), couldn’t it be in the best interest of MAIF policy holders and Maryland accident victims for MAIF to raise its policy limits to 30/60/15, at least protect its policyholders from district court (non jury trials) where the jurisdictional maximum is now $30,000?

While I’m spending MAIF’s $170 million surplus, here’s a quick plug for the enemy - the accident lawyers MAIF hires to defend its car accident cases. One of the big problems we have with MAIF, as John Bratt points out in the Baltimore Injury Lawyer Blog, is that they offer their small insurance policies too late in many cases to protect their insureds under Maryland's pay-to-play statute. Maybe if these lawyers – many of whom are fine personal injury lawyers – were paid a little more, they might have the time to figure out from the beginning whether it is an excess case where the policy should be tendered. It couldn't hurt. Even more importantly, MAIF could spend the resources to figure out which auto and truck accident cases are policy cases from the beginning. This is an investment that would actually save MAIF a ton in lawyers’ fees.

The Baltimore Injury Lawyer Blog has a post about a settlement John Bratt had just before trial in a car accident case this morning. The blog discusses the timing of settlement offers and how settling accident cases on the "courthouse steps" - particularly in small and midsized cases - is probably not in the best interests of the accident lawyer, the client, the defendant, or the insurance company. The only clear cut winner is the defense lawyer who gets to bill the file to the fullest without having to risk getting a bad outcome he/she has to explain to the client.

I hope I am not overplugging the Baltimore Injury Lawyer Blog. But I like the blog a lot and want to expose the Maryland Injury Lawyer Blog readers to it. John is doing something I should do more often: offering actual war stories from the trenches that other Maryland accident lawyers will find of interest and can use in their own practice.

Insurance Settlements, a two volume treatise for which I am the lead author, is now available from James Publishing. This treatise is for personal injury lawyers handling auto accident, truck accident, medical malpractice and product liability cases with a lens toward getting the best possible outcome at all stages of these cases (though trial). The better title for the book - with the benefit of hindsight - would have been "Maximizing the Value of Personal Injury Cases." Maybe I can convince James Publishing to change it down the road.

I’m excited about the book. If you are interested getting a copy, click on this James Publishing link. If you have any comments on the book, please email me at ronmiller@millerandzois.com under the subject "Insurance Settlements Questions or Comments."

I just hung up with an adjuster from Erie. One thing I can say about Erie is that the Erie adjusters – particularly in larger cases – are pretty sophisticated. Agree or disagree with them, they are usually very sharp. Their defense lawyers – Erie relies on Rollins Smalkin a lot in the Baltimore area and McCarthy Wilson throughout much of the rest of Maryland – are very competent and generally easy to deal with on personal injury claims. So when I see an Erie defendant, I expect a worthy but reasonable adversary.

The call was for settlement on an uninsured auto accident case. The client lost $48,000 in wages and $71,000 in medical bills. The Erie adjuster does not question the legitimacy of the wages or the medical care rendered. Instead, she wanted to know whether my client had been paid for the lost wages and the amount of his medical liens. She called these “the big unanswered questions in the case.”

I explained that none of these issues were relevant at trial under Maryland’s collateral source rule. The Erie adjuster responded that she thought that we were not talking about trial value, we were talking about settlement. Somehow, I thought these two things were related.

This is a case where Maryland’s new first party bad faith law is going to come in handy. I suspect after talking to the client, the next step is going to be the Maryland Insurance Commission.

The Baltimore Injury Lawyer Blog has a interesting post about Baltimore City juries from the perspective of a Maryland accident lawyer.

The Baltimore Sun reports that the presidents of the University of Maryland, Towson University, Washington College, Johns Hopkins, Goucher College and Washington College among other schools have signed off on a letter urging Congress to lower the drinking age to 18, saying we need to stop relearning the lessons of Prohibition.

We need the authors of “Freakanomics” to help us sort this out. There is no question that drunk driving deaths decreased when the age was increased from 18 to 21. But the 80s also saw a great increase in awareness at the same time we were raising the drinking age around the Country.

I saw a Happy Days episode – filmed in the 70s - where Potsie, Ritchie and Ralph were having a little flea market at Arnold’s and they were selling a driver’s license Ralph billed as “Buy this and drink and drive in all 50 states.” Can you imagine that today? Lou Dobbs' head would explode.

(As luck would have it, the Baltimore Sun also reported today that yesterday morning a statute of Fonzie was unveiled in Milwaukee. Shirley Feeney (Cindy Williams) was on hand. When some crackerjack report asked Ms. Feeney for comment on the opinion of some that it harms Milwaukee’s cosmopolitan image to remind everyone that these mindless television shows were set in Milwaukee, she said: “Who are these people? Let’s get a loudspeaker and drive through the neighborhoods. Why wouldn’t they want to be part of the pop culture as well as the ballet, the opera and other arts?” Statistically, I find the occurrence of these four events improbable: (1) Some reporter taking a hard journalistic angle at this story and asking that question; (2) Ms. Feeney’s answer suggesting we get a loudspeaker and go through the neighborhoods, (3) the writer of the story and his/her editor publishing the quote, and (4) my taking up 175 words with this digression when talking about such an important issue. I think the odds are at least 10-1.)

The federal government forces states to keep their drinking age at 21 years via the National Minimum Drinking Age Act, which mandates that states with a drinking age lower than 21 will lose 10 percent of their federal highway funding. No state can afford this loss.

I’m against lowering the drinking age. I don’t think that because there is a problem with underage drinking that “doing something” is the solution to the problem. Sometimes “doing something” can make a bad problem worse. But these university presidents are smart people. When a lot of smart people who are close to a situation take such a strong position, we would all be foolish not to hear them out.

Last week, I wrote about a new opinion from the Missouri Supreme Court that found that a driver could recover emotional damages in a lawsuit against the parent of a child that was killed in a truck accident. Today, I found Taylor v. Mucci, a Connecticut Supreme Court issued on Tuesday that reaches a different conclusion in a slightly different context that involves the interpretation of "bodily injury" in an insurance policy.

On Christmas Eve in 2004, the Plaintiff's minor son, Andrew, was struck by car driven by the Defendant. Andrew’s case settled but Plaintiff maintained a claim for negligence for emotional stress she suffered having witnessed the accident.

At the time of the accident, the Defendant had a 100/300 insurance policy with Metropolitan Property and Casualty Insurance. The trial judge ruled in favor of the defendant, finding that the insurance policy did not cover claims for bystander emotional distress.

The Connecticut Supreme Court agreed that the plaintiff's allegation of bystander emotional distress resulting from witnessing his son’s injuries does no constitute bodily injury as that term is defined in the Metropolitan insurance policy. The court also found that Andrew’s mother could not recover under the insurance policy language because the payment of the $100,000 per person limit to Andrew also exhausted her claim.

I was a little confused because the Court begin the opinion stating it was affirming the trial court's entry of summary judgment in favor of the driver defendant but it then concluded solely in terms of whether the insurance company is applicable. I am not sure why in this case on necessarily relates to the other but I think it might have involved some sort of stipulation that that the insurance company would pay for policy limits if the Connecticut High Court found that there was coverage.

Accordingly, if my understanding is correct, I am concerned that the court is saying that claims for emotional distress are compensable but the insurance policies language that defines "bodily injury" does not provide coverage. This will leave negligent defendants exposed to a liability for claims that are clearly foreseeable from car and truck accidents. States interfere with policy language in insurance contracts as a matter of course. Why make a distinction? This is something I would expect the Connecticut Trial Lawyers Association to be working on in Connecticut's next legislative session.

Taking off my personal injury lawyer and a hat for just one second, I am a little bit uncomfortable with emotional distress claims in all but the most serious of claims. I believe that there should be a cause of action for emotional distress claims. But if I were sitting on a jury, I would not award significant damages in anything other than most extreme cases. This Connecticut case does not flush out the basis for the mother's emotional distress claim.

You can read the full opinion here.

The California 2nd Court of Appeals issued an interesting opinion addressing the question of just how much of a plaintiff’s personal life is fair game on cross-examination in Winfred D. v. Michelin North America.

(Random comment: Can we all use first names in cases where there are the remotest of privacy issues in question like this court does? If you are killed and your family brings a wrongful death claim or even if you are a doctor accused of medical malpractice, should someone’s Google legacy really be their name in a legal case that might include personal details? Who opposes this?)

Plaintiff in this case suffered a catastrophic brain injury when his tire split while driving a cargo van. Plaintiff’s treating doctors testified that the accident left the Plaintiff, a college graduate, with the functional skills of a 4th grader. One of his doctor’s testified that Plaintiff was “incompetent” to give testimony in that “his memory is flawed,” and he says things that he believes to be true which may not be because of his brain injury.

At the trial of this case in Los Angeles County, the trial judge allowed the Michelin’s lawyer to introduce evidence that while plaintiff was married to his first wife he married another woman without telling her he had not divorced his first wife. Then, he eventually divorced his second wife; and he thereafter had an affair with a third woman, having two children with her. The trial court ruled that this conduct was relevant to plaintiff’s credibility and the cause of the accident.

The jury returned a verdict in favor of Defendant Michelin, voting 9-3 on the breach of warranty claim. On appeal, Plaintiff’s product liability lawyers argued that the evidence admitted regarding Plaintiff’s private life should have been excluded.

The California appeals court said that Plaintiff’s lawyers’ opening statement comment that Plaintiff was “living the American dream” did not open the door, as the trial court suggested, to the fact that he was unethical in his personal or private affairs. The court concluded that because Michelin’s lawyers painted Plaintiff as a “liar, cheater, womanizer, and a man of low morals” based almost exclusively on inadmissible evidence, a new trial was warranted.

Trial courts have a lot of discretion to determine what is relevant but I think pretty clearly that the nuances of his personal relationships – however disturbing – are not fair game. I understand why and agree that the trial court should have a lot of discretion in determining what is relevant because relevancy is so fact specific. The clear downside to the frustration of lawyers is different judge’s have different rulings. I tried a case recently where the judge accused me of seeking to “try the case in a vacuum.” The problem is that one reasonable judge’s “vacuum” is another reasonable judge’s “let’s just stick to relevant facts.”

Click here for the full opinion.

The Missouri Supreme Court found last week that a truck driver who was in a truck accident with another driver can sue for the emotional damages he suffered when he saw the dead victim in the other car. I'm not sure the decision is legally wrong. But it would not fly in the court of Moral Justice court.

The Plaintiff is seeking $1,623.57 in medical bills, and past and future lost wages in excess of $45,000. This is a bogus claim alert right there. You shouldn't lose $45,000 in wages and have such small medical bills in 99.999% of the cases. But here is what is worse: the defendant lost his two year-old daughter due to his own negligence which has to be the most awful feeling in the world. His emotional distress from the truck accident - albeit his fault - is through the roof. Now this truck driver brings a lawsuit. There are some things that we can do in this life that we just should not do.

Oh, wait. It gets worse. In the lawsuit, the Defendant sought and received the following admissions:

(a) The "worst image" for plaintiff was the "the 'baby' lying in the mangled car";

(b) Plaintiff experienced "a great deal of grief for the child who died";

(c) Plaintiff experienced the "paradox of knowing he had no responsibility in her death and wanting her to forgive him at the same time"; and

(d) Plaintiff "visualize[d] the little girl being in heaven" and "said she's the lucky one."

The last one in particular - even if theologically correct - marks the Plaintiff as deranged and I'm surprised the majority let that go without even a comment. The truck driver is telling the father that his loss is worse than his daughter's. The crazy paradox is that anyone so grief stricken over the death of another would be willing to subject the father who caused the death of his own two year old child more grief.

If you hate plaintiffs and personal injury lawyers, I have certainly given you some fodder today. I think you are wrong; I would love to convert you. But it won't happen today.

There is an article in the New York Times today that concludes that it is best to settle most accident, malpractice and breach of contract claims based on a recent study.

The basis for the conclusion is a study suggesting that defendants made the wrong decision by proceeding to trial, based on the offer and the outcome, in 24 percent of cases, and plaintiffs were wrong in 61 percent of cases.

Setting aside that these numbers do not even resemble the numbers of our lawyers - and probably 90% of the personal injury lawyers reading this - these numbers are hardly persuasive in reaching that conclusion. The reason is simple: if you bet on a horse that is a 50-1 shot and the horse has a 10% chance of winning the race, you are going to lose more often than you win but you are still better off making the bet (i.e., trying the case) than you are not making the bet (i.e. setting the case).

In fact, the article presents powerful evidence of this. When plaintiffs err in going to trial, the study states that they lose $41,000 on average. When the defendants make the wrong call, the error costs them over $1 million. Accordingly, the plaintiff – like the man betting on the horses – may get the decision wrong more often than the defendants from a win-loss perspective, but might still be better served statistically by going to trial.

The irony of the article is the suggestion that personal injury lawyers are pushing cases to trial. The reality is that the failing of most personal injury lawyers is that they push their clients to settle too soon and too often because the lawyer would rather not have to try the case; perhaps this is because they do not want to spend the time or effort or do not have the ability and experience to try the case.

Thankfully, most personal injury cases can and do settle. Moreover, it is important to remember – as the article points out – that for most Plaintiffs a $500,000 settlement is a better choice than a 75% chance of getting $1,000,000 at trial, regardless of the math, because the settlement acts as an insurance policy. But the notion that personal injury lawyers should try fewer cases is just false and plays into the hands of insurance companies that are seeking every possible avenue to convince injury and malpractice lawyers to recommend to their clients values that do not approximate a fair settlement for the case.

The 11th Circuit Court of Appeals decided the question of whether a debtor's claims for legal relief that arose after the confirmation but before the completion of his plan to pay creditors are property of the estate, under Chapter 13 of the Bankruptcy Code.

In this case, after the debtors' joint Chapter 13 plan was confirmed, the joint-debtor husband was involved in a car accident and suffered personal injuries. The bankruptcy court approved the $25,000 claim against the at-fault driver. Debtors then sought authority to settle the uninsured motorist claims arising out of the car accident without further approval from the bankruptcy court because the car accident happened after the confirmation, and accordingly, the claims vested in the debtor and were not subject to the bankruptcy proceedings.

The court addressed two distinct issues: (1) whether the husband’s underinsured-motorist benefits are property of the estate, and (2) whether the bankruptcy court erred when it required both the husband and the wife to amend their schedules of assets to disclose the husband’s claim and partial settlement.

With respect to the first issue, the 11th Circuit affirmed the lower courts finding that post-confirmation assets "remain" property of the estate. The court found the husband acquired his claims for underinsured-motorist benefits after the commencement of the bankruptcy case but before their case was dismissed, closed, or converted, and that if Congress intended for confirmation to so dramatically affect the expansive definition of property of the estate, it could have easily done so.

With respect to the latter issue, the court found that the Bankruptcy Court did not abuse its discretion by requiring the couple to amend their schedule of assets. On this issue, the court simply found that the law clearly recognizes a debtor's continuing duty to disclose changes in his financial situation while the bankruptcy is pending.

Our law firm handles only personal injury cases. I think this is the best way to practice law; I cannot imagine trying to be the jack of all trades in 2008 because there is simply too much that personal injury lawyers need to know just in handling malpractice and accident claims. But the downside is that everything I learned about bankruptcy law I learned in the day I started my Debtor-Creditor class, only to drop it because it was way too boring.

I think the key for personal injury lawyers is not in knowing bankruptcy law but in issue spotting. You don’t need to understand the bankruptcy code but you do need to be able to spot issues. In this case, if you have an accident or malpractice client whose bankruptcy has not been fully completed, you have an issue you need to address.

I’m back from a jury trial in Prince George’s County that “resolved” yesterday. It was a bifurcated liability only case. My client suffered a leg amputation. Easily one of the best clients and best families we have ever represented. After almost six hours of deliberation, the jury was deadlocked on all four questions presented to them at 3-3. From talking to the jury afterward – all nice people – we could have kept them together for a week and they would not have been able to resolve it.

(How often do we have hung juries? I’ve never had one before. So I asked Google. Apparently, a study by the National Center for State Courts and National Institute of Justice found the overall average hung jury rate was 6.2 percent. I suspect the rate is lower for civil trials because the “beyond a reasonable doubt” standard ties up a lot of jurors and many states have more jurors in criminal cases than in civil cases which probably increases the likelihood of a holdout.)

One of my favorite pastimes is reading as much as possible of the Washington Post. With six hours of downtime, I read almost the entire paper yesterday. But if you were to quiz me on what I read, all I would be able to come up with is “Barack Obama and John McCain said they were going to play nice but they are really not.” It is hard to focus when you are expected that jury to knock on the door at any second.

For a Miller & Zois jury verdict with a happier ending, check out the Baltimore Injury Lawyer Blog post last week on John's Bratt's jury verdict in an uninsured motorist case in Anne Arundel County.

I am back from vacation and should be posting again later today or tomorrow on the Maryland Injury Lawyer Blog. In the meantime, if you are looking for some local personal injury lawyer blog material, take a look at the new Baltimore Injury Lawyer Blog. This blog is written by John Bratt, one of our lawyers at Miller & Zois.

When I first read John's Baltimore Injury Lawyer Blog, I read a few things and thought, "Wait, I would not have written that." But that's the point, getting another viewpoint of the issues malpractice and accident lawyers face.

I’m looking forward to seeing how John’s injury blog progresses. One thing I can promise you is that the blog will offer real information and things of interest to personal injury lawyers – not some blog telling personal injury victims what to do if they are in an accident or the victim of medical malpractice (of which we now have officially ten million of on the Internet) or a description of the accident on Pratt Street that was reported in the Baltimore Sun. So add it to your list of favors and send any comments or questions to John at JohnBratt@millerandzois.com.

The Supreme Court of Montana rendered an interesting decision last week on the issue of the claim for emotional injury in Allstate Ins. Co. v. Wagner-Ellsworth.

The case involves a car-pedestrian collision. Two brothers were crossing the street in front of their elementary school and one was seriously injured. Allstate settled this claim for the per-person policy limit of $50,000.

The injured victim’s mother and brother retained a car accident injury lawyer and filed suit claiming emotional and physical injuries, contending that they were “injured” as a result of the brother seeing the accident and the mother by the trauma she suffered arriving on the scene after the accident.

In response to the lawsuit, the negligent driver sought both coverage from liability and a lawyer to defend the claim. Allstate filed a declaratory judgment action arguing that it was not required to provide a lawyer for its insured because its coverage did not extend to claims of emotional or psychological injuries and any resulting physical manifestations of those injuries. (You are in good hands with Allstate as long as you pay your premiums and never make a claim.) The trial court granted Allstate’s motion for summary judgment relying on Jacobsen v. Farmers Union Mutual Insurance, a 2004 opinion from the Montana Supreme Court.

The Montana Supreme Court reversed, relying on the following policy language: “Allstate will pay damages which an insured person is legally obligated to pay because of bodily injury sustained by any person ..." The Montana high court noted that the policy did not state that "damages must result from 'bodily injury' sustained by the 'insured.'" In so doing, the Montana Supreme Court specifically overruled the court’s prior holding just four years before in Jacobsen v. Farmers Union Mutual Insurance.

I’m a fan of stare decisis but I’m a bigger fan of the Montana Supreme Court’s unanimous willingness to quickly change what it perceived to be a mistake. I also think they made the right call because the law is well settled that you can recover for physical manifestations of emotional trauma in these types of case. That said, if I were on a jury, would I be skeptical of these kinds of injures? Yes, I would. The Plaintiff’s lawyer, Roland B. Durocher, a personal injury lawyer in Great Falls with Hartelius, Ferguson, Kazda, Baker & Durocher, certainly has an uphill climb in this case. Unless the clients are compelling, I think this case will have little chance of success.

There was an auto accident last night at I-70 and the Baltimore Beltway in Maryland last night at 3:54 a.m.

Are you a lawyer who has started a blog this way? If so, stop it because you are driving me crazy. No, seriously, stop it. The Baltimore Sun can and will report these stories just fine without your repeating them, thank you very much.

The Internet is such an amazing resources for personal injury lawyers to gather information about the handling of their cases. But to use this resource, you have to wade though so much junk. If you are just rewriting stories from newspapers without any thought or commentary, you are useless to the rest of us.

Jury Verdict Research provides median award data and verdict probabilities in head-on auto, truck and motorcycle accident cases nationally. Plaintiffs prevail and recover damages in 64% of these cases. Surprisingly, the median award in these head-on collision personal injury cases is only $31,875.00. This number reflects the fact that 24% of the head-on collision claims in the study were for “back strains” where the average award is only $9,312.00. These are probably not the injuries we think of when we think of a head-on collision.

But here is a real shocker: the median head injury verdict in head-on collision accidents is only $25,000.00. If you have a head injury, typically you have a serious accident. So this data is – to say the least – not what I think most car accident lawyers would have suspected. If I had to guess at the head-on collision national median, I would have predicted the number would be at least six figures. I would suspect that the average - as opposed to the median - exceeds $200,000 but I could not find any data to support my hypothesis.

Other median verdict data of interest in head-on collision cases:

Leg injury head-on collision: $156,818.00

One way street head-on collision: $27,064.00

Curves, hills and bridges head-on collision: $50,000.00

Fatal head-on collision: $509,919.00

The National Law Journal has an article on the increasingly contentious battleground over the circumstances of “independent medical exams.” Personal injury lawyers in Maryland in car and truck accident cases are increasingly battling over the terms and conditions of the plaintiff’s medical exam, from who can attend the exam to more substantive concerns like the production of the IME doctors’ financial records. In the last 24 hours we have had two separate disputes with defense lawyers that we like and with whom we regularly cooperate. One involves the defendant’s lawyer wanting a doctor in Washington D.C. that just coincidentally is outside our subpoena power. Interestingly, the doctor lives in Maryland but has an amazing skill of evading service. (Does that show up on his C.V.?)

You can find the entire article here which includes a quote from me.

Related Posts:

Our Conditions for an Independent Medical Exam (IME)

Should Lawyers Videotape Independent Medical Exams?

How to Cross Examine IME Doctor

Response to Protective Order for IME Doctor Not to Produce Financial Records

In a story that was making news before the Memorial Day weekend, GMAC Insurance polled 5,524 licensed drivers and asked them 20 questions from the tests given by various state motor vehicle administrations around the country. There are a zillion statistics offered by this study but the one that is getting everyone's attention is that approximately 33 million of us would fail a written drivers test if they took it today.

The lowest test scores were found in the Northeast. Drivers in the Washington, D.C. rank the second worst in the country, barely losing out to New Jersey for the dubious title of the state with the least knowledgeable drivers. Maryland and Virginia do not fare much better: Maryland ranks 41st; Virginia ranks 43rd.

This study is causing a good deal of faux angst in the media. Local newspapers are lamenting how poor their state ranks, leading to a lot of talk about how we have to make drivers' education a national priority.

Before we all get too worked up, it might be worthwhile to do a study to find out how many accidents are caused by the failure to understand the rules of the road. I cannot tell you how few serious injury auto accident cases our law firm has handled where the accident was caused by the at-fault driver not understanding the rules of the roadway. Instead, 99% of the auto accident cases our lawyers encounter are caused because the negligent driver either
failed to give the adequate time and attention to his/her car and the other cars or pedestrians on the roadway due to carelessness, or the negligent driver was impaired by drugs, alcohol, or as is often the case with truck drivers, lack of sleep.

What would make our roads safer is driving bigger, safer cars. But with gas approaching $4 a gallon, the incentive for bigger cars is going the other way.(Smaller cars can be made safer, but it increases the cost to make the vehicle, often beyond what car manufacturers and consumers believe is economically viable.) Beyond that and cracking down more on drunk drivers (which, regrettably, we are not seeing after so much progress in the '80s), the way to decrease car and truck accidents is to encourage people to be more careful and more risk adverse. But no one is sure quite how to do that.

I saw today an interesting blog post by a Massachusetts law firm advocating that Massachusetts ban finance companies who offer loans to people using their personal injury cases as collateral. The post (and a comment to the post) argues that by making the loans non-recourse loans contingent on the settlement, these companies get around existing usury laws. Particularly in cases where liability is not at issue and payment is a near certainty, using non-recourse does seem like a backdoor around the law.

I have no idea of what my opinion is on these personal injury loans. It seems like the interest rate and the fees these companies charge is beyond ridiculous. But I'm sure these are risky loans from people who cannot otherwise obtain a conventional loan or even a credit card. As a personal injury lawyer, the loans are difficult because they make resolving the case and getting the client a good outcome all the more difficult. I had a case this year where the client took out a $23,000 loan that morphed into a $75,000 loan in three years. What ended up being a great settlement offer we received in mediation did not look nearly as good to the client who owed $150,000 in medical bills, legal fees, and the repayment of that loan. In this case, we did call the finance company which agreed to substantially reduce their loan from a preposterous return on investment to a mere obscene return on investment. The guy who I spoke to was a lawyer who owned the company and he was pretty reasonable. In the course of my negotiating the lien, I obviously contended that I thought the interest and fees were simply unconscionable. His response was that you cannot possibly know how many of these loans go bad.

Between unconscionable and reasonable, the answer probably lies somewhere in the middle. But obviously, in our free market economy, if there was that much money to be made making these loans, more companies would have entered the market, which would have decreased the overall cost of the loans. This reminds me of personal injury lawyers who complain about the obscene profits insurance companies make. If this were really true, wouldn't we all buy a ton of Allstate stock today? But take a look at their stock over the last three years.

It is worth mentioning that most of these personal injury loan companies have some clause in the agreement with the client that their personal injury lawyer cannot attempt to negotiate the loan. (I hope I am not giving an idea to the companies that don't have that clause.) We take the position that this agreement does not bind us from negotiating the lien and no one has ever suggested that our lawyers are obligated to honor that clause.

Back in January, I wrote about Allstate’s on going war with the state of Florida (and Missouri) in which it arrogantly racked up more than $4 million in fines for refusing to turn over documents that they had been ordered to produce and which had been requested by the insurance commission in Florida. On Friday, Allstate not only produced 150,000 pages of responsive documents it had protected as proprietary, but it made the documents available on Allstate's website.

In defending some of the documents, a company spokesperson said that many lawyers misinterpreted the documents that refer to how Allstate deals with claims from other parties, not from policyholders. The Allstate spokesperson said many of the documents, which had been picked apart by plaintiff’s personal injury lawyers, refer to claims-handling practices for car accident claims that have been incorrectly assumed to be applied to homeowners’ policies as well.

If this is true, I see Allstate’s point. Accident lawyers whine about Allstate’s bad offers in third party cases. In car accident cases in Maryland, I don’t think GEICO, Progressive, Nationwide, MAIF, or State Farm are making offers that are any different than Allstate’s. But that is not my point. The insurance companies have no obligation in third party cases to make fair offers. Insurance companies can do whatever they want. This is why we have lawsuits.

Moreover, the reason why insurance companies will not pay fair value on my accident claims is because two things have to happen before a bad offer turns into a lawsuit: (1) the accident lawyer has to be willing to file the claim, and (2) the plaintiff has to be willing to file a lawsuit and wait for their recovery. With respect to the former point, accident lawyers who fear filing suit rarely tell their clients they will not file suit. Instead, the lawyer tells the client that it is a great offer and they should accept it. The main reason insurance companies make bad offers is because lawyers let them. The idea that insurance companies – again in third party case – have an obligation to be fair is as absurd as the notion that personal injury lawyers should have the goal of being fair. In the adversary system, if your goal is to be fair, you are doing your client a disservice. This is not to say that you should not recommend fair settlements, but it certainly should not be a plaintiffs’ lawyer’s goal.

First party insurance cases where the insurer has a duty to their insureds to fairly provide compensation for their injuries or losses are a different matter altogether. In these cases, I think there is ample evidence that Allstate has failed to meet their obligations and I would not be surprised if these documents intentionally blur the lines between smart strategies in third party cases where the insurance company has a legitimate objective to pay less than fair value on claims and first party cases where the insurance company has a legal and ethical obligation to pay their insureds fair value for their claims.

Last week, I received a call from an insurance company (Progressive) asking how many occupants were in our clients’ vehicle in a car accident case our lawyers are handling. Sadly, it appears someone saw our clients get in what was a pretty serious accident, noted the vehicle information, and then pretended that they had been involved in the accident. Progressive called me and asked if I can get an affidavit from my clients stating that this person was not in the vehicle. I appreciated where the adjuster/investigator was coming from because he wanted to close his file, but I did not see how it helped my client to provide an affidavit, and I could conjure up scenarios where it would not be helpful to me to help them.

I felt knocked off balance for a second after denying Progressive’s request, losing my moral high ground. But then I quickly asked the adjuster if Progressive was willing to accept service in a few cases I was getting ready to file or if they were going to require me to spend needless money and jump through the hoops of hiring a process server to serve the defendants individually. Instantly, the order of the moral universe was restored. Wherever you are at this moment, you probably felt a jolt of unknown origin. The lesson, as always: if your game plan is never give a quarter, don't ask for one.

Another needless hoop insurance companies make you jump through in auto accident case in Maryland is obtaining accurate identifying information for the defendant driver. Once settlement negotiations have failed, the next step is to file a Complaint. But to effectuate service of process, you need the defendant’s address. It is not uncommon for our only information regarding the defendant driver to be a name and insurance information. If his name is Joe Brown or Steve Smith, it can be difficult in car accidents where no police report is filed, the defendant has moved since the accident or the defendant gave a false address.

Of course, this could all be made easier if the insurance companies were willing to cooperate. But they will rarely (read: never in auto accident cases) voluntarily provide their insured’s information for service.

Luckily, in Maryland, the Annotated Code of Maryland provides the Maryland accident lawyer a means to obtain this information fairly quickly and cheaply. Maryland Courts & Judicial Proceedings Code Ann. § 6-311 requires a self-insurer or liability carrier to disclose the defendant driver’s “last known home and business addresses, if known” once the Plaintiff files the proper certification. That section requires a Plaintiff to file a certification with the clerk of the court in which the action is filed and serve it on the insurer or self-insurance plan that provides benefits to the defendant driver. The certification must: 1) state that the defendant had applicable insurance coverage at the time the accident occurred; 2) set forth the reasonable efforts made, in good faith, to locate the defendant; and 3) state that the defendant is evading service, or the whereabouts of the defendant are unknown to the plaintiff.

Once a certification conforming to these requirements is filed and served on the insurer or person that has the self-insurance plan, they must disclose to the plaintiff the last known address information for the defendant driver.

You can find here a sample certification for a Maryland auto accident case. Most other jurisdictions have similar statutes.

There is another good blog post from the Drug and Device Law Blog this time regarding electronic discovery with respect to on-line diaries and the social networking like Facebook and MySpace. I have not had this issue arise with one of our clients but it is only a matter of time. Anything on there inconsistent with plaintiff's complaints is going to be used against them (as it should in most cases).

Speaking of which, you can find my Facebook profile here and my Linkedin profile here. If you are on Facebook or Linkedin, add me to your list of friends.

Last week, we were talking about the hot water Allstate found itself in with the state of Florida. This week, we look to Mississippi where Attorney General Jim Hood has opened a new hurricane Katrina related criminal investigation of State Farm, which he says is different from the earlier “crimes against policyholders” investigation. Hood had agreed to end that earlier investigation as part of a January 2007 settlement in which State Farm paid the attorney general’s office $5 million in costs and reopened policy holder claims from hurricane Katrina.

In response to an August subpoena for records from the grand jury investigation, State Farm filed a declaratory judgment action seeking to stop the investigation, and by September, had obtained a temporary restraining order. Now in mid-January, Hood has asked another federal judge to lift that order. That motion is still pending.

At issue is whether this is a continuation of the “crimes against policyholders” investigation or whether this is a validly new and different claim not covered by the agreement of January 2007. The focus of this new investigation has not been openly identified by the attorney general. There is speculation that it has to do with the handling of National Flood Insurance Program claims.

Homeowner policies cover wind and rain damage. Separate rising water/flood damage insurance is subsidized by the federal government, but sold through insurers. Some politicians and lawyers have accused insurance companies of fraudulently over-billing the federal government for flood damage claims.

Hood is asking the temporary restraining order banning him from investigating the criminal handling of Katrina claims by State Farm be dissolved. Yet attorney Edwin Snyder, a consultant for Hood, said, “The operative phrase is ‘Hurricane Katrina claims.” If it’s unrelated to that and it’s new, it’s available to investigate.”

I can’t believe I’m saying this but I think the Mississippi Attorney General is looking to take a second bite of the apple when he has already agreed to taking just the one bite. The earlier agreement appears to have resolved any outstanding Hurricane Katrina claims. But this story and the post last week on Allstate’s troubles in Florida underscore that the corporate culture of arrogance is not something that these insurance companies can selectively flash. The same executives that once tried to bully personal injury victims and their lawyers, often with great success, have moved up the food chain. Now, they make corporate policy decisions that no longer impact just individual claims but the entire company. Dealing with politicians requires a certain level of diplomacy and respect. Yet these insurance company executives have embedded in their DNA (at least their professional DNA, a distinction fairness requires) the paradigm of arrogance and obstruction. Why else do you think the state agencies and politicians are getting so riled up?

I’ll admit that I just made up this theory about ten minutes ago, but you have to admit - it makes some sense. Of course, you might also be wondering whether some of these politicians have some other agenda beyond justice in vilifying these insurance companies. But why interrupt a great tale of good versus evil with such nuance?

One question that has remained unanswered is whether Maryland’s new bad faith law is retroactive. On Dec. 17, 2007, U.S. District Court Judge J. Frederick Motz ruled that the Maryland legislature intended Maryland’s new first party bad faith law to be retroactive. In Schwaber v. Hartford, a case involving insurance coverage for a roof leak, Judge Motz had initially dismissed Plaintiff’s bad faith action prior to the effective date of the first party bad faith bill (2007 Md. Laws 150). Plaintiff sought to re-file the claim after the bill passed.

Interestingly, Hartford agreed that the Maryland legislature had intended the new bad faith statute to be retroactive, and instead objected on state and federal constitutional grounds. Judge Motz chose to defer ruling on these objections or certifying the state constitutional questions to the Maryland Court of Appeals, unless or until it becomes clear that resolution of these constitutional issues are necessary to the outcome of the litigation. So while it is not a slam dunk that this new law will pass constitutional muster, the court's finding that the bad faith law was intended to be retroactive is a great step in the right direction.

You can find Judge Motz's opinion here.

Happy New Year to everyone!

In March, I wrote a blog post discussing whether it makes sense for personal injury lawyers to videotape medical exams by the defendant's lawyer's doctor. Last week, the Oklahoma Supreme Court ruled that a plaintiff who is required to submit to an "independent medical examination" (hereinafter the more honest "defense medical exam") may videotape the exam.

In this case, the doctor had refused a plaintiff’s request to videotape the DME because (1) it would invade the privacy of others in the office; (2) it would be “annoying and distracting” to the DME doctor and his staff; and (3) it would interfere with the doctor’s examination.

Actually, these are not the doctor’s objections. These are the defense lawyer’s objections. The doctor was more than happy to allow the DME to be recorded as long as the defendant’s lawyer did not object. Moreover, all of these objections are silly. First, obviously the video should only be permitted to videotape the doctor’s examination of the plaintiff. Second, for $500 an hour, or whatever the doctor is charging, he should be able to bear a little annoyance and distraction. Finally, there is no reason to believe that videotaping at the DME would interfere with the examination.

The Oklahoma Supreme Court followed the wisdom of courts in Kentucky and Indiana, which permitted audio recording of DMEs, and found no reason why the logic did not extend to videotaping an exam.

What I learned from reading this opinion is a little more on the history of compelled medical exams. In the nineteenth century, the U.S. Supreme Court in Union Pacific Ry. Co. v. Botsford, 141 U.S. 250 (1891) affirmed the longstanding common law that compelled medical examinations in personal injury cases were “repugnant to a person's privacy and bodily integrity.” Obviously, that view has changed over time. I agree that the more modern view is the appropriate view because if a personal injury plaintiff puts their health at issue, it is fair game for the defendant to be able to have the ability to evaluate those injuries in the adversarial system. But it underscores that medical exams are not a right to which plaintiffs must blithely acquiesce without fair conditions and limitations.

Again, as I wrote back in March, while I think it should be permissible to videotape a DME, I question whether personal injury lawyers want to go down this path. While I would love to have a library of tapes of a given doctor’s DMEs, the potential harm might outweigh the benefits. I think it would force DME doctors to do more complete examinations than what is often an assembly line examination. Moreover, I think the DME doctor would likely maintain a nice guy persona during the examination. A part of the argument for videotaping is that with a videotape, the jury can see what a jerk the doctor really is. But how many doctors are going to come off poorly when they know they are being videotaped? An even graver concern is that you have not fully prepared your witness for trial testimony at the time of the DME, leaving him/her vulnerable to making poor judgments during the examination, such as overstating the scope of the injuries, or acting defensively or inappropriately with the doctor, who is more likely to be mindful of the impact of the videotape.

The Seattle Post-Intelligencer reports that Allstate Insurance Co. will now fairly compensate thousands of Washington drivers for out-of-pocket medical expenses in a class action settlement. In 2005, Allstate was sued for arbitrarily limiting PIP payments for car accident victims. Allstate used Colossus to determine the average pay rate for a procedure in the geographical area and then paid out only 85 percent of what it found to be the average amount. To be clear, they did not pay what they thought was fair; they paid 85% of what they thought was fair. In an unrelated story, Allstate takes 100% of the premiums from their insured. This practice underscores the insurance company motto of taking premiums and denying claims.

If any of this sounds familiar to you, I blogged last week about a former Allstate employee’s testimony that revealed Allstate’s alleged systematic bad faith in a first party bad faith case in Kentucky.

I also blogged back in May about the newly strengthened first party bad faith bill that passed in Washington, which has much sharper teeth that Maryland’s new first party bad faith law, allowing for three times the actual damages incurred plus attorneys’ fees and expenses. I cannot help but wonder if that precipitated settlement in this Washington bad faith case.

For an update, on Judge Jay Spechler, click here.

The Daily Business Review last week wrote an unbelievable article about a battle between an insurance company and its policyholders. This has been the landscape since Chinese and Babylonian traders started issuing insurance about two thousand years ago. But, in this story, the insurance company has expanded its war to include Florida judges.

United Automobile Insurance Company's lawyers are seeking to remove a Florida judge from all Personal Injury Protection (PIP) accident cases involving the insurance company, citing the judge’s alleged bias.

The Florida-based carrier's attorneys have moved to disqualify Broward County Court Judge Jay from “any and all cases involving United Automobile Insurance Company as a litigant.” United alleges that Judge Spechler routinely displays “pre-disposition, prejudice and bias” against its attorneys. In an interview, Judge Spechler, who has served on the bench for 19 years, estimated that, incredibly, two thirds of his cases are PIP disputes with this insurance company.

This is not United Auto's first attack on a Florida judge. Last month, United Auto’s lawyers also moved to disqualify Miami-Dade County Court Judge Jacqueline Schwartz from sitting on PIP cases.

Apparently, United Auto is well known among Florida personal injury lawyers for their insurance attorneys' aggressive fight against its own policyholders making PIP claims. In 2004, Florida's Office of Insurance Regulation fined United Auto $75,000 for fighting 96 percent of its policyholders’ claims, because if the carrier really discovered that much fraud, it was negligent in not reporting it to the state.

Apparently, the gloves are off, and I mean off and this time the fight is not against accident lawyers. United general counsel Charles Grimsley is saying that judges have not treated United fairly in the courtroom, and that he believed judges were being “paid off,” although he admitted he could not prove it. Later, Mr. Grimsley backed away from his allegation by saying he does not think there is "any money changing hands.” United Auto apparently then took out advertisements stating that Mr. Grimsely's statement “does not remotely reflect the opinion of United Automobile Insurance or any of its defense attorneys.”

Ninety-six percent of claims are fraudulent? This is beyond incredible. United Auto is basically declaring war on its policyholders in an effort to discourage claims. United Auto is the leading auto insurance company in Florida. Martin Luther King said that the arc of the moral universe is long but it bends toward justice. I have to think that this arc will soon bend towards the justice of United Auto losing its market share in Florida.

More and more, personal injury lawyers in Maryland auto accident and truck accident cases are doing battle over the ‘independent’ medical examination. Attorneys argue over everything from who should conduct the examination, how far the plaintiff should have drive for the examination, to more substantive issues such as the examining doctor’s financial records. However, one thing that is occasionally overlooked by plaintiff’s personal injury lawyers is the fact that their client may have already had such a medical examination before they even became involved in the case if the case involves an uninsured motorist or PIP coverage was utilized.

Most insurance policies have a provision whereby the insurance company can ask for the policyholder to attend a medical examination with a physician of its choosing before any payments are made to the insured. This is can be used as a condition precedent to any insured receiving PIP benefits or uninsured motorist benefits.

The Maryland accident lawyer must be careful in cases where PIP has already been paid or where uninsured motorist coverage applies. Often, the insurance claims adjuster has a copy of the report complied by the insurance company’s doctor months or even years before it must be disclosed to the plaintiff’s lawyer (for example, before suit has been filed or before discovery answers are due).

These “condition precedent” type independent medical examinations give the insurance company additional discovery that they would not be entitled to once the case has gone to court, meaning more than one opportunity for a favorable report. Therefore, it is always a good idea for the plaintiff’s accident lawyer to subpoena not only the claim file for the case or suit they are involved in, but also the file of any previous adjuster handling a PIP or other file. Our lawyers at Miller & Zois have found that if you get these old files, sometimes the lawyer will get a copy of an independent examination that was favorable to your client, but was not divulged in discovery since it was “not part of the claim file” of your case. It is still discoverable material under Maryland law and could help make your case.

Today, for the first time in ten years, the Baltimore office of State Farm conducted a "Settlement Day" hosting eight Maryland law firms at their offices in an effort to settle State Farm auto and truck accident cases. The day was very successful for our office; we settled 70% of the cases that were up for discussion. Other personal injury attorneys that I spoke to who attended also reported great success. One Maryland accident lawyer told me that he settled all but one of his law firm's car accident cases.

The day was also a success because it is productive for attorneys to meet the adjusters they deal with on a regular basis. Even if we had not settled any of our cases, it would have been worthwhile just to meet the adjusters. Everyone I met was very courteous and hospitable even on those cases where we were not able to reach an agreement (the larger cases were the most difficult). The adjusters also tolerated my "evil empire" jokes quite well.

When I was doing pharmaceutial defense work, I would often fly across the country for an hour meeting with an expert. Other attorneys would also ask why phone call would not suffice. But I always thought that you are able to establish a much higher quality relationship and understanding with a person who you are able to see in person.

State Farm is thinking of making "Settlement Day" a regular occurrence which I think is a great idea.

P.S. - Two years later, State Farm had another Settlement Day. This one was far less successful, at least for our firm. We settled a few cases but not many. One of the problems was that I drew the wrong adjuster for our serious injury cases (although I dealt with a delightful woman from Team 22 or our smaller cases).

The Maryland Court of Appeals ruled this year in Nasseri v. GEICO that the driver of a taxicab that did not have PIP coverage who was injured in an auto accident had PIP coverage under the taxi cab driver's own personal motor vehicle policy for his injuries.

In this case, Plaintiff's taxicab collided with another car in Montgomery County. At the time of the accident, Plaintiff maintained a separate policy of auto insurance with GEICO for his personal car. The GEICO policy provided for PIP coverage in the event of personal injury resulting from an auto accident. Plaintiff made a claim for PIP benefits to GEICO, who denied PIP coverage. The District Court found in favor of GEICO and the Montgomery County Circuit Court, hearing the case de novo, affirmed the judgment in favor of GEICO.

Plaintiff attorney, who should be commended for putting this much effort into such a small case, appealed, arguing that GEICO's policy exclusion was not permitted by Section 19-505 of the Insurance Article of the Maryland Code and thus was invalid and unenforceable. Plaintiff also argued that Plaintiff was injured in a motor vehicle accident not because he was in a taxi but because the other vehicle was not a taxi cab. The Maryland Court of Appeals, in an unanimous opinion written by Judge Eldridge, agreed and reversed the lower court's opinion, specifically rejecting GEICO's argument that Plaintiff was not entitled to coverage because the Maryland Insurance Article excludes a "taxicab" from the definition of "motor vehicle."

In Maryland, the owners of taxicabs are not required to maintain the minimum PIP coverage on cabs. Taxicabs are indirectly excluded under Section 19-505 because taxicabs are not considered "motor vehicles" under Maryland's statutory scheme for PIP, as defined in Section 19-501(B)(2). The same holds true in Maryland for buses.

While this case will not have a big impact on personal injury law in Maryland, auto accident lawyers in Maryland are pleased that the Maryland Court of Appeals remains committed to interpreting the insurance code liberally to provide injured victims in auto accidents with at least the minimum coverage requirements under Maryland law.