Maryland Injury Lawyer Blog

When picking a jury, peremptory strikes are a big deal. There are almost invariably a few prospective jurors that are high up on the roll call that you just know are anti-plaintiff. I don't know how I actually know this - you get just a glimpse of Maryland jurors in voir dire - but I just do. They have this indescribable "I assume the plaintiff's case is garbage and I can't believe I'm here" look. Defense lawyers have a similar fear, of course, terrified of the "I can feel your pain to the point where I'm able to set aside logic and reason" look. Both of these jurors get rooted out by peremptory strikes. And the "look" is fair game as long as it is not based on race, religion, or gender. In Maryland, you get four peremptory challenges plus one peremptory challenge for each group of three or less alternate jurors to be impaneled. So, generally, you get 5 strikes.

Maryland car accident lawyers on both sides of the aisle now assume that Maryland law, after Maurer v. Penn National, is that if an uninsured motorist insurance company waives its subrogation interest in a case when the at fault driver offers her policy limits, that insurance company cannot contest liability at trial.

Plaintiffs' attorneys in Maryland disagree as to whether this is a good rule. Clearly, the problem with the rule for plaintiffs is that insurance companies are less likely to waive subrogation when the underlying insured offers policy limits. This means you have to deal with two sets of defense attorneys which means almost twice the hassle. Insurance companies are also doing side deals now, where the underinsured motorist carrier waivers subrogation on the DL (that's "down low" if you were not cool ten years ago), presumably with a pinky promise.

What does this have to do with jury strikes? Well, defense lawyers try to parlay this double lawyer albatross into double strikes. Can they do this? Maryland Rule 2-512 (h) says that multiple plaintiffs or defendants should be considered a single party unless the court finds that "adverse or hostile interests between plaintiffs or between defendants" justify separate challenges.

In uninsured and underinsured motorist cases, it is hard to claim that the interests of these parties are anything other than the same. But I got broadsided with this argument a few years ago during a trial in Baltimore County. It was a tough case anyway, I was in Baltimore County and, over strenuous objection, both the at-fault driver and the underinsured motorist carrier (MAIF and GEICO) were given strikes. I don't have to tell you how it turned out: awful. (Yet, still, it was more than the settlement offer which pretty much summarizes dealing with MAIF and GEICO).

Continue reading "Jury Strikes Matter" »

In Maryland, and in most states, there are immunities for police, fire and rescue agencies and personnel from civil liability for negligence. There is an exception for intentional torts and a "grossly negligent act.” Of course, this begs the question of what is a "grossly negligent act"?

In Markevicz v. Garcia, U.S. District Judge Alexander Williams, Jr. issued an opinion reminding car accident lawyers (who did not get the memo provided by the last zillion cases on this topic) that the bar to get to a "grossly negligent act" is pretty high.

In this case, a fire truck operator allegedly did some pretty dumb things in what I think was an effort to get to the car accident scene. The opinion does not spell it out but I'm assuming the fire truck ended up hitting the vehicle during the rescue. Plaintiffs' Complaint and the driver defendant both alleged that the fire truck driver contributed to plaintiffs' injuries when they drove the wrong way on the Beltway, dangerously jockeyed for position in an attempt to pass through a gap in the median that was too small, and so forth.

Judge Williams said that even if true, these facts fall short of gross negligence, citing Boyer v. State for proposition that gross negligence is inflicting injury with such indifference to "to the rights of others to the extent of acting like the victim had no rights at all." I'm paraphrasing and I still don't know what that means.

Continue reading "Gross Negligence Bar Is High Hurdle" »

Does Maryland Need a Dram Shop Law?

(Note: In a crazy coincidence, I wrote this blog post just moments before the Maryland Court of Special Appeals decided Troxel v. Iguana Cantina, a dram shop/premises liability case which reverses a Baltimore County trial court's finding of summary judgment for the defendants essentially because Maryland has no dram shop law. The Court of Special appeals reversed, calling the case a premises liability case. The court lays out the the sometimes hazy line between premises liability and a dram shop claim. At least this is what I think the opinion does I just glanced at the case, amazed by the coincidence. But, boy, this case looks teed up for the Maryland Court of Appeals to impose dram shop liability if that is where the court wants to go.)

The aptly named "Club Blaze", a Georgia strip club, was hit with a $1.75 million verdict in a wrongful death car accident case in Georgia.

These facts read like a preposterous hypothetical concocted by someone intent to prove that every state needs a dram shop law. A man went to a strip bar and managed to drink himself to a .398. Five times the legal limit in Georgia (and Maryland). I bet I have ever been half that drunk in my entire life. I also bet you he had a tab for one at the strip club, making it painfully obvious how he was getting home. So he left the strip club and did what is exactly par for the course when your BAC is .398: he killed himself and two young women, one of which left behind two small kids.

“Fatima did not die in vain. This case will bring awareness about the long-term effects of a drunk driving. This has devastated our family,” Bird's mother, Lisa Mitchell, said in the news release. “Fatima was my daughter and my friend. We honor her by using this award to send her children to college so they can become the best that they can be.”

I'm impressed this woman's mother is able to take such a high road. I would like to think that I could take this approach if it happened to me. I really do. But I think I would just be sad, angry and bitter every single day until I died.

This lawsuit fails on its face in Maryland. We don't have dram shop laws. So you can serve someone alcohol to the point where he is five times over the legal limit creating a time bomb that not only may go off but is actually likely to go off, and there is no claim. That woman's kids - a four and five year-old - would have to fend for themselves for their college tuition if this tragedy had happened in Maryland.

Continue reading "Wrongful Death Verdict: Justice You Would Not Get in Maryland" »

Pat Malone writes a guest blog on Don Keenan's Trial Blog arguing that confidential settlements undermine public safety and justice. His point is that confidential settlements make it harder for future plaintiffs to get evidence and information they need to bring out all of the facts about the defendant's conduct.

Specifically, Malone suggests:

Here’s one tip for avoiding last-minute pressure from the defense to cave into a secrecy agreement: Be proactive. Tell the defense counsel at some appropriate point – such as with any settlement demand letter or in a pre-mediation communication – that you will not agree to secrecy because of the ethical issues. This can be one item on a list of settlement conditions.

Pat Malone is an extremely well respected lawyer who not only gets great results for his client, but also graciously spends a lot of time helping other personal injury lawyers. I also agree with his premise: there is doubt doubt that confidential settlements make it harder for the next plaintiff. This also make the company less accountable, too, in the big picture.

But here's the problem: people who have been badly injured, even the best of people, have a hard time focusing on the global interests of plaintiffs everywhere when they are fighting and scrapping to be compensated for their injuries. And I have a hard time telling them that they should.

Let me give you a case in point. We recently settled a case with a Fortune 500 company. No discussion of confidentiality in the settlement discussions. You know what comes next. They send a release with a confidentiality clause. We balk. They say, "Okay, let's try the case."

Boy, I hate being bullied by big companies. I try hard not to take these things personally. But they were so arrogant in the way they delivered their ultimatum. They never would had the guts to play it through and I knew it. So we plotted a "file a motion to enforce the settlement and, in the off chance we lose, we try it" strategy. In angry detail. With our feathers up and blood boiling, we forgot, ah, that we have a client. So we call the client. She could not care less about confidentiality. She wants to execute the settlement and get her money.

So what do you do? I know what we did: we put our hurt pride on a shelf and sent the client the release.

Continue reading "Confidential Settlements" »

For those of you who do not practice in Maryland or don't handle car accident cases, the Maryland Automobile Insurance Fund is a unique to our state creature. It is a state owned insurance company that insures high risk drivers. Most other states just require insurance companies to insure high risk drivers if they want to sell car insurance in their state. I guess, at least in 1972, Maryland was feeling a little libertarian and decided rather than force its bad drivers on other insurance companies, that it would just build its own. To my knowledge, a total number of zero states followed suit. (Someone correct me if I'm wrong.) Of course, once you build a state agency, there is an unwritten rule that you can't kill it.

Continue reading "Is MAIF Dying a Slow, Painful Death?" »

Medicare announced today that it has implemented a $300 threshold for some tort liability subrogation cases. This is huge news for accident lawyers who often get bogged down trying to reach a settlement in claims where there is some minor Medicare payment out there that "could" be related to the car accident.

Accordingly, Medicare will no longer claim subrogation in car accident and most other tort claims when:

1) the settlement (generally defined by Medicare as including settlement, judgment, award or other payment) is related to an alleged physical trauma-based incident (as opposed to an alleged exposure, ingestion or implantation);

2) the claimant does not have any additional settlements related to the same alleged incident; and

3) Medicare has not already issued a final demand.

The big news here is that Medicare may be starting to read the tea leaves and realizes that it has to make a less byzantine system for personal injury lawyers and one that is fair for victims.

• My original Haro v. Seblius post (the case that may have started Medicare/Accident Lawyer glasnost)
• Court rules on motion to enforce settlement when insurance company balks over lien issues
• Lien Resolution Services blog post
• ERISA liens and the "made whole" doctrine
• Five things you don't know and should know about personal injury accident liens

The Maryland Court of Special Appeals sided with State Farm over the Maryland Insurance Administration this morning in Washington v. State Farm.

The appeal rose from a consumer complaint who alleged to the Maryland Insurance Administration that State Farm failed to notify the consumer of an increase in his premium. The MIA found that State Farm did just that, violating Maryland insurance law.

The MIA's position was unambiguous: State Farm unilaterally increased the consumer's premium with no advance notice, violating Sections 12-106 and 27-614 of the Maryland Insurance Article. In its brief to the Court of Special Appeals, the MIA did not mince words, saying that State Farm engaged in "bait and switch" tactics to try to lock the consumer in at a price higher than he had already agreed to pay and that State Farm was trying to "distort this new [2006] statutory scheme." Harsh words for State Farm. I like it.

Continue reading "State Farm Wins Unilateral Premium Increase Case" »

Something interesting has come out of Alaska that does not involve Sarah Palin, oil, or snow. No, really, it's true.

In Whitney v. State Farm, the Plaintiff had a serious injury case that far exceeded State Farm's 100/300 policy. (Yeah, State Farm is writing those in Alaska too.) State Farm tendered the policy limits. Plaintiff's counsel had an admirable but goofy theory as to why there were stacking policies on the risk where UM coverage applied.

Plaintiff's accident lawyer then did something very interesting. He settled the case with the Defendant far in excess of the policy limits. This gave him a chance to skip a trial and immediately test his theory, bringing a bad faith claim under Alaska's version of a use plaintiff. I'm sure he had some side deal with Plaintiff on collecting the settlement. I'm amazed the defendant's State Farm lawyer - whose bills are being paid by State Farm - had the guts to craft a settlement that was in the client's best interests but not State Farm's.

I love the creativity. But it fails. As a consolation prize, the Alaska Supreme Court left open the property damage claim and claims related to State Farm's duty to timely settle. The latter sounds like a dead loser in this case and the former is a lousy property damage claim.

You can read the opinion here.

Virginia is making great strides in cutting the number of drunk driving accidents. The path to success is not a secret: aggressive enforcement.

Virginia officials also cite increased driver education. This is bunk and everyone knows it. Government officials must get performance incentives for citing education as the cure for everything.

Malcolm Gladwell's book The Tipping Point underscores how bad this paradigm fails elsewhere. Gladwell cites a study that shows that the average smoker overestimates how many years smoking will take off their lives. Smokers think it will cost them 9 years when the real answer is probably more like 6. Paradoxically, education may be making these people less risk averse to smoking.

Continue reading "How and How Not to Reduce Drunk Driving Accidents" »

Reading trial transcripts is a great educational tool for both new and experienced trial lawyers. Getting sample trial transcripts is not easy because unless a case gets appealed on the substance of the trial, you never get a transcript. I think 10 years from now we will have an inventory of all of our trial transcripts readily at hand. Now, I can tell you the number of trial transcripts I have seen on one hand (not counting O.J. and Casey Anthony obviously).

I wish we kept all of the trial transcripts we have had. But we have pulled together a number of them - including a $1 million verdict in a truck accident case - which I think are worth a peek. You can find them here.

Mealy's reports on Jones v. Penn National, a North Carolina uninsured motorist case where the Plaintiff brought a bad faith claim against Penn National, the underinsured motorist carrier, in a case where the at fault defendant - insured by Allstate, naturally - did not tender their policy. The court said that Defendant has no obligation to offer UIM coverage before the exhaustion of liability insurance. I think a Maryland court would make the same ruling.

That's the nutshell. You can stop there. Perhaps I could interest you in an overview of uninsured motorist coverage. Is that something you might be interested in? (Entourage devotees enjoy the joke. Everyone else looks annoyed.) Or we can break it down a little further.

Plaintiff gets into a serious accident. The defendant driver is killed. Allstate, who insured the defendant, offered $7,500 of its $30,000 policy. Plaintiff takes the case to verdict and gets a $185,000 verdict. (Maybe Colossus didn't have a good handle on this one.)

Plaintiff then brought a bad faith claim invoking North Carolina's UIM statute and its Unfair and Deceptive Trade Practices Act. Maryland has a similar law. Plaintiff's lawyers claimed that Penn National was bound by a statutory duty — following the car accident and before Allstate tendered its policy - to evaluate the case fairly and honestly. In other words, they are arguing that Penn National is not as dumb as Allstate and knew the claim was worth more.

Continue reading "New Underinsured Motorist Opinion" »

This post was supposed to be about Medicare set-asides but I started with such a long intro about the psychology of claims adjusters that I'll just hit the Medicare issue in a later post. (Or I'll completely forget about it.)

To understand claims adjusters, you have to get inside the labyrinth that is the claims adjuster's mind. (Why labyrinth? I'm just trying to use mildly inflammatory language. I'll stop.) Insurance claims adjusters are more Pete Rose than Barry Bonds: they get paid for singles, not home runs. The great things a claims adjuster does vanish into thin air; the mistakes live on. Ironically, plaintiffs' lawyers operate in the exact opposite world: hit a few million dollar verdicts in a row and everyone forgets your losses. Reason #42,353 why plaintiffs' attorneys and insurance adjusters are the Montagues and Capulets.

Accident lawyers have a misconception about this, thinking adjusters get hugs from the higher ups for ripping off a plaintiffs' lawyer in a settlement negotiation. Actually, hugs is the wrong word - they do get hugs. But, mostly, that's it. The way to make a name for yourself is not by screwing plaintiffs' lawyers but by not screwing up yourself. Make sure everyone likes you and, more importantly, don't make any mistakes. Overpaying on an accident case is not that big of a screw up: but failure to have a death certificate in the file before paying a wrongful death case? That is a federal crime in the insurance world. Under-reserving a case? That's an aggravated felony.

Continue reading "Inside the Mind of a Car Accident Claims Adjuster" »

I'm glad Aaron Rodgers is with us and all. But having Aaron Rodgers explaining insurance coverage to me... I'd rather Aaron just focus on the Cover 2 defense, a topic on which he clearly has a firm handle.

The Maryland Court of Special Appeals reversed last week a Harford County judge's dismissal of a claim against the state of Maryland for negligent failure to maintain, repair and reconstruct a bridge where accidents were beyond commonplace. In this case, the bridge was the site of a fatal cross-over car accident collision that led to the death of a young girl.

The Plaintiff's claim is a Hail Mary: you should have erected a Jersey Wall because of the prior head-on and cross-over accidents about which the state obviously had notice. It is Hail Mary where, instead of throwing for the end zone, you are just trying to get a first down because the cap limits the claim to $200,000. Still, a long line of Maryland cases have allowed individual suits against local municipalities for failure to properly maintain roads and sidewalks. The question is whether this same logic extends to claims against the State of Maryland.

Boy, this case has some powerful facts. The Director of Engineering for the Maryland Transportation Authority determined, well prior to this fatal cross-over accident, that a concrete median barrier was both necessary and feasible. Plaintiff also claims the State of Maryland admitted in discovery that there had been a lengthy, unexplained and dangerous delay in installing that median barrier after the State realized it was a no-brainer to put up a Jersey Wall. Why a no-brainer? There had been 142 accidents on that bridge, according to Plaintiff. This is a "stop in your tracks" statistic.

Continue reading ""State of Maryland Should Put Up a Jersey Wall" Opinion " »

I have an unbelievably tragic wrongful death car accident case. A very good man with an unbelievably good family - here's a clue: they were/are very concerned about injuries sustained by the man that caused the car accident - was rear-ended by another car at a high rate of speed in Prince George's County.

At first, liability was in serious question. The police report took forever but, ultimately, the Prince George's County Police got it right to the point where it would be virtually impossible to contend otherwise. Liability is clear.

The defendant has a minimum limits policy with Allstate. The decedent and his wife had a $300,000 underinsured motorist policy with GEICO that, while better than most personal car insurance policies, is still awful. GEICO wants us to jump through every single hoop: death certificate, medical records after the accident, and so forth. I'm cool with that actually. GEICO has auditors and they have to answer for the details of their file. I'm more than happy to do my job.

So I talk to the GEICO claims adjuster yesterday- who, by the way is a good claims adjuster and otherwise a nice person - who throws out a "So, ultimately, what do you think this case should settle for?"

Bracketing for just a second how insulting it is to think I might fall for this, I'm wondering: what if I had said, "I think it is worth $200,000." Does the adjuster then extend a settlement offer - to its own policyholder - a value of the case that is certainly far less than it is worth?

Continue reading "GEICO's Valuation of a Wrongful Death Case" »

Women are bad drivers according to a new University of Michigan study. Granted, the study is too politically correct to say just that. These are serious people, not bloggers. But, really, it is impossible to ramrod any other conclusion from this study.

The study looked at 6.5 million car accidents and found that women cause more car accidents per mile driven then men. The study's lead author found the scope of the difference "astounding."

This is a very difficult argument to make. Not hard intellectually. But hard to make with a PC face on. Ultimately, I don't think most women care much about this "attack" for the same reason I would not care about studies that show men are more violent and less caring. As long as you are not talking about me, you can say anything you want. Same goes for lawyers too, by the way. You think almost all personal injury lawyers are ambulance chasers? Fine. As long you don't include me, I'm cool. But there is going to be an outraged minority that will drive past the data and skip right to indignation.

Continue reading "Women Are Bad Drivers Says University of Michigan Study" »

According to a recent Jury Verdict Research study over the last ten years, the average verdict in a serious knee injury case is 359,149. The median knee injury verdict is $114,299. Eight percent of verdicts were over $1,000,000.

How do you define serious? JVR defines it as knee dislocation, fractures, replacements, and aggravation of a preexisting knee injury. I certainly understand the first three categories; aggravation of a preexisting knee injury more subjective and a little harder to define.

Half of these cases are car accident lawsuits and the other half include every personal injury case under the sun. So it is hard to extract much meaning from this average serious knee injury verdict. But there are a lot of numbers in the report that break it down a little further.

Continue reading "Knee Injury Settlements and Verdicts" »

The Daily Record has a story this week about Baltimore personal injury lawyer Steve Heisler's new advertising ploy: he's wrapped his Ford Expedition in an advertisement for his Baltimore firm and dubbed it The Injury Lawmobile. Danny Jacobs writes:

“Some lawyers say it goes over the line,” Heisler said, almost anticipating the question. “I say in this day and age, you’ve got to take advantage of every opportunity possible.”

I have never met Steve Heisler but I've talked to him on the phone. He actually was threatening to sue a non-law related business that I own without knowing that (1) I owned the business, and (2) his client was pretty much making up the facts. (I'm sure the latter was more persuasive than the former.)

Continue reading "Steve Heisler's Injury Lawmobile" »

The Washington Post reports that a Maryland personal injury attorney plead guilty yesterday to insurance fraud. The lawyer worked with a chiropractor to submit false car insurance claims. Not content to cheat just for his clients, he brought his own bike accident claim and got a $11,000 settlement from a insurance company.

Wild story. It is very easy to get up on a soap box and condemn but it is too easy of a target. It is like writing a rant that Charlie Sheen is crazy. Everyone gets it.

This lawyer has "admitted full responsibility", according to his lawyer. This is good. But, respectfully, criminal lawyers always talk to much. "[He] is devastated by his terrible judgment," the lawyer added.

Bad judgment? I used bad judgment last night after I put my kids to bed when I took my uncontrollable dog out without a leash. Stealing is not bad judgment. It is stealing. Can you repent? Absolutely. But it is not a question of judgment.

Almost two years ago now, Medicaid/Medicare liens became even more difficult to deal with as the law pushed to the lawyers and insurance companies the obligation of confirmation and resolution of Medicare/Medicaid liens. I'm sure betting an insurance company has yet to receive a fine for not verifying a lien before paying a personal injury settlement. But nobody wants to be the first.

Medicare, Medicaid and State Children's Health Insurance Program Extension Act of 2007 created so many headaches people starting fighting back. In Haro v. Sebelius, an Arizona case in U.S. District Court, Medicare beneficiaries (and, interestingly, a personal injury lawyer in his own capacity) challenged - as a class - two things: (1) Can Medicare/Medicaid (hereinafter "Medicare because I'm sick of the slash) “require prepayment of a reimbursement claim before the correct amount is administratively determined where the beneficiary either appeals or seeks a waiver of the MSP reimbursement claim?, and (2) Are personal injury lawyers financially responsible for reimbursement if they do not hold or immediately turn over to Medicare their clients’ personal injury settlement awards.

Personal injury lawyers are completely in a pickle on these liens. Our clients want their money; we want to get them the money they are entitled to get. The question is whether personal injury attorneys are precluded from giving the clients their settlement money until after Medicare’s claim has been satisfied, and, let's be honest, whether Medicare can recover the reimbursement claim directly from the attorney if the client fails to pay the reimbursement claim after the settlement money has been turned over to the client.

Continue reading "Medicare Liens: New and Better Law?" »