Articles Posted in Auto Accidents

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Pre-impact fright and conscious pain and suffering in Maryland

Pre-impact fright and conscious pain and suffering in Maryland

Many years ago, a jury awarded my partner Laura Zois’ client $4 million in a survival action claim.  The sole evidence — the SOLE evidence — presented to the jury was that the decedent said “Oh s—!” before impact which caused his immediate death.  Since that case, I have had a very aggressive view when it comes to pushing these claims.  Because that case and other cases I have seen and tried show that juries take the most remote fear of grave harm or death as serious as they do any conscious pain and suffering.   I think too many plaintiffs’ attorneys in Maryland are too quick to accept the premise that the victim’s estate cannot make a pre-impact fright or conscious pain and suffering claim.   This post is about Maryland law in both pre-impact freight and conscious pain and suffering cases and why I think this helps the family’s victim recover great damages in wrongful death and survival action claims in Maryland.

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judge2The Maryland Court of Special Appeals handed down an interesting opinion in Asphalt and Concrete Services v. Perry, reversing a half million dollar verdict.  This case is a cautionary tale for lawyers who want to get every possible thing they can in to make the defendant look bad.  I understand the urge, believe me. But sometimes you are just asking for an appeal that is going to get your case reversed.  This is an opinion every Maryland personal injury lawyer — on both sides of the aisle — should read and keep in the back of their minds.   This case also has some good law and bad law for plaintiffs’ lawyers that is worth knowing.

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The Maryland Court of  Special Appeals decided a chain reaction automobile tort case last week in Cooper v. Singleton that leaves me confused about the current state of Maryland law as to how we communicate our presumption of negligence rule to juries in rear-end collisions… and hoping the Maryland high court steps in to clear up the confusion.rearend

This case involved a five car chain reaction car crash in Montgomery County.Four cars had stopped at a red light when a fifth car, driven by the defendant, crashed into the fourth car. The cars hit each other moving forward as you would expect that they would all the way up to the first car.   It must have been a pretty hard hit, obviously.
The plaintiff in this case is car #2; the defendant is car #4. The case goes to trial before Judge Terrance McGann in Montgomery County.  After a three day trial, the defendant wins.
Wait!  What? How do you lose that case?
But I think there was a viable defense to this case. Defendant’s argued sudden incapacity because he suffered a grand mal seizure.  The defendant’s treating neurologist testified that he was taking medication to control his seizures and it was reasonably believed that the medication would prevent future seizures. But, unexpectedly, he suffered a seizure that left him incapacitated.

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My position has long been that speed and red light cameras at least probably save lives. Why? I’ve painstakingly dug through the research, analyzed the underlying data, and made a thoughtful and informed conclusion.

Okay, that didn’t happen. What I did read was a newspaper article on a study by the Insurance Institute for Highway Safety that found that traffic deaths at speed and red light intersections dropped by 26 percent. So I concluded from this that the study was unbiased (probably because the IIHS has a reliable sounding name) and took the leap of faith that all cameras must be good.

Could this be flawed logic? Of course, But this is the way the sausage gets made for all of us when we are just coming up with a random opinion where our final decision really does not matter to anyone. We all do it.

So I really don’t know the answer. But I do know that public support for these cameras is now being held together with Scotch tape and the magic of children’s laughter. Why? Because everyone has taken a closer look at the studies? Get serious. The contractors who run these cameras – and the systems designed to compensate them – are fatally flawed.  Continue reading →

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We can all agree that texting while driving is a death wish.  We don’t need an educational campaign.  Everyone knows this now.  The questions is just whether you are stupid enough to risk your life and mine.

The bigger question engendering more real debate is cell phone use in general. I have always been in the camp that the big issue is distracted driving generally. I don’t use the phone when I’m driving with my kids in the car. (No, I can’t explain why I don’t extend this to your kids who are on the road with me when I drive alone.)

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The real issue is distracted driving

I’m still in that camp. I’ve seen a ton of information that says that handheld phones are not the problem. It is the talking and taking your attention off the road. There is tons of data and studies – literally hundreds – out there about this. But I read this seemly well done study that goes the other way. I don’t know who funded this research but I can’t find anyone dismissing the findings based on bias.

So I don’t know exactly what to think. One plausible approach is to error on the side of safety and quit talking on your cellular phone when you drive because there are conflicting theories. This is a fine position to take but good public policy is a little more complicated. People are just not going to take every precaution. Every billboard that says, “don’t talk and drive” might be better used to remind people that a Maryland resident dies every 40 hours in a drunk driving accident, as Judge Adkins just reminded us (in an instant classic dissent, by the way).

No Want Wants to Believe This Inconvenient Truth

People are so skeptical anyway. My mom stuffed Vitamin C down our throats like our lives depended on it only to find out later it was probably useless. We all have a million examples of this. It is 1000 times worse in 2013 because we get so many facts and statistics and studies online that they all lose significance. If I sent around a Facebook post saying the FDA has approved a drug that will knock 20 years off your life, most of you would hit like button out of courtesy (thanks for that) and go about your day. (That hypothetical didn’t really work. You have to assume that the mass media never reported on it to make sense of it. I tried, okay? Actually, I took a 30 second shot at making it grittier by making it about sex but could not come up with something that was not stupid or offensive.)

So my advice is that we should keep sounding the horn on alcohol and texting and really take a good look at cell phone use and figure out what really matters. Does a hands free option really make a difference or it is just the distraction? We need to figure it out or else public safety advocates are going to be the boy the cried wolf. Some people say that people died from AIDS because the CDC did not have credibility in the late ’70s and early ’80s because they had sounded the alarm too early and often without enough evidence.

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Today, the National Transportation Safety Board (NTSB) said we should lower the blood-alcohol limit from .08, the current standard, to .05. The NTSB argues that the U.S. is too lenient when it comes to drunk driving and wants the U.S. to adopt the same standard as other countries, such as those in Europe.

Even "just a little" drinking and driving leads to deaths in Maryland

Even “just a little” drinking and driving leads to deaths in Maryland

Data from the National Highway Traffic Safety Administration tells us what we have known for a zillion years: alcohol plays a role in nearly one-third of traffic deaths in America.

But the NTSB tells us something incredibly new, providing data that the risk of a crash is reduced by half when the definition of “drunk driving” encompasses the .05 standard instead of the .08 standard. Depending on body size, the difference between .08 and .05 is one to two drinks over a three hour time span.

It is hard not to cut to the chase on this. There are 12,000 deaths, give or take, a year in this country from drunk driving. Now imagine in your mind 6,000 people in a room that could have been saved by everyone having just a few less drinks. Then imagine everyone who loved those 6,000 people in a room. I have to think the NTSB is on the right side of history on this.

(I just pulled a little trick there. The NTSB says “car crashes” and I turned that into “car crash fatalities.” But if you reduce that 6,000 to 3,000, does it really detract from the point I’m making?)

We had been reducing drunk driving deaths for a while but we have hit a stopping point. We either need to increase penalties or reduce the BAC. Those, it seems to me, are the two weapons we have in our arsenal to get past the bottleneck.

This idea that a few drinks do not impact driving is crazy.  Play a video game and try to get your high score on two beers.  You just can’t do it.  Alcohol is dose responsive.  Every little bit makes you a little less competent to drive.

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The Maryland General Assembly passed a bill this week which would make talking on a handheld cellphone while driving a vehicle a primary offense. If the bill is signed by Governor O’Malley, as expected, a police officer would be able to pull a driver over under this bill for talking on a handheld while their vehicle is in motion. The bill would allow you that quick phone call at a stop light and you can still use your GPS on your phone.

rearendA first handheld offense would be punishable by a fine up to $75 fine. A second offense could be $125, and a third could be $175.  A fourth offense?  Geez, do we need to even figure that out?  I think if you drive through the city screaming “Hey, look, no seat belt” you still are probably not going to get charged with this three times.

This is the progression of things. It is easier to pass the bill as a secondary offense and then bump it up in a few years. We are sheep and accept change a little better that way.

The problem is that there is data that suggests that it’s not the holding of the phone, but the distraction in general that causes more accidents. It may be that it is not so much where your hands are when you are driving – not many of us are in a 10-2 position anyway – but where your mind is.

So should we eliminate talking on the phone while driving? Honestly, we probably should. I talk on the phone constantly when I’m driving but never with my kids in the car. But there is zero – absolutely zero – inertia to ban cell phone use while driving because the real problem we are fighting is not driving and talking about driving and being distracted at all.  Everyone turns a blind eye to these statistics because we believe what we want to believe and we don’t want to give it up. Ironically, there is just one group that sees it my way: insurance companies.  To use a 2104 reference, it is like us fighting ISIS which aligns us nicely with the Syrian government who we nearly bombed just a year or so ago.

The Libertarians scream why not ban people from changing the radio station while driving.  First, stop screaming again.  You guys are always screaming.  Second, why not?   While the car is moving is not a great time to be changing the radio station.

But moreover, it is just a matter of degree.  I know there is a slippery slope but life is lead on a slippery slope. We can have a police without being a police state and we can draw the line cleaning in between talking on the phone while driving and changing the radio station while driving.

Marylanders young and old are dying on our roads from distracted driving.  They don’t upset us too much because they are theoretical and abstract.  I hope it stays that way for me and you.  Because some people are not so blessed.

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A Baltimore County Circuit Court judge ruled last week that Baltimore County’s contract with its speed camera vendor is illegal, because it allows the contractor to get a cut of every ticket generated. Although Judge Susan M. Souder’s ruling dismissed only a single ticket, this decision is believed to be the first time a judge has ruled against the legality of this so-called “bounty system” practice.

In this case, Baltimore County’s contractor, ACS Xerox, received a whopping $19 from every $40 ticket. As you might imagine, the bounty system has raised many objections because it incentivizes contractors to maximize the number of tickets issued, which can lead to mistakenly generated tickets. In one instance, a motorist was cited for traveling 57 mph in a 25 mph zone despite the fact that the driver was actually sitting still.

Maryland law, however, specifically seeks to eliminate profit incentives by banning bounty systems. Transportation Article § 21-810(j)(2) of the Maryland Annotated Code states, “If a contractor operates a speed monitoring system on behalf of a local jurisdiction, the contractor’s fee may not be contingent on the number of citations issued or paid.” In practice, however, this restriction is effectively nullified as long as contracts avoid using the term “operate.” The Office of the Attorney General even provided an advisory letter in 2008 instructing Montgomery County to change the wording of its contract to specify that the county, rather than the contractor, operated the speed cameras, thus skirting the restriction.

The present case is not the only lawsuit that has been introduced. The bounty system previously ignited a legal clash in 2008 when ticket recipients filed suit against Montgomery County and several municipalities in the county. The Maryland Court of Appeals, however, ruled that the plaintiffs did not have the power to sue under the law, but did not decide whether governments can pay contractors a contingency fee based on the number of tickets generated by the speed cameras. Continue reading →

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Last week, the Maryland Court of Special Appeals upheld a small verdict in a truck accident case. The issue was the exclusion evidence of the defendant fleeing the scene after a car accident, even though plaintiffs put on a pretty good case that the act of fleeing itself caused plaintiff’s injury. I understand the logic of the holding and understand how the court found as it did. But I disagree with the ruling.

Here are the facts is Alban v. Fiels. The plainaccidenttiffs, a married couple in their 70s, were injured when their truck collided with another truck in Baltimore County. After the accident, defendant briefly returned to the scene and then fled. Witnesses said that the defendant laughed as he drove off. That sounds so crazy, I know. But that is what the opinion said. I’m picturing Jack Nicholson in his Joker prime.

The insurance defense lawyers wisely did not dispute liability. The case went to trial for compensatory damages. The trial court granted the female plaintiff $5,000 in non-economic damages and $5,000 to the couple for their joint claim of loss of consortium. The entire award was $10,000 plus costs. I don’t know what the underlying medical and injuries were, but if you are getting a $10,000 verdict in a jury trial, things didn’t go well.

Plaintiffs’ appeal was based on the inability to get in the “fleeing the scene” evidence. Their attorney argued that it was an error to exclude the testimony of accident witnesses and plaintiff’s psychologist because emotional damages were part of the original complaint. Plaintiff said that her PTSD stemmed from the moments after the accident when defendant returned to the scene. She testified that she feared they would be killed while they were trapped in the vehicle. Plaintiff said that she has had ongoing anxiety problems and has suffered from prolonged bouts of crying and sleeplessness since the accident. Plaintiff’s physician testified that she was permanently disabled with post-traumatic anxiety.

This is a good test case for the idea of admitting this evidence. Often, let’s face it, plaintiffs’ accident lawyers just want to get this kind of evidence in to inflame the jury to hate – appropriately – the defendant. Here, the plaintiffs at least arguably were really hurt by the way defendant fled the scene and it really – at least allegedly, is hard to read these things and know – caused harm. We have plaintiffs in their seventies… it is not a stretch by any means. The trial court stuck to the usual playbook and excluded evidence of the defendant’s post-accident conduct because of its prejudicial nature. Continue reading →

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Louisiana’s Court of Appeals last month issued an unpublished opinion in Rando v. Furr, a case that dealt with the ins-and-outs of uninsured motorist coverage and bad faith claims. Here’s what happened:

A man was driving his motorcycle and was involved in an awful collision with a pickup truck driven by the defendant. He briefly survived, before tragically succumbing to his injuries. The man and his motorcycle were insured through his wife’s insurance—when she originally got the >insurance through Progressive about seven years earlier, she waived uninsured/underinsured motorist coverage. Progressive paid Louisiana’s equivalent of PIP to the tune of $2,500, then said that they had no more exposure.

The deceased man’s wife (and later child) filed a wrongful death claim against the negligent driver and his insurance company (our friend State Farm), as well as Progressive. For whatever reason, Progressive quickly decided that there was UM/UIM coverage in the amount of $50,000/$100,000. They tendered an offer of the full $50,000.00, plus reasonable interest. The plaintiffs demanded the full $100,000, but Progressive (correctly) noted that only $50,000 was applicable, because the wife and child’s claims were derivative of the decedent’s claim.
The plaintiffs included a bad faith claim against Progressive, alleging that it refused to make a timely and unconditional tender of the UM limits, and that claim went to trial after all of the claims against the negligent driver and State Farm had resolved. Trial was apparently a short affair, and there was not much evidence presented. The judge dismissed the bad faith claim, holding that the plaintiffs failed to testify about the cause of the accident, the amount of the State Farm policy, and the amount of damages.

The case is mostly consistent with how Maryland courts would view things. To make an uninsured or underinsured claim, it is important to show that some other person or company was responsible for the accident, and that they have either no insurance, or insufficient insurance coverage. The whole point of uninsured/underinsured coverage is that a driver’s insurance will pay them if they can’t recover from another source. The plaintiffs in this case failed to prove any such thing to the judge. In fact, they probably did receive some money from State Farm—that case was settled on the courthouse steps. Continue reading →