Maryland Injury Lawyer Blog

I almost universally like Progressive insurance adjusters. Progressive's claims adjusters seem nicer, more professional, and less inclined to take cases personally than a lot of other insurance companies. I can say the same thing about Progressive's lawyers. Most are decent, straight shooters and good lawyers. Oh, yeah, Progressive's stock (NYSE:PGR) has done fairly well since early February.

I've fully exhausted the list of nice things I can say about dealing with Progressive. This insurance company just does not make fair settlement offers in car accident cases. I believe that in a given case if you could line up all of the insurance companies and ask each one to make an offer based on their evaluation of the injuries from a car accident, Progressive would give the lowest settlement offer on that case. I also think Progressive would be the first to deny liability in an accident case.

Why does Progressive do this? Largely because it often has so little to lose. My theory with Progressive is that it tries to compete on the Internet for car insurance buyers fighting hard for the lowest price. These are often the same buyers who are not willing to set their liability insurance limits at a reasonable amount. When you trademark the phase "Name Your Price" in selling insurance, you are probably not selling a ton of coverage. So with its small insurance policies, often $20,000 in Maryland, Progressive can stick its neck out knowing that, in the end, it can fold before trial and their exposure is limited.

For example, we have one tough case where a man's life was pretty much destroyed by a car accident in Ocean City. It is a rear end accident, he only has around $20,000 in medical bills but he needs a future surgery. So what is Progressive's settlement offer in the case? $5,400.

So Progressive hires its own expert to say the guy is not hurt, right? Actually, no. Progressive's own expert did an "independent" medical exam and found that all of the medical bills were related and agrees that all of the treatment was necessary. Don't take my word for it, this is the defense expert Progressive hired in the case. (Here is a redacted copy of Progressive's doctor's independent medical exam.) I think it is beyond ridiculous that this expert suggests that half of his surgery should be attributed to his preexisting condition because he had "mild degeneration of the cervical spine" before the accident. But even if all of the plaintiffs' treating doctors get the Ebola virus, even if Progressive's expert becomes our expert, our recovery at trial is going to be far, far in excess of Progressive's policy limits.

Progressive has a small in-house defense firm in Maryland and does not have the resources (I should say has not set aside the resources - Progressive has lots of resources) to wage war with plaintiffs' lawyers throughout Maryland. So Progressive will often increase their settlement offers substantially after a lawsuit is filed. In this case, Progressive has rung up a lot of legal bills but will still have to settle the case for the policy limits. It would have saved Progressive a lot of litigation costs to properly evaluate this case at the outset.

The Maryland Daily Record published a three part series over the last month on mediation in Maryland personal injury cases, a piece I wrote with the Honorable Clifton J. Gordy . You can read the articles on-line but you have to be a subscriber to the Daily Record to read the entire article.

• Part I of Mediation in Personal Injury Cases
• Part II of Mediation in Personal Injury Cases
• Part III of Mediation in Personal Injury Cases

Yesterday, the Maryland Daily Record published the first of a three part series I wrote with retired Judge Clifton J. Gordy (now a mediator and arbitrator) on mediation in serious personal injury and wrongful death claims. The article is for both plaintiff and defense lawyers looking to make mediations as productive as possible. Take a look at yesterday's article and look in coming editions for the final two parts.

The Baltimore Sun's Jay Hancock continues, improperly, to be given a license by the Baltimore Sun to blog about tort claims while having a limited understanding of Maryland tort claims. I think, and maybe it is just me, this is a bad idea.

He notes in his blog some great news: traffic deaths for Maryland in 2009 were 550, which is 550 too many but down from 614 in 2007 and 707 in 1990, even though Maryland has many more drivers on the road today than it did in 1990. Hancock goes on to assume that we "can be reasonably sure that traffic deaths are a good proxy for accidents, injuries and lawsuits generally," concluding that Maryland accident lawyers "want a raise" by increasing minimal auto insurance policies drivers must maintain in Maryland.

First of all, I don't know why we can be reasonably sure that deaths are a good proxy for accidents. Gee, you are a newspaper reporter, can you look up accident statistics in Maryland to find out the trend in the number of personal injury claims? Moreover, the belief that Maryland accident lawyers will see an appreciable difference in income by raising the insurance limits from $20,000 to $30,000 isn't valid because, as one of the comments to the post points out, there are not that many cases that are (1) valued between $20,000 and $30,000 and (2) where there is no uninsured motorist coverage. Sure, our law firm and every other personal injury law firm is going to have cases like this but, relatively speaking, it is a drop in the bucket. Trust me, Maryland trial lawyers looking to push legislation that puts more money in their pockets, don't rank this bill among their top 10. But it does help some victims that are likely going to get an unfair result anyway.

Hancock also claims - as he has before - that lawyers typically take 30% of the recovery. Actually, that is not what is typical. Hancock goes on to say that auto accident cases often settle for the policy limits. I would love to know what Mr. Hancock thinks the average auto accident case settles for in Maryland. I think he would be surprised.

I read Jay Hancock pretty regularly. He's a smart guy and a good writer. And his blog post is actually not an assault on Maryland accident lawyers: he is stating a rather obvious economic argument. But if you read his articles about medical malpractice lawsuits or car accident claims, you just get the impression that he really has no idea what he is talking about. This is the Baltimore Sun, not the Mayberry Times. Can't The Sun find someone to write on these legal issues that has something north of surface knowledge?

• Bill passes Maryland House of Delegates
• Details on the bill
• Baltimore Sun's editorial on bill

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

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

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

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

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

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

Continue reading "MAIF" »

Nora Freeman Engstrom writes an amazing article for the Georgetown Journal of Legal Ethics titled Run-of-the-Mill Justice. She writes about settlement mill law firms, writing with a 60 Minutes investigative journalism style that names names, calling out a few law firms she has labeled as settlement mill firms. Engstrom characterizes these firms as "characterized by their high claim volume, aggressive advertising, significant delegation to non-attorneys, entrepreneurial focus, and quick resolution of claims, typically without initiation of suit."

There are about 10 different facets of the article I find interesting. I found of particular interest the idea that settlement mills create a "one size fits all" (my words, not hers) kind of justice. Under this system, individualized pain and suffering does not exist for settlement purposes.

What matters, then, for car accident settlement purposes in non-serious injury cases is the amount of the medical bills, what the injuries are, and how much damage was done to the vehicles. Plaintiffs' car accident lawyers have blamed this on a paradigm shift in the thinking of insurance companies in the 90s, This article argues, quite convincingly, that many plaintiffs' lawyers are unindicted co-conspirators in this system.

The author overlooks that settlement mill auto accident law firms are just one contributing cause. The opposite extreme is equally to blame, lawyers who have very small practices and no real marketing presence that do that exact same thing. Take the case, send in the medical records and bills, and settle the case for whatever you can. There are tons of local lawyers parading as lawyers suited to handle car accident claims. The bigger problem? These same lawyers get serious injury accident cases, typically car accidents, where the victim's financial future is at stake. These lawyers take the case because they can't resist and the results are often disastrous. Settlement mill law firms often have the good sense to refer these cases out, realizing they are asking for a legal malpractice lawsuit. Often, the guy with the office on the corner that does wills, criminal, domestic, and everything else under the sun does not have this same sense.

Of course, it is a mistake to label every solo general practitioner as incompetent to handle large auto accident cases just as it is a mistake to assume every firm that runs massive amounts of television commercials as settlement mills.

What is a good plaintiffs' auto accident lawyer to do if he does not want to get caught up in this mess that has been created? If you have a client who wants to settle their auto accident claim quickly and at any price, you are going to be a victim of this system. There is no way out. But if you have a client that wants to maximize the value of their case, there is a simple answer: file suit and request a jury trial. The insurance company is either going to pay at least a reasonable value on the claim or it is going to go to trial where a jury is going to give you the fair value of the case. Because a jury is the ultimate definer of the fair value of a case.

The Maryland Insurance Administration has now given its stamp of approval on Allstate's use of "Colossus 7.0.2+ Assessment for General Damages" and "Decision Point Medical Expert", software programs as tools to "honestly and accurately" asses the value of first party insurance claims. If you are a Maryland accident lawyer contemplating a first party bad faith claim against Allstate, be prepared for the "computer agreed with me so it must be good faith" argument from Allstate insurance claims adjusters.

• How Colossus Works
• Who Uses Colossus?
• Colossus and Allstate
• How Insurance Companies Value Accident Cases

Accident lawyers attempting to negotiate settlements with insurance companies tend to view insurance companies as monolithic, i.e., "Insurance Company A is difficult' or "Insurance Company B is easy to deal with on claims."

It is an oversimplification. Claims practices by different insurance companies vary from state to state and even from insurance claims adjuster to insurance claims adjuster. But, certainly, each insurance company has its own history, policies and "world view" of handling auto accident claims.

It is also worth noting that the similarities of individual insurance companies tend to vary inversely with the severity of the accident. This is because larger cases invariably require more discretion on the part of the insurance adjuster, and serious injury cases are given to more experienced adjusters who are given more trust from the insurance company.

With all of that said, we have analyzed some of the larger insurance companies:

• State Farm
• Allstate
• Geico
• Nationwide
• MAIF
• Erie
  

I found this nugget from a hearing transcript in a brain injury truck collision case where we are trying to require the defense's medical expert to provide a modicum of documentation regarding the amount of income he earns from insurance companies:

There are a lot of experts on both sides of the aisle who may as well be independent medical examiners because they are honest doctors who just call it as they see it. The problem is that insurance companies - and plaintiffs' accident injury lawyers too but I think to a less extent - frequently stick with the "known known" - as Donald Rumsfeld would say - and only use experts that are the opposite of independent.

• Our Conditions for an Independent Medical Exam: the defendant will rarely comply this request but a subpoena requires the defendant to consider the requests/li>

• Thoughts on Cross Examining IME Doctors: sample cross examination questions
• Should Lawyers Videotape Independent Medical Exams?
• National Law Journal Article on IMEs: an article I like because it quotes me
• USALawyers Article on IMEs: another article I like because it quotes me - I'm easy like that.
• Response to Protective Order for IME Doctor Not to Produce Financial Records

I've joined the 21st Century this year and started using PowerPoint in my insurance law class at the University of Baltimore School of Law. I've been a professor at UB for 11 years, teaching every semester. But after five or six classes using PowerPoint, I really can't imagine teaching without it. It gives the students something more tangible to grab onto and I think it makes a difference.

The only caveat is that you become a little to wedded to the presentation which, if you are not careful, can present a barrier between you and your students. I felt it yesterday for a moment where I thought I was sticking too much to the outline and thinking where my next slide was going as opposed to truly listening to what the students were saying. I got back on track, but I think it is always something to keep in mind.

Anyway, I know for past comments to this blog that I have a few insurance law professors reading this blog. If anyone out there is teaching Insurance Law and is using PowerPoint slides or any other demonstrative teaching aids, I would appreciate it if you would send me what you have. You can review my PowerPoint presentation for my insurance law class here.

The University of Notre Dame provides a good list of tips for giving PowerPoint presentations if anyone is interested.

• Insurance Law Syllabus (my syllabus, using Insurance Law: Cases and Materials by Henderson and Jerry)
• Michael Abramowicz's Insurance Law Syllabus
• Sample Insurance Law Exam

There is good article on lawsuits involving Little League teams (and participant sports generally) in LawyersUSA this morning which includes a number of quotes from me.

Five years ago, I had never heard of Ameriprise Auto & Home Insurance. Now, I'm seeing more and more Ameriprise claims that involve an Ameriprise insured defendant. Ameriprise certainly does not have a lot of market share in Maryland. But the Ameriprise website claims it is one of the fastest growing insurance companies in the country. Based on the rise in Ameriprise claims in Maryland, I believe it.

Anyway, the point of this post: the settlement offers that have been coming in from Ameriprise have been worse than awful. Ameriprise clearly has a hard ball business model. This may or may not work for them.

But the take home message for Maryland accident lawyers is clear: you are going to need to file a lawsuit and try some accident cases against this insurance company to get their attention.

If anyone has an experience with Ameriprise worth sharing, particularly accident lawyers in other jurisdictions that see Ameriprise more than we do in Maryland, please give us your thoughts in the comment section below.

• State Farm
• Allstate
• Geico
• Nationwide
• MAIF
• Erie
  

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" »

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" »

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" »

We have added to the Personal Injury Lawyer Help Center a list of mediators in Maryland handling personal injury cases.

Our law firm uses this list when someone suggests mediation (or arbitration) just to get a feel of who is out there doing these mediations. Some of these mediators we have used before and highly recommend. Others on this list we specifically would not recommend (at least for plaintffs' accident and medical malpractice lawyers) or have never used and simply heard they conduct mediations. So, again, this is not a suggested list for plaintiffs' lawyers or defense lawyers. (I feel like I'm saying the same thing over again; I just want to be clear that we are not endorsing anyone on the list.)

Moreover, there is no criteria to be on this list. If you are a mediator or arbitrator in Maryland and you want to be added (or removed) from this list, email Claire@millerandzois.com with the subject heading "Maryland Arbitrator/Mediator." But please do not request to be added to the list if you have not mediated or arbitrated any personal injury cases in Maryland in the last few years.

Many of these mediator/arbitrator list are former judges. They have not been identified as judges for fear that we did not properly designate a retired judge.

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.