Maryland Injury Lawyer Blog

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.

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.

I received this email from a personal injury lawyer in Maryland this morning:

I have an MIA complaint involving Colossus. Allstate offered the number provided by Colossus and now, of course, refuses to produce any Colossus manuals, etc. Do you have some useful Colossus materials?

I don’t. Maryland’s bad faith law is new and it makes relevant lines of inquiry from Maryland accident lawyers that before would have been completely irrelevant including, as this email suggests, how Allstate values first party uninsured or underinsured accident cases. If any lawyer out there has anything that might be of use that I could pass along, will you drop me an email at ronmiller@millerandzois.com?

As a side note, the American Association for Justice ranks Allstate as the worst insurance company in the country (for consumers, at least). That may be true nationally, I don’t know. But I don’t think it is true in Maryland. I’d rather draw Allstate in a personal injury case in Maryland than I would a lot of other insurance companies. Name names? Sure, why not? It is Friday. I would rather have Allstate then Progressive, MAIF, State Farm, Unitrin, or GEICO.

GEICO is a new addition to my "better than Allstate list." At some point along the way in the past three years, GEICO stole some pages out of that McKinsey & Co. report that told Allstate to put on boxing gloves and added a few pages of their own. Their in-house Maryland lawyers (Besok & Mullen and John Dahut & Associates) are good lawyers that are easy to deal with but we are filing too many lawsuits in GEICO cases that should have settled before a lawsuit was filed. The message for Maryland accident lawyers, as always: if the offer is not fair, encourage your client to file a lawsuit. Too many personal injury lawyers choose the path of least resistance of pushing to settle the case even when the settlement is not fair. This is the reason why the boxing gloves paradigm works.

Continue reading "Colossus and Allstate" »

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.

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 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.