Maryland Injury Lawyer Blog

This is hysterical:

Hello Mr. Miller:

My name is Mary [deleted], and I'm working with Allstate Insurance to ensure they are being accurately and effectively represented online.

I was reading your article "I Support Allstate" at http://www.marylandinjurylawyerblog.com/2012/01/i_support_allstate_1.html and noticed that while you discuss Allstate (thank you for your interesting thoughts) there is no link to Allstate's website for your readers to click on.

I wanted to provide you with Allstate's site in the hopes that you would include a link within your piece. Allstate's website is located at http://www.allstate.com/. Please let me know if you require more information in order to make this edit possible.

Thanks so much for your consideration.

Mary
[Name Deleted]
Performics
On Behalf of Allstate Insurance
111 E. Wacker, Suite 1500
Chicago, Illinois 60601
e:[deleted]

We have our share of struggles with Allstate in car accident and other personal injury cases. Allstate can be a very difficult company to deal with when they are defending either first or third party injury claims. But Allstate just won a big fight - a critical fight for them - in front of the Maryland Court of Appeals. And I'm glad they won.

Allstate decided to stop writing home insurance policies in Southern Maryland, the Lower Eastern Shore, and some properties on or near the waterfront in Anne Arundel County. Why? Allstate thinks that the spate of of hurricanes that have pounded the eastern seaboard in recent years may not be anomalous but instead are the result of increases of tropical sea surface temperatures (or whatever else it might be). Allstate does not care why. What Allstate does know is that it no long wants to bear the risk of catastrophic financial losses if a hurricane hits these at risk areas.

The Court of Appeals agreed that Allstate had a reasonable basis. Judge Harrell, in his dissent, says that Allstate has decided not to write new homeowner’s insurance policies in these areas because of an unsubstantiated fear of a hypothetical force of nature, a Category 2 or greater hurricane making landfall in Maryland. I agree. But is he sure? Couldn't reasonable minds differ on this? Does anyone really have an handle on the degree that global warming is going to impact the future? I think the answer is that no one really has a clue and, accordingly, Allstate should be given the discretion to decide for itself. I also think the applicable laws - § 19-107 and § 27-501 of the Maryland Insurance Article - give them that ability.

Continue reading "I Support Allstate" »

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" »

Dear USAA:

You have some of the best, most sophisticated adjusters of any car insurance company out there. Generally speaking, you make more reasonable settlement offers than the other companies with big car insurance market share in Maryland (better than GEICO, State Farm or Allstate). Sure, you force us to try some cases against you to pay our clients a fair settlement value. And, yes, you would probably shoot your own parents in the head to save a buck. But, really, in the insurance company world of relativity, you are not that bad.

Now that I have finished the flattery, could you do me one small favor? Teach your insurance adjusters in personal injury cases that there is something called the collateral source rule in Maryland. You simply cannot deny a lost wage claim because you "suspect the client was being paid anyway."

At first, I thought it was just one bodily injury adjuster at USAA who did not understand Maryland law. But I'm now convinced that less than half of USAA adjusters understand this rule.

Even more maddening, when the adjuster is called out on this obvious point of law that Maryland has had for - count them - 112 years, that the claimant is paid for time missed from work regardless of whether they used vacation time or their employer paid them out of the goodness of their heart, USAA adjusters simply refuse to admit or deny the existence of the collateral source rule.

Thank you in advance for your anticipated cooperation.

Sincerely,


Ron Miller

Continue reading "Dear USAA: An Open Letter" »

In State Farm v. Cavoto, a Pennsylvania appellate court decided a battle between two parties that are always at odds, State Farm and chiropractors. Usually, the skirmishes between these parties are fought by proxy but, in this case they faced off directly.

Essentially, State Farm got fed up with paying chiropractors who were billing for adjunctive procedures performed by support staff who were not licensed. Particularly, and arguably understandably, annoying to State Farm was unlicensed people applying hot and cold packs, turning on and off mechanical devices, using a traction machine and assisting in therapeutic exercises. I'm sure that most infuriating to State Farm is paying for someone without medical training to apply hot and cold packs. If you can't see why State Farm takes exception to that -regardless of how you view the merits of it - you may have had one drink too many from the plaintiffs' attorney Kool-Aid.

The appellate court didn't look at the case quite that way. Instead, the court applied the law that appears to allow unlicensed staff members to provide some treatment. The court reasoned that the real medical care was the decision to give the hot or cold packs and for how long, not who applied them. Similarly, the court reasoned, most elements of applying electrical muscle stimulation, ultrasound, and the like do not require specialized skills, as long as there is a chiropractor making the decisions about the details and how the therapy should be applied. Accordingly, the court remanded the case back to the trial court to "make more specialized findings and determine whether any of the procedures allegedly performed by unlicensed personnel required formal chiropractic education or training, including further inquiry by the court as to the scope of those procedures."

Continue reading "State Farm v. Chiropractors" »

I read four personal injury related appellate opinions that were published last week that I think are worth reading:

Thibodeaux v. Trahan: Like most personal injury lawyers, I have been hit with post-trial remitter motions from defense attorneys claiming that the jury’s verdict was unreasonably high. But no plaintiff’s lawyer is silly enough to file a post-trial motion for additur to raise the verdict because it is never going to work. I think federal law prohibits additur in federal court jury awards.
Someone forgot to tell the Plaintiff’s lawyer in this rear-end accident bus case in Louisiana who appealed the trial court’s failure to award future pain and suffering. The appellate court changed not only the comparative negligence allocation but increased the plaintiff’s damages, finding that the trial court failed to award enough damages.

Crazy, right? The facts were unique. This was a bench trial where the trial judge specifically found that the Plaintiff will need future surgery for her knee but did not award damages. Juries, I guess, get a pass on inconsistencies in their verdicts because it could be the result of compromise. But a trial judge deciding damages cannot form a compromise in her own mind and has to make an award consistent with the court’s findings. (Actually, I read this malpractice opinion that was decided last Thursday that makes a similar point.)

Louisiana law allows the appellate court to increase the award to the lowest amount reasonably within the trier of fact’s discretion. I don’t think Maryland law prohibits additur but there is no recorded case in Maryland where the trial court increased a damage award. I don’t know why, if we have remitter we should have additur under Goose v. Gander.

Osorio v. One World Technologies: The First Circuit affirmed a $ 1.5 million award in a product liability case in Massachusetts involving a defectively designed power saw that Plaintiff’s employer bought at Home Depot.

Plaintiff’s hand injury occurred on a construction site while operating a $179 Ryobi Model BTS15 benchtop table saw bought at Home Depot. While cutting a piece of wood, Plaintiff’s left hand slipped and went into the saw’s blade.

Plaintiff’s attorney put up a witness at trial who invented a device that allows a table saw to sense when the blade comes into contact with the user’s body and stops the blade from spinning. This is very cool, of course, but none of the major table saw manufacturers bought the invention.

Plaintiff’s theory as to why? Basically an Oliver Stoneian conspiracy theory that the manufacturers' failure to incorporate this invention is because of a collective understanding that if any of them adopts the technology, then the others will face heightened liability exposure for not following suit.

Honestly, I’m not sure that entirely even makes sense and I really doubt that is what happened. The messenger is a bit suspect, too: the guy who failed to sell table saw manufacturers on his technology.

Continue reading "Four Personal Injury Opinions From Last Week You Should Read" »

New Maryland Law This Week Will Require Insurance Companies to Disclose Their Insured's Policy Limits

Every personal injury attorney in Maryland has at some point become frustrated with an insurance company over game playing with respect to the their client's insurance policy. Under current Maryland law, an insurance company is not required to disclose its policy limits although such information is readily available in discovery after a lawsuit is filed. Some adjusters would give you enough information with a wink and a nod to figure it out. But most insurance adjusters just stand the party line like robots and say "Our policy is not to give out that information."

Injured clients understandably find this maddening: we tell them they are better off waiting until there is clarity on permanency before filing a lawsuit. But in some case, this means lying around in pain having no idea if you will ever be adequately compensated for your loss. It is maddening.

Starting on October 1, 2011, insurance companies will be required to disclose their policy limits if the following information is provided to them:

Continue reading "New Maryland Accident Law: Useful Change for Personal Injury Lawyers" »

(Update: This is a done deal for $760 million.)

Nationwide Insurance, the eighth-largest passenger car insurance company in the country and the fourth largest in terms of market share in Maryland, is negotiating to buy Harleysville Mutual Insurance. Harleysville is a small time player in the Maryland passenger insurance but we do see a lot of them in truck accident and other commercial accident cases.

Here is the Bloomberg article on the potential merger and our analysis of dealing with Nationwide Insurance on car and truck claims in Maryland.

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

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" »

Last week, I wrote a largely upbeat post about a U.S. District Court in Arizona opinion in Haro v. Sebelius as hopefully a harbinger for a less draconian system governing the logistics of dealing with Medicare/Medicaid liens in personal injury cases.

But the rain is getting a little heavier before the rainbow. Medicare/Medicaid has stopped sending Rights and Responsibility (RAR) and demand letters while trying to figure out just how to deal with Haro v. Sebelius. So trying to get Medicare on the phone for information is a challenge squared. My office spent two hours - literally on hold - last week. "On hold" is the operative phase - lien resolutions are at a standstill which is tough medicine for everyone.

Continue reading "Haro v. Sebelius Fallout: Good and Bad" »

Maryland drivers are ranked just behind Washington, D.C. as the dumbest drivers in the country, ranking 49th in driver knowledge a new GMAC Insurance study. Last year, Maryland ranked 20th.

Statistically, it is a remarkable shift that could not be the result of mere chance. There are two possible explanations for the disparity. The first is that the rest of the nation is working hard on learning about driver safety and Maryland is just not keeping up. This appears to be the view of the "Take Everything at Face Value" Baltimore Sun, which draws with ease meaningful conclusions from this study.

The second is that this GMAC Insurance study uses the same rigorous methodology as my mom's study on the efficacy of Vitamin C (her kids did not get sick much) and the only reason GMAC Insurance puts out this silly study is to attract publicity from idiots like me and, more importantly, the Baltimore Sun, reminding everyone that GMAC Insurance still exists.

Ignoring a little known statute that requires that the Maryland Insurance Commissioner and similar positions must be filled by white men in their 50s, Governor O"Malley has appointed Therese Goldsmith as the new Maryland Insurance Commissioner.

Most Marylanders have no idea what the Maryland Insurance Administration does, picturing that old white guy with his secretary and two minions. But the MIA is a major operation with a $30 million budget. It employs a zillion more people than you think.

Therese M. Goldsmith graduated from University of Maryland Law School in 1998 and went to Venable. She made partner in short order at Hogan & Hartson. Governor Martin O’Malley appointed her to serve as the Maryland Public Service Commission in 1998, which regulates public utilities and some transportation companies in Maryland. Now she is stepping into Ralph Tyler shoes who is now with the FDA. I don't think I agreed with Ralph on everything but he was a good guy who was kind enough to regularly speak to my insurance law class at UB.

I approve this nomination. Based on what information? As usual with this kinda stuff if you are not an insider, very little. Reading attenuated tea leaves, Goldsmith did handle a racial profiling case against the Maryland State Police back when she was at Hogan & Hartson. Being against racial profiling does not exactly establish pro consumer/victim bona fides (who exactly is in favor?) but being willing to do so on behalf of the ACLU (a group even I find over-the-top sometimes) is a hopeful harbinger of an inclination to protect victims of insurance abuse.

(Then again, Gerald Ford probably thought he had a good, safe conservative pick with John Paul Stevens. And people from big law firms scare me because they may have drank the Kool-Aid served there. So who knows?)

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?" »

The Lawyers Logbook has an article on truck accident claims by John F. Romano that I really liked. I read a lot of articles by lawyers on handling personal injury cases. Honestly, you have to kiss a lot of frogs to find something interesting or useful. Usually, what you get is a lot of trite advice providing information that you already knew. (If this blog is doing that, tell me and I'll stop writing immediately.)

John's article has an "I can feel you have been in the trenches" vibe with real insightful commentary. His favorite from the article was his theory that you have to be on guard of what he calls "the man behind the curtain" strategy.

If you have handled large cases, you know exactly what it is. "Hey, Ron, what are we doing here? Let's get this case settled. Give me a real demand and let's get this thing behind us."

John's angle on this is that it causes you to drop your guard and assume the case is going to settle early. I actually don't think many good personal injury lawyers drop their guard in this situation and, to the extent that they do, they have the make-up speed to get the case back on track. The best plaintiffs' lawyers load before firing - your case should be ready to go when you file the lawsuit, anyway. So, maybe you take a few late deps but it all should work out the way it would have before the bait and switch.

But I think some of the best personal injury lawyers do get tripped up by this tactic in a different way. The lawyer goes back to the client and says, "If we could get X, that would be a great value for this case. Would you be willing to accept X? Client agrees to X. So the lawyer demands X + 50%. The defendant does nothing with the offer and the case proceeds. The lawyer realizes the whole thing was a ruse and gets back to the business of getting the case ready for trial.

Continue reading "Settlement Tactics in Large Personal Injury Cases" »

Insurance companies have "go to" doctors for "independent" medical exams. These doctors operate by either (1) the sincere conviction that virtually no one is as hurt as they say they are or, (2) by financial motivation.

My money is typically and cynically on the latter. Certainly, there are some true believers but I suspect most of the true believers retrofit their zealotry to match their economic interest. These are doctors insurance companies name as experts before they ever speak to them. It makes sense: they don't have to because they know exactly what the expert is going to say. We rarely need to depose them because I could write their testimony out for them. The insurance company knows what they are going to say, I know what they are going to say, the judge knows what they are going to say. Like Avon Barksdale said, "The game is the game."

Continue reading ""Go To" IME Doctors " »

Subrogation allows insurers to recover the costs of reimbursing injured insured parties. Consequently, virtually every health insurance company involved in a car accident or medical malpractice case in Maryland demands repayment - to varying extents - of the money they have spent and have established various byzantine procedures for dealing with repayment of their subrogation interests. Sometimes, it is the toughest part of resolving any personal injury case.

Understandably, clients are astounded that their health insurance company demands to be paid back for the expenses they have incurred in an accident or medical malpractice claim. They never had to pay back any money their health care provider has paid in the past, including [fill in the blank bad thing that happened] to their family. So why now? The question has an answer but no one ever likes it. "So the insurance company gets paid back and keeps my premiums?" Logically, it is a hard sell.

Continue reading "Maryland Insurance Liens in Accident and Malpractice Cases" »

Last month, I wrote about GEICO's efforts to get me to indemnify them from any liens or medical bills after settlement of a car accident case. GEICO's request just rubs me the wrong way. But I never saw until today any authority for the question of whether a personal injury lawyer is even permitted to do what GEICO was demanding.

Now I do. This Florida Bar Staff opinion analyzes the issue and says lawyers cannot ethically guarantee anything because it is tantamount to guaranteeing payment of medical bills (which lawyers cannot do). The opinion cites a host of jurisdictions that are in accord: Florida, Ohio, Indiana, Missouri, South Carolina, Wisconsin, New York City, and Illinois.

I don't know how Bar Counsel in Maryland would rule on this but Maryland has the same law with respect to the scope of financial assistance lawyers can provide to clients so I would expect Maryland to come out similarly.

I settled a case with GEICO. They send me - personally - a Hold Harmless and Indemnification Agreement holding them harmless from any claims for medical liens, medical bills, and pretty much any claim that could be brought of any kind before they will send out a settlement check. Here is a copy of what GEICO wanted me to sign. You will see it makes no sense. My client and I are on the release but there is just one signature line.

I told the adjuster, "Look, we already settled the case. Now you are putting conditions on a new party, namely me. That seems reasonable enough. But are you willing to personally throw $100 into the settlement yourself? That is my new condition."

I thought this was funny and illustrative. The GEICO claims adjuster? Less so. Instead, he starts rolling off a list of lawyers who have signed this hold harmless agreement. Literally, it was like a who's who list of "prolific" Maryland accident lawyers who have been around forever and I believe have never tried a serious personal injury case in their lives. Just funny he would be name dropping those lawyers.

Continue reading "GEICO Just Kills Me" »

Before a client executes a release or signs a check for a property damage claim, I want to review the release if they have a potential personal injury claim from the accident. Particularly in uninsured motorist cases but this paranoia extends to every type of accident case.

Why? I don't want the insurance company to try to pull a fast one and slip in a full release under the guise of a property damage release for the client's car.

In years past, after looking at approximately one zillion property damage releases, the Oliver Stone conspiracy has never come to pass. Insurance companies have always been straight with me. Until this week...

Continue reading "Property Damage Claims Releases" »