Maryland Injury Lawyer Blog

I've been asked by Trial, the Journal of the American Association for Justice, to write an article on mediations in death and catastrophic injury cases. The article will contain a section about preparing your client's for the mediation process which is what I did yesterday last week in a wrongful death truck accident case, meeting with the decedent's 15 year-old daughter and her mother, and the victim's mother and three children. Just a wonderful family.

It is grueling to have to relive with a nice family the death of someone they loved so dearly. The hardest thing we do here is digging deep into the lives of those who experienced awful suffering. But as difficult as this process is, it also makes you feel a lot better about going to work every morning. In an age where personal injury lawyers are routinely vilified by the media, doctors, and politicians, it is uplifting to be reminded of why we left our defense lawyer hats behind to represent seriously injured victims.

Reading this back, I realize this all sounds trite. I hate reading personal injury lawyer blogs that blather on about how we are saving the world. I realize that my job is about 1/1,000,000th as important as some doctor risking his life for Doctors Without Borders in Somalia right now. I get where I fit in the circle of life. That said, even forgetting for a second the macro benefit of being a part of a system that holds people accountable for their actions, I think trial lawyers – particularly those that genuinely care about their clients – are making a big difference in the lives of many people who need our help the most.

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

Interesting data from Jury Verdict Research on the median and average values of wrongful death cases where the decedent is female. The overall average compensatory award for wrongful death of an adult female over the last eight years in the United States is $2,990,032 ($1,102,976 is the median).

Age is a big variable when looking at median and average female wrongful death values. The average wrongful death verdict for a female between 18 and 24 is 2,990,032 ($1,102,976 median). For females between 30 and 39, women who are far more likely to have left behind children, the median wrongful death verdict escalates to $5,605,127 ($2,500,000 median). For women over 80, the average wrongful death verdict plummets to $1,314,241 (322,920 median).

I always find it maddening when insurance companies discount the value of human life in wrongful death cases because of the age of the decedent. If you are eighty years-old and you are killed, those last 10 years of seeing your kids as adults, your grandchildren coming of age and everything else that comes with it are incredibly valuable years. But these numbers, regrettably, demonstrate that there is some logic to their thinking when it comes to how juries value wrongful death cases.

Approximately 62% of the non motor vehicle wrongful death claims in this study are medical malpractice and wrongful death claims – particularly with older patients - so it is reasonable to assume that many of these wrongful death verdicts were compromise verdicts.

Related Posts:

How Lawyers and Insurance Companies Value Personal Injury Cases (summary and report on settlements and verdicts by injury type)

Value of Personal Injury Cases in Washington D.C. (District of Columbia settlements and verdicts)

Valuing Cases in Virginia (average settlements and verdicts in Virginia)

Personal Injury Verdicts Across the Country (personal injury verdicts in your state)

Wrongful Death Settlements and Verdicts in Maryland (wrongful death values)

Value of Wrongful Death Motor Vehicle Accident Cases in Maryland (average settlements and verdicts)

The Baltimore Sun reports that car insurance companies in Maryland are resisting the Maryland Automobile Insurance Fund's (MAIF’s) car insurance rate-lowering proposal because MAIF’s plan to lower rates puts the private sector at risk. After a hearing in Baltimore, Maryland Insurance Commissioner Ralph S. Tyler delayed ruling on some insurance companies’ objections to MAIF lowering their rates.

Let me get this straight. Car insurance companies cannot compete with a non-subsidized state run agency. Was Marx on to something? No, we all saw the Beijing Olympics; capitalism seems to be working just fine.

Is this really where we are? Private car insurance companies need protection from competition by MAIF? I’m not sure what the private insurance companies’ arguments are on this issue. The only argument offered by the Baltimore Sun was provided by Hal S. Katz, president of Baltimore-based Interstate Auto Insurance (IAICO). Also specializing in writing Maryland car insurance polices for drivers that have a history of trouble, IAICO complained that MAIF does not enforce its requirement that it provide car insurance only to drivers who have been rejected by two private companies.

My response to IAICO is, so what? Why can’t IAICO compete with MAIF on a level playing field without having to run to Ralph Tyler to complain that MAIF’s prices are too low? The average MAIF policy now costs $2,400. It is not like they are giving car insurance away. Either IAICO is not running their business very well, or - and this is the more likely explanation - it does not want any competition to interfere with its gouging of Maryland drivers with shady driving records or credit scores, often the people that most need the lower rates that come with competition.

Also, if MAIF has a $170 million surplus, as the Baltimore Sun reports, would it be a bad idea for MAIF to stop writing 99% of its policies at 20/40/15? If MAIF is a quasi state owned company (MAIF is not even an insurance company as defined by Maryland law), couldn’t it be in the best interest of MAIF policy holders and Maryland accident victims for MAIF to raise its policy limits to 30/60/15, at least protect its policyholders from district court (non jury trials) where the jurisdictional maximum is now $30,000?

While I’m spending MAIF’s $170 million surplus, here’s a quick plug for the enemy - the accident lawyers MAIF hires to defend its car accident cases. One of the big problems we have with MAIF, as John Bratt points out in the Baltimore Injury Lawyer Blog, is that they offer their small insurance policies too late in many cases to protect their insureds under Maryland's pay-to-play statute. Maybe if these lawyers – many of whom are fine personal injury lawyers – were paid a little more, they might have the time to figure out from the beginning whether it is an excess case where the policy should be tendered. It couldn't hurt. Even more importantly, MAIF could spend the resources to figure out which auto and truck accident cases are policy cases from the beginning. This is an investment that would actually save MAIF a ton in lawyers’ fees.

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.

Insurance Settlements, a two volume treatise for which I am the lead author, is now available from James Publishing. This treatise is for personal injury lawyers handling auto accident, truck accident, medical malpractice and product liability cases with a lens toward getting the best possible outcome at all stages of these cases (though trial). The better title for the book - with the benefit of hindsight - would have been "Maximizing the Value of Personal Injury Cases." Maybe I can convince James Publishing to change it down the road.

I’m excited about the book. If you are interested getting a copy, click on this James Publishing link. If you have any comments on the book, please email me at ronmiller@millerandzois.com under the subject "Insurance Settlements Questions or Comments."

The Baltimore Injury Lawyer Blog has a interesting post about Baltimore City juries from the perspective of a Maryland accident lawyer.

The Baltimore Sun reports that the presidents of the University of Maryland, Towson University, Washington College, Johns Hopkins, Goucher College and Washington College among other schools have signed off on a letter urging Congress to lower the drinking age to 18, saying we need to stop relearning the lessons of Prohibition.

We need the authors of “Freakanomics” to help us sort this out. There is no question that drunk driving deaths decreased when the age was increased from 18 to 21. But the 80s also saw a great increase in awareness at the same time we were raising the drinking age around the Country.

I saw a Happy Days episode – filmed in the 70s - where Potsie, Ritchie and Ralph were having a little flea market at Arnold’s and they were selling a driver’s license Ralph billed as “Buy this and drink and drive in all 50 states.” Can you imagine that today? Lou Dobbs' head would explode.

(As luck would have it, the Baltimore Sun also reported today that yesterday morning a statute of Fonzie was unveiled in Milwaukee. Shirley Feeney (Cindy Williams) was on hand. When some crackerjack report asked Ms. Feeney for comment on the opinion of some that it harms Milwaukee’s cosmopolitan image to remind everyone that these mindless television shows were set in Milwaukee, she said: “Who are these people? Let’s get a loudspeaker and drive through the neighborhoods. Why wouldn’t they want to be part of the pop culture as well as the ballet, the opera and other arts?” Statistically, I find the occurrence of these four events improbable: (1) Some reporter taking a hard journalistic angle at this story and asking that question; (2) Ms. Feeney’s answer suggesting we get a loudspeaker and go through the neighborhoods, (3) the writer of the story and his/her editor publishing the quote, and (4) my taking up 175 words with this digression when talking about such an important issue. I think the odds are at least 10-1.)

The federal government forces states to keep their drinking age at 21 years via the National Minimum Drinking Age Act, which mandates that states with a drinking age lower than 21 will lose 10 percent of their federal highway funding. No state can afford this loss.

I’m against lowering the drinking age. I don’t think that because there is a problem with underage drinking that “doing something” is the solution to the problem. Sometimes “doing something” can make a bad problem worse. But these university presidents are smart people. When a lot of smart people who are close to a situation take such a strong position, we would all be foolish not to hear them out.

The Missouri Supreme Court found last week that a truck driver who was in a truck accident with another driver can sue for the emotional damages he suffered when he saw the dead victim in the other car. I'm not sure the decision is legally wrong. But it would not fly in the court of Moral Justice court.

The Plaintiff is seeking $1,623.57 in medical bills, and past and future lost wages in excess of $45,000. This is a bogus claim alert right there. You shouldn't lose $45,000 in wages and have such small medical bills in 99.999% of the cases. But here is what is worse: the defendant lost his two year-old daughter due to his own negligence which has to be the most awful feeling in the world. His emotional distress from the truck accident - albeit his fault - is through the roof. Now this truck driver brings a lawsuit. There are some things that we can do in this life that we just should not do.

Oh, wait. It gets worse. In the lawsuit, the Defendant sought and received the following admissions:

(a) The "worst image" for plaintiff was the "the 'baby' lying in the mangled car";

(b) Plaintiff experienced "a great deal of grief for the child who died";

(c) Plaintiff experienced the "paradox of knowing he had no responsibility in her death and wanting her to forgive him at the same time"; and

(d) Plaintiff "visualize[d] the little girl being in heaven" and "said she's the lucky one."

The last one in particular - even if theologically correct - marks the Plaintiff as deranged and I'm surprised the majority let that go without even a comment. The truck driver is telling the father that his loss is worse than his daughter's. The crazy paradox is that anyone so grief stricken over the death of another would be willing to subject the father who caused the death of his own two year old child more grief.

If you hate plaintiffs and personal injury lawyers, I have certainly given you some fodder today. I think you are wrong; I would love to convert you. But it won't happen today.

The National Law Journal has an article on the increasingly contentious battleground over the circumstances of “independent medical exams.” Personal injury lawyers in Maryland in car and truck accident cases are increasingly battling over the terms and conditions of the plaintiff’s medical exam, from who can attend the exam to more substantive concerns like the production of the IME doctors’ financial records. In the last 24 hours we have had two separate disputes with defense lawyers that we like and with whom we regularly cooperate. One involves the defendant’s lawyer wanting a doctor in Washington D.C. that just coincidentally is outside our subpoena power. Interestingly, the doctor lives in Maryland but has an amazing skill of evading service. (Does that show up on his C.V.?)

You can find the entire article here which includes a quote from me.

Related Posts:

Our Conditions for an Independent Medical Exam (IME)

Should Lawyers Videotape Independent Medical Exams?

How to Cross Examine IME Doctor

Response to Protective Order for IME Doctor Not to Produce Financial Records

Last week, I received a call from an insurance company (Progressive) asking how many occupants were in our clients’ vehicle in a car accident case our lawyers are handling. Sadly, it appears someone saw our clients get in what was a pretty serious accident, noted the vehicle information, and then pretended that they had been involved in the accident. Progressive called me and asked if I can get an affidavit from my clients stating that this person was not in the vehicle. I appreciated where the adjuster/investigator was coming from because he wanted to close his file, but I did not see how it helped my client to provide an affidavit, and I could conjure up scenarios where it would not be helpful to me to help them.

I felt knocked off balance for a second after denying Progressive’s request, losing my moral high ground. But then I quickly asked the adjuster if Progressive was willing to accept service in a few cases I was getting ready to file or if they were going to require me to spend needless money and jump through the hoops of hiring a process server to serve the defendants individually. Instantly, the order of the moral universe was restored. Wherever you are at this moment, you probably felt a jolt of unknown origin. The lesson, as always: if your game plan is never give a quarter, don't ask for one.

Another needless hoop insurance companies make you jump through in auto accident case in Maryland is obtaining accurate identifying information for the defendant driver. Once settlement negotiations have failed, the next step is to file a Complaint. But to effectuate service of process, you need the defendant’s address. It is not uncommon for our only information regarding the defendant driver to be a name and insurance information. If his name is Joe Brown or Steve Smith, it can be difficult in car accidents where no police report is filed, the defendant has moved since the accident or the defendant gave a false address.

Of course, this could all be made easier if the insurance companies were willing to cooperate. But they will rarely (read: never in auto accident cases) voluntarily provide their insured’s information for service.

Luckily, in Maryland, the Annotated Code of Maryland provides the Maryland accident lawyer a means to obtain this information fairly quickly and cheaply. Maryland Courts & Judicial Proceedings Code Ann. § 6-311 requires a self-insurer or liability carrier to disclose the defendant driver’s “last known home and business addresses, if known” once the Plaintiff files the proper certification. That section requires a Plaintiff to file a certification with the clerk of the court in which the action is filed and serve it on the insurer or self-insurance plan that provides benefits to the defendant driver. The certification must: 1) state that the defendant had applicable insurance coverage at the time the accident occurred; 2) set forth the reasonable efforts made, in good faith, to locate the defendant; and 3) state that the defendant is evading service, or the whereabouts of the defendant are unknown to the plaintiff.

Once a certification conforming to these requirements is filed and served on the insurer or person that has the self-insurance plan, they must disclose to the plaintiff the last known address information for the defendant driver.

You can find here a sample certification for a Maryland auto accident case. Most other jurisdictions have similar statutes.

One notable absence from the Maryland Personal Injury Lawyer Help Center has been a sample demand letter, an omission I rectified today. One of my goals in 2008 is to make the Help Center a more complete resource for personal injury lawyers. Most of what we have added in the last year has been by request, so if there is something you want to see, drop me an email and we will put it up. If you have something you want to add to the Maryland Personal Injury Lawyer Help Center, send it to me, and if we think it will be helpful, we will put it up.

(Since I wrote this post last week, I've gotten a number of requests for more demand letters in cases that are not motor vehicle torts. Yesterday, I added second sample demand letter in a products' liability and legal malpractice case.)

Many plaintiffs’ personal injury lawyers are complaining that State Farm’s profit surged to $5.6 billion in 2006 — up 75% from $3.2 billion in 2005. State Farm’s CEO, Ed Rust, Jr., received a $5.26 million dollar pay raise last year and is now earning $11.66 million. Implicit in this complaint is the idea that State Farm’s lowball offers and hardball tactics are the reason why their profits are so high and their CEO is overpaid. I think these complaints are misplaced for a lot of reasons.

First, General Motors took a $39 million loss last quarter. While this statement is misleading as well, it underscores the obvious: big companies can have large profits and large losses. A number like $5.6 billion in a vacuum means nothing, particularly for a huge company like State Farm. If you think the insurance companies make too much in profit, put your savings in a company like Allstate, which is publicly traded. But be careful: Allstate, for example, has underperformed the market in the last ten years. Insurance companies are hardly the Google of the stock market and I really don't think there is any evidence that their profits are historically excessive. (Please, correct me if I'm wrong.)

Second, with respect State Farm’s CEO’s salary, State Farm is a Fortune 100 company. If high CEO salaries are a problem (and I don’t think they are for reasons that are not worth getting into here), it is not specific to the insurance companies. Big company CEOs are making a ton of money in every business.

Finally, and I think most importantly, I think it is misplaced to expend energy complaining about low ball offers. Setting aside first party obligations where the paradigm is a little more complex, insurance companies should be trying to do whatever they ethically can to decrease payouts. It is our job as personal injury lawyers to do the opposite. We are not shooting for fair offers, we are trying to get as much as we possibly can for our clients. They call us greedy personal injury lawyers and we call the insurance companies, like State Farm, cheapskates. But maybe this is not the worst thing in the world. We have an adversarial system that has been in place for a few hundred years and I think it works. To the extent that it does not, it is clearly not a perfect system. It is just the best system.

State Farm and their brethren are going to play tough. That’s okay. If personal injury lawyers hold up their end of the bargain and fight back, the system will work just fine.

A Washington jury awarded $15.5M last week in a 2004 truck accident case. The injuries, as the verdict suggests, were catastrophic. The Plaintiff was blinded in the auto accident. She continues to undergo surgical procedures to reconstruct her facial structure and is still in therapy to aid in her recovery from the brain injuries she suffered.

Given the catastrophic nature of these injuries, the amount of the award is no surprise; however, the party held primarily responsible for her injuries is: U-Haul International, Inc. The jurors, apportioning liability as they do in a comparative negligence jurisdiction, found that U-Haul was 67% at-fault for Plaintiff’s injuries while the operator of the U-Haul trailer was found to be only 33% to blame. The jurors also found U-Haul Company of Washington and the owner of the Texaco station where Mr. Hefley rented the trailer to be negligent.

The jury found that the operator had failed to properly secure materials in the U-Haul trailer he rented and as a result, a large piece of wooden furniture flew out of the trailer and smashed through plaintiff’s windshield on the driver’s side. The jury found that the lack of instruction and clear warning to customers on how to properly secure materials they were transporting made U-Haul more at fault for the accident then Mr. Hefley’s failure to ensure the stability of the furniture he was transporting.

In their attempt to push responsibility for the accident to the Plaintiff, U-Haul’s lawyers apparently argued that Plaintiff was following too closely behind the U-Haul trailer and was drunk at the time of the accident. These efforts to shift blame back to a woman who suffered these kinds of catastrophic injuries not surprisingly backfired.

This accident has lead to the creation of “Maria’s Law” in Washington which will hold future motorists to a higher threshold of accountability when accidents occur as a result of their failure to properly secure items in and around their vehicles.

Most of us on the roads are constantly dodging carpets, boxes, and contruction equipment that made our roads sometimes look like Aisle #11 at Home Depot. Federal law requires truck operators to secure their loads but these laws are not always enforced.

Often, the failure to secure load cases are far less obvious. Plaintiff auto and truck accident lawyers are getting wiser to the notion that the parties loading, unloading, and providing instructions for loading and unloading are often culpable defendants in cases where these issue are far more subtle than in this Washington case. It is the truck driver's responsibility and the loader's responsibility to secure the load as prescribed by the U.S. Department of Transportation and Federal Motor Carrier Safety Administration. Our lawyers have handled a number of these cases and are familiar with the trucking experts, mostly engineers, around the country who specialize in making sure vehicles are safely loaded. If you are a truck accident lawyer looking for experts in this regard, feel free to give me a call or drop me an email.

I read a study this weekend (my wife was at a jewelry party and my kids were asleep on Friday night) published last year by the Cornell University Industrial & Labor Relations Review, that looked at the correlation between truck driver compensation and safety outcomes.

I am sure the results of the study were embraced by the Teamsters: increases in truck driver compensation led to less truck accidents. It is unclear whether the improvement in the drivers' safety records was the result of more careful driving or other related behavioral adjustments, but the strength of the data was pretty remarkable.

Why is there a correlation between compensation and a decrease in truck accidents? I’m not sure that a study can be devised to prove driver motivations, but it makes sense that the more you are paid, the more likely you are to want to do the things you have to do to keep your job. It seems logical that paying truck drivers well serves as a counterbalance to the lure of engaging in risky behaviors - such as speeding and driving without proper rest - in order to drive further to make a decent wage. Moreover, better paid truck drivers may cause less truck accidents because more pay means better truck driver retention, which leads to more experienced truck drivers on our nation’s highways.

Another interesting finding was that the relationship between crash risk and driving experience was U-shaped. In other words, truck accidents increased both at low levels and high levels of experience. The authors believe that this finding lends support to the importance of driver re-training programs. This might be true, although I suspect that older drivers may be less able to make the adjustments necessary to avoid truck accidents.

This study seems to tell us that one way to reduce truck accidents would be to require minimum wages for truck drivers. This is not an easy solution because it would increase the cost of shipping, which would increase the cost of manufactured goods in this country. But when you consider that one out of every eight fatal traffic accidents involves a truck, it might be a cost worth bearing.

The New York Times reports on new rules set up by chief administrator Nicole R. Nason at National Highway Traffic Safety Administration prohibiting officials at the agency from going on the record with reporters. Without special permission, agency officials are only allowed to speak with reporters only to provide background information.

I am sure keeping everyone on the same page is the politically astute play. But is that Ms. Nason's purpose? Or is it to protect the safety of our citizens on public highways? Obviously, the free flow of safety information is going to keep reporters investigating whether manufacturers are making safe vehicles.

The Times notes that this is a 35 year-old lawyer in charge of keeping our nation’s highways safe. While I am all for lawyers being qualified to do anything and everything, I have to question whether she was the best available candidate for this job. Ms. Nason served a few years as the Assistant Secretary of Transportation for governmental affairs. Why the leap to this position so quickly with such a minimal transportation background? I assume her quick rise was in part due to her connection to former CIA Director Porter J. Goss, for whom she worked as communications director when he was a congressman.

Is it fair for me to disparage the qualifications of a lawyer whose name I learned 20 minutes ago? Probably not. But this administration’s track record on highway safety sends up red flags everywhere. Where there is smoke, there is often fire. Ms. Nason is not helping the cause by trying to button the lips of safety experts and others at the NHTSA.