Maryland Injury Lawyer Blog

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.

Bob Franklin, a well respected Maryland lawyer who defends trucking companies for Franklin & Prokopik, wrote an article on defendant truck accident cases advising defense lawyers on handling plaintiffs’ truck accident lawyers’ vicarious liability arguments entitled. "But I Didn't Do It!" Expanding Theories of Vicarious Liability, 58 Fed'n Def. & Corp. Couns. Q.347 (2008). You can't deny it is a catchy title.

It is a well-written article advising defense lawyers as to how to combat different theories of vicarious liability conjured up by plaintiffs’ truck accident lawyers. But, obviously, it is also a good read for lawyers bringing truck accident cases looking to find coverage in the event of serious injuries.

Franklin offers one piece of advice I found particularly interesting:

With rising insurance costs and tight operating ratios for motor carriers and private fleet operators, many have limited excess insurance coverage or none at all. That trend coupled with ever increasing jury verdicts and settlements means there is frequently not enough insurance available to satisfy a potential or actual judgment.Such a scenario may put the fleet operator’s assets at risk if and when there is an excess judgment. Many fleet operators, particularly smaller ones, would do well to take advantage of recent changes in the law, particularly the Graves Amendment, which effectively precludes liability from being imputed simply by virtue of ownership of a vehicle that was involved in an accident. Having a separate corporate entity own the trucks (usually the operator’s most valuable asset) and lease them to the operators may effectively shield the vehicles from potential excess exposure if the proper procedure is followed.

In other words, set up another company in an effort to avoid liability.

Continue reading "Defendants' Truck Accident Lawyer's Advice: Set Up Another Corporation to Avoid Responsibility" »

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" »

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.

A recent Jury Verdict Research study revealed some interesting settlement and verdict data regarding truck accident cases. The most frequently cited injury in a truck accident cases, which is probably true for auto accident cases in general, is the back strain. Back strains, according to the study, drew a median verdict of $15,000.00. Brain injury cases, which accounted for only six percent of truck accident verdicts, had a median verdict of 1.3 million. Knee injuries accounted for four percent of the cases and had a median verdict of approximately $85,000.00.

The study also broke the verdict down into the type of truck accident collision which occurred and the median verdicts by type. Not surprisingly, the head-on collision had the highest median verdict of $275,000 and the "backing" collision (where a truck backs up into another vehicle) had the lowest of $33,000. The overall verdicts studied had a median verdict of $100,000.

It is hard to get a handle on just what these numbers mean to a truck accident lawyer. I tend to view them as part of a larger framework that I use to evaluate what a particular truck accident case is worth and where it falls in the general scheme of truck accident litigation. For more information on Maryland wrongful death auto and truck accident data, click here. For more general truck accident settlement and verdict data and other information helpful in valuing truck accident cases, click here, here and here.

As regular readers of the Maryland Personal Injury Lawyer Blog well know, I have been critical of the Bush administration’s decision to change the length of time a truck driver can drive. (Actually, that’s wrong, I think the hours should be reduced.) For 60 years, truckers could drive for 10 hours at a time. The Federal Motor Carrier Safety Administration recently changed the regulation to 11 hours at a time. Does anyone think this would not lead to more truck accidents?

Fortunately, the D.C. Circuit Court threw out the rule, finding that the FMCSA must adequately explain the reasoning behind the decision to add the additional hour. The court found that the “agency freely concedes that ‘studies show that performance begins to degrade after the 8th hour on duty and [the degradation] increases geometrically during the 10th and 11th hours.’”

Common sense will tell you this is a bad idea. The Teamsters, who represent these guys behind the wheel, also agree it is a bad idea for drivers to spend 11 hours behind the wheel of such a weapon. This really tells us something. Public Citizen, Citizens for Reliable and Safe Highways, Parents Against Tired Truckers, and Advocates for Highway and Auto Safety also agreed. I can tell you I spent three hours behind the wheel of my wife’s minivan on my family’s recent vacation and I’m sure I was not as sharp in Hour 3 as I was on Hour 1. This ruling will go into effect in September and our roads will be just a little bit safer.

For an update, on Judge Jay Spechler, click here.

The Daily Business Review last week wrote an unbelievable article about a battle between an insurance company and its policyholders. This has been the landscape since Chinese and Babylonian traders started issuing insurance about two thousand years ago. But, in this story, the insurance company has expanded its war to include Florida judges.

United Automobile Insurance Company's lawyers are seeking to remove a Florida judge from all Personal Injury Protection (PIP) accident cases involving the insurance company, citing the judge’s alleged bias.

The Florida-based carrier's attorneys have moved to disqualify Broward County Court Judge Jay from “any and all cases involving United Automobile Insurance Company as a litigant.” United alleges that Judge Spechler routinely displays “pre-disposition, prejudice and bias” against its attorneys. In an interview, Judge Spechler, who has served on the bench for 19 years, estimated that, incredibly, two thirds of his cases are PIP disputes with this insurance company.

This is not United Auto's first attack on a Florida judge. Last month, United Auto’s lawyers also moved to disqualify Miami-Dade County Court Judge Jacqueline Schwartz from sitting on PIP cases.

Apparently, United Auto is well known among Florida personal injury lawyers for their insurance attorneys' aggressive fight against its own policyholders making PIP claims. In 2004, Florida's Office of Insurance Regulation fined United Auto $75,000 for fighting 96 percent of its policyholders’ claims, because if the carrier really discovered that much fraud, it was negligent in not reporting it to the state.

Apparently, the gloves are off, and I mean off and this time the fight is not against accident lawyers. United general counsel Charles Grimsley is saying that judges have not treated United fairly in the courtroom, and that he believed judges were being “paid off,” although he admitted he could not prove it. Later, Mr. Grimsley backed away from his allegation by saying he does not think there is "any money changing hands.” United Auto apparently then took out advertisements stating that Mr. Grimsely's statement “does not remotely reflect the opinion of United Automobile Insurance or any of its defense attorneys.”

Ninety-six percent of claims are fraudulent? This is beyond incredible. United Auto is basically declaring war on its policyholders in an effort to discourage claims. United Auto is the leading auto insurance company in Florida. Martin Luther King said that the arc of the moral universe is long but it bends toward justice. I have to think that this arc will soon bend towards the justice of United Auto losing its market share in Florida.

According to a The Federal Motor Carry Safety Administration’s 2006 report, there are approximately 141,000 truck crashes every year. In 77,000 of these truck accidents - more than half - fault was attributed to the truck driver. This is interesting because we have been getting data from the American Trucking Assns. and the Truckload Carriers Association for years telling us that the truck driver’s are rarely at fault in truck accidents. Yet this ostensibly objective study says just the opposite.

According to the FMCA 2006 report, the top 10 causes of truck accidents where the truck driver is a fault:

1. Prescription drug use (26%)

2. Traveling too fast (23%)

3. Unfamiliar with the roadway (22%)

4. Over the counter drug use (18%)

5. Inadequate surveillance 14%)

6. Fatigue (13%)

7. Illegal maneuver (9%)

8. Exterior distraction (9%)

9. Inadequate evasive action (7%)

10. Aggressive driving (7%)

Truck accident lawyers focus a lot of the fatigue issue. It is hard to go to a seminar for truck accident lawyers without hearing a lengthy presentation of fatigue. This study indicates that fatigue is less of a concern then some plaintiffs’ truck accident attorneys might have thought.

Of course, the Oliver Stone in me sees it differently. There are a lot more tired truck drivers on the road these days. The FMCA in 2003 increased the maximum driving hours to 77 from 60 over 7 consecutive days and to 88 hours from 70 over 8 consecutive days in spite of evidence that we had not decreased the number of truck accidents in this country. It is possible that FMCA is motivated to interpret the data in a way that decreases the number of accident attributed to fatigue?

A study released by two advocacy groups showed that U.S. fatalities from truck accidents have remained consistent at 100 per week from 1999 to 2005. This week, families of truck accident victims are lobbying Congress and the Bush administration to establish stricter rules such as reducing the number of hours truck drivers are allowed to drive without rest and increase the number of safety inspections.

As I mentioned in a recent blog post, the Federal Motor Carrier Safety Administration four years ago under President Bush in spite of evidence that we had not decreased the number of truck accidents in this country, increased the maximum driving hours to 77 from 60 over 7 consecutive days and to 88 hours from 70 over 8 consecutive days. These safety groups are trying to nudge the President in the opposite direction. Sneak preview of what it to come: it won't work.

I have encountered yet another spoliation issue in a truck accident case where defendant cannot produce their trucking log that was requested within six months of the incident. Federal regulations require commercial truck drivers to maintain their log for at least six months.

Unlike New Jersey and California, Maryland has no independent tort for negligent or intentional spoliation of evidence. But you can get in Maryland a spoliation instruction stating that the destruction of evidence creates a presumption that is unfavorable to the spoliator.

Obviously, in fairness to everyone, the best practice with respect to evidence in a case is to preserve all potential evidence until all legal proceedings have been concluded. The intentional or negligent destruction or spoliation of evidence threatens the integrity of our judicial system. As I have discussed previously on this blog, many truck drivers do not take these logs seriously. The practice of falsifying truck driver hours is an open secret in the trucking industry; truckers routinely refer to their driving logs as “comic books.” Fines are small and infrequent. The oversight from the Federal Motor Carrier Safety Administration is virtually nonexistent. The FMCSA does not have the staff to closely monitor 700,000 businesses and almost eight million trucks.

I cannot find a Maryland case on truck log spoliation although I found good cases in Arkansas and Georgia. See Goff v. Harold Ives Trucking, Inc, 342 Ark. 143 (2000); J.B. Hunt Transp., Inc. v. Bentley, 427 S.E.2d 499 (1992). But Maryland follows the general rule that the destruction or alteration of evidence gives rise to inferences or presumptions unfavorable to the spoliator. Unexplained and intentional destruction of evidence by a litigant gives rise to an inference that the evidence would have been unfavorable to his cause. Maryland law does not require a showing of bad faith to support this inference. Anderson v. Litzenberg, 115 Md. App. 549, 561-562 (1997) (case involving an accident caused by a dump truck tarp coming lose; from the destruction of the tarp there was a rebuttable presumption that should lead to an inference that the tarp would have revealed evidence unfavorable to the defendant). See also Larsen v. Romeo, 254 Md. 220, 255 (1969).

In truck accident and car accident cases, it is important for accident attorneys to pin down early in an investigation what evidence might be available that could be intentionally or inadvertently destroyed. In truck accident cases, this is the letter our truck accident lawyers send out.

The Dallas Morning News reports that it determined that a quarter of big-rig truck drivers faulted in fatal crashes in Texas from 2000 through 2005 had rap sheets. Their research found that of 953 fatal truck accidents where the driver was determined to be a fault, 25% had been convicted of a criminal offense or received deferred adjudication before the fatal truck accident. Moreover, 14% had committed drug or alcohol offenses prior to the fatal truck accident. Ten percent were felons.

I am not sure what to make of this information. I believe that people who are imprisoned after committing crimes deserve a second chance, as do former drug addicts. There has to be a chance at redemption. (Parenthetically, I really cannot figure out why felons cannot vote other than just pure spite. It is not like they are going to create a voting block. But I digress....)

Then again, I am not suggesting ex-felons should not be excluded from holding positions that require, for example, knowledge of national security secrets. In the trucking industry, truck drivers are controlling extraordinarily dangerous weapons. If the data shows that ex-convict truck drivers cause an inordinate amount of truck accidents, we should consider making felony convictions a deal killer for getting a CDL license. I'm not arguing that we have reached that point based on one retrospective study by a newspaper. But I think as a society, it is something lawyers and policymakers should be looking at in the future.

Thirteen students at Parkland Middle School in Weaton, Maryland were involved in a truck accident on Tuesday when their bus collided Tuesday morning. Montgomery County Police say the driver of the dump truck ran a red light and clipped the bus, sending it off the road. The Maryland truck accident lawyers at Miller & Zois represent the four students who were taken to the hosptial. For a news account of the story and a picture of the accident scene with the dump truck and school bus as seen from a WTOP/Metro traffic helicopter, click here.

On Saturday, the New York Times published an incredibly informative article on the deregulation of the trucking industry. If you are a truck accident lawyer in Maryland or elsewhere, I would suggest reading the entire article. Here are some of the highlights:

*In 1937, the first driving hour limits were set. Truckers were allowed to drive up to 10 continuous hours, but were required to rest for a minimum of 8 hours. The remaining six hours could be used for other work activities, like loading, or for breaks or meals. Truckers could drive up to 60 hours over 7 consecutive days, or 70 hours over 8 days. To enforce those rules, the government required drivers to keep logs.

*In 1999, Congress created the Federal Motor Carrier Safety Administration in response to what lawmakers considered ineffectual regulation and high casualties. A year later, the agency proposed tighter service hour rules. They would allow long-haul drivers to work a maximum of 12 hours a day and require them to take 10-hour breaks between shifts. They also required installation of electronic devices to replace driver logs.

*In April 2003, the Federal Motor Carrier Safety Administration reversed gears and issued rules that increased the maximum driving hours to 77 from 60 over 7 consecutive days and to 88 hours from 70 over 8 consecutive days. The new rules capped daily work hours at 14, which included driving as well as waiting for loading and unloading. The Agency also decided not to require truck companies to install electronic monitoring devices.

*During the 2000 election cycle, trucking executives and political action committees gave more than $4.3 million in donations to the Republicans and less than $1 million to Democrats. From 2000 to 2006, the trucking industry directed more than $14 million in campaign contributions to Republicans.

*The trucking industry's donations and lobbying fees - about $37 million from 2000 to 2005 - led to rules that have saved what industry officials estimate are billions of dollars in expenses linked to tougher trucking regulations.

*The fatality rate for truck-related accidents remains nearly double that involving only cars (according to safety experts).

*The practice of falsifying truck driver hours is an open secret in the trucking industry; truckers routinely refer to their logs as “comic books.” Fines are small and the Federal Motor Carrier Safety Administration does not have the staff to closely monitor 700,000 businesses and almost eight million trucks.

The article goes on to tell the story of a truck driver from Virginia who claims to have been taught to conceal excessive driving hours in his truck during his training last January by his former employer, Boyd Brothers Transportation of Birmingham, Alabama. The truck driver said his orientation instructor at Boyd Brothers told his class that government inspectors were allowed to examine a monthly logbook if it was bound, but taught the truck drivers a back door. If the staples were removed, the trucking log was considered “loose leaf” and inspectors could require an examination of only those pages from the most recent seven days.

To keep inspectors off the trail, the truck driver alleged that the drivers were told to use fuel credit cards that recorded only the date, not the time, of the fuel stop. He added that the trucking company he worked for pushed him to work longer hours than permitted, and that his logbooks were “adjusted” frequently to make it appear as if the truck driver was within the legal limits. He said he told a dispatcher several times he was too tired to make another trip but he was still ordered to do so after just a few hours sleep.

Continue reading "What Truck Accident Lawyers Should Know About the Trucking Industry" »

A difficult question arises when the defendant in a car or truck accident case argues that his vision was obscured due to factors beyond the driver's control. For example, if a truck driver driving a tractor trailer is blinded by the glare of the sun or the driver's vision is obstructed by a dust storm. Is this a legitimate defense in a truck accident case?

Maryland law does not have a case directly on point. But the answer appears to be a question for the jury, not for the court, according to a majority of other jurisdictions. Most jurisdictions will not find a driver of a vehicle negligent as a matter of law in obstructed vision cases because the issue is one of reasonableness. Accordingly, I would expect a Maryland court to find that when vision is partially or completely obscured, the jury should determine whether the defendant's failure to avoid the accident was reasonable under the general negligence test of whether the defendant acted as a reasonable prudent driver would have under all of the circumstances.

Unfortunately, the byproduct of this rule is defendants' lawyers in Maryland personal injury auto and truck accident cases claiming that their clients violated the "rules of the road" through no fault of their own. How a Maryland jury might ultimately find is going to depend on the credibility of the lawyer's injured client and the credibility of the defendant driver. Even if the defendant has no credibility (either intrinsically or factually), it still gives the defendant's attorney something to hang their hat on for the purposes of denying the claim. Maryland personal injury lawyers who stick to their guns and believe in their case will probably do just the same in terms of final outcome for their clients in these types of attorney manufactured defenses. Lawyers who blink because the defense lawyer raises any type of defense - however specious - will not do as well, which is why defense lawyers manufacture artificial defenses in the first place.

The Baltimore Sun reported on a truck accident on Monday in northern Baltimore County (Cockeysville) where a tanker carrying 2,800 gallons of heating oil careened off a road, spilling about 400 gallons of the fuel into a stream, authorities said. The truck driver was apparently making a turn on Ivy Hill Road, near Oregon Ridge Park, and lost control of his truck. He crashed through a guardrail and rolled down an embankment. The driver was flown by state police helicopter to Maryland Shock Trauma Center, where he was listed in serious condition.

Incredibly, if true, the Baltimore Sun quotes a nearby resident (who lives less than one block from the stream) who said he has seen more than 100 vehicles crash into the water or the guardrail. Maybe it is time to take another look at the safety of this intersection, don't you think?

Hopefully, the truck driver will make a full recovery. Fortunately, Maryland Department of the Environment indicated that the oil was contained and there were no signs of a fish kill or visible damage.

I have been meaning to add to the Maryland Personal Injury Lawyer Help Center's sample interrogatories section truck accident discovery. I finally got around to it today, adding both truck driver and trucking company interrogatories.

I provide data from Jury Verdict Research frequently on this blog because I think it is helpful for personal injury lawyers to see how specific classes of cases fare nationally. Below is a list of recovery percentages in truck accident cases that go to trial:

Broadside Collisions: 61%

Head-On Collisions 71%

Intersection Collisions 58%

Multiple Vehicle Collisions 73%

No Contact Accidents 52%

Truck, Overall 60%

Jury Verdict Research also offers statistics on the median compensatory awards for a few different categories of truck accidents:

Head-On Collisions: $532,034

Intersection Collisions: $ 85,000

Truck Accidents Overall $ 90,000

I suspect that most Maryland truck accident lawyers would agree that both likelihood of recovery and the amount of the recovery is higher in Maryland, but I have never seen any state specific data on truck accident cases. If anyone knows of any data in Maryland or in any other state, please let me know.

On Tuesday, the American Transportation Research Institute, the research arm of the American Trucking Association, released the results of its industry analysis of the use of recorders to monitor driver hours. The study showed, not surprisingly, that few fleets use electronic on-board recorders, but those that do report increased driver morale. This research contradicts the hypothesis that even truck accident lawyer had: that “big brother” tracking devices would hurt driver morale and retention. Seventy-six percent of users said the recorders had improved driver morale and 19 percent said they had improved driver retention.

Obviously, there are concerns about data privacy and data access issues. But as any Maryland truck accident lawyer can tell you, there are too many deaths in Maryland due to tired drivers logging more hours than federal law allows. It is difficult for profit maximizing trucking companies and businesses that specialize in local pickup and delivery service not to push the envelope because they believe their competitors are. A universal requirement that these companies use recorders that monitor driver hours might level the playing field, keeping tired commercial truck drivers off the road. The downside risk to these recorders would be truck drivers driving faster to make up for the lost hours.

The Maryland Daily Record reported yesterday that U.S. District Judge Richard D. Bennett dismissed the complaint filed by prison inmate Byron Smoot against hip-hop mogul Russell Simmons, finding that Simmons and co-defendant Missouri based Kellwood Company lacked the requisite minimum contacts with Maryland that would make them amenable to jurisdiction in Maryland. The Court’s 14 page opinion can be found here.

As an interesting footnote to this case, in 1999 Smoot began a romantic relationship with the prison psychologist. Smoot and a convicted murderer escaped later that year by climbing over the prison’s fence. They ran into town and made a phone call to the prison psychologist. The men were caught two days later after a massive manhunt. The psychologist pled guilty to an accessory charge for housing the men and was sentenced to six months in prison. HBO had a series years ago called “Oz” where the prison doctor fell in love with one of the inmates. I remember thinking the plot seemed a bit outlandish. But this story sounds equally bizarre.

Coming back from this soap opera to Maryland law, Maryland’s long arm statute allows jurisdiction of defendants to the fullest extent possible under federal law under the due process clause. I am handling an accident where a Missouri truck driver is a defendant. We sought jurisdiction in Maryland based on Defendant’s affidavit that he had four or five truck deliveries a year in Maryland. In the alternative, we asked for permission for our attorneys to conduct discovery to fully understand Defendant’s general contacts with Maryland as opposed to relying simply on the affidavits. But the Baltimore City Circuit Court judge who heard the case denied both requests.

I am of the opinion that if a truck driver regularly drives through a jurisdiction, he is availing himself to that jurisdiction. I cannot see how it is a violation of due process to be amenable in a jurisdiction that you regularly frequent when there is jurisdiction if your are served with process the first time you happen to be in the jurisdiction. See Burnham v. Superior Court, 495 US 604 (1990). But 99% of the case law on this subject disagrees with me.

Last week, I wrote a blog entry about the details of a deposition I took in a truck accident case that day. I received the truck driver's deposition today and put in on our Maryland Attorney Help Center. If you are interested in taking a look at it, click on the link "truck driver's deposition" above.

Yesterday I took the deposition of the Defendant truck driver in a tractor-trailer accident case that occurred on North Point Road near its intersection with Quail Avenue in Baltimore, Maryland. My client suffered permanent injuries to her left hand (she is left-hand dominant) in the accident. This is a classic right turn tractor-trailer truck accident case. In order to make a right turn in the tractor-trailer, it was necessary for the Defendant truck driver to use two lanes of traffic. I think it is also incumbent upon the Defendant to make sure no one is coming when he makes that right turn, although this requires waiting for a moment while checking his rear view mirrors. In this case, the truck driver made a quick right hand turn into my client, who was apparently in one of his blind spots.

Now, onto the subject of this blog. During his deposition, the truck driver told me that he keeps a log of the driving he does in his tractor trailer. Motor Carrier Safety Regulations regulate the permitted hours a truck driver can be on the road and require the truck driver to keep a log of his or her trips. Obviously, reviewing this log is helpful in establishing liability, primarily to determine whether the truck driver was in a hurry or the likelihood that fatigue was a factor in the truck accident. When I asked the question, his lawyer (who handles almost exclusively truck accident cases - nice guy and a good lawyer) spoke up and said that the log had been destroyed.

In this case, when the trucking company destroyed the log, they knew of the potential litigation. But they destroyed the log anyway. Why? Who knows? It could have been an innocent mistake, or they could have been hiding something. We will never know. What happens at trial in Maryland in this situation?

Naturally, as lawyers, we use a Latin expression to address this problem: omnia praesumuntur contra spoliatem, which means "all things are presumed against the spoliator." Maryland has adopted this maxim under the assumption that people do not destroy evidence that would be helpful to their case. Accordingly, under Maryland law, when evidence is destroyed by a party who knows, or should know, of the evidence's relevance to a potential lawsuit, the aggrieved party's attorney will ask the judge for a jury instruction that the destruction or alteration of evidence by a party gives rise to inferences or presumptions unfavorable to the spoliator. See Anderson v. Litzenberg, 115 Md. App. 549, 561-562 (1997).

In such a serious case I do not think they will contest liability because they will lose credibility on their damages arguments if they do. But, if the truck driver's lawyer does not concede liability, I think their failure to keep this log will likely inflame the jury and lead to a higher damage award.

For more on spoliation in Maryland, click here.

The Florida Department of Transportation recently did a study on motor vehicle crashes in Florida, with a particular focus on fatal truck accidents. The study found that trucks were involved in approximately 39% of all fatal truck accidents. In heavy truck accidents, 50 percent of fatalities occurred, not surprisingly, in vehicles that rolled over. Twelve percent of fatal truck accident in the study were head on collisions. Trailer rear and side underrides accounted for 28% of the fatal impacts among occupants in vehicles colliding with trucks. One interesting aspect of the study that is bound to generate interest is the study's finding that of truck drivers involved in truck accidents that caused death, a one-quarter of the truck drivers were between the ages of 41 and 50. These are experience drivers who might have been considered the least likely drivers to cause a motor vehicle fatality. Another interested finding is that age, alcohol, and speed are less likely to be causal factors in a truck accident fatality than in other types of motor vehicle fatality.

Click here for the full 500 page report.

On Evan Schaeffer's Illinois Trial Practice Weblog of March 28, 2005, he links to a great article on photographing vehicles after an accident by Jack Murray entitled "Ten Tips for Photographing Vehicles for Litigation." The article offers some great tips such as locating the secondary VIN (vehicle identification number) to verify vehicle identification in the event the primary VIN is inaccessible, the type of filters to use, and when to use a flash (which is a bit counter intuitive). This article should, as Evan suggested, be photocopied and reviewed before taking photographs after an accident. In a truck accident case, it would be wise to also consider photographing:

A recent Jury Verdict Research nationwide study looked at truck accidents from 1996 to 2005 found that the truck accident victim prevailed and received damages in 60 percent of truck accident lawsuits. The average compensation award of these verdicts was $90,000. Not surprisingly, Plaintiffs were more likely to prevail in and receive compensation in head-on truck crashes. In these cases, Plaintiff's prevailed 71% of the time and received an average jury award of $532,034. The average value of a fatal truck accident case was just over $1 million. For truck accident cases that involved a disc injury, usually a herniated disc, the average award was $122,532. Three percent of the jury awards were in excess of $5,000,000. It is interesting that the average back strain injury in a truck accident was worth $17,667. While I do not know what the average back strain is nationally in car accident cases, it is certainly less than $17,667. It seems as though the same injury in a truck accident case is worth more than the same injury from an automobile accident.

Last month, I wrote a bit about Jury Verdict Research, which conducts studies of jury verdicts around the country. A recent Jury Verdict Research study of truck accidents from January 1996 to January 2005 found that truck accident victims recover damages in 60% of personal injury trials and receive a median compensatory award of $90,000. The average truck accident case involving a disc injury, usually a herniated disc, was $122,532. In contrast, the average median verdict in a head-on truck accident case the study was $532,034.

On January 14, 2006, a Clark County, Nevada jury awarded $14.1 million to a truck crash victim who was killed by a drunk driver in 2001. The verdict was divided between $4.1 million in compensatory damages and $10 million in punitive damages to be paid by three corporate defendants: Terrible Herbst Inc., ETT Inc., and Herbst Supply Inc.

Rosa Delegado, a 58-year-old grandmother, was getting into her car when the defendant truck driver hit her with a large industrial truck. Delegado was pinned against her car and run over. Ms. Delegado's family's attorney filed a negligent supervision personal injury civil lawsuit against Terrible Herbst, which operates 80 convenience stores and gas stations in Nevada.

The Plaintiff alleged that the defendant driver had a history of drinking and driving that apparently did not offend the sensibilities of his employer Terrible Herbst. In fact, incredibly, a company supervisor testified that he was not concerned by the fact that the truck driver defendant had come to work smelling of beer. He further testified on another occasion that the truck driver and another temporary worker asked him for permission to drink beer at lunch. In spite of this, the supervisor testified that he did not necessarily have reservations about this man driving a truck for Terrible Herbst. Unbelievable.

I did not sit through the trial, of course, I am just reading the media's account of this truck accident case from the perspective of a truck accident lawyer. But if these facts are as presented, it is hard to argue that punitive damages are not appropriate. In this case, the jury readily agreed to the tune of $10 million.

In Maryland, punitive damages are impossible to recover in a personal injury case like this one because the plaintiff must demonstrate that the defendant acted with "actual malice." Actual malice is "evil motive, intent to injure, ill will or fraud." Setting the bar even higher for plaintiff's personal injury attorneys in Maryland bringing a punitive damages claim, actual malice must be demonstrated by clear and convincing evidence.

The purpose of punitive damages in a case like this is to modify the defendant's behavior. It is extremely difficult to muster empirical evidence to evaluate whether punitives have a deterrence effect because there is no systematic reporting of punitive damages. Even if there was such data, there are so many other variable involved that could skew the data. The death penalty deterrance debate is a perfect example. So the debate among lawyers, judges, and legislators continues on anecdotal evidence.

Personally, I think this issue is very different from the death penalty question because corporations do act rationally: the seek to maximize profits and avoid risk. Accordingly, they act in their self interest to take steps to avoid risk. People considering capital offenses are rarely rational and certainly not risk adverse. In my opinion, punitive damages are necessary in Maryland when corporate defendants show reckless disregard for the safety of people like Rosa Delegado.