Maryland Injury Lawyer Blog

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 an 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.

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 pe