Maryland Injury Lawyer Blog

For years, we have been fine tuning our interrogatories and requests for production of documents in truck accident cases. I recently got an email from a lawyer handling a truck accident case who told me he had used interrogatories from our website. I think we put those interrogatories up in 2004, and have learned a lot since then from experience as to exactly what we are looking for in our first round of discovery in these cases. These are the latest versions:

• Interrogatories to Truck Driver
• Interrogatories to Truck Owner
• Request for Production of Documents to Truck Driver
• Requests for Production of Document to Owner

For the interrogatories, we have added subheadings that summarize the gist of the interrogatory request. If you are looking to rephrase specific interrogatories already in your arsenal, this will make the process of sifting through what you need a lot easier. Of course, you can just cut and paste our discovery requests. I always like it when a defense lawyer tells me that they just received "Miller & Zois discovery." But I think if you have given so little thought to truck accident cases that you have not drafted meaningful discovery on your own, you might want to think of referring your case to a truck accident lawyer who regularly handles these cases. Gee, like maybe us.

Strategies for Truck Accident Cases: Excessive or Improperly Distributed Cargo

A defense lawyer who regularly defends truck accident cases was telling me recently how many plaintiffs' lawyers rarely ask the questions that really scare him in deposition or in discovery. Car accident lawyers figure, "Hey, it is a truck accident. A truck accident is just a big car, right? It is really not. There are too many nuances to truck accident cases.

One typical miss: inquiry as to how much the truck weighed. Some estimate that 30 percent of tractor trailers and dump trucks are overweight. I'm guessing that is high. But truck accident cases disproportionately involve overweight trucks not only because heavy trucks cause more accidents because they are less safe, but also because truck drivers and companies that are willing to go overweight are similarly willing to take other chances with fatigued drivers and improperly maintained trucks.

Continue reading "Truck Accident Claim Tactics: How Much Does the Truck Weigh?" »

It is easier to file a lawsuit against a trucking company than a truck driver. This is true because human beings are likely to feel more comfortable placing blame on a big business than pinning it on one, possibility sympathetic, truck driver. We humans are folksy like that.

Moreover, juries are not told of the existence of insurance in truck accident cases, leaving the juries wondering who is footing the bill. Most juries get it but they are not entirely sure because it seems so unbelievably odd that no one mentions insurance. The collateral source rule is not understood by the general public.

I had a trial once in a truck accident case where we actually did very clearly point to the commercial defendant. He was a great guy, we tried to leave him out of it as much as possible. But after the verdict one juror was extremely concerned that the defendant driver - who left an "I don't have two nickels to rub together" impression - would have to pay out of his pocket after the verdict. "That nice Mr. So and So is not going to have to pay for this, is he?" The take home message for me: you have to make crystal clear the corporate entity is the one on the hook.

Respondeat superior gets you there. But it does not necessarily get you to the company's documents in discovery. They are key. Why? Well, at the risk of over generalizing, trucking companies are incompetently run. My apologies to every well run trucking company out there. But this is a low margin business. You make money by cutting corners. And it shows. So there is typically an obscene wealth of bad documents calling the names of plaintiffs' truck accident lawyers if you are looking for them. This leads you to negligent hiring, supervision, and entrustment claims.

On our website, we overview for attorneys handling truck accident cases how to pursue these legal theories:

• Respondeat Superior
• Negligent Hiring
• Negligent Supervision
• Negligent Entrustment

Reams of studies on the relationship between driver fatigue and big rig truck accidents are just a Google click away. No one has seriously disputed this premise since federal regulators first limited commercial truck driver road time in 1940.

Continue reading "Truck Accident Safety Regulation Gets Flipped on Technicality" »

Pat Malone writes a guest blog on Don Keenan's Trial Blog arguing that confidential settlements undermine public safety and justice. His point is that confidential settlements make it harder for future plaintiffs to get evidence and information they need to bring out all of the facts about the defendant's conduct.

Specifically, Malone suggests:

Here’s one tip for avoiding last-minute pressure from the defense to cave into a secrecy agreement: Be proactive. Tell the defense counsel at some appropriate point – such as with any settlement demand letter or in a pre-mediation communication – that you will not agree to secrecy because of the ethical issues. This can be one item on a list of settlement conditions.

Pat Malone is an extremely well respected lawyer who not only gets great results for his client, but also graciously spends a lot of time helping other personal injury lawyers. I also agree with his premise: there is doubt doubt that confidential settlements make it harder for the next plaintiff. This also make the company less accountable, too, in the big picture.

But here's the problem: people who have been badly injured, even the best of people, have a hard time focusing on the global interests of plaintiffs everywhere when they are fighting and scrapping to be compensated for their injuries. And I have a hard time telling them that they should.

Let me give you a case in point. We recently settled a case with a Fortune 500 company. No discussion of confidentiality in the settlement discussions. You know what comes next. They send a release with a confidentiality clause. We balk. They say, "Okay, let's try the case."

Boy, I hate being bullied by big companies. I try hard not to take these things personally. But they were so arrogant in the way they delivered their ultimatum. They never would had the guts to play it through and I knew it. So we plotted a "file a motion to enforce the settlement and, in the off chance we lose, we try it" strategy. In angry detail. With our feathers up and blood boiling, we forgot, ah, that we have a client. So we call the client. She could not care less about confidentiality. She wants to execute the settlement and get her money.

So what do you do? I know what we did: we put our hurt pride on a shelf and sent the client the release.

Continue reading "Confidential Settlements" »

Reading trial transcripts is a great educational tool for both new and experienced trial lawyers. Getting sample trial transcripts is not easy because unless a case gets appealed on the substance of the trial, you never get a transcript. I think 10 years from now we will have an inventory of all of our trial transcripts readily at hand. Now, I can tell you the number of trial transcripts I have seen on one hand (not counting O.J. and Casey Anthony obviously).

I wish we kept all of the trial transcripts we have had. But we have pulled together a number of them - including a $1 million verdict in a truck accident case - which I think are worth a peek. You can find them here.

This post was supposed to be about Medicare set-asides but I started with such a long intro about the psychology of claims adjusters that I'll just hit the Medicare issue in a later post. (Or I'll completely forget about it.)

To understand claims adjusters, you have to get inside the labyrinth that is the claims adjuster's mind. (Why labyrinth? I'm just trying to use mildly inflammatory language. I'll stop.) Insurance claims adjusters are more Pete Rose than Barry Bonds: they get paid for singles, not home runs. The great things a claims adjuster does vanish into thin air; the mistakes live on. Ironically, plaintiffs' lawyers operate in the exact opposite world: hit a few million dollar verdicts in a row and everyone forgets your losses. Reason #42,353 why plaintiffs' attorneys and insurance adjusters are the Montagues and Capulets.

Accident lawyers have a misconception about this, thinking adjusters get hugs from the higher ups for ripping off a plaintiffs' lawyer in a settlement negotiation. Actually, hugs is the wrong word - they do get hugs. But, mostly, that's it. The way to make a name for yourself is not by screwing plaintiffs' lawyers but by not screwing up yourself. Make sure everyone likes you and, more importantly, don't make any mistakes. Overpaying on an accident case is not that big of a screw up: but failure to have a death certificate in the file before paying a wrongful death case? That is a federal crime in the insurance world. Under-reserving a case? That's an aggravated felony.

Continue reading "Inside the Mind of a Car Accident Claims Adjuster" »

Almost two years ago now, Medicaid/Medicare liens became even more difficult to deal with as the law pushed to the lawyers and insurance companies the obligation of confirmation and resolution of Medicare/Medicaid liens. I'm sure betting an insurance company has yet to receive a fine for not verifying a lien before paying a personal injury settlement. But nobody wants to be the first.

Medicare, Medicaid and State Children's Health Insurance Program Extension Act of 2007 created so many headaches people starting fighting back. In Haro v. Sebelius, an Arizona case in U.S. District Court, Medicare beneficiaries (and, interestingly, a personal injury lawyer in his own capacity) challenged - as a class - two things: (1) Can Medicare/Medicaid (hereinafter "Medicare because I'm sick of the slash) “require prepayment of a reimbursement claim before the correct amount is administratively determined where the beneficiary either appeals or seeks a waiver of the MSP reimbursement claim?, and (2) Are personal injury lawyers financially responsible for reimbursement if they do not hold or immediately turn over to Medicare their clients’ personal injury settlement awards.

Personal injury lawyers are completely in a pickle on these liens. Our clients want their money; we want to get them the money they are entitled to get. The question is whether personal injury attorneys are precluded from giving the clients their settlement money until after Medicare’s claim has been satisfied, and, let's be honest, whether Medicare can recover the reimbursement claim directly from the attorney if the client fails to pay the reimbursement claim after the settlement money has been turned over to the client.

Continue reading "Medicare Liens: New and Better Law?" »

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

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

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

Continue reading "Property Damage Claims Releases" »

Jury Verdict Research published data on verdicts in severe leg injury cases over the 10 years prior to October 2010. By severe, I mean severe: crush injuries and amputations. The average verdict in these cases is approximately $4,000,000 and the median verdict is $2,400,000 for injuries to one or both legs, as well as leg injuries resulting in varying degrees of leg amputations. The leg amputation categories include both traumatic and surgical amputations.

I was surprised by the relatively insignificant difference between above the knee and below the knee amputations: $3,958,003 average/$2,588,649 median above the knee versus $4,930,186 average/$3,727,500 median below the knee. The average value for bilateral amputations jumps to $13,392,589 average. But the median is $5,012,500 which is a statistically insignificant difference from a single above the knee amputation.

This is interesting data and useful to use in negotiating your case. But asking the numbers to make sense is asking too much.

• Valuing cases: how lawyers, claims adjusters, and ultimately, juries determine money damages in personal injury cases
• Value of fractured and broken legs in car accidents.

Driver fatigue is a frequent cause of truck accidents. How frequent is a matter of opinion.

But more facts are on the way to creating informed opinions thanks to the Federal Motor Safety Administration's new Compliance Safety Accountability Program. Safety reporting is the defining feature of this program. One of my favorite aspects is the use of electronic on-board recovery. The new rule requires trucking companies who have violation rates of 10% or higher, with reference to discrepancies in time spent on the road and time recorded in their logs, to install recorders in all of their vehicles.

Clearly, the home run play would be to require electronic trucking logs in every vehicle. The problem of falsifying trucking logs has been well-known by truck accident lawyers for years. But proof is hard to come by. Unfortunately, transportation has not bounced back like the rest of the economy yet and there is little inertia in the Obama administration to take any action to increase transportation costs.

Continue reading "New Truck Accident Laws: Electronic On-Board Records" »

The Insurance Journal reports a rise in legal malpractice claims. Incredibly, there has been no hand wringing about increased malpractice rates for lawyers or fears that lawyers will no longer be able to keep their practices open as their insurance rates rise. We have never had a legal malpractice claim yet our rates continue to increase. No one cries for us.

A part of the rise in the number of legal malpractice claims is countersuits against lawyers who are suing their clients to pay their bill. But I think the larger problem is what the article calls "door law," a phrase I have never heard before but I really like. Door law is when lawyers take any client who walks through the door who might generate a fee. When law firms step outside their areas of expertise, bad things are going to happen.

Continue reading "Refer Your Personal Injury Cases to Us. Seriously." »

An Illinois court awarded $2.5 million in a lawsuit against a truck driver who admittedly (1) crossed the median strip and hit the Plaintiff and (2) had been driving for 19 hours that day.

Obviously, and the result underscores this point, this is a tough case to defend on liability. If you are Defendants' truck accident lawyer, what kind of defense do you muster in a case like this? Oh, they always have something it seems. In this case, they went for the "everything and the kitchen sink" defense. First, they claimed his vision was impaired due to diabetes. This is a lot better defense in a passenger car case than it is in a truck accident case. If you are a truck driver driving a big rig truck, we expect you to have your diabetes under control or don't get behind the wheel of the dangerous weapon that is a truck. Second, and even more improbable, the defendants' truck accident lawyer also argued that the accident occurred because the truck driver's tire exploded.

Continue reading "Truck Accident Trials and Jury Credibility" »

Certainly, the title is a little hyperbolic. But at the Maryland Court of Appeals Rules Committee meeting this morning, a memorandum was issued from Chief Judge Robert M. Bell requesting a study of how other jurisdictions have dealt with the comparative negligence doctrine.

Just a study, mind you. But this memo jumps right to the heart of the matter.

If the Court were to consider replacing the doctrine of contributory negligence, a common law doctrine in Maryland, with some form of comparative negligence with some sort form of comparative fault:

(a) whether in the Committee's view, the Court could effect that change by Rule, as opposed to judicial decision.

(b) if the Court were to consider the adoption of such a Rule, what form and content of the Rule should be; and

(c) what related legal principles, such as joint and several liability, would need to be considered concurrently.

Well thank you for not beating around the bush, Judge Bell. There is also a specific request for the consideration of views of the Maryland Defense Counsel, the Maryland Association for Justice, and the Maryland State Bar Association.

Timely, I wrote about the interplay between joint and several liability and comparative negligence this week. In terms of what position these groups take, I think it will all depend on joint and several liability. If joint and several liability remains unchanged, Maryland plaintiffs' lawyers would support comparative negligence and Maryland defense attorneys would be obligated to make a big stand in opposition (although that is a lot of show, many self-interested defense lawyers get that more opportunities for plaintiffs' is more opportunities for them). But if it is a swap of comparative for abolishing joint and several liability, this becomes a more, for lack of a better word, nonpartisan issue where fractions are going to split off within the interest groups.

Continue reading "Maryland Comparative Negligence on the Way?" »

When you die in a fatal accident in Maryland, two claims arise: a wrongful death action and a survival action. Wrongful death claims are for the suffering and economic loss for surviving family members on their own behalf. The survival action is brought by the estate, which means it is actually the only claim the person who died really brings for themselves, in their own name for their own loss of life.

If you die instantly in a Maryland accident - or there is no proof of conscious pain and suffering - defense lawyers argue there is no survival action or no claim for the decedent for their death.

Maybe I think this stuff through a little too much, which makes me wonder if I can keep this job until retirement. But it just seems ludicrous to me that a person has no cause of action in their own right because we can't prove they suffered before they died. A trial court in Maryland recently took this a step further, ruling that there is no conscious pain and suffering when a five year-old boy drowns in a pool because there was no "evidence" of conscious pain and suffering. The Maryland Court of Appeals thankfully reversed the trial court on this point because it is obviously more likely than not that the poor child suffered. (I would love to be wrong about this and I try to make myself feel better by thinking it was not that long a period of time. But it does not make me feel better.)

Continue reading "What Do I Get for My Own Wrongful Death?" »

In Maryland, if an uninsured motorist insurer waives subrogation against the at-fault driver in an underinsured motorist case, it also waives its liability defenses. Depending upon who you ask, this has either always been the law in Maryland (as Maryland high court tells us in Maurer v. Penn National), or is a completely new law (as every Maryland accident lawyer or insurance company seems to think).

State Farm has seemingly responded to this new law by refusing to waive subrogation in just about every case where the at-fault driver tenders the policy limits. It is a fair tactic. But what State Farm is doing is cutting side deals with the at-fault driver's insurance company to waive subrogation to the extent of the UM coverage which allows the defendants to work together in preparing for and trying accident claims.

Two take home messages for the Maryland car and truck accident lawyer. First, add in a discovery question to uncover these side deals so you know the score in advance. Second, make sure you argue at trial that the defendants' interests are aligned and they should not both get jury strikes.

The latter issue is a big deal. Giving both insurance companies strikes - particularly if they are working together - is going to give you a very different jury.

Allstate has agreed to pay New York $1.2 million as part of a $10 million regulatory settlement involving Colossus, its infamous computer software that values personal injury auto accident claims.

Under attack was Allstate's use of Colossus, a software program Allstate and many other insurance companies use to determine the value of injuries in auto accident claims. The claim against Colossus would not shock a single accident lawyer in Maryland: there are inconsistencies in Allstate’s management and oversight of the Colossus software program. Specifically, Allstate failed to modify or “tune” the software in a uniform and consistent manner in personal injury accident claims.

Under the settlement agreement, Allstate will make substantial changes to how Colossus is used:

• Providing notice to claimants that the Colossus software program may be used in the adjustment of their bodily injury claims
• Enhancing its management oversight of Colossus to ensure that it adheres to established criteria and a uniform methodology in selecting claims to be used to “tune” or modify the software to reflect recently settled claims
• Strengthening its internal auditing of Colossus and bodily injury claims handling to ensure adherence to written guidelines and procedures
• Consolidating its bodily injury claims handling practices into a single claims handling manual
• Not establishing a policy or rule requiring claims adjusters to settle bodily injury claims solely on the value recommended by Colossus and not providing incentives for claims adjusters to settle claims at or near the value recommended by Colossus.

Continue reading "Allstate Colossus Settlement" »

Howard County traffic accident police reports where the injuries are not fatal are now available on-line. Only motor vehicle accident police reports will be made available on-line. To get the report, you have to pay $5 and certify that you were involved in the accident or you are an accident attorney or insurance company representing someone involved.

You can get more information here.

If you polled personal injury lawyers who handle car accident cases, most would chose Allstate as the "worst of the worst" among insurance companies to deal with on accident claims.

Personally, while I would not put Allstate at the top of my list of insurance companies I want to draw, I certainly would not put them last either. First, I think Allstate claims adjusters respect good lawyers and good law firms and I think their offers reflect the quality of the lawyers involved in the case. Second, if you are patient and willing to go back and forth, I think Allstate will give you less of a low ball final offer than many other insurance companies do. I also think Allstate claims adjusters, to their credit, are less likely to fold just because a lawsuit is filed. Allstate is going to pay more - as any insurance company is - as the case gets closer to trial but Allstate does not have the reflexive "settlement failed, suit has been filed, let's now make a decent offer" response that is becoming the new SOP. This trend seems to be in vogue. A number of insurance companies, most notably GEICO, Progressive, and State Farm (if you are dealing with Team 22 or Team 23 in Maryland), make accident attorneys file a lawsuit in order to receive a reasonable offer. Allstate claims adjusters are more likely to come up with something reasonable to settle the claim before suit is filed. That does not mean our lawyers don't have to file a lot of lawsuits in Allstate cases. But Allstate typically makes it a little tougher call for our clients to make.

The bad rap on Allstate is in part because they are big. Insurance companies are inherently reviled and there is more of Allstate to hate than many other insurance companies: Allstate claims adjusters receive six million - six million! - car accident, property and bodily injury claims a year, paying out $15 billion in claims. Allstate has a strong market share in Maryland in car insurance and other third party personal injury claims insurance. 

As a result of being big, Allstate also get the press. Famously, Allstate claims practices infamously changed in the 90s when Allstate hired the consulting giant McKinsey & Co. to overhaul its claims practices. In a PR screw-up that I bet has cost Allstate millions of dollars, McKinsey used boxing gloves in a slide presentation to Allstate claims representatives to symbolize the Allstate philosophy.  Another piece of advice McKinsey gave, which really resonated with claimants after the advice was implemented, is stalling those claims where the victim did not rollover on settlement. This advice was given 15 years ago but Allstate still uses it in far too many cases today. Allstate claims adjusters commonly continue to stall and delay to hope to wear down third party claims and often uninsured motorist claims made by its' own insureds. But, let's be realistic: every insurance company does this. You just notice Allstate a little more because they are the elephant in the room.  

Continue reading "Allstate Claims" »

The Maryland Daily Record published a three part series over the last month on mediation in Maryland personal injury cases, a piece I wrote with the Honorable Clifton J. Gordy . You can read the articles on-line but you have to be a subscriber to the Daily Record to read the entire article.

• Part I of Mediation in Personal Injury Cases
• Part II of Mediation in Personal Injury Cases
• Part III of Mediation in Personal Injury Cases