Maryland Injury Lawyer Blog

Uninsured motorist insurance is so counterintuitive for personal injury victims. First, it is hard to get your mind around the idea that your own insurance company will pay for the harm suffered in an accident. Still, people get over that one pretty quickly because they are just happy someone else is standing by the claim.

But, where victims become particularly incensed is in wrongful death uninsured motorist cases where there is a liability dispute. Details of Maryland uninsured motorist laws are hard to absorb when all you can see is your insurance company representing the uninsured or underinsured person who killed your child/spouse/sibling.

This post here - "My Sister Paid Progressive Insurance to Defend Her Killer in Court" - does a wonderful job of articulating this anger and frustration.

As the Maryland appellate courts continue their summer of personal injury enuni, we turn our attention to a uninsured motorist case issued by the Supreme Court of Rhode Island, in New London County Mutual Insurance Company v. Karoline Fontaine. This opinion works through some issues about uninsured policy provisions, something we find ourselves doing quite frequently at Miller & Zois in our sometimes mad quest to find insurance coverage to get our clients compensated for their injuries.

The facts on this one are both simple and tragic. A husband and wife were on their motorcycle, and got into a collision. As is too often the case in motorcycle accidents, the husband was killed. The accident was not the couple's fault, which is also often the case in fatal motorcycle accidents. But, of course, that is little consolation to the man's family.

Neither the other vehicle nor its driver was insured. The motorcycle was insured by a policy with Foremost Insurance Company, and Foremost paid the full $100,000.00 under the uninsured motorist provision.

Continue reading "New Uninsured Motorist Opinion from Rhode Island" »

The purpose of uninsured motorist coverage - which most of us blindly have because our state requires it - is for protection in the event that we get hit by a driver with no insurance or not enough insurance to provide compensation for our injuries. Most uninsured motorist policies compensate the victim for any amount, within the policy limits, that would have been recoverable from the at fault driver as money damages resulting from a car collision.

What happens when your client is on a motorcycle that is not listed on your insurance policy? Does your uninsured motorist coverage kick in? This issue is usually framed by breaking down the language of the uninsured motorist agreement that considers a motorcycle to be an excluded vehicle. But the analysis does not end there. Some states - Maryland is a prime example that I will get to in a second - are willing to rewrite the terms of an insurance policy to meet public policy objectives. This is done either by judicial fiat or by the state's uninsured motorist statutory scheme.

So outside of Maryland, Plaintiffs' lawyer in these cases argue that the state uninsured motorist laws provides protection that extends not just to the vehicle but to the person. Accordingly, this argument goes, UM coverage is broadly construed to cover all motor vehicle accidents. The insurance companies, argue, on the other hand, that its insured should not be able to have their cake and eat it too by doing someone inherently unsafe while not paying for the coverage. There is merit to both arguments.

Continue reading "Is Your Client's Motorcycle Accident Covered by Her Uninsured Motorist Policy?" »

The Governor signed yesterday a bill that allows auto insurance companies in cases where the at-fault driver has insufficient insurance coverage to consent to settlements against the at fault driver without (1) limiting their right to raise any issue relating to liability or damages in an action against the insurer; and (2) admitting as to any issue raised in an action against the insurer.

The Maryland General Assembly made history with the bill: nobody is mad. Insurance companies are ecstatic and trial lawyers are largely indifferent.

You can read about the genesis of this bill here.

There is a bill pending in the Maryland Senate to overturn the Maryland Court of Appeals opinion in Maurer v. Pennsylvania National Mutual Casualty Insurance six years ago. This bill allows car insurance companies who have underinsured exposure, because the at fault driver has insufficient insurance coverage, to consent to settlements against the at fault driver without (1) limiting their right to raise any issue relating to liability or damages in an action against the insurer; and (2) admitting as to any issue raised in an action against the insurer.

Continue reading "Underinsured Motorist Coverage Maze: A New Bill to Clean Up (a Little)" »

Lawyers do not have a natural affinity for checklists. Lawyers have egos that compare with any profession and checklists are a reminder of your mind's limitations. "I'm not making mistakes in working up cases so why would I need a checklist?" But, sometimes, a new wave of studies are showing, you do not know that you are omitting important things that you have to do to work up an accident case unless you are reminded to do them by a checklist. When do lawyers figure this out? Trial. Most accident cases are settled before trial. So you don't even have the constant reminders of your errors from not having a checklist.

Continue reading "Car and Truck Accident Case Checklist" »

Our Rod Gaston is giving a lecture on Advanced Uninsured/Underinsured Motorist Law at the Treemont Grand Hotel in Baltimore on Friday, March 9, 2012. You can get information here.

Rod is going to provide information both on Maryland uninsured motorist law and how to use that law to maximize the value of serious car accident claims in Maryland. If you can't make it, you can also order the audio CD and course materials.

When picking a jury, peremptory strikes are a big deal. There are almost invariably a few prospective jurors that are high up on the roll call that you just know are anti-plaintiff. I don't know how I actually know this - you get just a glimpse of Maryland jurors in voir dire - but I just do. They have this indescribable "I assume the plaintiff's case is garbage and I can't believe I'm here" look. Defense lawyers have a similar fear, of course, terrified of the "I can feel your pain to the point where I'm able to set aside logic and reason" look. Both of these jurors get rooted out by peremptory strikes. And the "look" is fair game as long as it is not based on race, religion, or gender. In Maryland, you get four peremptory challenges plus one peremptory challenge for each group of three or less alternate jurors to be impaneled. So, generally, you get 5 strikes.

Maryland car accident lawyers on both sides of the aisle now assume that Maryland law, after Maurer v. Penn National, is that if an uninsured motorist insurance company waives its subrogation interest in a case when the at fault driver offers her policy limits, that insurance company cannot contest liability at trial.

Plaintiffs' attorneys in Maryland disagree as to whether this is a good rule. Clearly, the problem with the rule for plaintiffs is that insurance companies are less likely to waive subrogation when the underlying insured offers policy limits. This means you have to deal with two sets of defense attorneys which means almost twice the hassle. Insurance companies are also doing side deals now, where the underinsured motorist carrier waivers subrogation on the DL (that's "down low" if you were not cool ten years ago), presumably with a pinky promise.

What does this have to do with jury strikes? Well, defense lawyers try to parlay this double lawyer albatross into double strikes. Can they do this? Maryland Rule 2-512 (h) says that multiple plaintiffs or defendants should be considered a single party unless the court finds that "adverse or hostile interests between plaintiffs or between defendants" justify separate challenges.

In uninsured and underinsured motorist cases, it is hard to claim that the interests of these parties are anything other than the same. But I got broadsided with this argument a few years ago during a trial in Baltimore County. It was a tough case anyway, I was in Baltimore County and, over strenuous objection, both the at-fault driver and the underinsured motorist carrier (MAIF and GEICO) were given strikes. I don't have to tell you how it turned out: awful. (Yet, still, it was more than the settlement offer which pretty much summarizes dealing with MAIF and GEICO).

Continue reading "Jury Strikes Matter" »

Waivers in Uninsured/Underinsured Car Accidents

I had a prospective client call in a few weeks ago with an interesting uninsured motorist waiver issue that I thought I would share.

To keep the world simple, Maryland law requires that insurance companies match up their insured liability coverage with their uninsured motorist coverage. But it allows for an exception in those cases where the insurance offers uninsured/underinsured motorist coverage in the same amount as their liability coverage and the insured signs a waiver that its liability coverage will exceed its UM coverage. This is an odd bet for the insured who is more worried about getting sued and not having enough coverage then making sure they are protected when they get in a car crash that is caused by someone who had no or little insurance. But, I don't disagree that in the free market economy (I'm talking to you, Mitt), people ought to have the right to make this odd choice as long as it is a knowing and intelligent waiver. I think the law makes sense.

But what about these waivers? In this case, I have a high wage earner who gets into an accident with a driver with a minimum limits policy. He has a $300,000 liability policy that would clearly be offered if his uninsured motorist coverage mirrored the liability policy. Instead, he has the minimum $30,000 UM policy.

Continue reading "Uninsured Motorist Waiver" »

Mealy's reports on Jones v. Penn National, a North Carolina uninsured motorist case where the Plaintiff brought a bad faith claim against Penn National, the underinsured motorist carrier, in a case where the at fault defendant - insured by Allstate, naturally - did not tender their policy. The court said that Defendant has no obligation to offer UIM coverage before the exhaustion of liability insurance. I think a Maryland court would make the same ruling.

That's the nutshell. You can stop there. Perhaps I could interest you in an overview of uninsured motorist coverage. Is that something you might be interested in? (Entourage devotees enjoy the joke. Everyone else looks annoyed.) Or we can break it down a little further.

Plaintiff gets into a serious accident. The defendant driver is killed. Allstate, who insured the defendant, offered $7,500 of its $30,000 policy. Plaintiff takes the case to verdict and gets a $185,000 verdict. (Maybe Colossus didn't have a good handle on this one.)

Plaintiff then brought a bad faith claim invoking North Carolina's UIM statute and its Unfair and Deceptive Trade Practices Act. Maryland has a similar law. Plaintiff's lawyers claimed that Penn National was bound by a statutory duty — following the car accident and before Allstate tendered its policy - to evaluate the case fairly and honestly. In other words, they are arguing that Penn National is not as dumb as Allstate and knew the claim was worth more.

Continue reading "New Underinsured Motorist Opinion" »

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?" »

The Maryland Court of Appeals decided today GEICO v. Comer, another appellate case that dives into the Serbonain Bog of whether uninsured/underinsured motorist coverage kicks in when trying to get coverage in an accident under an insurance policy for a vehicle that was not in the accident that caused the injuries.

Plaintiff was in an awful motorcycle accident in Calvert County. The Defendant cut in front of the Plaintiff who suffered a myriad of injuries, as is typically the case with motorcycle accidents, including a fractured femur and an open head injury. He incurred over $200,000 in medical bills and suffered permanent injuries. Everyone agrees: awful case.

Continue reading "New Maryland Uninsured Motorist Case" »

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

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

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

Continue reading "GEICO Just Kills Me" »

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

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

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

Continue reading "Property Damage Claims Releases" »

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." »

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?" »

Last week, I wrote one of my most read Maryland Injury Lawyer Blog posts in the last four years, thanks to a Twitter link from the authors of Freakonomics. I love Freakonomics and Superfreakonomics to the point where I would put the Twitter link on my bio if it would not make me so obviously pathetic.

Anyway, the subject of the post was the ignored risks of pedestrians and alcohol which cause a remarkable number of deaths and injuries (and car accidents) every year in this country. To underscore this point, I read as I do every Monday, Norman Chad's syndicated column in the Washington Post. At the end of his column, he does a little question and answer:

Q: Re: Colts punter Pat McAfee. Have you ever been arrested shirtless, soaking wet and reeking of alcohol? — Brian King, Carmel, Ind.
A: Too much is made of public intoxication; in a simpler America, I believe you should be allowed to walk home drunk. Plus punting’s a part-time job with Peyton Manning’s Colts — I wouldn’t begrudge McAfee a midweek cocktail.

People should be allowed to walk home drunk? Now imagine if he had said the same thing about drinking and driving. I think the blogosphere would probably explode. Norman Chad must apologize to the families of everyone killed in a drunken pedestrian accident. He should be suspended from his job at ESPN and his column should be taken down for three months. He should be made to write 1000 times, "I will not make light of the serious public health issue of drunk pedestrians ever again." Norman Chad should be caned.

No, wait! That is the idiot's reaction, trying to beat an apology out of another public figure, particularly from a humorist who is just uninformed like everyone else on the real risks caused by drunk pedestrians. We need the public to pay more attention to issues that matter and less to the useless apologies beaten out of people who are trying in good faith to be honest or harmlessly funny.

But this is a teachable moment (yes, I'm sending my $2 to Obama for the copyright) about the associated risks of pedestrians and too much alcohol. I'm not saying we need a national movement running television commercials - an important issue does not have to be the most important issue - but it is a serious public health problem we need to take seriously. There may not be the same moral imperative to stop pedestrians as there is to stop drunk drivers but there needs to be enough public awareness so that someone like Norman Chad (and his editors) feels compelled to pass on a laugh to help save lives (and to avoid the risk of a public backlash).

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" »

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