Maryland Injury Lawyer Blog

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

Yesterday, the Maryland Daily Record published the first of a three part series I wrote with retired Judge Clifton J. Gordy (now a mediator and arbitrator) on mediation in serious personal injury and wrongful death claims. The article is for both plaintiff and defense lawyers looking to make mediations as productive as possible. Take a look at yesterday's article and look in coming editions for the final two parts.

Note: a special welcome to Point of Law readers. I disagree with many of the philosophical views presented at Point of Law and Overlawyered. Then why do I read both of these blogs every day? Because they are informative, well presented posts that make me occasionally question my own views. I hope to have you as a reader of the Maryland Injury Lawyer Blog and I hope my blog does for you what Point of Law and Overlawyered does for me.

Insurance companies hate being named in an uninsured motorist case. Why? Because unlike most car accident trials, if the jury knows an insurance company is paying the damages, jurors become less concerned that the defendant is footing the bill themselves. Jurors intuitively expect there is insurance available to cover the verdict but they are never quite sure. On several occasions, I have had jurors ask me after trial if the defendant has to pay the verdict. “That nice Mr. Smith does not have to pay this personally, does he?”

In Maryland, the law is clear that in a straight uninsured motorist case without the tort defendant participating in the trial, the insurance company may be named. The definitive case on this is King v. State Farm. In that case, a pedestrian Plaintiff appealed an unsatisfactory jury verdict in Baltimore City in an underinsured motorist case where the tort defendant had offered their policy limits (the verdict was less than the underlying policy). The Maryland Court of Special Appeals reversed because the trial judge did not allow the Plaintiff to identify the fact that the defendant was an insurance company.

The unknown issue in Maryland is whether the underinsurance carrier can be named if the defendant driver who caused the accident remains as a defendant in an an uninsured or underinsured motorist case. I think the answer to the question is pretty obvious because the exact same logic and rationale largely applies.

One of our accident lawyers, however, recently lost this argument on a case that went to verdict. The judge bought the argument that mentioning the underinsurance carrier might lead the jury to think that there must be a lot of insurance which might lead them to award more than they should. Is this possible? Sure. But it seems equally possible the jury would feel sorry for the defendant with so little insurance. Besides, what separates an insurance company from any other large defendant who the jury also knows has a lot of money?

My opinion: when you balance this uncertainty against the insanity of having lawyers representing unidentified parties, it seems like a pretty easy call. It seems to me that the legal system artificially keeps enough from jurors as it is.

Nora Freeman Engstrom writes an amazing article for the Georgetown Journal of Legal Ethics titled Run-of-the-Mill Justice. She writes about settlement mill law firms, writing with a 60 Minutes investigative journalism style that names names, calling out a few law firms she has labeled as settlement mill firms. Engstrom characterizes these firms as "characterized by their high claim volume, aggressive advertising, significant delegation to non-attorneys, entrepreneurial focus, and quick resolution of claims, typically without initiation of suit."

There are about 10 different facets of the article I find interesting. I found of particular interest the idea that settlement mills create a "one size fits all" (my words, not hers) kind of justice. Under this system, individualized pain and suffering does not exist for settlement purposes.

What matters, then, for car accident settlement purposes in non-serious injury cases is the amount of the medical bills, what the injuries are, and how much damage was done to the vehicles. Plaintiffs' car accident lawyers have blamed this on a paradigm shift in the thinking of insurance companies in the 90s, This article argues, quite convincingly, that many plaintiffs' lawyers are unindicted co-conspirators in this system.

The author overlooks that settlement mill auto accident law firms are just one contributing cause. The opposite extreme is equally to blame, lawyers who have very small practices and no real marketing presence that do that exact same thing. Take the case, send in the medical records and bills, and settle the case for whatever you can. There are tons of local lawyers parading as lawyers suited to handle car accident claims. The bigger problem? These same lawyers get serious injury accident cases, typically car accidents, where the victim's financial future is at stake. These lawyers take the case because they can't resist and the results are often disastrous. Settlement mill law firms often have the good sense to refer these cases out, realizing they are asking for a legal malpractice lawsuit. Often, the guy with the office on the corner that does wills, criminal, domestic, and everything else under the sun does not have this same sense.

Of course, it is a mistake to label every solo general practitioner as incompetent to handle large auto accident cases just as it is a mistake to assume every firm that runs massive amounts of television commercials as settlement mills.

What is a good plaintiffs' auto accident lawyer to do if he does not want to get caught up in this mess that has been created? If you have a client who wants to settle their auto accident claim quickly and at any price, you are going to be a victim of this system. There is no way out. But if you have a client that wants to maximize the value of their case, there is a simple answer: file suit and request a jury trial. The insurance company is either going to pay at least a reasonable value on the claim or it is going to go to trial where a jury is going to give you the fair value of the case. Because a jury is the ultimate definer of the fair value of a case.

Most of my information and opinions on taxis and taxi drivers come from the television show Taxi. Unlike most 70s/80s television shows, Taxi holds up fairly well on reruns.

Anyway, it is pretty clear that Baltimore City and Prince George’s County cab companies are a different animal than Alex Reager's Sunshine Cab Company. There are a lot of single cab operators who disproportionately have MAIF insurance with a 20k/40k coverage limit. For people outside of Maryland, MAIF is a state owned car insurance company for Maryland car owners who cannot get insurance elsewhere but are licensed to drive in Maryland. Let's be polite and call these folks high risk drivers.

It is borderline insane, given how much time a taxi driver spends on the road compared to the rest of us, that (1) he/she is allowed to drive with a shoddy driving record, and that (2) taxi drivers are allowed to drive around with 20k/40k coverage limits.

There would be a lot of wisdom in raising the bar for who can drive a taxi cab in Maryland and in requiring taxis to have a minimum 100k/300k in insurance coverage. That level of coverage is insufficient, but it would be a start, and higher limits could be phased in over time.

The Maryland Court of Special Appeals in a 2-1 decision today affirmed a Frederick County trial court’s grant of summary judgment to Erie Insurance in an underinsured motorist lawsuit.

The nutshell: State Farm paid its $100,000 liability policy in a serious injury car accident case. Plaintiff sought payment under his $250,000 uninsured/underinsured motorist policy with Erie Insurance. Erie claimed that it was entitled to a workers’ compensation setoff of $246,305.66, representing the workers compensation benefits the car accident victim received because he was working at the time of the accident. The Plaintiff claimed the setoff should be $27,396.28 because this was the amount of the workers’ compensation lien.

Continue reading "Workmen's Compensation Uninsured Motorist Setoff: New Opinion for the Maryland Court of Special Appeals" »

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.

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