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.
Not often, but at least a few times a year, our law firm gets a wrongful death case in Maryland where, regardless of the facts, there is no claim. In this case, the victim, who may be loved by family and friends, has no wrongful death claim because the victim has no spouse, children, or living parents.
Noneconomic and economic measures in Maryland do not provide money damages for loss of life of the victim on their own behalf. The lack of joy that comes with being alive and missing out on a life goes uncompensated. So if you have no spouse, dependents, or children and are negligently killed by another person and you die instantly, there is no recourse in Maryland law for a wrongful death claim or any other meaningful claim outside of your funeral expenses.
Accordingly, a doctor can see that a patient has no primary or secondary wrongful death beneficiaries and know that there is no possibility of a wrongful death medical malpractice claim.
Do I think this happens where doctors feel free to take a risk with a patient because the patient's death by definition could not bring about a wrongful death claim? No, I really don't. But the whole idea that you could recklessly kill someone with no consequences of any kind is a bad thing.
The answer? Change the law to have an entirely new damage claim in Maryland for loss of the enjoyment of life for the victim? Whatever you may think of the idea, there is absolutely no inertia to change the current state of the law.
So what could we do that is more practical to solve the problem? I think the answer is simple. Allow siblings, grandchildren and other clearly defined relatives into a third contingency tier of wrongful death beneficiaries. It would open up only a few new claims but we could all know that there will be accountability when someone is killed by someone else negligence. I think that this would be justice.
Continue reading "Maryland's Wrongful Death Statute" »
I stumbled on an interesting Chicago Law Review article today by Eric Posner (Judge Richard Posner's son) and Cass Sunstein (now with the Obama administration). I like Sunstein's views on a number of issues, including animal rights.
The subject article is how the legal system assigns money damages to the loss of human life in wrongful death cases with an eye towards creating greater uniformity. The authors approach this question like it was a mathematical equation to be solved. For grief, the authors conclude that $500,000 is a good starting place, suggesting this formula as the paradigm to determine compensation in wrongful death cases:
To derive a willingness to pay (WTP) to avoid grief from a spouse's death, one would need to (1) determine the average length of time that the grief persists (for example, until remarriage); (2) find an equivalent happiness difference in an area of life that has been reliably monetized (for example, willingness to pay to avoid disease or depression); (3) convert this difference into annual units; and (4) multiply (1) by (3).
I understand the goal of uniformity and I even understand the formula. The problem is homogenizing the equation for everyone. Values vary because juries vary but also because facts vary wildly from case to case. Moreover, the formula is artificially low because it uses how much you will spend to avoid a loss to determine how you value the loss. For example, if you are willing to pay $5 to avoid a 1/100,000 risk of death to your spouse, than the loss of your spouse is worth $500,000.
Continue reading "Wrongful Death Compensation: How Much?" »
Paul Luvera discusses a tough issue for Plaintiff's lawyers: do you clue the jury in during your opening statement as to how much you are going to ask for in closing? I struggle with this and often opt for a middle ground. I lay out the foundation of what I'm going to ask for: medical bills, wages, and the formula I think is appropriate (x per day for the rest of her life). This way, I'm getting them used to the idea without having to spit out a number without any evidence.
As Paul points out, a one size fits all rule is difficult because each case depends on different facts. One critical question has to be considered: is the cap an issue? If what you have is clearly a cap case and minimal or no economic damages, you can dial back a bit on the damages argument which might help you avoid the risk of losing credibility. Because every time you ask for money - which is what a plaintiffs' lawyer does by definition - you do lose some measure of credibility with a jury.
One of the issues in this post - raising the damage amount in voir dire - is not of much interest to Maryland personal injury lawyers because our voir dire is so ridiculously limited.
Paul also points out that David Ball feels pretty strongly about putting up a number in opening. Which is reason enough to consider it in every case.
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.
The Maryland Daily Record has an interesting article today on the Maryland Automobile Insurance Fund (MAIF).
For out-of-state readers, MAIF is a unique animal: a state-run insurance company for drivers that cannot get car insurance from private insurers. Most states deal with this problem by forcing private insurance companies to insure high-risk drivers. In Maryland, we have created a huge state-run insurance company to insure the risk.
To me, MAIF is like stare decisis. I don't think we would make the decision all over again to create a state agency. One good piece of evidence: no other state has followed suit and created their own version of MAIF. But now that we have it, there is no inertia to tear it down.
The Daily Record article talks about efforts in the Maryland legislature to essentially stop MAIF from acting like an insurance company. What's the problem? Insurance companies are threatened by MAIF because they are stealing market share. One of the lobbyist quoted in the article complaining about MAIF works for Agency Insurance, which also insurers a lot of high risk drivers. This isn't the first time an insurance company that markets to high risk drivers has complained about MAIF. (See this September 2, 2008 post.)
These same insurance companies also grab on to the up-with-people populist sentiment against bonuses for anyone connected to public funding, pointing to the $1.2 million in bonuses MAIF paid last year. They jump on the fact that MAIF Executive Director M. Kent Krabbe is the one who recommended the bonuses to the board and that Krabbe got $36,000 for himself.
I'm as big of a MAIF critic as anyone is. I think they are just plain obstructionists when it comes to paying valid claims and I think their approach often costs them money. They won't try a high risk case but they also won't offer their policy limits until after they spend a fortune in legal fees defending the case. I have said in the past I don't disagree with insurance companies' tactics of playing hard ball with personal injury lawyers in an effort to maximize their profits. Too many Maryland accident lawyers settle at the first sight of money or a potential trial. But hanging around in a wrongful death case - which they have done multiple times with us - when I know they are just going to offer the policy before trial - is just a poor business strategy. (This is one wrongful death case involving MAIF that settled just before trial, just to give you an idea.) Good companies have more than one gear. MAIF just has the one. At some point, turning the boat north and speeding up when there is an iceberg in your path is a bad idea. Particularly when your plan is to jump off when the iceberg gets real close.
A wrongful death lawsuit has been filed against a Chattanooga, Tennessee bar after a car accident killed a woman just a few days before Christmas. The case is an interesting twist on the classic dram shop case. The suit alleges that the bar gave its employees free alcohol and allowed one man to leave the bar obviously intoxicated. The employee stayed at the bar and drank "free alcohol" after his shift ended at 3 a.m. Around 7:00 a.m., the defendant struck and killed a pedestrian, an employee on her way to work at Unum Insurance. The defendant, stand up guy that he apparently is, fled the scene and tried to fake a carjacking. Apparently this is an insurmountable stunt to pull off when you are drunk.
What really adds teeth to the Plaintiff's wrongful death lawsuit is a city ordinance prohibiting bar workers from drinking where they work, even when off duty. Clearly, the violation of the ordinance was a factor in causing this woman’s death. If the case goes to trial, there are going to be arguments by defense lawyers about the purpose and intent of the statute and whether this was the harm that the ordinance was trying to avoid. But I would suspect it was at least a purpose, if not the purpose, of the statute.
Maryland has rejected dram shop and social host liability in DWI accident claims. Going against the grain as a parent and lawyer who handles accident cases, I have believed and written in the past that I oppose dram shop liability claims in Maryland.
I’m not so sure anymore. I would really like to see data as to the number of wrongful deaths that occur in Maryland from DWI/DUI accidents where the person became intoxicated at a bar, or even at a bar where they are employed. Of course, the more salient question is one on which we will never get a definitive answer: how many deaths have occurred as the result of a server in a bar or restaurant who knows a patron (or employee) is drunk but does nothing to stop them?
Continue reading "Dram Shop in Maryland" »
Gauging the next “move” based solely upon how much the other side has budged- “tit for tat” negotiations with no bearing on one’s own case evaluation is another common mediation mistake. It is understandable that negotiators and mediation participants desire proportionality and reciprocity in adjusting demands and counteroffers. The problem is that many adjusters think that plaintiffs have no ceiling on the amount that they can demand, whereas defendants can never offer anything less than zero. For this reason, arguments that, “We’ve come down by $100,000 so you need to come up by $100,000” often fall on deaf (adjuster or defense lawyer) ears.
Defense lawyers often set up mediations better than personal injury lawyers. The defendant's lawyer will call you and ask for a demand. You decide to be reasonable. So when you show up at the mediation, the range is between reasonable and zero. That is the wrong psychology to settle a case.
The best way to address this problem: if defendant puts you in this game, don't be above the game with your reasonableness. Your opening demand under this dynamic should mirror the defendants’ maximum exposure. Most states now have caps on non-economic damages. Add up your economic damages: past and future medical expenses, past and future lost wages, loss of earning capacity, vocational training and/or rehabilitation. Add that number to the amount allowed under the applicable non-economic damages cap. This should be a good approximation of the maximum exposure on the claim. With any luck you will be right around the amount of the reserve the insurance carrier has set for the claim. This should help in estimating the settlement value of the case on the continuum between maximum value and zero. This will let you calibrate your demands to where you want to end up on a case, not necessarily to match the other side amount for amount.
This tactic only works in a case where it is possible a jury would give such an award. Not likely but "best day possible." If you are demanding the cap in a soft tissue injury claim, you are also sending the wrong message. Similarly, when you demand $5 million in a case where your cap is $2 million, you are sending the same "I'm not exactly sure what I'm doing" message.
A hospital did not breach a duty of care as a matter of law to a police office who was injured responding to a traffic accident allegedly caused by a just-released colonoscopy patient, Massachusetts' highest court has ruled, affirming the trial court below.
The police officer responded to an emergency report of a pedestrian-automobile accident. On his way to the scene of the reported accident, Plaintiff's police car was hit by another car, causing what were apparently pretty serious injuries. The pedestrian involved in the accident to which the Plaintiff was responding had earlier that day undergone sedation after a colonoscopy at Brockton Hospital. Plaintiff's theory of the case was had the hospital provided an escort for the patient/pedestrian, he would not have had to respond and the accident would not have occurred.
Specifically, Plaintiff argued that a duty of care existed under two theories to back door the foreseeability problem: (1) a "special relationship" the hospital had with the patient and with Plaintiff, (2) a voluntary assumption of a duty of care by the hospital to protect third parties from harm caused by "impaired" patients.
The case generated some attention. Amicus briefs filed by the Massachusetts Academy of Trial Attorneys in support of Leavitt, and by the Massachusetts Defense Lawyers Association and the Professional Liability Foundation, Ltd., in support of the hospital.
The Massachusetts high court found that both theories were not distinctions from the duty and foreseeability problem in finding that a hospital owes a duty of care to a nonpatient third party to prevent a sedated patient from causing injury after the patient leaves the hospital.
Whether negligence extends to "an innocent third-party bystander" was recently decided in Maryland in Gourdine v. Crews. In that case, the family of a man killed in an auto accident brought a lawsuit against Eli Lily claiming that his death was caused by a diabetic who blacked out while under treatment with two insulin medications.
Continue reading "New Massachusetts Opinion on Duty and Foreseeability" »
The New York Daily News reports that the family of a high school student in New York, who was killed in a stolen vehicle hit-and-run drunken driving accident, has filed a wrongful death lawsuit against the driver of the car, the owner, and the family that hosted an underage drinking party. It is a no-brainer case against the adult hit and run drunk driver who also will certainly face criminal liability. The merits of the case against both the owner of the vehicle and the family that hosted an underage drinking party where they gave the victim – not the driver – alcohol, is more problematic, even from a personal injury lawyer with a admittedly pro-plaintiff world view.
About half of the states in this country have enacted Dram Shop statutes which permitted the imposition of civil liability on suppliers of intoxicating beverages in certain circumstances. Only a few states take the position that there was no civil liability for serving alcohol. But Maryland is one of those few states. Moreover, Maryland courts will not distinguish a case where the alcohol was served to minors in the home with the parents’ consent (Maryland Court of Special Appeals opinion in Hebb v. Walker, 73 Md. App. 655 (1988)).
This is another bad and outdated Maryland law. But this New York case is trickier than “the adults give kids alcohol, and then the kids go out and hurt someone in an accident" scenario. Both the pedestrian victim and the driver were drunk. The wrongful death lawsuit names the parents who allowed the pedestrian/victim to drink alcohol at a party.
Honestly, and the New York Daily News has a picture of this handsome boy and his parents that is downright heartbreaking, I have a hard time placing civil liability on the parents that allowed him to drink alcohol in their home. There are cases where someone is morally responsible – which I think is hard to deny in this case - but should not be civilly responsible. I think this is one of them. A sixteen year-old boy is blameless in the big picture in this case in every way that matters. But his own behavior should – I think at least – negate the liability of the parents that allowed him the have alcohol. I realize this opinion is not out of the plaintiffs’ personal injury lawyer manifesto. But I didn’t check my own views at the door when I became a plaintiffs’ lawyer.
Continue reading "The Difference Between Moral and Civil Responsibility" »
Interesting data from Jury Verdict Research on the median and average values of wrongful death cases where the decedent is female. The overall average compensatory award for wrongful death of an adult female over the last eight years in the United States is $2,990,032 ($1,102,976 is the median).
Age is a big variable when looking at median and average female wrongful death values. The average wrongful death verdict for a female between 18 and 24 is 2,990,032 ($1,102,976 median). For females between 30 and 39, women who are far more likely to have left behind children, the median wrongful death verdict escalates to $5,605,127 ($2,500,000 median). For women over 80, the average wrongful death verdict plummets to $1,314,241 (322,920 median).
I always find it maddening when insurance companies discount the value of human life in wrongful death cases because of the age of the decedent. If you are eighty years-old and you are killed, those last 10 years of seeing your kids as adults, your grandchildren coming of age and everything else that comes with it are incredibly valuable years. But these numbers, regrettably, demonstrate that there is some logic to their thinking when it comes to how juries value wrongful death cases.
Approximately 62% of the non motor vehicle wrongful death claims in this study are medical malpractice and wrongful death claims – particularly with older patients - so it is reasonable to assume that many of these wrongful death verdicts were compromise verdicts.
Related Posts:
How Lawyers and Insurance Companies Value Personal Injury Cases (summary and report on settlements and verdicts by injury type)
Value of Personal Injury Cases in Washington D.C. (District of Columbia settlements and verdicts)
Valuing Cases in Virginia (average settlements and verdicts in Virginia)
Personal Injury Verdicts Across the Country (personal injury verdicts in your state)
Wrongful Death Settlements and Verdicts in Maryland (wrongful death values)
Value of Wrongful Death Motor Vehicle Accident Cases in Maryland (average settlements and verdicts)
These are some personal injury related links from around the country this week:
The Burlington Times News has an article about North Carolina’s decision to require North Carolina doctors to report all medical malpractice payments greater than $25,000.00. These results will be released to the public. The article notes that only 4% of the doctors in North Carolina in the last seven years have made malpractice payments.
Legal Newsline.com has an article on how medical malpractice damage caps in Texas have decreased malpractice premiums. As I have written before, in spite of what a lot of medical malpractice lawyers have argued, this cause-and-effect relationship is textbook economics. I think it is also true that the quality of patient care in Texas is falling dramatically because there are no repercussions when a doctor seriously harms a patient.
The Baltimore Injury Lawyer Blog has a post on John Bratt’s recent auto accident trial in Montgomery County.
Pharalot reports that the FDA will now be compile quarterly a list of drugs that have been identified as having potential safety concerns. Can anyone argue this is a bad idea?
The new Maryland Accident Lawyer Blog has a post on the Maryland Court of Special Appeals’ recent ruling in a wrongful death car accident case that took the lives of a man and his three children.
The Illinois Trial Practice Weblog has a post about the top 10 rules of evidence every lawyer must know. (Top 10 lists are irresistible.) The same blog also has a good post on videotaping your opponent’s deposition.
Does Sarah Palin support the idea of jury nullification?
The Baltimore Sun reports that the FDA may not be properly screening drugs for the potentiality of the medications inducing suicide. Plaintiffs’ product liability lawyers who have been looking at these issues for the last 20 years are Captain Renault-like stunned to learn that the FDA (and the drug companies) has not properly focused on the risk of drugs – particularly antidepressants – and suicidal thoughts and ideations.
Finally, the Torts Prof Blog continues to put together a comprehensive list of personal injury links from around the country.
Insurance Settlements, a two volume treatise for which I am the lead author, is now available from James Publishing. This treatise is for personal injury lawyers handling auto accident, truck accident, medical malpractice and product liability cases with a lens toward getting the best possible outcome at all stages of these cases (though trial). The better title for the book - with the benefit of hindsight - would have been "Maximizing the Value of Personal Injury Cases." Maybe I can convince James Publishing to change it down the road.
I’m excited about the book. If you are interested getting a copy, click on this James Publishing link. If you have any comments on the book, please email me at ronmiller@millerandzois.com under the subject "Insurance Settlements Questions or Comments."
The Baltimore Injury Lawyer Blog has a interesting post about Baltimore City juries from the perspective of a Maryland accident lawyer.
The Maryland Daily Record yesterday reported on a $4 million verdict an Anne Arundel County jury awarded to the parents of a 5 year-old boy who drowned in the Crofton Country Club pool in 2006. The parents of Connor Freed filed suit against D.R.D. Pool Service, Inc, who managed the pool for the country club. The boy was at the pool with some family friends and was found floating in the pool after a trip to use the bathroom. The suit alleged that the pool was an adequately supervised by only one, 16 year old lifeguard with 3 weeks' experience. It further alleged that CPR was performed incorrectly and that a defibrillator should have been used. (D.R.D. filed a cross-claim against the family friend but the jury found him not liable.)
Interestingly, the parents' claim for the child's conscious pain and suffering was dismissed in a pretrial ruling. I do not know all of the facts but unless he was unconscious when he hit the water, I cannot imagine how there could not be a survival action for conscious pain and suffering.
The jury award was 2,000,706 for each of the child's parents. The 706 represents the child's birthday of July 6th. That gives me goose bumps. Regrettably, the real recovery will only be about $1,020,000 (plus an economic damages) because that is the cap for non-economic damages in a wrongful death case with two or more beneficiaries.
If you read Maryland Personal Injury Lawyer blog regularly, you are tired of hearing me say this over and over again. But this jury picked an incredibly specific number as compensation for these parents. Does anyone think this is an unfair award? If the award is not unfair, why does Maryland law cap damages in these cases? It is just wrong and this is one of those cases that underscores the injustice of Maryland's cap on non-economic damages in wrongful death cases.
Connor's parents have started the Connor Cares Foundation whose mission is to get legislation passed for pool safety standards and get a standardizes pool rating safety system in place nationwide. It is nice that these these parents are trying to achieve some good from such a tragedy.
I have three small kids and a swiming pool. My wife and I are pretty obsessed with pool safety. We have a lot of systems to ensure safety and I am still terrifed by the pool. Every time we start to let our guard down even a little bit, I am reminded of a chilling stat: it is safer to have a gun in the home than a pool in the backyard.
Metro Verdicts Monthly reports that the median settlement and verdict in Maryland for wrongful death medical malpractice cases over the last 20 years is $900,000. This is far more than the verdicts in Maryland’s sister jurisdictions, Virginia and Washington D.C, which have medians of $750,000 and $665,700.
Looking at malpractice cases more generally, the median medical malpractice jury award in Maryland, according to Jury Verdict Research, is $500,000 in 2003, the last year for which I could find data. Verdicts that year ranged from $54,521 to $7,708,064.
Jury Verdict Research also gives interesting data on the median verdicts in other jurisdictions: Florida - $1,257,386; New York - $1,100,000; Pennsylvania - $1,000,000; Ohio - $850,000; Indiana - $750,000; Missouri - $694,000; North Carolina - $500,000. Not all of this data is comparing exactly apples to apples, because the range changed with the publication date, but I still think this provides an interesting means of comparison for medical malpractice lawyers.
Of course, these verdict - as opposed to settlement - figures are misleading, as any medical malpractice lawyer will tell you, because not all verdicts are collectable or at least not fully collectable, particularly today when so many states have caps on non-economic damages in medical malpractice cases. The National Practitioner Databank (NPD), a government reporting system for doctors and hospitals, reveals what is really collected in medical malpractice cases. Every payout (not the verdict amount, but the actual amount paid) in a malpractice case has to be reported to this data bank. NPD’s most recent annual report found that, nationwide, the average money damages recovered - by settlement or verdict - was $170,000.
Going back to wrongful death medical malpractice cases in Maryland, the new cap on non-economic damages in wrongful death malpractice cases is going to have an impact on these figures as time goes on and more malpractice cases are tried and settled with dates of death which are after the effective date of the new statute.
If you have been injured in a medical malpractice case in Maryland or you have lost a member of your family due to medical malpractice and are interested in pursuing a settlment or filing a lawsuit, call today to speak with a personal injury lawyer who handles Maryland wrongful death medical malpractice claims and other malpractice lawsuits. You can reach a Maryland malpractice lawyer at 800-553-8082 or by clicking here for a free no obligation consultation on the Internet.
Related Posts:
How Lawyers and Insurance Companies Value Personal Injury Cases (summary and report on settlements and verdicts by injury type)
Wrongful Death Settlements and Verdicts in Maryland (wrongful death values)
Wrongful Death Verdict Values for Female Decedents (average and median wrongful death values for women)
Value of Wrongful Death Auto and Truck Accident Cases in Maryland (average settlements and verdicts)
Value of Personal Injury Cases in Washington D.C. (District of Columbia settlements and verdicts)
Valuing Cases in Virginia (settlements and verdicts in Virginia)
Personal Injury Verdicts Across the Country (personal injury verdicts in your state)
Products Liability Verdicts (national averages by type of products liability case)
According to Metro Verdicts Monthly, the median motor vehicle accident wrongful death case in Maryland is worth $505,000.
This is interesting information. What does this data tell an auto accident or truck accident lawyer practicing in Maryland? Not much. Why? The motor vehicle accident data has little probative value, because it does not include the amount of the insurance policy at issue. We have settled wrongful death claims for $20,000 in cases where that is all the available insurance, and the defendant had no meaningful assets. Uninsured motorist cases also bring down the median and average values of auto accident wrongful death cases, because plaintiffs' attorneys are overly reasonable in requesting damages in a wrongful death uninsured motorist case, due to the fact that the lawyer knows that he/she will be limited in the damages that can be recovered.
This data becomes more interesting when you consider that the median settlement/verdicts in Washington DC and Virginia are much greater than in Maryland, $941,500 and $800,000, respectively. Because verdicts in Maryland tend to be higher than those in Virginia, mostly because of verdicts in Baltimore City and Prince George's County, I think it is safe to assume that the Virginia median is higher because of settlements that are due to the cap on non economic damages.
Tomorrow, the Maryland Personal Injury Lawyer Blog will look at median settlements and verdicts in wrongful death Maryland medical malpractice cases.
Related Posts:
How Are Lawyers and Insurance Companies Valuing Your Personal Injury Case (summary on settlements and verdicts by injury type and overview of how your case is evaluated by the insurance companies and their lawyers before and after a lawuit)
Wrongful Death Settlements and Verdicts in Maryland (wrongful death values in personal injury cases in Maryland)
Wrongful Death Verdict Values for Female Decedents (average and median wrongful death values for women based on age of the victim)
Value of Wrongful Death Auto and Truck Accident Cases in Maryland (average settlements and verdicts in Maryland accident cases)
Value of Personal Injury Cases in Washington D.C. (District of Columbia settlements and verdicts)
Valuing Cases in Virginia (settlements and verdicts in Virginia)
Personal Injury Verdicts Across the Country (personal injury verdicts in your state)
I gave an interview for the Roanoke (Virginia) Times last week on the question of whether the families of the Virginia Tech survivors can bring wrongful death claims. You can access the article here.
There has been so much said and written about the Virginia Tech tragedy I really do not have anything more to add. But when something happens that is unimaginably awful, I think it is comforting to find some silver linings. Lawrence O’Donnell spoke on the McLaughlin Group about seeing people in California with no personal connection to the tragedy in tears, underscoring how interconnected we all feel. There is something heartwarming about this. In the same way we all became New Yorkers six years ago, we are all Virgina Tech students/alumni now.
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.
Yesterday my partner, Laura G. Zois, tried a wrongful death auto accident case in Prince George's County against Allstate. The jury awarded our client $8 million. Allstate made no offer to resolve the case.
Of course, we cannot collect the entire amount not only because of Maryland's cap on pain and suffering damages, but also because there is no first party bad faith on uninsured motorist claims in Maryland. I understand that a bill has been introduced in the Maryland General Assembly to bring first party bad faith to Maryland.
I try very hard to keep the "insurance companies are pure evil" sentiment out of the Maryland Personal Injury Lawyer Blog because I think simplistic generalizations defeat real discussion of the issues. I teach Insurance Law at the University of Baltimore Law School and try even harder there to remain balanced in my approach to the class.
But I have a difficult time presenting a balanced view of the need for first party bad faith in Maryland, and the abuses personal injury lawyers and their clients must endure from insurance companies in the absence of first party bad faith. Approximately thirty-five other jurisdictions appear to recognize a first party bad faith cause of action. See Bad Faith Actions, Liability and Damages, § 2.22, at 65.
Maryland needs first party bad faith not only for auto and truck accidents but also other kinds of first party insurance, particularly those types of insurances where the insured is dependent on prompt receipt of the insurance proceeds. If you have just lost a high income producing loved one or your house burns down, the absence of bad faith allows the insurance company to drive a hard bargain in settlement negotiations, regardless of whether there is a good faith reason to deny the claim. Who is stopping an insurance company in Maryland from offering 50% of the insurance proceeds to a needy widow even if the loss is clearly covered by the policy?
Of course, not every insurance claim denial supports a cause of action for bad faith. But Maryland should adopt the majority rule that in addition to the situation where an insurance company knows it had no legitimate basis for denying the claim, an insurer is also liable when it recklessly disregards the rights of its insured.
There is a bill before the Maryland legislature this year to bring first party bad faith to Maryland. The bill lacks the teeth of punitive damages but it is certainly a step in the right direction.
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