Ron Miller is an attorney who focuses on serious injury and wrongful death cases involving motor vehicle collisions, medical malpractice, and products and premises liability. If you are looking for a Maryland personal injury attorney for your case, call him today at 800-553-8082.

caps on malpractice lawyers' fees
Anesthesia malpractice claims in Maryland have declined.  That is right.  Something good is happening.  Anesthesiologists have gotten better at delivering the appropriate amount of sedation.

Why have they gotten better?  I would say malpractice lawsuits.  Anesthesiologists were forced to improve because their malpractice premiums were through the roof.  Today, they do not even rank in the top 10 specialties.

Still, there are too many mistakes that anesthesiologists make that cause patients injury and death.

2019-crash-300x284Uber and Lyft are the new on-demand transportation (or “rideshare”) companies that have revolutionized the for-hire and taxi transportation business in the last few years. Users download the Uber or Lyft app to their mobile phone and setup an account with a credit card for payment.  Once setup, users can request a ride pick-up from their phone to which nearby Uber or Lyft drivers in the area respond. The apps allow riders to track the driver and process payment electronically.

Lyft and Uber are relatively new companies but they have exploded in popularity over the last 5 years. My sister is in Kenya right now and she is traveling around by Uber. Lyft, Uber’s kid brother, is about to go public and make their founders and estimated $9.4 bazillion.  Car accidents involving Lyft or Uber drivers are becoming more and more common and these cars flood our roads.

Claims Against Lyft or Uber

So what happens if you are injured in a car accident caused by a driver for Lyft or Uber? What if you are a passenger with an Uber or Lyft driver and you get injured in an accident? Can you bring a claim or lawsuit in Maryland against Uber or Lyft? Although drivers for both Lyft and Uber are actually independent contractors the companies still have direct liability for accidents involving their drivers and passengers in Maryland.  As long as the driver is actually in the process of driving a customer (i.e., “on-duty”) when the accident occurs Uber and Lyft will accept direct responsibility.  Passengers and other drivers or pedestrians involved in the accident can bring a claim and/or file a lawsuit against Uber or Lyft.

Uber Accident Claims

Uber claims publicly that its drivers and passengers are safely protected by a comprehensive $1 million insurance policy. The reality, however, is that the $1 million coverage is only the highest level of a 3-tiered insurance policy that applies different levels depending on the Uber driver’s activity status at the time of the accident.

Driver Status Applicable Coverage Under Uber Policy
 

Off-Duty

 

When an Uber driver is not accepting or not available to accept passengers and driving their vehicle for personal reasons, they are “off-duty” and there is no coverage under the Uber policy. Accidents involving “off-duty” Uber drivers would be covered under the driver’s personal auto insurance policy.

 

Accepting

Passengers

If the accident occurs when the Uber driver is available to accept new passengers but is not actually transporting a passenger, the driver’s personal auto insurance will provide primary coverage.  However, Uber will provide contingent “excess” coverage if the driver’s personal insurance does not fully cover the damages.

 

Transporting Passenger If the accident occurs when the Uber driver actually has a passenger in their car, then both the driver and passengers get primary coverage under Uber’s $1 million policy.

 

Lyft Accident Claims

On its website and app, Lyft claims to have a “first-of-its-kind” insurance plan that supposedly covers Lyft drivers “from the minute they flip into drive mode” until they drop off their last fare for the day.  Again, this claim is somewhat misleading because although Lyft also has a $1 million insurance policy that coverage only applies in certain circumstances.  In fact, Lyft’s insurance coverage applies on a 3-tier basis that is almost identical to Uber.

 

Driver Status Applicable Coverage Under Lyft Policy
 

Driver App Off

 

Lyft drivers can turn their driver app on (to signal that they are accepting passengers) or off when they are not available to accept passengers.  If the Lyft Driver App is off at the time the accident occurs everything is covered by the driver’s own personal auto insurance policy.  Coverage under the Lyft policy does not apply.

 

Driver App On The minute a Lyft driver turns the Driver App on and becomes available to accept passengers, the first tier of the Lyft coverage applies.  This 2nd tier coverage is called “Contingent Liability” and it steps in if an when the driver’s own personal insurance “does not respond.” This appears to be somewhat more than Uber’s 2nd tier coverage which must be requested and will only apply after the driver’s personal policy is maxed out.

 

Ride Accepted As soon as a Lyft driver accepts a new passenger request on the Driver App, Lyft’s $1 million policy automatically kicks in and provides primary coverage for any accident.  The coverage remains active until the passenger is dropped off and the ride is complete.

 

Assault & Battery Claims Against Uber & Lyft

Car accidents are not the only source of claims and civil lawsuits against Lyft and Uber.  Unfortunately, drivers for both companies occasionally do bad things to passengers that result in lawsuits for torts such as assault or battery.  Even though their drivers are technically independent contractors as opposed to company employees, Lyft and Uber can still be held liable for the bad acts of their drivers under several legal theories.  The legal basis for these type of tort claims against Lyft and Uber is analyzed in detail in a recent opinion from the U.S. District Court in California.

In that case, Doe v. Uber Technologies, an Uber driver was taking a young female passenger home late at night and assaulted and raped her. She sued Uber and asserted claims for (1) negligent hiring and supervision; and (2) assault and battery. Uber’s liability for the assault and battery claims was based on the theory of respondeat superior which holds employers vicariously liable for the acts of employees. Uber moved to dismiss the vicarious liability claims on the grounds that the driver was an independent contractor not an employee. The Court rejected this defense pointing to several facts which indicate that Uber maintains a level of control over its drivers that is consistent with an employer-employee relationship:

  • Uber retains the right to terminate drivers at will
  • Uber sets fare prices and drivers cannot negotiate fares
  • Uber retains control over customer contact information
  • Drivers do not have specialized skills
  • Drivers are required to accept all ride requests when logged in
  • Uber even controls how drivers interact and communicate with riders

According to the Court these indicators of control could be more than enough for a jury to find an employment relationship between Uber and the driver.  With respect to the claims for negligent hiring and supervision, Uber’s defense was that it was not negligent because there was no way it could have known that the driver posed a danger to passengers.  The Court rejected this defense also because the Plaintiff alleged that Uber’s background check was inadequate as it only looked back 7 years and therefore missed a 10 year old assault conviction against the driver. The Court ruled that this was enough for a jury to find that Uber was negligent in its hiring of the driver.

The decision in Doe v. Uber essentially provides a legal blueprint for bringing successful tort claims against Lyft or Uber for assaults and other bad acts by drivers against passengers.  Over the last several years, stories of assaults by Uber and Lyft drivers against passengers have become a common feature in the news. Many of these cases have eventually led to civil suits based on allegations similar to those outlined in the Doe case.

Settlement Value of Cases Against Lyft and Uber

If you are dealing with Lyft or Uber on an accident claim, you have to understand that these guys are just making more money than we could ever imagine.  The only thing that rocks the boat is bad publicity.  They do not want lawsuits.  I mean, they don’t want the Baltimore City Paper writing an article on page 19 about an Uber lawsuit.

What does this mean?  Uber and Lyft are going to pay higher than the market value for a claim.  So if you are a plaintiff’s lawyer, you are selling your client short if you are fighting to get the fair value of the case.  You want to get what they will give you and this mean getting them to go as high as they will (or filing a lawsuit to get them there).

Contact Miller & Zois About Claims Against Lyft or Uber

Whether you have a standard auto accident claim or a major assault and battery case, going after Lyft or Uber can be difficult.  The personal injury attorneys at Miller & Zois have the knowledge and experience to help.  Call us at 800-553-8082 or contact us online for a free consultation.

 

Football-300x190I’m also fired up for a new year of appellate opinions.  Something about having a new year on a case that just seems exciting to me.  (In an unrelated note, I have four kids and few hobbies.)  But there have been few tort related appellate opinions this year to get me fired up.

Anyway, the Maryland Court of Appeals recently decided a Sutton-Witherspoon v. S.A.F.E Management, a case that is factually interesting to almost all of us in Baltimore.

Facts of Case: An Out-of-Control Victory Parade

guyonphone-300x250

                Zostavax Trials Set for 2020

U.S. District Judge Harvey Bartle of the Eastern District of Pennsylvania has selected the initial “bellwether” cases in the Zostavax MDL. The bellwether Zostavax cases will be grouped into two categories and prepared for five proposed trial dates that will take place between fall 2020 and summer 2021.

You never know how mass tort cases are going to go.  But I do think the Zostavax cases might be ripe for settlement long before these cases ever go to trial.

In Armacost v. Davis, the first appellate tort opinion in Maryland in 2019, the Maryland Court of Appeals was asked to examine whether a trial court’s instructions to the jury were inappropriate and prejudicial in a medical malpractice case alleging negligence after a four-level cervical discectomy and fusion surgery performed by the defendant left the victim with claims of permanent injury.   The Maryland high court ultimately held that:

1)    The trial court did not mislead the jury as to the applicable law by first giving them general negligence instructions before instructing jurors on the standard of care applicable to the defendant brain surgeon’s actions.

2)    The trial court did not abuse its discretion by telling jurors how much longer they would be required to deliberate after they had previously expressed concerns over the length of the trial.

Herniated discs in the neck

How much are cervical herniated disc cases worth?

Metro Verdicts Monthly’s graph in this month’s issue is median settlements and verdicts in cervical (neck) herniated disc cases in Maryland, Washington, D.C, and Virginia. The median cervical herniated disc case in Maryland is $40,000. The Washington D.C. and Virginia medians are $50,000 and $36,000, respectively.

Settlement Values Vary Wildly

I always qualify this data with a “for what it is worth” caveat. In the case of cervical herniated disc injuries, it is a “for what it is worth” squared. If a person says they are an actor, there are a lot of different degrees of being an actor. She may be Meryl Streep or her signature role may be “Crazed Killer #12” in a 5-second cameo appearance in a B movie.

Herniated disc injuries are the same thing. Some people are walking around with cervical herniated discs that they cannot feel. For others, their lives are virtually destroyed by the injury.

The other problem is I do not think plaintiffs attorneys properly value disc injuries and, consistent with my post on Monday, lawyers settle these cases too quickly. Insurance companies are just too quick to shoot these claims down. But they change their tune when they know they are in for a fight.

This is particularly true with neck injuries (usually between C4-C6) as opposed to back injuries because some herniated disc injuries are relatively benign. But the fact that there are some smaller herniations should not alter the value of the cases as long as the symptoms clearly match the location of the injury.

What If My Injury Was Preexisting?

If I had a preexisting injury, how does it impact my claim? Good question.

Our law firm has successfully handled scores of herniated disc injury cases, earning our clients millions of dollars on these claims. We know the science of these cases and how to present them to an insurance company and a jury. Call 800-553-8082 or get a free online consultation.

There are two types of preexisting disc injuries: (1) those where the patient had real symptoms and treatment, and (2) those where the patient did not have any problems until the accident.

The first scenario can be a challenge. If you were having problems before the accident, we need to be able to get testimony from your treating doctor that “thin slices” out the problems before the accident and the problems after. If the treating orthopedic doctor or neurosurgeon cannot do that, then that is a real problem.

But if you have a disc injury and you didn’t even know you had it before the accident, this is a lot easier situation. Many people have latent injuries that would have never become a problem if not for the trauma of the collision. Insurance companies fight these types of claims hard but we are almost always going to win these case.

  • Herniated disc settlements and trial value (an overview of disc claims in different types of motor vehicle collisions)
  • 12 factors that matter when determining the value of personal injury claims
  • Our lawyers handle serious herniated disc cases throughout the United States. Call 800-553-8082 to discuss your herniated disc injury claim or click here for a free no obligation online consultation.

Headaches

What is the value of head injury cases?

I’m fortunate in that I don’t get many headaches, a blessing I attribute to good hydration and genetic good fortune. On the rare occasion that I do get them, they are debilitating. It is hard to enjoy much of anything in life when you have anything north of a mild headache.

Juries struggle with figuring out how to value personal injury cases when the primary injury is a head injury that caused —  and may be continuing to cause — headaches.

Insurance Companies Put Up a Fight

Get Your Case Settled for a Good Value

I believe car crash injury victims are always better off hiring counsel for many reasons not worth fully exploring here (but I do here). But if there is any type of claim where an injured victim can justify proceeding without a lawyer, it is in the classic neck or back soft tissue/whiplash injury traffic collision case with clearly no permanency.

My belief has always been that the benefit of experienced counsel can bring to a case is going to vary inversely with the severity of the injury. If you have a permanent injury, you are foolish if you don’t hire a lawyer. (I wouldn’t handle my own case either because that is also an awful idea.)

A quality attorney in those cases is statistically going to get you a lot more money – put a lot more money in your pocket – than you would get for yourself. The same is probably true in soft tissue neck/back injury cases, too. But car accident lawyers cannot run from the fact that the difference is much less significant.  Some people just prefer the path where lawyers are not taking money away from their settlement. So be it. As long as you understand you run a risk just like you run a risk when you try to install your own bathroom floor, just typically with a lot more money at stake.

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Most personal injury lawyers have had more than a few encounters with consumer bankruptcy proceeding.  Personal injury clients frequently file personal bankruptcies.

It is therefore important to know how personal injury claims, settlements, or awards are treated in bankruptcy.  The question everyone wants to know is will the client get to keep some or all of their settlement or judgment?

The short answer is yes – as long the settlement proceeds are compensation for pain and suffering or future lost wages.

We have been getting a lot of calls from Atrium C-Qur hernia mesh victims.  These poor people have a lot of questions and concerns and we try to lay some of those out for you here.

The C-Qur hernia mesh products are a line of polypropylene surgical implants that were manufactured by Atrium Medical Corp.  The C-Qur hernia mesh products were one of several types of implant devices used in hernia repair surgery between 2006 and 2015.  Hernia repair is one of the most frequently performed surgical procedures in the U.S. each year.

What are Hernia Mesh & Patch Devices?

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