Auto Accidents

April 9, 2008

Allstate Relents and Produces Internal Claims Documents

Back in January, I wrote about Allstate’s ongoing war with the state of Florida (and Missouri) in which it arrogantly racked up more than $4 million in fines for refusing to turn over documents they received orders to produce and which the insurance commission requested in Florida. On Friday, Allstate not only produced 150,000 pages of responsive documents it had protected as proprietary, but it made the documents available on Allstate’s website.

In defending some documents, a company spokesperson said that many lawyers misinterpreted the documents that refer to how Allstate deals with claims from other parties, not from policyholders. The Allstate spokesperson said many of the documents, the plaintiff’s personal injury lawyers picked apart, refer to claims-handling practices for car accident claims that have been incorrectly assumed to apply to homeowners’ policies.

If this is true, I see Allstate’s point. Accident lawyers whine about Allstate’s poor offers in third party cases. In Maryland car accident cases, I don’t think GEICO, Progressive, Nationwide, MAIF, or State Farm are making offers that are any different from Allstate’s. But that is not my point. The insurance companies have no obligation in third party cases to make fair offers. Insurance companies can do whatever they want. Therefore, we have lawsuits.

March 24, 2008

Compelling the Defendant’s Address in Auto Accident Cases

by Ronald V. Miller, Jr.

Last week, I received a call from an insurance company (Progressive) asking how many occupants were in our clients’ vehicle in a car accident case our lawyers are handling. Sadly, it appears someone saw our clients get in what was a serious accident, noted the vehicle information, and then pretended that they were involved in the accident. Progressive called me and asked if I can get an affidavit from my clients stating that this person was not in the vehicle. I appreciated where the adjuster/investigator was coming from because he wanted to close his file, but I did not see how it helped my client to provide an affidavit, and I could conjure up scenarios where it would not be helpful to me to help them.

I felt knocked off balance for a second after denying Progressive’s request, losing my moral high ground. But then I quickly asked the adjuster if Progressive will accept service sometimes as I was getting ready to file or if they would require me to spend needless money and jump through the hoops of hiring a process server to serve the defendants individually. Instantly, the order of the moral universe was restored. Wherever you are at this moment, you probably felt a jolt of unknown origin. The lesson, as always: if your game plan is never getting a quarter, don’t ask for one.

Another needless hoop insurance companies make you jump through in an auto accident case in Maryland is getting accurate identifying information for the defendant driver. Once settlement negotiations have failed, the next step is to file a Complaint. But to effectuate service of process, you need the defendant’s address. It is not uncommon for our only information regarding the defendant driver to be a name and insurance information. If his name is Joe Brown or Steve Smith, it can be difficult in car accidents where there is no filed police report, the defendant has moved since the accident or the defendant gave a false address.

January 2, 2008

Is Maryland’s New Bad Faith Law Retroactive?

by Ronald V. Miller, Jr.

One question that has remained unanswered is whether Maryland’s new bad faith law is retroactive. On Dec. 17, 2007, U.S. District Court Judge J. Frederick Motz ruled that the Maryland legislature intended Maryland’s new first-party bad faith law to be retroactive. In Schwaber v. Hartford, a case involving insurance coverage for a roof leak, Judge Motz had initially dismissed Plaintiff’s bad faith action prior to the effective date of the first-party bad faith bill (2007 Md. Laws 150). Plaintiff sought to re-file the claim after the bill passed.

Interestingly, Hartford agreed that the Maryland legislature had intended the new bad faith statute to be retroactive, and instead objected on state and federal constitutional grounds. Judge Motz deferred ruling on these objections or certifying the state constitutional questions to the Maryland Court of Appeals, unless or until resolution of these constitutional issues is necessary to the outcome of the litigation. So while it is not a slam dunk that this recent law will pass constitutional muster, the court’s finding that the General Assembly intended the bad faith law to be retroactive is a significant step in the right direction.

I wrote this post in 2008. In 2019, we now fully realize that our bad faith law in Maryland is useless. We have never had a client meaningfully enjoy Maryland’s law in the last 12 years.

December 26, 2007

Videotaping Independent Medical Exams

by Ronald V. Miller, Jr.

In March, I wrote a blog post discussing whether it makes sense for to videotape medical exams by the defendant’s lawyer’s doctor. Last week, the Oklahoma Supreme Court ruled that a plaintiff who is required to submit to an “independent medical examination” (hereinafter the more honest “defense medical exam”) may videotape the exam.

Here, the doctor had refused a plaintiff’s request to videotape the DME because (1) it would invade the privacy of others in the office; (2) it would be “annoying and distracting” to the DME doctor and his staff; and (3) it would interfere with the doctor’s examination.

Actually, these are not the doctor’s objections. These are the defense lawyer’s objections. The doctor was more than happy to allow the recording of the DME as long as the defendant’s lawyer did not object. These objections are silly. First, obviously, the video should only consist of doctor’s examination of the plaintiff. Second, for $500 an hour, or whatever the doctor is charging, he should be able to bear a minor annoyance and distraction. Finally, there is no reason to believe that videotaping at the DME would interfere with the examination.

October 18, 2007

Allstate Settles Bad Faith Claims in Washington

by Ronald V. Miller, Jr.

The Seattle Post-Intelligencer reports that Allstate Insurance Co. will now fairly compensate thousands of Washington drivers for out-of-pocket medical expenses in a class action settlement.

In 2005, a driver sued Allstate for arbitrarily limiting PIP payments for car accident victims. Allstate used Colossus to determine the average pay rate for a procedure in the geographical area and then paid out only 85 percent of what it found to be the average amount. To be clear, they did not pay what they thought was fair; they paid 85% of what they thought was fair. In an unrelated story, Allstate takes 100% of the premiums from their insured. This practice underscores the insurance company’s motto of taking premiums and denying claims.

If any of this sounds familiar to you, I blogged last week about a former Allstate employee’s testimony that revealed Allstate’s alleged systematic bad faith in a first-party bad faith case in Kentucky.

November 2, 2006

Spinal Fusion Surgery with Implanted Hardware

by Ronald V. Miller, Jr.

The journal Spine has published an article questioning implanted hardware use in spinal fusion surgeries for back problems. The Spine study found that the implantation of hardware does not improve results. The authors also determined that the hardware carries a higher risk of complications, including infections which can occur more readily and can also be harder to see because the hardware can block a clear radiological view of the spine.

Decisions about surgery are tough on any patient

The hardware surviving over time is another problem. When screws, plates, or rods break, the results can push right on a nerve and cause significant pain.

October 9, 2006

Independent Medical Examinations

by Ronald V. Miller, Jr.

More and more personal injury lawyers in Maryland accident cases are doing battle over the ‘independent’ medical examination. Attorneys argue over everything from who should conduct the examination, how far the plaintiff should have a drive for the examination, to more substantive issues such as the examining doctor’s financial records. However, one thing that plaintiff personal injury lawyers sometimes overlook is the fact that their client may have already had such a medical examination before they even became involved in the case if the case involves an uninsured motorist or used PIP coverage.

Most insurance policies have a provision whereby the insurance company can ask for the policyholder to attend a medical examination with a physician of its choosing before the insured receives payments. This is can be used as a condition precedent to any insured receiving PIP benefits or uninsured motorist benefits. Does Maryland law allow it? No one really knows for sure.

The Maryland accident lawyer must be careful where PIP has already been paid or where uninsured motorist coverage applies. Often, the insurance claims adjuster has a copy of the report compiled by the insurance company’s doctor months or even years before it must be disclosed to the plaintiff’s lawyer (for example, before a suit has been filed or before discovery answers are due).

June 6, 2006

State Farm Settlement Day

by Ronald V. Miller, Jr.

Today, for the first time in ten years, State Farm’s Baltimore office conducted a “Settlement Day” hosting eight Maryland law firms at their offices to settle State Farm auto and truck accident cases. The day was a success for our office; we settled 70% of the cases up for discussion. Other personal injury attorneys that I spoke to who attended also reported substantial success. One Maryland accident lawyer told me he settled all but one of his law firm’s car accident cases.

The day was also a success because it is productive for attorneys to meet the adjusters they deal with regularly. Even if we had settled none of our cases, it would have been worthwhile just to meet the adjusters. Everyone I met was very courteous and hospitable, even in those cases where we could not agree (the larger cases were the most difficult). The adjusters also tolerated my “evil empire” jokes well.

When I was doing pharmaceutical defense work, I would often fly across the country for an hour meeting with an expert. Other attorneys would also ask why a phone call would not suffice. But I always thought you can establish a much higher quality relationship and understanding with a person who you can see in person.