Articles Posted in Auto Accidents

Last week, the Maryland Court of Special Appeals upheld a small verdict in a truck accident case. The issue was the exclusion evidence of the defendant fleeing the scene after a car accident, even though plaintiffs put on a good case that the act of fleeing itself caused the plaintiff’s injury. I understand the logic of the holding and understand how the court found as it did. But I disagree with the ruling.

Here are the facts is Alban v. Fiels. The plaintiffs, a married couple in their 70s, were injured when their truck collided with another truck in Baltimore County. After the accident, the defendant briefly returned to the scene and then fled. Witnesses said that the defendant laughed as he drove off. That sounds so crazy, I know. But that is what the opinion said. I’m picturing Jack Nicholson in his Joker prime.

The insurance defense lawyers wisely did not dispute liability. The case went to trial for compensatory damages. The trial court granted the female plaintiff $5,000 in non-economic damages and $5,000 to the couple for their joint claim of loss of consortium. The entire award was $10,000 plus costs. I don’t know what the underlying medical and injuries were, but if you are getting a $10,000 verdict in a jury trial, things didn’t go well.

The plaintiffs’ appeal was based on the inability to get in the “fleeing the scene” evidence. Their attorney argued that it was an error to exclude the testimony of accident witnesses and the plaintiff’s psychologist because emotional damages were part of the original complaint. Plaintiff said that her PTSD stemmed from the moments after the accident when the defendant returned to the scene. She testified that she feared they would be killed while they were trapped in the vehicle. Plaintiff said that she has had ongoing anxiety problems and has suffered from prolonged bouts of crying and sleeplessness since the accident. Plaintiff’s physician testified that she was permanently disabled with post-traumatic anxiety.

This is a good test case for admitting this evidence. Often plaintiffs’ accident lawyers just want to get this kind of evidence in order to inflame the jury to hate – appropriately – the defendant. Here, the plaintiffs at least arguably were really hurt by defendant fleeing the scene and it really – at least allegedly, is hard to read these things and know – caused harm. We have plaintiffs in their seventies… it is not a stretch by any means. The trial court stuck to the usual playbook and excluded evidence of the defendant’s post-accident conduct because of its prejudicial nature. Continue reading

Louisiana’s Court of Appeals last month issued an unpublished opinion in Rando v. Furr, a case that dealt with the ins-and-outs of uninsured motorist coverage and bad faith claims. Here’s what happened:

A man was driving his motorcycle and was involved in an awful collision with a pickup truck driven by the defendant. He briefly survived, before tragically succumbing to his injuries. The man and his motorcycle were insured through his wife’s insurance—when she originally got the >insurance through Progressive about seven years earlier, she waived uninsured/underinsured motorist coverage. Progressive paid Louisiana’s equivalent of PIP to the tune of $2,500, then said that they had no more exposure.

The deceased man’s wife (and later child) filed a wrongful death claim against the negligent driver and his insurance company (our friend State Farm), and Progressive. For whatever reason, Progressive quickly decided that there was UM/UIM coverage in the amount of $50,000/$100,000. They tendered an offer of the full $50,000.00, plus reasonable interest. The plaintiffs demanded the full $100,000, but Progressive (correctly) noted that only $50,000 applied because the wife and child’s claims were derivative of the decedent’s claim.
The plaintiffs included a bad faith claim against Progressive, alleging that it refused to make a timely and unconditional tender of the UM limits, and that claim went to trial after all the claims against the negligent driver and State Farm had resolved. The trial was apparently a short affair, and there was not much evidence presented. The judge dismissed the bad faith claim, holding that the plaintiffs failed to testify about the cause of the accident, the amount of the State Farm policy, and the amount of damages.

The case is consistent with how Maryland courts would view the same issue.  To make an uninsured or underinsured claim, it is important to show that some other person or company was responsible for the accident and that they have either no insurance or insufficient insurance coverage. The whole point of uninsured/underinsured coverage is that a driver’s insurance will pay them if they can’t recover from another source. The plaintiffs proved no such thing to the judge. In fact, they probably received some money from State Farm—that case was settled on the courthouse steps. Continue reading

Liens Against your Case

Medicaid is tough to deal with when they have a subrogation lien against your case. With some wonderful exceptions, they are often inflexible about reducing your clients’ lien, which is to say that they won’t unless the lien is greater than 50% of the net recovery to the client after attorney’s fees. But since you don’t know who will handle your request, you really have no idea how it will play out.

New and easier rules might be on tap for reducing Medicaid liens in Maryland. The Maryland Register has posted new regulations that would allow for the following:

We often handle car and truck accident cases for victims who were working at the time of the crash. (I guess a motorcycle accident claim could also be while the employee is on the job – but I have never had or seen that case.)

In these types of cases, workers comp claims a lien on its payout and you have to work with them to get them to reduce their lien. A hassle, but usually not a much larger challenge then working with the health insurer to reduce its lien.

But this Field of Lien Reduction Dreams falls apart when you have an uninsured motorist claim and a workers’ compensation case. In Maryland (Insurance Article, § 19-513e) and many other states, when an insured files a lawsuit against the uninsured or underinsured motorist carrier, the insurance company can file a counterclaim against the victim to reduce the amount of the claim by the amount of money that the insurance company claims that the insured owes to it. Practically, this means a dollar for dollar set-off of the amount paid by worker’s compensation. The theory behind this is that setoffs lead to double recovery by the victims.

This is dumb and I’m not the first person to notice it. Maryland Court of Special Appeals Judge, Judge Timothy E. Meredith argues – in a dissent – that it is an unreasonable windfall for the car insurance company to get the benefit of the workers’ compensation lien and, really, calling it a double recovery misses the whole point of modern UM coverage in the first place – to place the victim in the spot she would have been in if the at-fault driver had the same coverage she did. A minority of states agree with Judge Meredith and do not allow for these dollar-for-dollar reductions. Continue reading

Defense lawyers and insurance companies have this irrational fear of an unpaid lien holder coming back and claiming the insurance company must reimburse for the unpaid debt. Sure, some adjusters and lawyers push this issue because they are pathologically difficult. But I also think they have an earnest belief that this could happen and that they will get blamed for it.

This problem has grown especially acute since Medicare came out with new reporting rules in personal injury claims that many insurance companies believe means that the plaintiff must prove the negative that they don’t have Medicare. “You are 32 years old making $75,000 a year? So? Prove to me you are not on Medicare.”

You would think this increasing fear would be tempered by the fact that this doomsday scenario has not come to pass even a handful of times in human history. (Source: I’ve never heard of it happening other than one Medicare case, a thousand years ago, where the plaintiffs’ lawyers really were up to no good.)

So the adjuster-defense lawyer wonder twins concocted a plan to decrease the likelihood of a lien ever coming back on them: having both the plaintiff and the plaintiff’s attorney indemnify them for any lien.

Maryland Ethics Commission: Docket No. 2012-03

So here’s what happened that led to a Maryland State Bar Association ethics opinion. After agreeing to the amount of a car accident settlement, the insurance company demands that the plaintiff’s lawyer and the plaintiff indemnify both the insurance carrier and the defendant from any claim for any of the plaintiff’s medical bills, medical liens, or workers compensation liens related to the car crash. The question posed to the ethics commission is whether this demand violates the Maryland Rules of Professional Conduct. Continue reading

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How much is a car accident claim worth? It really depends on how you adjust your lens.

According to Jury Verdict Research, the median jury award for plaintiffs’ verdicts in 2010 for vehicular accidents was only $19,806. That’s not much. Yet the average award in a vehicle crash case is $181,197. ISO, an insurance risk information service, reports that about 5% percent of bodily injury claims – including cases that were settled out-of-court – in 2010 were for more than $100,000, while about 2% reached $300,000.

So, Allstate has published its eighth annual report of cities with the worst drivers. Given the publisher of the study, I immediately began searching for some hidden bias.

Apparently, we are in the eye of the storm. Washington D.C. is ranked first – which means worst – with Baltimore City right behind in second.

Allstate studied the auto insurance claims frequency of America’s 200 largest cities and found that residents of our nation’s capital were found to get into collisions on average once every 4.7 years. The typical driver in the U.S. is involved in an automobile accident once every ten years. If you aced math class, you might realize that this means D.C. drivers are 112.1% more likely to be a party to an accident than the typical driver in the U.S. For Baltimore drivers, they are 89.7% more likely than the average driver. Rounding out the top five, Providence Rhode Island ranks third, Hialeah, Florida fourth, and Glendale, California comes in at fifth.

Where might you want to live? Sioux Falls, South Dakota. For the fifth time out of the report’s eight-year history, Sioux Falls, South Dakota ranks as the safest place to drive, with drivers being 27.6% less likely to be involved in an accident than the typical driver.

Okay, so what does this study mean? You want to avoid Washington, D.C. and Baltimore streets at all costs? Ironically, I think Washington, D.C. and Baltimore might be among the safest streets to drive on in America. Why? Because car accidents are one thing and car accidents that cause serious injury and death are another. In Maryland, Baltimore County has almost twice as many fatal accidents as Baltimore City. Continue reading

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

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

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

Today, I received this email from GEICO:

Attached is correspondence regarding your claim: 0312851310101112.

For your privacy and security please log into http://www.geico.com/claims/etrack/, select your claim, and ‘Contact Us’ if you would like to respond to this email. Please do not select the ‘Reply’ option on this email.

If you are unable to open the attachment please go to this site and download the free Adobe Acrobat Reader, http://www.adobe.com.

If you would like to provide feedback regarding our email process, please visit: http://webeffective.keynote.com/v.asp?inv=ClmsLtrEml

I have some feedback. First, I’m glad you are using email. Let’s take it to the next level and allow all of your adjusters to have at least some discussions about the case by email. It would save both of us a ton of time.

Second, is there any chance you could tell me what the case is when you send me one of these emails? Believe it or not, we don’t use GEICO claims numbers to sort our cases because we have non-GEICO cases as well. (I know, crazy!) Also, who are you? These email are never signed by or come from a GEICO adjuster.

Finally, how did you get my email address? I never gave it to you. One day, about a year ago I guess, they just started coming. I’m not mad about it. But it is odd. Continue reading