Articles Posted in Auto Accidents

The Maryland Court of Appeals delivered its opinion in Barclay vs. Briscoe v. Ports America, a car accident case where the plaintiff was seriously injured by a man who had just finished a twenty-two hour shift at a job at the Port of Baltimore.

Liability was not at issue here, meaning everything proceeded on damages. But the driver had a limited insurance policy that would not fairly compensate the victim for his injuries. So a creative plaintiffs’ lawyer argued that it is a jury question whether the driver’s employer is responsible because the employer had set the table for the car accident by overworking the driver and letting him drive home.

This argument is novel. But it is held together by more than just duct tape and the magic of defense lawyers’ laughter: it makes some sense that a reasonable jury could find that the employer knew that its fatigued employees posed foreseeable harm to themselves and other motorists when they drove home from work.

When you are trying to make new law, dig around to find something somewhere that seems on point. Plaintiff’s lawyer found a great case in Timbuktu Oregon that seemed on point. In Faverty v. McDonald’s Restaurants of Oregon, Inc., 892 P.2d 703 (Or. App. 1995), a high school student who worked three shirts for a McDonald’s restaurant in a 24-hour period. Driving his car home, the boy fell asleep and hit someone head-on, killing the boy and seriously injuring another driver.

Pretty much sounds like the same set of facts, right? The Court of Appeals of Oregon found McDonald’s had a duty to avoid conduct that unreasonably creates the foreseeable risk of harm to others, and that a jury could reasonably find that the employer should have foreseen that the boy would become so exhausted or fatigued after working three shifts in one 24-hour period. Continue reading

The perils of handling an accident claim that implicates law outside of the lawyer’s home state was underscored once again in the Maryland Court of Special Appeals opinion this month, in Bryan v. State Farm.

A family – Mom, Dad, and two kids – were injured in a car accident with another vehicle in New York City. Plaintiffs, both the driver and passenger of that vehicle, sued Dad. The trial was bifurcated and tried on liability only in New York. Plaintiffs won. The next day, the parties put the settlement on the record of $15,000 per plaintiff.

The family then brought a phantom vehicle uninsured motorist case in Montgomery County, Maryland. State Farm, the uninsured motorist insurer, sought and received summary judgment on the family’s claim, arguing that collateral estoppel prevents the family from re-litigating the issue of liability.

The first thing that strikes me here is that State Farm is relying on the defense of the plaintiffs in New York – or its failure to mount an effective defense – as the basis for its claim. State Farm had other options. Most obviously, it could have settled the case, avoiding the collateral estoppel problem. State Farm also could have attempted to stay the litigation pending the case in Baltimore (induce the underlying plaintiffs to dismiss their claim without prejudice). Something. Anything.

State Farm also could have played it straight with their insured and not raised this defense in the first place, because they knew that the Maryland accident lawyer who brought the claim apparently failed to note that New York’s comparative negligence law – presumably the controlling law in the case – would allow for some negligence by the Dad.

Do I think State Farm threw the New York case or has some obligation to do the plaintiffs’ lawyer’s job for them? Even the Oliver Stone in me doubts it. But if they wanted to do right by their insured, they would have allowed them to have their day in court. Remember, this was a first-party case filed by their own insured. But State Farm’s paradigm is clear: an all-out war on personal injury plaintiffs. (Half of the State Farm adjusters who read that last line think I am dead wrong; the other half are shaking their fist with pride.) Continue reading

If you cannot make progress with an insurance adjuster, and the problem is something other than the valuation of the case, I’d ask to speak to the adjuster’s supervisor. (If the problem is the valuation of the case, whining about the offer is useless. File suit.  Get on with it.) I settled a relatively minor car accident case with USAA yesterday. We thought it might be a larger case but the client, thankfully, had a great recovery. We sent USAA a demand package. After a great deal of nonsense, and a lot of phone calls to the adjuster that went unanswered, we got an offer four months later that did not include the client’s lost wages.

I assume every insurance adjuster I don’t meet looks like this guy, right down to the expression.

The initial offer was awful, but I’m not even mad about that. After squaring away the medical/health insurance liens and talking to the client, I made a counteroffer by voice mail. No response. I kept calling. Finally, I get this whining adjuster on the phone who blamed all of his problems on someone or something else and inexplicably began every sentence with, “Well [long pregnant pause], let’s just say….” Finally, the adjuster tells me he is going to “drop everything” and get right on getting us a counteroffer on a case that he had ostensibly already evaluated. He also agrees the lost wages should be included. He never calls back. I called him that night and left a message. A few days go by and I call and try to get his supervisor. Another USAA adjuster – a very nice woman – intercedes and makes me a counteroffer. I get a counter demand from my client and call back again. Same deal. No response. I call the adjuster’s supervisor and, after sitting on hold for 5 minutes (I have a timer on my phone), she picks up. Now, the supervisor knows if you are asking to speak to her, you are the typical jerk personal injury lawyer who is only complaining about the amount of the offer. This is not a rebuttable presumption type of assumption by the supervisor. It is set in granite. (This happened last time I tried to get USAA to admit that the collateral source rule has been in effect in Maryland for the last 113 years). Ignoring this iceberg in my path, I turn the boat north and speed up, trying like crazy to lay the sweetness extra thick to refute the supervisor adjuster’s assumption that I am John Edwards’ even more evil twin. I brilliantly praise other USAA adjusters that she knows to establish my “I’m not crazy” bona fides. Continue reading

I was planning to take the week off of blogging this week. The Maryland Court of Appeals rejected this plan by publishing its opinion in District of Columbia v. Singleton. In a quiet but meaningful protest, I will make this post a little rambling and disjointed. Just know this is an intended effect. So here we go.

In Singleton, the plaintiff was on a bus with his 8-year-old son in Prince George’s County, traveling on Route 50. They were going on a school field trip to Six Flags. While the plaintiff was asleep, the bus went off the road and hit a tree. Plaintiff suffered injuries in the accident, but I think this was nothing more than a soft tissue injury case.

At trial, the plaintiff and his son could not provide testimony on why the bus went off the road. Plaintiff’s lawyer did not call the bus driver or any other witnesses. Plaintiff’s obvious problem: where is the proof of negligence? Plaintiff attempted to solve this problem by relying on res ipsa loquitur, using the simple logic that buses don’t crash into trees in the absence of negligence. The trial judge disagreed, finding that there were “too many leaps of faith that a reasonable fact-finder would have to take” in order to find that the bus driver’s negligence caused the accident.

In an unpublished opinion, the Maryland Court Special Appeals reversed, finding that plaintiff’s testimony that he was sleeping and woke up to see the bus had hit a tree “raised a rebuttable presumption of negligence on the part of the driver.” The CSA relied on longstanding Maryland law that “the failure to maintain control of the vehicle presents a prima facie case of negligence.”
The issue on appeal, according to the Maryland high court, was whether plaintiffs may use res ipsa loquitur in a single-vehicle, motor tort negligence action arising from the vehicle leaving the road, where the plaintiff could not recall the circumstances of the accident and “failed to produce other reasonably accessible and probative evidence to attempt to determine the cause of the accident.”

I love this issue statement. It is like me asking one of my kids, “Should you be allowed to play Fruit Ninja on the iPad when you have not eaten you dinner and have acted completely inappropriately all evening?” You know how the opinion will come down the they loaded the question. Continue reading

The Maryland House Economic Matters Committee will vote today on House Bill 715, from the insurance lobby, to reverse the rule in Maurer v. Pennsylvania National Mutual, that waiving subrogation in underinsured motorist cases is conclusive of the at-fault drivers liability for causing the accident. I wrote about this bill last week, pointing out that this may be a rare instance where car insurance companies and auto accident lawyers might agree, although this bill matters more to the car insurance companies that it does to Maryland accident lawyers.

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