Maryland Injury Law CenterThere is a bill pending in the Maryland Senate to overturn the Maryland Court of Appeals opinion in Maurer v. Pennsylvania National Mutual Casualty Insurance six years ago. This bill allows car insurance companies who have underinsured exposure because the at-fault driver has insufficient insurance coverage, to consent to settlements against the at-fault driver without (1) limiting their right to raise any issue relating to liability or damages in an action against the insurer; and (2) admitting as to any issue raised in an action against the insurer.
Articles Posted in Auto Accidents
Allstate v. Former Allstate Adjuster
U.S. District Court Judge Catherine C. Blake issued a fascinating opinion this week in Allstate v. Warns, denying a former Allstate adjuster’s motion for summary judgment in a “we think you stole our documents and provided them to the plaintiffs’ lawyer” case. The facts are juicy. It is more than worth the time to lay them out. Get some popcorn and head back over here.
Welcome back. Defendant was an Allstate claims adjuster for 33 years, handling only lead paint cases during the last 5 years of her Allstate tenure. Seemingly, the very definition of a company gal. I would think if you stay at Allstate for 33 years, you would order extra glasses of the Colossus Kool-Aid and all the other noxious potions they are concocting in the lunchroom over there.
The first clue that this adjuster had fallen off the wagon is that she invited several plaintiffs’ lawyers – including the plaintiffs’ lawyer, that will hire her in a second, who she had ongoing lead paint cases with – to a party at her house. Allstate, probably monitoring the cameras it has installed at the homes of all its employees, found out and confronted the adjuster. Later, Allstate – alleges anyway – that this same plaintiffs’ lawyer had sent her flowers, gifts, and cards while she was at Allstate. Allstate says the adjuster quit, claiming she was going through personal issues. The adjuster was next seen by Baltimore Housing Authority lawyers, no strangers to controversy themselves; passing what someone thought was a confidential Allstate instruction manual on lead paint cases at the trial table of the flower/card/gift sending plaintiffs’ lawyer. (That might not be exactly how Allstate found out. Humor me. The story reads better that way.) So Allstate sued her.
Punitive Damages for Drunk Drivers in Maryland
There is a bill in the Maryland General Assembly that would allow punitive damages against drunk drivers who caused “injury or wrongful death while operating a motor vehicle.” Punitive damages would be available against drunk drivers: (1) With a blood alcohol concentration of over .15; or (2) With a blood alcohol concentration of over .08, and was driving on a suspended or revoked license or had entered a plea of nolo contendere or received probation before judgment within the last 5 years.
The Maryland Chamber of Commerce opposes this bill. Why? I really think it is because the Maryland Chamber is run by the true believers who care about some issue far more strongly than furthering the interests of Maryland businesses. That mission includes a vehement opposition to anything their gut tells them that Maryland personal injury lawyers might support. Seriously. If Maryland Association for Justice put out a statement that Jeremy Lin should be the focal point of the Knicks’ office even when Carmelo Anthony returns, the Maryland Chamber of Commerce would immediately put out a statement renouncing 
Lin (citing the fact that Carmelo is from Baltimore or something). It is just silly.
(Minority Report: their opposition makes perfect sense. They are worried about the slippery slope of punitive damages affecting Maryland businesses and they are two steps ahead in the chess match. Personally, I don’t give them that much credit.)
So let me set the Chamber’s mind at ease. Economically, plaintiffs’ attorneys would get no real benefit from punitive damages in drunk driving injury and death cases. Why? Because punitive damages are not covered by insurance. Which means the drunks have to come up with the cash themselves. My firm has collected $0.00 from people individually over the last ten years. Collecting money from people individually is just very difficult. In almost every case, the juice is not worth the squeeze unless the defendant goes by the name John Rockefeller. Lawyers handling traffic collision cases will not see their revenues rise half of a percent by getting drunks to pony up punitive damages. Continue reading
Baltimore Car Accident: New CSA Opinion
There is a big new Maryland Court of Special Appeals’ opinion in Garrity v. Injured Workers’ Insurance Fund, an opinion issued this week that every Maryland car accident lawyer should read, particularly those like me who rarely handle workers’ comp cases.
If you handle motor vehicle injury claims, you need to spot the issues with workers’ comp claims. If you can’t, you may leave your client’s risk-free money on the table without ever knowing that your client had another source of compensation. While comp claims are an enormous hassle for lawyers handling car accident claims, because dealing with the comp lien can be a nightmare, you must know whether your client might have a claim.
One big step forward towards understanding what you need to know is an appreciation for the “comings and goings” rule and its exceptions. This opinion, written by Judge Michele D. Hotten, should help get you there.
The plaintiff in Garrity, a part-time bailiff at the District Court for Baltimore City, was involved in a serious car accident as he was driving back to the courthouse during the workday. The case starts off comically enough, the plaintiff wore a Christmas tie to work in the spring and had to go home to change his tie. He also spills something on the tie. It comes off like a classic episode of Three’s Company. But the good humor ends when the plaintiff gets into a head-on crash – an accident caused by the other driver – and ends up on shock trauma.
(The good news is that plaintiffs’ attorney’s brief to the court shows that this bailiff is now back to work at the courthouse.)
The plaintiff’s lawyer made three arguments to get this car accident covered by workers’ compensation. All three would fail. But it is worth looking at the arguments.
Plaintiff’s Arguments
The first argument was that while injuries incurred while going to or coming from the place of employment are not compensable, the Plaintiff was on a “special mission” exception to this rule. Under this rule, if the employer requires a worker to undertake a special journey for the benefit of the employer, injuries that occur en route are compensable even if the trip may be only to or from the employee’s usual place of business. This argument failed because the bailiff did not have express or implied authority to leave the courthouse. Continue reading
Illegal Immigrants in Personal Injury Cases
LawyersUSA has an article out today on the struggles that personal injury attorneys have had in getting fair compensation for their clients in accident and malpractice cases. The article contains a few quotes from me.
There are a couple of leitmotifs lawyers deal with when representing injured people who are either illegal immigrants or appear to be. First, if they are legally here in this country, get that out on direct. There are some jurors who – let’s face it – will view anyone with an accent as an illegal immigrant. In the real world, there is a prejudice against illegal immigrants. If you can kill that perception, do it.
Conversely, you need to move in limine to bar any evidence, suggestion, or argument regarding the immigration status of plaintiff (or any witness, for that matter) because it is prejudicial. Put in front of a jury that the plaintiff is legally working in this country, yet suppress any mention of immigration status if the plaintiff is undocumented? Is firing off these two seemly contradictory statements in seconds lawyer double talk or even duplicitous. Actually, it is not. Juries don’t say “Gee, we have a documented immigrant, let’s open up the checkbook” but they might discriminate against a plaintiff because they don’t think he/she belongs in this country. Doors don’t always swing both ways. Continue reading
Gross Negligence Bar Is High Hurdle
In Maryland, and in most states, there are immunities for police, fire and rescue agencies and personnel from civil liability for negligence. There is an exception for intentional torts and a “grossly negligent act.” Of course, this begs the question of what is a “grossly negligent act”?
In Markevicz v. Garcia, U.S. District Judge Alexander Williams, Jr. issued an opinion reminding car accident lawyers (who did not get the memo provided by the last zillion cases on this topic) that the bar to get to a “grossly negligent act” is high.
In this case, a fire truck operator allegedly did some dumb things in what I think was an effort to get to the car accident scene. The opinion does not spell it out, but I’m assuming the fire truck ended up hitting the vehicle during the rescue. Plaintiffs’ Complaint and the driver defendant both alleged that the fire truck 
driver contributed to plaintiffs’ injuries when they drove the wrong way on the Beltway, dangerously jockeyed for position to pass through a gap in the median that was too small, and so forth.
Judge Williams said that even if true, these facts fall short of gross negligence, citing Boyer v. State for a proposition that gross negligence is inflicting injury with such indifference to “to the rights of others to the extent of acting like the victim had no rights at all.” I’m paraphrasing and I still don’t know what that means. Continue reading
Confidential Settlements
Pat Malone writes a guest blog on Don Keenan’s Trial Blog arguing that confidential settlements undermine public safety and justice. 2013 Update: the link is now broken, but this post is still worth reading.
His point is that confidential settlements make it harder for future plaintiffs to get evidence and information they need to bring out all the facts about the defendant’s conduct.
Specifically, Malone suggests:
Here’s one tip for avoiding last-minute pressure from the defense to cave into a secrecy agreement: Be proactive. Tell the defense counsel at some appropriate point – such as with any settlement demand letter or in a pre-mediation communication – that you will not agree to secrecy because of the ethical issues. This can be one item on a list of settlement conditions.
Pat Malone is an extremely well-respected lawyer who not only gets great results for his client but also graciously spends a lot of time helping other perso
nal injury lawyers. I also agree with his premise: there is doubt that confidential settlements make it harder for the next plaintiff. This also makes the company less accountable, too, in the big picture.
But here’s the problem: people who have been badly injured, even the best of people, have a hard time focusing on the global interests of plaintiffs everywhere when they are fighting and scrapping to be compensated for their injuries. And I have a hard time telling them they should.
Let me give you a case in point. We recently settled a case with a Fortune 500 company. No discussion of confidentiality in the settlement discussions. You know what comes next. They send a release with a confidentiality clause. We balk. They say, “Okay, let’s try the case.”
Boy, I hate being bullied by big companies. I try hard not to take these things personally. But they were so arrogant in the way they delivered their ultimatum. They never would have had the guts to play it through and I knew it. So we plotted a “file a motion to enforce the settlement and, in the off chance we lose, we try it” strategy. In angry detail. With our feathers up and blood boiling, we forgot, ah, that we have a client. So we call the client. She could not care less about confidentiality. She wants to execute the settlement and get her money.
So what do you do? I know what we did: we put our hurt pride on a shelf and sent the client the release. Continue reading
Is MAIF Dying a Slow, Painful Death?
For those of you who do not practice in Maryland or don’t handle car accident cases, the Maryland Automobile Insurance Fund is a unique to our state creature. It is a state-owned insurance company that insures high-risk drivers. Most other states just require insurance companies to insure high-risk drivers if they want to sell car insurance in their state.
I guess, at least in 1972, Maryland was feeling a little libertarian and decided rather than force its bad drivers on other insurance companies, that it would just build its own. To my knowledge, a total number of zero states followed suit. (Someone correct me if I’m wrong.) Of course, once you build a state agency, there is an unwritten rule that you can’t kill it.
New Medicare Rules
Medicare announced today that it has implemented a $300 threshold for some tort liability subrogation cases. This is monumental news for accident lawyers who often get bogged down trying to settle in claims where there is some minor Medicare payment out there that “could” be related to the car accident.
Accordingly, Medicare will no longer claim subrogation in car accident and most other tort claims when:
1) the settlement (generally defined by Medicare as including settlement, judgment, award or other payment) is related to an alleged physical trauma-based incident (as opposed to an alleged exposure, ingestion or implantation);
State Farm Wins Unilateral Premium Increase Case
The Maryland Court of Special Appeals sided with State Farm over the Maryland Insurance Administration this morning in Washington v. State Farm.
The appeal rose from a consumer complaint who alleged to the Maryland Insurance Administration that State Farm failed to notify the consumer of an increase in his premium. The MIA found that State Farm did just that, violating Maryland insurance law.
The MIA’s position was unambiguous: State Farm unilaterally increased the consumer’s premium with no advance notice, violating Sections 12-106 and 27-614 of the Maryland Insurance Article. In its brief to the Court of Special Appeals, the MIA did not mince words, saying that State Farm engaged in “bait and switch” tactics to lock the consumer in at a price higher than he had already agreed to pay and that State Farm was trying to “distort this new [2006] statutory scheme.” Harsh words for State Farm. I like it.