Maryland Courts

November 5, 2007

Does Maryland’s Cap on Noneconomic Damages Discriminate Against Women

I have expressed my disdain for Maryland’s cap on non-economic damages many times on this blog. I read an interesting article in the University of Baltimore Law Forum on an issue to which I have never given much consideration: the impact of the cap on non-economic damages on women. In the article, Maryland Tort Damages: A Form of Sex-Based Discrimination 37 U. Balt. L.F. 97 (2007), University of Baltimore law professor Rebecca Korzec argues that the statutory cap on non-economic damages in Maryland, although facially neutral, has the unintended consequence that it disproportionately disadvantages women.

The essential premise is that limiting non-economic damages disproportionately affects female litigants, because women earn less, largely because they spend more time on unpaid child care around the house. Limiting pain and suffering damages does not allow juries to award fair compensation. Non-economic damage caps solidify bias by rewarding economic losses over non-economic ones, intensifying the gender bias of tort law.

Professor Korzec notes that physical injuries to women may not result in significant damages awards, because of some injuries specific to women. A “soccer mom” who suffers an injury requiring a hysterectomy, for example, may cause little economic harm. Restricting or limiting her non-economic damages may cause an insignificant award of damages.

October 23, 2007

New Maryland Assumption of the Risk Opinion

by Ronald V. Miller, Jr.

The Maryland Court of Appeals issued an interesting opinion last week on Maryland’s assumption of the risk doctrine in American Powerlifting Association v. Cotillo.

The Plaintiff, a Prince George’s County police officer, suffered injuries in a powerlifting contest at Patuxent High School in Calvert County, Maryland. He brought a negligence claim in Calvert County against the American Powerlifting Association and the Calvert County Board of Education. Essentially, the Plaintiff claimed that two Patuxent High School students, who spotted the Plaintiff during his effort to bench press 530 pounds, could have prevented his injuries. A Calvert County Circuit Court judge granted the Defendant’s motion for summary judgment because the Plaintiff assumed the risk of his injuries.

The Court of Special Appeals affirmed on all counts except the negligence claim grounded in allegations of improper preparatory instruction of the spotter. The court’s reasoning was that the Plaintiff did not know the spotters were improperly trained, and because their improper training presented an enhanced risk not normally incidental to powerlifting, Plaintiff could not have assumed the risk.

The Maryland Court of Appeals disagreed, finding that the assumption of the risk doctrine barred all of Plaintiff’s claims because any person of normal intelligence knows or should know that one risk inherent in powerlifting is that the bar may fall and injure the participant. Continue reading

October 17, 2007

Maryland Court of Special Appeals Vacancy

by Ronald V. Miller, Jr.

Twenty-nine people have applied to fill the at-large vacancy on the Court of Special Appeals left by Judge James A. Kenney’s mandatory retirement. (Parenthetically, most judges continue to sit on the bench after they retire, so can we just drop the mandatory retirement nonsense? The antiquated notion of mandatory retirement at 70 does not fly in 2007.)

There are an impressive number of quality applicants for the vacancy. They are:

Claudia Adeline Barber, a family lawyer in Laurel

October 2, 2007

Maryland Lawyers: New IOLTA Rules in 2008

by Ronald V. Miller, Jr.

On January 1, 2008, the recent IOLTA rules approved by the Maryland Court of Appeals go into effect. There have long been rules for Maryland lawyers to open a trust account for the deposit of client funds that are not purely payments for legal fees or expenses. What had been absent is any requirement as to the nuances of the maintenance of the accounts.

The recent rule, Maryland Rule 606.1, provides detail as to how IOLTA keeps accounts in Maryland. At a quick glance, there is a lot more to be done. But if a bookkeeper handles your account, as I suspect is the case for the vast majority of Maryland lawyers, you are probably already adhering to most of the recent rules. The only rule we do not follow is a notation that requires a listing of the lawyer responsible for the transaction, and, at our firm, it is always the same lawyer.

September 17, 2007

New Maryland Law on Quick Settlements

by Ronald V. Miller, Jr.

One new bill that came out of Annapolis this year, and will become Maryland law on October 1, 2007, aimed at limiting one of the predatory insurance practices: the “don’t hire a lawyer and I’ll give you a quick settlement” tactic. Among the major auto insurance carriers in Maryland, I do not see GEICO, Allstate, or State Farm doing this aggressively or systematically; Nationwide does it a good bit, and Progressive does it with absolute zeal.

This bill will not limit the practice itself but it will give injury victims not represented by a Maryland lawyer the opportunity to void any release signed within 30 days of an accident within 60 days provided certain met conditions such as providing written notice and returning the proceeds.

To Progressive’s credit, it does not appear that they are nearly as aggressive in very serious injury cases, but it amazes me to hear from my personal injury clients the lengths to which Progressive will induce quick settlements in smaller cases. Progressive adjusters show up on the injury victims’ doorstep (apparently every adjuster is smiling and friendly) with a checkbook eager to “make this thing right.”

May 14, 2007

Wrongful Death Auto and Truck Accident Verdicts and Settlements in Maryland, Virginia and Washington DC: How Much Are the Recoveries?

by Ronald V. Miller, Jr.

According to Metro Verdicts Monthly, the median motor vehicle accident wrongful death case in Maryland is worth $505,000.

This is interesting information. What does this data tell us? Not much. Why? The motor vehicle accident data has little probative value because it does not include the amount of the insurance policy at issue. We have settled fatal accident claims for $20,000 where that is all the insurance, and the defendant had no meaningful assets.

Uninsured motorist cases also bring down the median and average values because plaintiffs’ attorneys are overly reasonable in requesting damages because the plaintiff is often limited in the damages they can recover.

April 5, 2007

First Party Bad Faith Passes the Maryland Legislature

by Ronald V. Miller, Jr.

The Maryland Senate has passed House Bill 425 and the Maryland House of Delegates today also passed the bill, which puts a new requirement of good faith for insurance companies dealing with their insureds. The bill now heads to Governor O’Malley for his signature. The Governor has previously pledged support for the bill.

This issue has been a reoccurring topic on the Maryland Personal Injury Lawyer Blog. See this post and this post. My partner, Laura G. Zois, testified before the Maryland Senate and House of Delegates about three weeks ago on this very issue. I know that after the bill passed the Maryland Senate, there were a lot of lobbying efforts from the insurance companies to keep it from passing in the House of Delegates. They pushed the vote back, and I began to doubt whether Maryland would join most states that already have first-party bad faith. I’m thrilled the Maryland Assembly put the interest of Maryland injury victims and consumers ahead of the insurance company and their lobbyists.

This is a huge win for victims and their attorneys who are fighting to get injury victims a fair recovery for their injuries and the benefits of the insurance contract for which they are paying premiums.

March 13, 2007

Peter Angelos Opposes Comparative Negligence

by Ronald V. Miller, Jr.

The Maryland Gazette reports today that Peter G. Angelos is lobbying the General Assembly’s judicial committees to kill a bill that would allow Maryland to join 46 other states in switching from a standard of contributory negligence to one of comparative fault.

Angelos’ fear, which all Maryland plaintiffs’ lawyers fully share, is that with comparative negligence we might lose joint and several liability, which allows plaintiffs to seek full recovery from culpable parties who are not 50% responsible. All defendants who are substantially contributing causes of a plaintiff’s injury are individually fully responsible for the total amount of a jury award to a successful plaintiff. A separate court action later decides how much each defendant pays.

More to the point for Mr. Angelos, his firm handles asbestos cases where some responsible parties are bankrupt. Mr. Angelos’ concern is his potential failure to gain a full recovery in these asbestos cases.

February 5, 2007

Will Maryland Drop Contributory Negligence

by Ronald V. Miller, Jr.

The Maryland legislature is considering joining the rest of the civilized world – okay, I’ll kill the hyperbole – the vast majority of jurisdictions by adopting a comparative negligence standard in Maryland. The contributory negligence standard we have in Maryland is harsh to injury victims and creates genuine challenges for Maryland personal injury lawyers seeking justice for their clients. Under contributory negligence, the accident or medical malpractice victim’s failure to exercise due care which contributes even in the slightest way to the plaintiff’s injuries is an absolute bar to recovery. Under this rule, even if the jury believed the plaintiff was only 1% at fault for his/her injuries, the plaintiff would be completely barred from recovering for those injuries.

All but 5 states have moved into the modern era and adopted contributory negligence. It would be a blessing for injury victims in Maryland if Maryland dropped that number down to 4.

The Maryland Gazette posted an interesting – albeit pro-business – article on Friday on this issue of Maryland reconsidering contributory negligence.

January 26, 2007

Prince George’s County Courthouse Fire

by Ronald V. Miller, Jr.

A fire broke out at the Prince George’s County courthouse on Wednesday, destroying a large section of the 126-year-old building. It damaged two floors of the courthouse. The old courthouse is connected to a modern wing by a series of corridors.

This is the second time the courthouse has been on fire in a little over two years. The P.G. Courthouse was gutted by fire in November 2004, just months before they scheduled the courthouse to open after a $25 million renovation. It is amazing this happened again. No word yet on the cause of the fire.

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