Truck Accidents

November 15, 2010

What Do I Get for My Own Wrongful Death?

When you die in a fatal crash in Maryland, two claims arise: a wrongful death action and a survival action. Wrongful death claims are for the suffering and economic loss for surviving family members on their own behalf. The survival action is brought by the estate, which means it is actually the only claim the person who died really brings for themselves, in their own name, for their own loss of life.

If you die instantly in a Maryland accident – or there is no proof of conscious pain and suffering – defense lawyers argue there is no survival action or no claim for the decedent for their death.

Maybe I think this stuff through a little too much, which makes me wonder if I can keep this job until retirement. But it just seems ludicrous to me that a person has no cause of action in their own right because we can’t prove they suffered before they died. A trial court in Maryland recently took this a step further, ruling that there is no conscious pain and suffering when a five year-old boy drowns in a pool because there was no “evidence” of conscious pain and suffering. The Maryland Court of Appeals thankfully reversed the trial court on this point because it is obviously more likely that the poor child suffered. (I would love to be wrong about this and I try to make myself feel better by thinking not that long a period. But it does not make me feel better.) Continue reading

October 20, 2010

State Farm’s End Run Around Subrogation Waiver

by Ronald V. Miller, Jr.

In Maryland, if an uninsured motorist insurer waives subrogation against the at-fault driver in an underinsured motorist case, it also waives its liability defenses. Depending upon who you ask, this has either always been the law in Maryland (as Maryland high court tells us in Maurer v. Penn National) or is a recent law (as every Maryland accident lawyer or insurance company seems to think).

State Farm has responded to this recent law by refusing to waive subrogation in just about every case where the at-fault driver tenders the policy limits. It is a fair tactic. But what State Farm is doing is cutting side deals with the at-fault driver’s insurance company to waive subrogation to the extent of the UM coverage which allows the defendants to work together in preparing for and trying accident claims.

Two take-home messages. First, add in a discovery question to uncover these side deals so you know the score in advance. Second, make sure you argue at trial that the defendants’ interests are aligned and they should not both get jury strikes.

October 19, 2010

Allstate Colossus Settlement

by Ronald V. Miller, Jr.

Allstate has agreed to pay New York $1.2 million as part of a $10 million regulatory settlement involving Colossus, its infamous computer software that values personal injury auto accident claims.

Under attack was Allstate’s use of Colossus, a software program Allstate and many other insurance companies use to determine the value of injuries in motor vehicle crash claims. The claim against Colossus would shock no one who handles these cases: there are inconsistencies in Allstate’s management and oversight of the Colossus software program. Specifically, Allstate failed to modify or “tune” the software in a uniform and consistent manner in personal injury accident claims.

Under the settlement agreement, Allstate will change how Colossus is used:

Providing notice to claimants that the Colossus software program may be used in the adjustment of their bodily injury claims
Enhancing its management oversight of Colossus to ensure that it adheres to established criteria and a uniform methodology in selecting claims to be used to “tune” or modify the software to reflect recently settled claims
Strengthening its internal auditing of Colossus and bodily injury claims handling to ensure adherence to written guidelines and procedures
Merging its bodily injury claims handling practices into a single claims handling manual
Not establishing a policy or rule requiring claims adjusters to settle bodily injury claims solely on the value recommended by Colossus and not providing incentives for claims adjusters to settle claims at or near the value recommended by Colossus.

April 26, 2010

Should You Ask for an Amount in Opening?

by Ronald V. Miller, Jr.

Paul Luvera discusses a tough issue for Plaintiff’s lawyers: do you clue the jury in during your opening statement how much you will ask for in closing? I struggle with this and often opt for a middle ground. I lay out the foundation of what I will ask for: medical bills, wages, and the formula I think is appropriate (x per day for the rest of her life). This way, I’m getting them used to the idea without having to spit out a number with no evidence.

As Paul points out, a one size fits all rule is difficult because each case depends on different facts. One critical question has to be considered: is the cap an issue? If what you have is a cap case and minimal or no economic damages, you can dial back on the damages argument which might help you avoid the risk of losing credibility. Because every time you ask for money – which is what a plaintiffs’ lawyer does by definition – you do lose some measure of credibility with a jury.

One issue in this post – raising the damage amount in voir dire – is not of much interest to Maryland personal injury lawyers because our voir dire is so ridiculously limited.

April 13, 2010

My Mediation Article with Judge Gordy

by Ronald V. Miller, Jr.

Yesterday, the Maryland Daily Record published the first of a three-part series I wrote with retired Judge Clifton J. Gordy (now a mediator and arbitrator) on mediation in serious personal injury and wrongful death claims. The article is for both plaintiff and defense lawyers looking to make mediations as productive as possible. Look at yesterday’s article, and look in coming editions for the final two parts.

March 11, 2010

Dram Shop in Maryland

by Ronald V. Miller, Jr.

A wrongful death lawsuit has been filed against a Chattanooga, Tennessee bar after a car accident killed a woman just a few days before Christmas. The case is an interesting twist on the classic dram shop case. The suit alleges that the bar gave its employees free alcohol and allowed one man to leave the bar intoxicated. The employee stayed at the bar and drank “free alcohol” after his shift ended at 3 a.m. Around 7:00 a.m., the defendant struck and killed a pedestrian, an employee on her way to work at Unum Insurance. The defendant, stand-up guy that he apparently is, fled the scene and tried to fake a carjacking. Apparently this is an insurmountable stunt to pull off when you are drunk.

What really adds teeth to the Plaintiff’s wrongful death lawsuit is a city ordinance prohibiting bar workers from drinking where they work, even when off duty. Violating the ordinance was a factor in causing this woman’s death. If the case goes to trial, there will be arguments by defense lawyers about the purpose and intent of the statute and whether this was the harm that the ordinance was trying to avoid. But I would suspect it was at least a purpose, if not the purpose, of the statute.

Maryland has rejected dram shop and social host liability in DWI accident claims. Going against the grain as a parent and lawyer who handles accident cases, I have believed and written in the past I oppose dram shop liability claims in Maryland.

I’m not so sure anymore. I would like to see data as to the number of wrongful deaths that occur in Maryland from DWI/DUI accidents where the person became intoxicated at a bar, or even at a bar where they are employed. The more salient question is one on which we will never get a definitive answer: how many deaths have occurred as the result of a server in a bar or restaurant who knows a patron (or employee) is drunk but does nothing to stop them? Continue reading

March 9, 2010

Can Insurance Defendants Lay Low at Trial?

by Ronald V. Miller, Jr.

I disagree with many of the philosophical views presented at Point of Law and Overlawyered. Then why do I read both blogs every day? Because they are informative, well-presented posts that make me occasionally question my own views. I hope to have you as a reader of the Maryland Injury Law Center and I hope my blog does for you what Point of Law and Overlawyered does for me.

Insurance companies hate being named in an uninsured motorist case. Why? Because unlike most car accident trials, if the jury knows an insurance company is paying the damages, jurors become less concerned that the defendant is footing the bill themselves. Jurors intuitively expect there is insurance available to cover the verdict, but they are never sure. Frequently, I have had jurors ask me after the trial if the defendant has to pay the verdict. “That nice Mr. Smith does not have to pay this personally, does he?”

In Maryland, the law is clear that in a straight uninsured motorist case without the tort defendant taking part in the trial, the insurance company may be named. The definitive case on this is King v. State Farm. In that case, a pedestrian Plaintiff appealed an unsatisfactory jury verdict in Baltimore City in an underinsured motorist case where the tort defendant had offered their policy limits (the verdict was less than the underlying policy). The Maryland Court of Special Appeals reversed because the trial judge did not allow the Plaintiff to identify the fact that the defendant was an insurance company.

March 24, 2009

Maryland Auto Accident Cases: A New “Amount in Controversy” Law Passes the Maryland Senate

by Ronald V. Miller, Jr.

Maryland Senate Bill 468 passed today in the Maryland Senate. It increases – from $10,000 to $20,000 – the maximum amount in controversy in a civil action in which a party may not demand a jury trial. Defendants would only be able to “bump up” cases between $20,000 and $30,000 from District Court to Circuit Court.

Any case pled in District Court for more than $10,000 can be bumped up to a jury trial. This practice, which is mostly done by insurance companies in personal injury car accident cases, leads to massive numbers of car accident cases before Maryland juries in cases that should be streamlined into District Court trials.

In fact, auto insurance companies are the problem in getting this bill passed; small businesses, for example, did not oppose this bill. Why are auto insurance companies opposed to this bill? It saves them legal costs to be sure. Is it because insurance companies get better results in front of juries than judges? No. The motive is much more nefarious: they want personal injury lawyers to spend time and resources in accident cases if the lawyers and their clients refuse the insurance companies’ below market settlement offers in smaller cases.

March 11, 2009

Defendants’ Truck Accident Lawyer’s Tricks to Avoid Paying Claims

by Ronald V. Miller, Jr.

Bob Franklin, a well respected Maryland lawyer who defends trucking companies for Franklin & Prokopik, wrote an article on defendant truck accident cases advising defense lawyers on handling plaintiffs’ truck accident lawyers’ vicarious liability arguments entitled. “But I Didn’t Do It!” Expanding Theories of Vicarious Liability, 58 Fed’n Def. & Corp. Couns. Q.347 (2008). You can’t deny it is a catchy title.

Trucking companies will clearly do anything to avoid compensating victims.

It is a well-written article advising defense lawyers how to combat different theories of vicarious liability conjured up by plaintiffs’ truck accident lawyers. But, obviously, it is also a suitable read for lawyers bringing truck accident cases looking for coverage in the event of serious injuries.

Franklin offers one piece of advice I found interesting:

With rising insurance costs and tight operating ratios for motor carriers and private fleet operators, many have limited excess insurance coverage or none at all. That trend coupled with ever increasing jury verdicts and settlements means there is frequently not enough insurance available to satisfy a potential or actual judgment.Such a scenario may put the fleet operator’s assets at risk if and when there is an excess judgment. Many fleet operators, particularly smaller ones, would do well to take advantage of recent changes in the law, particularly the Graves Amendment, which effectively precludes liability from being imputed simply by virtue of ownership of a vehicle that was involved in an accident. Having a separate corporate entity own the trucks (usually the operator’s most valuable asset) and lease them to the operators may effectively shield the vehicles from potential excess exposure if the proper procedure is followed.

Set up another company to avoid liability. They are telling us how they will get over on us and they are doing it in open view. It is like a shoplifter who looks at the security camera and smiles. Or like this.
Continue reading

November 24, 2008

Representing Personal Injury Accident Victims in Catastrophic and Wrongful Death Cases

by Ronald V. Miller, Jr.

Trial, the Journal of the American Association for Justice, asked me to write an article on mediations in death and catastrophic injury cases. The article will contain a section about preparing your client’s for the mediation process which is what I did yesterday last week in a wrongful death truck accident case, meeting with the decedent’s 15-year-old daughter and her mother, and the victim’s mother and three children. Just a wonderful family.

It is grueling to relive with a nice family the death of someone they loved so dearly. The hardest thing we do here is digging deep into the lives of those who experienced awful suffering. But as difficult as this process is, it also makes you feel better about going to work every morning. In an age where the media, doctors, and politicians routinely vilify personal injury lawyers, it is uplifting to be reminded of why we left our defense lawyer hats behind to represent severely injured victims.

Reading this back, I realize this all sounds trite. I hate reading personal injury lawyer blogs that blather on about how we are saving the world. I realize that my job is about 1/1,000,000th as important as some doctor risking his life for Doctors Without Borders in Somalia right now. I get where I fit in the circle of life. That said, even forgetting for a second the macro benefit of being a part of a system that holds people accountable for their actions, I think trial lawyers—particularly those that genuinely care about their clients—are making a big difference in the lives of many people who need our help the most.