Wrongful Death Claims

March 24, 2010

MAIF

The Maryland Daily Record has an interesting article today on the Maryland Automobile Insurance Fund (MAIF).

For out-of-state readers, MAIF is a unique animal: a state-run insurance company for drivers that cannot get car insurance from private insurers. Most states deal with this problem by forcing private insurance companies to insure high-risk drivers. In Maryland, we have created a huge state-run insurance company to insure the risk.

To me, MAIF is like stare decisis. I don’t think we would decide all over again to create a state agency. One good piece of evidence: no other state has followed suit and created their own version of MAIF. But now that we have it, there is no inertia to tear it down.

The Daily Record article talks about efforts in the Maryland legislature to essentially stop MAIF from acting as an insurance company. What’s the problem? Insurance companies are threatened by MAIF because they are stealing market share. One of the lobbyists quoted in the article complaining about MAIF works for Agency Insurance, which also insurers a lot of high-risk drivers. This isn’t the first time an insurance company that markets to high-risk drivers has complained about MAIF. (See this September 2, 2008 post.)

These same insurance companies also grab on to the up-with-people populist sentiment against bonuses for anyone connected to public funding, pointing to the $1.2 million in bonuses MAIF paid last year. They jump on the fact that MAIF Executive Director M. Kent Krabbe is the one who recommended the bonuses to the board and that Krabbe got $36,000 for himself.

I’m as big of a MAIF critic as anyone is. I think they are just plain obstructionists for paying valid claims and I think their approach often costs them money. They won’t try a high-risk case, but they also won’t offer their policy limits until after they spend a fortune in legal fees defending the case.

I have said in the past I don’t disagree with insurance companies’ tactics of playing hardball with personal injury lawyers to maximize their profits. Too many attorneys settle at the first sight of money or a potential trial. But hanging around in a wrongful death case – which they have done multiple times with us – when I know they are just going to offer the policy before trial – is just a poor business strategy. Good companies have over one gear. MAIF just has the one. At some point, turning the boat north and speeding up when there is an iceberg in your path is a terrible idea. Particularly when your plan is to jump off when the iceberg gets real close. Continue reading

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

June 18, 2009

New Massachusetts Opinion on Duty and Foreseeability

by Ronald V. Miller, Jr.

A hospital did not breach a duty of care as a matter of law to a police officer who suffered injuries while responding to a traffic accident allegedly caused by a just-released colonoscopy patient, Massachusetts’ highest court has ruled, affirming the trial court below.

The police officer responded to an emergency report of a pedestrian-automobile accident. On his way to the scene of the reported accident, another car hit the Plaintiff’s police car, causing what were apparently serious injuries. The pedestrian involved in the accident to which the Plaintiff was responding had earlier that day undergone sedation after a colonoscopy at Brockton Hospital. Plaintiff’s theory was had the hospital provided an escort for the patient/pedestrian, he would not have had to respond and the accident would not have occurred.

Specifically, Plaintiff argued that a duty of care existed under two theories to back door the foreseeability problem: (1) a “special relationship” the hospital had with the patient and with Plaintiff, (2) a voluntary assumption of a duty of care by the hospital to protect third parties from harm caused by “impaired” patients.

The case generated some attention. Amicus briefs filed by the Massachusetts Academy of Trial Attorneys to support Leavitt, and by the Massachusetts Defense Lawyers Association and the Professional Liability Foundation, Ltd., to support the hospital.

The Massachusetts high court found that both theories were no distinctions from the duty and foreseeability problem in finding that a hospital owes a duty of care to a non-patient third party to prevent a sedated patient from causing injury after the patient leaves the hospital.

Whether negligence extends to “an innocent third-party bystander” was recently decided in Maryland in Gourdine v. Crews. In that case, the family of a man killed in an auto accident sued Eli Lily claiming that his death was caused by a diabetic who blacked out while under treatment with two insulin medications. Continue reading

September 8, 2008

Average Wrongful Death Verdicts for Females: Age Is More Than a Number

by Ronald V. Miller, Jr.

Interesting data from Jury Verdict Research on the median and average values of wrongful death cases where the decedent is female. The overall average compensatory award for wrongful death of an adult female over the last eight years in the United States is $2,990,032 ($1,102,976 is the median).

Age is a big variable when looking at median and average female wrongful death values. The average wrongful death verdict for a female between 18 and 24 is 2,990,032 ($1,102,976 median). For females between 30 and 39, women who are far more likely to have left behind children, the median wrongful death verdict escalates to $5,605,127 ($2,500,000 median). For women over 80, the average wrongful death verdict plummets to $1,314,241 (322,920 median).

I always find it maddening when insurance companies discount the value of human life in wrongful death cases because of the age of the decedent. If you are eighty years old and you are killed, those last 10 years of seeing your kids as adults, your grandchildren coming of age and everything else that comes with it are valuable years. But these numbers, regrettably, show that there is some logic to their thinking for how juries value wrongful death cases.

September 25, 2007

$4 Verdict in Anne Arundel County Drowning Case

by Ronald V. Miller, Jr.

The Maryland Daily Record yesterday reported on a $4 million verdict an Anne Arundel County jury awarded to the parents of a 5-year-old boy who drowned in the Crofton Country Club pool in 2006. The parents of Connor Freed sued D.R.D. Pool Service, Inc, who managed the pool for the country club. The boy was at the pool with some family friend, who found him floating in the pool after a trip to use the bathroom. The suit alleged that the pool was inadequately supervised by only one 16-year-old lifeguard who had 3 weeks’ experience. It further alleged that they incorrectly performed CPR and that they should have used a defibrillator. (D.R.D. filed a cross-claim against the family friend but the jury found him not liable.)

Interestingly, a pretrial ruling dismissed the parents’ claim for the child’s conscious pain and suffering. I do not know all the facts, but unless he was unconscious when he hit the water, I cannot imagine how there could not be a survival action for conscious pain and suffering. [This ruling later was reversed.]

The jury award was 2,000,706 for each of the child’s parents. The 706 represents the child’s birthday of July 6th. That gives me goosebumps. Regrettably, the real recovery will only be about $1,020,000 (plus economic damages) because that is the cap for non-economic damages in a wrongful death case with two or more beneficiaries.

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.

February 6, 2007

$8 Million Verdict in Prince George’s County

by Ronald V. Miller, Jr.

Yesterday my partner, Laura G. Zois, tried a wrongful death auto accident case in Prince George’s County against Allstate. The jury awarded our client $8 million. Allstate made no offer to resolve the case.

We cannot collect the entire amount not only because of Maryland’s cap on pain and suffering damages but also because there is no first-party bad faith on uninsured motorist claims in Maryland. I understand that the Maryland General Assembly introduced a bill to bring the first party bad faith to Maryland.

I try very hard to keep the “insurance companies are pure evil” sentiment out of the Maryland Personal Injury Lawyer Blog because I think simplistic generalizations defeat real discussion of the issues. I teach Insurance Law at the University of Baltimore Law School and try even harder there to remain balanced in my approach to the class.