Maryland Injury Law Center

October 2, 2012

Bad Faith Claim Against Progressive in Federal Court Fails

Sometimes it is easy to miss the federal court opinions that involve car crash cases because you just do not expect to see them there. Probably 1% of the car accident cases that we handle end up in federal court – although probably 20% of our truck accident cases get removed to federal court.

Anyway, you are paying me for a reason; I just found an interesting bad faith claim decided last week – Hughes v. Progressive – involving our friends at Progressive. It is an interesting case with a bad outcome that may very well show up on my students’ Insurance Law exam in December.

The plaintiff is broadsided by another car, driven by the defendant (insured by Progressive Insurance and later ends up being plaintiff’s use plaintiff). Plaintiff sues the defendant in state court in Baltimore City. Plaintiff also sues GEICO for uninsured – really underinsured – motorist coverage benefits. The defendant had a $100,000 per accident policy with Progressive which, sadly, is the Cadillac of Progressive’s policies.

Progressive does exactly what I always complain that Progressive does: they jerk you around, refusing to settle by offering its policy limits, and then finally tendering the limits after talking tough for a year. It must be in their adjuster’s manual.

Progressive sent out a pay-to-play letter (learn more here) to GEICO, who did not respond within 60 days after receipt of notice as required by Maryland insurance law (§ 19-511) if it wishes to retain its subrogation rights. But, somehow, GEICO later claimed it had responded by email. The Baltimore City trial court found that the email amounted to proper notice as a matter of law under §19-511.

The plaintiff tried the case and got a $725,000 verdict against GEICO and the defendant. GEICO had $500,000 in coverage. So, the defendant owed the balance to the plaintiff. So the plaintiff and defendant hug it out and join forces. Plaintiff, as defendant’s assignee or use plaintiff, filed a bad faith complaint against Progressive in Baltimore City Circuit Court. Specifically, the plaintiff alleged that Progressive fought for the defendant in this case “with the vigor and energy of a 10th grader in study hall detention.” Continue reading

October 2, 2012

Comments on My Post About Insurance Adjusters

by Ronald V. Miller, Jr.

I wrote a blog post last month with the antagonizing title “Insurance Adjusters Say the Silliest Things,” discussing an article written by one insurance claims adjuster that fell into the worst stereotypes of adjusters. The post was recently picked up by an insurance claims journal (which I have since cannot find) which I thought led to a few interesting comments from other plaintiffs’ lawyers and a few insurance adjusters. One, inexplicably, contends that insurance claims adjusters are people too.

October 1, 2012

New Maryland Ethics Opinion Ends Annoying Defense Tactic

by Ronald V. Miller, Jr.

Defense lawyers and insurance companies have this irrational fear of an unpaid lien holder coming back and claiming the insurance company must reimburse for the unpaid debt. Sure, some adjusters and lawyers push this issue because they are pathologically difficult. But I also think they have an earnest belief that this could happen and that they will get blamed for it.

This problem has grown especially acute since Medicare came out with new reporting rules in personal injury claims that many insurance companies believe means that the plaintiff must prove the negative that they don’t have Medicare. “You are 32 years old making $75,000 a year? So? Prove to me you are not on Medicare.”

You would think this increasing fear would be tempered by the fact that this doomsday scenario has not come to pass even a handful of times in human history. (Source: I’ve never heard of it happening other than one Medicare case, a thousand years ago, where the plaintiffs’ lawyers really were up to no good.)

So the adjuster-defense lawyer wonder twins concocted a plan to decrease the likelihood of a lien ever coming back on them: having both the plaintiff and the plaintiff’s attorney indemnify them for any lien.

Maryland Ethics Commission: Docket No. 2012-03

So here’s what happened that led to a Maryland State Bar Association ethics opinion. After agreeing to the amount of a car accident settlement, the insurance company demands that the plaintiff’s lawyer and the plaintiff indemnify both the insurance carrier and the defendant from any claim for any of the plaintiff’s medical bills, medical liens, or workers compensation liens related to the car crash. The question posed to the ethics commission is whether this demand violates the Maryland Rules of Professional Conduct. Continue reading

September 27, 2012

State Farm’s Blog on Car Accidents

by Ronald V. Miller, Jr.

Did you know State Farm has a blog? They don’t call it a blog. Instead, it is a learning center that educates consumers with “articles, discussions, videos, and financial calculators to help you make informed decisions” about car insurance, what to do after an accident, and so forth.

You know how these things read. One recent post is on “How to Handle Parking Lot Accidents.” There is not one piece of information you could not figure out on your own if you have a 6th grade education or equivalent experience. But whatever, I have a few things like that on our website, too.

But here’s the funny part. You know how these corporate blogs try never to say anything even remotely controversial? One State Farm blog post said:

The fender bender you were just in appears to be minor. No one looks injured and there is minimal damage to the vehicles. First breathe a sigh of relief – then take these precautions to help prevent your small accident from becoming a big problem.

Don’t drive away.

Do stay at the scene and move your vehicle to a safe place out of traffic even if there appears to be no damage. If the other car is parked and the owner isn’t around, leave a note with your name and contact information.

Don’t assume there aren’t injuries.

Do assess yourself and your passengers. Even low-impact collisions can cause injuries, some not appearing until days after the accident.

Don’t sign any documents and avoid accepting or offering cash for repairs. You may end up paying out-of-pocket to repair damage to your car that only appears minor, or you could pay the other driver more than necessary.

Do stay calm. Take notes and photos, and exchange information with the other driver, including your name, address, phone number, driver’s license number, license plate number, insurance company, and policy number.

Don’t assume an accident is too minor to be reported.

Do call the police or file a report on your own. This will help your insurance agent handle your claim. An accident report could also help protect you from issues that may arise later about the extent of damage to your vehicle or injuries to you and the other driver.

Don’t forget to notify your State Farm agent.

Do discuss your options for handling potential claims.

The State Farm Pocket Agent smartphone app makes it easy to capture the essential details of an accident. Pocket Agent can help you diagram the accident scene, record witnesses’ names and numbers, contact your agent, and even locate nearby repair shops.

You might not notice the injuries until DAYS after the accident? I’m not even sure I would support the theory that it happens regularly, although I suspect it happens. I also don’t think it is controversial to say that people can get hurt in low impact car accidents. People can die in relatively low impact accidents, according to science and physics. So it is not a leap of faith to suggest that sometimes, albeit rare, people get hurt in low impact vehicle accidents.

Here’s the fun part: State Farm takes down the page. Seriously? Is State Farm EVER going to contest anything on here at trial? Is anyone ever going to be swayed by these general admissions as applied to an individual case? Yet some ninny decided that they couldn’t leave this life ammunition out there. Continue reading

September 26, 2012

My Hospital Visit to Meet a Prospect Yesterday

by Ronald V. Miller, Jr.

On Monday, a man calls our office. He only has a few minutes to talk. He tells our intake specialist that his brother has been at Shock Trauma in Baltimore since the beginning of the month and that he was hit by a commercial vehicle. The man briefly describes his brother’s injuries as head, eye, shoulder, and ankle.

She didn’t get more details. But he has me, obviously, at “Almost a month and counting in Shock Trauma” and “commercial truck.” Most of our large serious injury cases are truck accident cases. We set up a meeting with the brother for the next day in my office.

An hour before the meeting, the brother calls and says that the injury victim wants to be a part of the meeting, asking our intake specialist if we can move the meeting to the hospital.

I swallow hard. I’m simultaneously happy and miserable. Sure, I can now sign up for the client directly. But I really hate hospital visits. Why? Because it makes me feel like an ambulance chaser, that’s why. Many people pride themselves on not caring what anyone else thinks. I don’t. I really care – especially what health care providers think because I really have a lot of respect for them.

I’ve probably lost a lot of cases over the years of eschewing hospital visits. But last month, our firm went on a weekend retreat to the Hyatt in Cambridge, Maryland. Great place. The purpose of our meetings there was to become a better law firm. I’m convinced that we can never stop getting better. We are blessed to have a group of people who have been together for a long time. I think experience individually and collectively gives us a chance to continue to improve. The focus of the meeting was what I call Kaiser Sose: doing the little things other people can’t or won’t do to (1) make our clients happy, and (2) increase the values of their cases. In the spirit of that meeting, which included the theme of EVERYONE having to be accountable, I have to make hospital visits when current or potential clients ask me to come.

So I drive down to Baltimore to visit the hospital. I’m planning to meet the brother in the hospital lobby. This makes me feel better because it gives me some cover other than the guy who looks like a lawyer going up alone. While I’m fidgeting in the lobby, the brother calls the office and just asks, inexplicably, if I can just come up to the room.

Shoot. Now I’m uncomfortable. But I sneak by the front desk without getting a visitor’s badge pulling off that “I am regular here, I know where I’m going” look, simultaneously feeling James Bond clever and a complete loser. Because I’m so clutch, I add difficulty by screwing up the “600-630 this way” arrow, having to suspiciously double back again. Thankfully, no one is paying attention because, you know, they are tending to badly hurt people and I’m in Baltimore City and I’m not carrying a weapon. Continue reading

September 26, 2012

New Rules for Mopeds and Scooters in Maryland

by Ronald V. Miller, Jr.

A fedora will no longer suffice.

Starting Monday, the ridiculous pass that mopeds and scooters in Maryland have been given on the most basic safety precautions will end. Moped and scooter drivers now must equip their death traps by wearing a helmet and some kind of eye protection. Scooter drivers must also register their vehicles and have a valid drivers’ license or a moped/scooter permit.

Maryland was one of the few remaining states that did not require a license, registration, and insurance for mopeds (or mo-peds? I can’t decide).

September 20, 2012

Can Parents Sign Away Minor Child’s Potential Tort Claims?

by Ronald V. Miller, Jr.

Tort lawyers rarely spend a ton of time worrying about whether their clients have indemnified the defendant for their own negligence because it rarely comes at issue. You rarely contract with the person causing you harm unless you are a patient and the world has not gone so mad as to allow doctors and hospitals to get patients to waive future malpractice claims against them. But a few times a year, a case will come across my desk where the injured victim signed something that arguably waives their right to bring a personal injury claim against the party responsible for their harm.

There are arguments on both sides of this. One side says adults should be able to agree by contract to whatever they want, including waiving tort claims. The other side points out that this is usually the small print on the contract between parties with unequal bargaining positions. Stated a little differently, if you and I go whitewater rafting, and I refuse to go based on some silly waiver language with the guy giving us the rafts, well, I don’t think you will ever ask me to go on a trip with you again. (There are also good moral hazard arguments by those who think consumers should be able to waive their tort rights.) I see both sides of the argument.

There is no such argument pending in Maryland’s appellate courts. The case law is clear that consumers can waive their rights to bring a personal injury claim by contract. The Maryland Court of Special Appeals this month in Rosen v. BJ’s Wholesale Club looked at a thinner slice of that question: can parents waive the rights of their minor children?

Here’s what happened. Plaintiffs’ take their three kids to BJ’s in Baltimore County (either Owings Mills or Hunt Valley I think). They park them in the BJ’s Kids Club. (I never even knew BJ’s had a kid’s club.) The kids’ club is a free babysitting service for kids to use while their parents shop. I can’t imagine it being all that nice but it reads well on paper: fixed playground structure with multiple levels, activities and entry points, murals, wall-mounted play stations, and movable play equipment. BJ’s had the parents sign a “If we hurt your kids you can’t sue us” waiver. I might paraphrase a bit.

I’m being a little whimsical in my telling of the facts, but the story turns serious. The parents’ five-year-old boy falls off a “Harry the Hippo” and falls, hitting his head at the play center and then fell approximately thirty-eight inches, striking his head on a concrete floor covered with a thin layer of carpet. The boy suffered life-threatening injuries. The boy went to the hospital. A CT scan found a large, acute epidural hematoma in the right temporal lobe of his brain. He was then transported to Johns Hopkins Hospital, where he underwent a craniectomy to relieve the fluid buildup in his brain.

(Post Aside: When I started reading this case, I was thinking the facts would be weak for the plaintiffs. But this is a good case on liability, right? You can’t have a concrete underneath a climbing area. If the kid fell off a chair or something on concrete, that would be one thing. But under a hippo thing that you climb on? That sounds like negligence to me.)

The issue is whether a parent may waive all future tort claims that his or her child may have. It was a case of first impression in Maryland. Baltimore County Circuit Court Judge Thomas J. Bollinger ruled in favor of BJ’s, finding that summary judgment was appropriate because there is no “alternative law for adults who sign exculpatory clauses for their children.” Plaintiffs appealed. Continue reading

September 18, 2012

Two Caps in Maryland Wrongful Death Cases: New Appellate Opinion

by Ronald V. Miller, Jr.

We frequently get letters and phone calls from prisoners. It is hard not to discount these cases. It is not just the “People in Jail Are Less Likely to Be Credible” problem. It is also the “People Who Have Tons of Time on Their Hands Tend Chase Windmills” problem that is demonstrated by the 10 page letters that incarcerated people send to lawyers setting forth their grievances.

This bias leads lawyers to miss a lot of cases that are both lucrative and serve the interests of justice – Because we criminally mistreat our prisoners. But, because you have to kiss so many frogs to find a princess with prisoners, most lawyers just ignore the cases. We are probably guilty as charged on this one.

In fact, the only prisoner cases we have taken are cases where prisoners working on a road crew were hit by a prison owned or, better yet, a third party vehicle. Those are the facts of Goss v. Jennings, a “pedestrian” wrongful death case decided by the Maryland Court of Special Appeals last week.

While working on a litter pickup detail on the Capital Beltway (I-495) in Landover in Prince George’s County, a man was struck and killed by a dump truck. The plaintiffs filed a wrongful death/survival action against the driver, the Department of Corrections, and the Maryland State Highway Administration. The jury then returned a verdict against both the dump truck driver and the state of $2,025,000: $350,000 for the survival action and $1.675 million for the wrongful death action. Pursuant to the cap on non-economic damages, the trial court reduced the wrongful death awards to 150% of the wrongful death cap in 2007 of $680,000 ($1,020,000).

The state got out on a motion after the verdict, which was fine with plaintiffs because they had a defendant with insurance coverage and didn’t need to deal with the $200,000 cap. The truck driver and trucking company appealed. They made several accident specific arguments that were not interesting for our purposes. They also argued that the trial court erroneously imposed two statutory caps when only one cap applied. Continue reading

September 17, 2012

Request for a Jury Trial: Court Says Better Get It Right

by Ronald V. Miller, Jr.

I guess the summer is over. The Maryland Court of Appeals is back in business, issuing several appellate opinions over the last few weeks. First on our hit list is Duckett v. Riley, a medical malpractice case filed in Prince George’s County in 2003.

New medical malpractice opinion

Anyway, every plaintiffs lawyer knows that when you file a personal injury lawsuit, you have to ask for a jury trial in a separate one line pleading. I can’t imagine leaving it off, but I always wonder in fear what would happen if I ever screwed up and left it off. Well, the plaintiff in Duckett v. Riley found out. The long and hard way.

Plaintiff filed a medical malpractice lawsuit but did not put in the request for a jury trial. But the plaintiff demonstrated an intent for a jury trial by checking the “Jury Trial Request” box on the civil information sheet. Defendants’ were not served with that information sheet. (This was – not for nothing – the first question asked of plaintiff’s counsel in oral arguments in the Court of Appeals.)

Defendant got the scheduling order and saw a jury trial had been set and objected. The motions’ judge in P.G. County agreed with the plaintiff. The case was then assigned to a trial judge – now retired Judge Thomas Smith – who had different ideas. Judge Smith concluded that the plaintiff had not properly requested a jury trial. He heard the case and entered a defense verdict. The Maryland Court of Special Appeals reversed in an unreported opinion, finding that the purpose of Maryland Rule 2-325 – to place the opposing party on notice that a jury trial has been demanded – had been met. Continue reading

September 13, 2012

How Much is a Car Accident Claim Worth?

by Ronald V. Miller, Jr.

Click to enlarge

How much is a car accident claim worth? It really depends on how you adjust your lens.

According to Jury Verdict Research, the median jury award for plaintiffs’ verdicts in 2010 for vehicular accidents was only $19,806. That’s not much. Yet the average award in a vehicle crash case is $181,197. ISO, an insurance risk information service, reports that about 5% percent of bodily injury claims – including cases that were settled out-of-court – in 2010 were for more than $100,000, while about 2% reached $300,000.