Maryland Injury Law Center

October 17, 2012

Spoliation of Evidence in the Real World

Last Friday, a federal judge in Washington D.C. issued an opinion on whether to impose discovery sanctions on Marriott that I think is an instruction for personal injury lawyers dealing with defendants that destroy evidence.

In Mahaffey v. Marriott, plaintiff’s lawsuit alleged that while exiting an elevator in a motorized scooter, the elevator violently lurched, throwing him off the scooter, causing the scooter to land on top of him, resulting in serious injury. (No, I can’t picture it either.)

I’m assuming the injuries are serious. He appears to have hired a Florida lawyer who retained local counsel here. Usually, people are not going through that effort unless they have an actual case, although some of the facts I’m about to get to will make you question just how badly the plaintiff was injured.

So the plaintiff’s attorney puts Marriott on notice of the claim. The letter was sent by certified mail. Lawyer gets back a green card, the whole nine yards. (Spoiler alert: The court says, incredibly to me, that “Marriott maintains that it has no evidence that it received the demand letter leaving open the possibility that it received an empty envelope.” Wow. The court backs off this later in the opinion. But a judge saying that I might have sent an empty envelope by certified mail is the very reason I live a paranoid life. And it lets you know the plaintiff will lose) The letter sets forth the name of the plaintiff and the date of the accident. It did not – and I can’t tell you why – tell Marriott the name of the hotel involved in the accident. Continue reading

October 16, 2012

Defective Steroids Cause Meningitis in Maryland

by Ronald V. Miller, Jr.

The Centers for Disease Control and Prevention (CDC) has warned about an outbreak of fungal meningitis that affects several states, including Maryland. Meningitis is a serious and potentially fatal infection near the brain and spinal cord that can cause brain damage or death. Anyone at risk should get to the hospital immediately for evaluation.

There is a huge buzz out there for potential cases. The Maryland Daily Record just wrote an article this morning about how lawyers are racing to these cases. Every lawyer with a website and/or a budget to run commercials is talking about these cases. Some information is very good and helpful to other attorneys and potential victims. Some of it is just liberally borrowed from another website that copied off of someone else. Some lawyers definitely know how to put the copy in copycat.

Anyway, this blog post tries to lay out the issue both for lawyers who many have potential cases and for potential victims looking for real information on these cases. Continue reading

October 15, 2012

New Appellate Opinion on “Relates Back” in a Lap Chole Case

by Ronald V. Miller, Jr.

The Georgia Court of Appeals issued an opinion last Thursday on an interesting issue in a wrongful death malpractice claim that we see all too frequently: botched laparoscopic gallbladder surgery.

Quick facts in this classic malpractice case. Defendant performs a lap chole procedure on a man. The man returns to the hospital the next day with an infection. ER calls treating surgeon/defendant who does not go to the hospital to personally examine the man. Instead, he just says “I’ll see you in three days at your scheduled appointment.” (I’m guessing plaintiff will make hay of this arguably benign fact at trial because it has real reptile jury appeal.) Two days later, the man collapses at this home and dies.

The wife/plaintiff files a wrongful death action The autopsy showed his death was from an acute bacterial infection caused by thermal burns in the area where Jensen had performed the lap chole procedure. Continue reading

October 11, 2012

Are Witness Statements Discoverable? New Appellate Opinion

by Ronald V. Miller, Jr.

Instead of discussing various torts that could be committed against Raul Ibañez, a man I will now irrationally detest for the rest of my adult life, let’s talk today about witness statements and whether they are discoverable. There was an interesting opinion in a California wrongful death case this summer, that I’ve been meaning to blog about for a while now, about whether recorded statements are discoverable.

This case – Coito v. California – comes to us on facts are beyond tragic. A 13-year-old boy drowned in the Tuolumne River in Modesto, California. His mother filed a wrongful death lawsuit against several defendants, including the State of California.

There were six witnesses, all boys with the young boy who died. There was lots of talk in the air that all were committing crimes. Obviously, the defendants found this of interest. Defendants could get recorded statements from some of the kids. When the kids were deposed, the defendants used the recorded statement to hold one of the kid’s feet to the fire on their prior statements.

But, being defendants, they did not want to turn over the recorded statements to the plaintiff, citing the work product privilege. Motions ensued. The trial court denied the plaintiff’s motion to get the statements but ordered defendants to produce the recording used at the deposition. Continue reading

October 9, 2012

Dollar for Dollar Comp Setoff in Uninsured Motorist Cases

by Ronald V. Miller, Jr.

We often handle car and truck accident cases for victims who were working at the time of the crash. (I guess a motorcycle accident claim could also be while the employee is on the job – but I have never had or seen that case.)

In these types of cases, workers comp claims a lien on its payout and you have to work with them to get them to reduce their lien. A hassle, but usually not a much larger challenge then working with the health insurer to reduce its lien.

But this Field of Lien Reduction Dreams falls apart when you have an uninsured motorist claim and a workers’ compensation case. In Maryland (Insurance Article, § 19-513e) and many other states, when an insured files a lawsuit against the uninsured or underinsured motorist carrier, the insurance company can file a counterclaim against the victim to reduce the amount of the claim by the amount of money that the insurance company claims that the insured owes to it. Practically, this means a dollar for dollar set-off of the amount paid by worker’s compensation. The theory behind this is that setoffs lead to double recovery by the victims.

This is dumb and I’m not the first person to notice it. Maryland Court of Special Appeals Judge, Judge Timothy E. Meredith argues – in a dissent – that it is an unreasonable windfall for the car insurance company to get the benefit of the workers’ compensation lien and, really, calling it a double recovery misses the whole point of modern UM coverage in the first place – to place the victim in the spot she would have been in if the at-fault driver had the same coverage she did. A minority of states agree with Judge Meredith and do not allow for these dollar-for-dollar reductions. Continue reading

October 5, 2012

Why Our Recent Appellate Win Is Important to Maryland Auto Accident Attorneys

by Ronald V. Miller, Jr.

As I mentioned last week, I’m pretty excited about our law firm’s win in Buckley v. Brethren Mutual. I think this is an important case for two reasons. First, it shows that the Maryland Court of Special Appeals respects the actual intent of Maryland’s statutory scheme for uninsured motorist claims.

But this case also tells us something about Brethern Insurance Company. You don’t see them a ton in Maryland accident cases. And I’ve actually always liked the company. They have been easy to deal with in the past. But what we learned from this case is that Brethern will not stand by their own insureds. Because Brethern played an awful trick on its own insured in this case, a trick that GEICO, Allstate, State Farm, etc. never would have pulled. You understand the gravity of this, right? They are worse than those guys. If you have to take a brief walk around the block to let marinate the magnitude of this, feel free. Continue reading

October 3, 2012

What Is the Cost of a Mass Tort Lead?

by Ronald V. Miller, Jr.

I get so many emails from so many marketing companies. Just today I got an offer to write a guest post on this blog (no), an email telling me I rank poorly in Salisbury, Maryland on the search engines (he’s wrong), and two more random emails from companies telling me they are the best in the world at getting me to the top of the search engines (unlikely since, you know, you are spamming me).

But I found one of these emails interesting. This one was from New York City and it offered to provide leads for Actos, Yaz, Yazmin, and Ocella cases. These emails are always flying in, but this one provided the prices for the leads:

Actos: $450

October 2, 2012

Bad Faith Claim Against Progressive in Federal Court Fails

by Ronald V. Miller, Jr.

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