Maryland Injury Law Center

September 12, 2012

Insurance Claims Adjusters Say the Silliest Things

This quote leads off an article in Property and Casualty 360:

To me, a claims man is a surgeon. That desk is an operating table. And those pencils are scalpels and bone chisels. And those papers are not just forms and statistics and claims for compensation, they’re alive, they’re packed with drama, with twisted hopes and crooked dreams. A claims man, Walter, is a doctor and a bloodhound…and a cop and a judge and a jury and a father confessor all in one.

“Self Portrait” – Insurance Adjuster

In my particular line of work, it is easy to take potshots at insurance adjusters and stereotype them as disciples of Darth Vader who combine the giddy good humor of the Syrian army with a willingness to shoot their own parents in the head if that meant underpaying on an honest claim. I know these stereotypes are easy because I do it all the time on this blog and it is great fun. But, gun to my head, I think at their core, insurance claims adjusters are no better or worse than doctors, lawyers, or Indian chiefs. Most stereotypes of professions fail.

Still, the stereotypes exist. So if I’ve been falsely accused of vandalism recently, I will take down the M-80 casings on the desk and put away my baseball bat with red paint on it because I want to make sure that any false stereotypes about me are not perpetuated or reinforced.

This quote does just the opposite. First, the arrogance is loud and clear. It has the whole “Alec Baldwin in Malice, I am the ultimate power” vibe to it. The reality, pal, is that you are not a surgeon, you are a claims adjuster.

(Look, I’m not a surgeon either, but I’m not pretending to be as important as one. A lot of lawyers do. I’m a guy that tries to get his clients as much money as possible, treat his clients well, and hope that all of that equals justice and I’m a useful cog in the circle of life. Gerry Spence said a few years ago that lawyers are the most important people in world. And I think he is nuts unless your name is Thurgood Marshall or something like that.) Continue reading

September 10, 2012

Judge Compares Defendant CEO to Nazis (that’s not good!)

by Ronald V. Miller, Jr.

A Florida judge was disqualified from a wrongful death tobacco case after comparing the defendant’s former CEO to Nazi war criminal Josef Mengele.

No-brainer decision? I’m not so sure. Here is what happened. During the trial, a hearing was held outside of the presence of the jury on whether a 1971 – remember 1971 – a videotape of Philip Morris’s CEO Joseph Cullman should be admissible at trial. In the video, the CEO says that lower birth weights caused by smoking may be better for women who “might prefer having smaller babies.”

All right, so exactly what is the appropriate response. “Gee, that remark is unfortunate,” probably does not quite cut it. So the judge took it a little further, comparing the remark to Dr. Josef Mengele, who conducted some of the evilest experiments on humans in modern times at Auschwitz. Continue reading

August 29, 2012

Are We the Worst Drivers in America? Yes and No.

by Ronald V. Miller, Jr.

So, Allstate has published its eighth annual report of cities with the worst drivers. Given the publisher of the study, I immediately began searching for some hidden bias.

Apparently, we are in the eye of the storm. Washington D.C. is ranked first – which means worst – with Baltimore City right behind in second.

Allstate studied the auto insurance claims frequency of America’s 200 largest cities and found that residents of our nation’s capital were found to get into collisions on average once every 4.7 years. The typical driver in the U.S. is involved in an automobile accident once every ten years. If you aced math class, you might realize that this means D.C. drivers are 112.1% more likely to be a party to an accident than the typical driver in the U.S. For Baltimore drivers, they are 89.7% more likely than the average driver. Rounding out the top five, Providence Rhode Island ranks third, Hialeah, Florida fourth, and Glendale, California comes in at fifth.

Where might you want to live? Sioux Falls, South Dakota. For the fifth time out of the report’s eight-year history, Sioux Falls, South Dakota ranks as the safest place to drive, with drivers being 27.6% less likely to be involved in an accident than the typical driver.

Okay, so what does this study mean? You want to avoid Washington, D.C. and Baltimore streets at all costs? Ironically, I think Washington, D.C. and Baltimore might be among the safest streets to drive on in America. Why? Because car accidents are one thing and car accidents that cause serious injury and death are another. In Maryland, Baltimore County has almost twice as many fatal accidents as Baltimore City. Continue reading

August 28, 2012

New Maryland COA Venue Decision

by Ronald V. Miller, Jr.

You can call it a sad but true fact if you want: the value of a personal injury case in Maryland might double (or be cut in half) based on where the case is tried. I provide here our thoughts on where each Maryland county and Baltimore City ranks on the food chain of preferability for venue in personal injury cases.

Defense lawyers want to go back to olden days when plaintiffs did not forum shop, they just filed where it was most convenient and advantageous to the plaintiff. Defense lawyers are big into restoring traditions that never existed. I’ve never seen a stitch of evidence to suggest that venue has not been a battlefield since the Industrial Revolution. There are more opportunities where reasonable minds can differ as to the venue in 2012 because we are so much more cosmopolitan today. Just about every tort that arose 150 years ago was on some guy’s farm. So while the analysis is more complex now, there have always been different communities that had different values and this impacts the lens with which they view personal injury claims. Continue reading

August 27, 2012

Can the Defense Expert Say the Plaintiff Is Lying? No, But Maybe You Should Let Him Anyway

by Ronald V. Miller, Jr.

Defense lawyers are reluctant to say that the plaintiff is lying. They will insinuate, suggest, intimate, and any other verb you can think of to lead that horse to water, but they will rarely come out and say it. It is largely a trial tactics decision, but it is also because defense lawyers are human. (No, really! It’s true!) It is uncomfortable to call someone a liar or a bad person, so most defense lawyers avoid it. The strategy for many is to turn it over to their medical expert, hoping that packaging it in a white coat makes it more credible.

Medical experts should not be testifying as to the plaintiff’s credibility. Under both Maryland and federal law, the credibility of a witness and the weight to be accorded the witness’ testimony are for the jury and, it is “error for the court to permit to go to the jury a statement, belief, or opinion of another person to the effect that a witness is telling the truth or lying.” Stated by the Maryland Court of Appeals: “It is the settled law of this State that a witness, expert or otherwise, may not give an opinion on whether he believes a witness is telling the truth. Testimony from a witness relating to the credibility of another witness is to be rejected as a matter of law.” Continue reading

August 23, 2012

Sane State Farm Adjuster

by Ronald V. Miller, Jr.

I just had a great talk on settlement with a State Farm claims adjuster. No, really. It is true. I am not kidding.

I made a demand. She said she asked for authority right about what I was asking for, but the settlement authority she has is “X”. The adjuster wryly pointed out that she did not own the company and suggested I take the offer back to my client and find out whether he wants to sue or settle.

I’ll recommend to the client we sue. He has a serious injury and will make an unbelievable plaintiff at trial. But I appreciate a reasonable State Farm adjuster who did not swallow the Kool-Aid and just lays it out straight.

August 21, 2012

Maryland High Court Flips on Pit Bull Dog Bite Law

by Ronald V. Miller, Jr.

Now, this is a shock. The Maryland Court of Appeals ends its summer of avoiding personal injury cases with a vengeance by reconsidering and overruling its own controversial ruling on strict liability for pit bull attacks. The court reversed course and decided that the ruling should only apply to purebred dogs in Tracey v. Solesky. Wow!

“The majority (of which I was a part) erred in gratuitously applying strict liability to crossbreds when that issue was never in the case,” Judge Alan M. Wilner wrote in rescinding the court’s order. Judge Wilner also pointed out how rare it is for an appellate court to grant a motion for reconsideration. (Note

Wow. This move deserves at least two “wows.”

August 16, 2012

Progressive Takes Another Shot at Public Relations

by Ronald V. Miller, Jr.

Here is the email I got from Progressive’s PR people today:

In response to your story involving Progressive Insurance, please see the below updated statement on behalf of Progressive:

For the past week, Progressive has been in active settlement discussions with the family of Kaitlynn Fisher. Though there was considerable public interest in this case and we know many of you saw mentions of it on social media and news outlets, we also believed it was inappropriate to share further details while those discussions were ongoing. As of this morning, an agreement has been reached with the Fisher family to settle the claim. Prior to that, we were cautious with our responses, but now that the agreement has been reached, we’d like to further clarify Progressive’s role in the trial.

Ms. Fisher held a policy with Progressive that included Uninsured/Underinsured Motorist coverage, which protects drivers in the event they’re struck by an at-fault driver who’s either uninsured or doesn’t have enough coverage.

Under Maryland law, in order to receive the benefits of an underinsured driver claim, the other driver must be at fault. Sometimes this can be proven without the need for a trial, but in Ms. Fisher’s case, there were credible conflicting eyewitness accounts as to who was at fault.

A trial was necessary so that a jury could review all of the evidence and come to a decision. In those circumstances, under Maryland law, the insurance company providing the Underinsured Motorist coverage is considered a defendant. As a defendant in this case, Progressive participated in the trial procedures on our own behalf while Nationwide represented the other driver.

On Thursday, August 9, a jury determined that the other driver was at fault in the accident involving Ms. Fisher. In accordance with that decision, Progressive worked with the Fisher family and their legal representative to resolve the claim.

This was a tragic accident and our sympathies go out to the Fisher family.
Statement posted here: http://www.progressive.com/understanding-insurance/entries/2012/8/16/update_on_the_kaitl.aspx
————————————————–
[name deleted] | Account Manager
Allison+Partners for Progressive
71 Fifth Avenue, 7th Floor | New York, NY 10003
Direct: [deleted] Mobile: [deleted] [more personal information deleted]

August 16, 2012

Wrong Experts Means Bye-Bye Million Dollar Verdict

by Ronald V. Miller, Jr.

In Bailey Lumber & Supply Company v. Robinson, the Mississippi Supreme Court reversed a $1 million award in a slip and fall case, finding that while plaintiff’s medical expert – an internal medicine doctor – could testify about the plaintiff’s hip problem, he did not have the expertise to offer the opinion that the slip and fall aggravated the man’s osteoarthritis, causing hip replacement surgery. This opinion is a good reminder for personal injury lawyers in Maryland that, when in doubt, make sure you have an expert that is qualified to give the opinions you need at trial.

This case is a pretty good slip and fall case on liability for the plaintiff. The defendant operated a building-and-lumber-supply retail store. Plaintiff needed paint. Defendant’s employee says, “Follow me back to a dark, creepy and dangerous room” (I may be paraphrasing) that was for employees only. The room was dimly lit and the plaintiff tripped over a two-inch step in the doorway’s threshold between the two rooms. Plaintiff says the defendant’s employee said we “should have fixed that floor a long time ago.” (To me, this sounds made up.) Plaintiff drove himself home.

I’m not feeling a million verdict at this point. Are you? Oh, yeah, and he has osteoarthritis, eventually causing hip surgery. Continue reading

August 16, 2012

Progressive Tempest Comments

by Ronald V. Miller, Jr.

I have gotten a lot of interesting comments on the “Progressive did not tender policy limits in wrongful death case in Baltimore” Internet firestorm. One fascinating idea set forth from one commenter is that this becomes the insurance industry’s McDonald’s coffee case. The commenter dismisses the notion, but it is interesting. Could anyone have predicted that case would still have legs 17 years later?

Is it okay to frame the whole insurance industry for this? They are guilt of plenty. Wouldn’t the ends justify the means? Not for nothing, I think Martin Luther King would disagree that the ends would justify the means. He attacks the issue in a lot more serious context than uninsured motorist coverage, I’ll tell ya that.