Maryland Injury Law Center

August 15, 2012

The Internet Hates Progressive Insurance.. But Should It?

The Internet is hammering Progressive Insurance for defending an uninsured motorist wrongful death case. Just hammering. It’s wild. And I’m really enjoying it. Should I? Progressive has committed many crimes against humanity . But in this case that has caused the Internet to explode, Progressive is being framed for a crime it did not commit, at least on the facts on which Progressive is being hung by the mob.

Update #1: Progressive’s PR people sent me an email explaining themselves further.

Update #2: It is 2014. Who is still talking about this case? Absolutely no one. It is amazing to me how these social media storms blow over as quickly as they come.

Did Progressive defend an indefensible case?

Before I defend them, let’s talk about why I don’t like Progressive. Because I don’t. I talk about this here where I both rant and explain how to beat them at trial.

I feel a little bad saying that I don’t like them because I really like some of their adjusters, many of which are really nice people. But it is an awful company to deal with on car accident claims. They write pathetically small policies unlikely to meaningfully compensate anyone who is seriously injured. They write a lot of $30,000/$60,000 policies which are the minimum in Maryland – the exact reason they can brag about their pricing. Yes, practically no coverage at all is cheap.

Just as annoying, Progressive gives awful settlement offers until you sue, because they can always pony up their piddly little policies at the last minute and avoid exposure. (I complain about this here.) Because they can always pony up their piddly little policies at the last minute and avoid exposure. Thankfully, Progressive has a small in-house counsel’s office in Maryland which means once a lawsuit is filed, they dramatically change their tune. I’ve had Progressive claims adjusters tell me to file suit so they can increase their offer.

Anyway, the thing that is causing this hubbub is a case where a beautiful young woman – a Progressive insured – is tragically killed in a car accident in Baltimore. Nationwide Insurance, the at-fault carrier, at some point tenders their policy limits. Progressive refuses to waive its subrogation rights against the at-fault driver. So it claimed that it was not obligated to pay because the young woman was at-fault for the accident. Her brother wrote a really well written piece, underscoring his anger and frustration with Progressive, and then the Internet did what the Internet does.

Was this a good faith belief? I have my doubts. Progressive most likely only had a $100,000 policy. So it had nothing to lose in rolling the dice and trying the case. This is the garbage they do all the time (which is why Maryland needs a first-party bad faith law with real teeth). We have had plenty of verdicts against insurance companies in uninsured motorist cases because they were not motivated to settle because they knew no matter what the jury awarded, they would only have to pay the policy limits. Continue reading

August 15, 2012

Is Calling Someone a State Farm Claims Adjuster an Insult?

by Ronald V. Miller, Jr.

I sent State Farm a demand package on March 29th. Now, admittedly, I don’t have State Farm “good neighbor” posters in my room, but I’ll give credit where credit is due: State Farm turns demand letters into offers pretty quickly. I’ll tell clients to expect an offer with 60 days, but I’m under-promising and over-delivering – I expect to get an offer much sooner.

Well, it is now almost five months later, and we have gotten nothing but the runaround. So, I got a supervisor on the phone today. He admits the original adjuster is a problem child. To the supervisor’s credit, he read the file in a few hours and called me to argue about it. Usual stuff, he had degenerative changes prior to the accident (setting aside that he had no problems or needed, ah, surgery which he needed after the accident). I’m cool with that; I don’t mind the “your case sucks” banter. The game is the game. Continue reading

August 13, 2012

New Uninsured Motorist Opinion from Rhode Island

by Ronald V. Miller, Jr.

As the Maryland appellate courts continue their summer of personal injury enuni, we turn our attention to a uninsured motorist case issued by the Supreme Court of Rhode Island, in New London County Mutual Insurance Company v. Karoline Fontaine. This opinion works through some issues about uninsured policy provisions, something we do quite frequently at Miller & Zois in our sometimes mad quest to find insurance coverage to get our clients compensated for their injuries.

The facts on this one are both simple and tragic. A husband and wife were on their motorcycle and got into a collision. As is too often the case in motorcycle accidents, the husband was killed. The accident was not the couple’s fault, which is also often the case in fatal motorcycle accidents. But that is little consolation to the man’s family.

Neither the other vehicle nor its driver was insured. The motorcycle was insured by a policy with Foremost Insurance Company, and Foremost paid the full $100,000.00 under the uninsured motorist provision. Continue reading

August 13, 2012

DePuy Hip Implant Claim Update: August 13, 2012

by Ronald V. Miller, Jr.

There are thousands of DePuy ASR hip replacement lawsuits, most of them alleging pain and defects that frequently require a revision hip surgery and implantation of a safer device (something that is not a metal-on-metal hip implant). Speaking frankly, I think most plaintiffs’ lawyers consider these DePuy cases to have high settlement and trial value. I really don’t think DePuy/Johnson & Johnson will be racing to the courthouse steps to try these cases. I’m betting these cases unfold like the Bayer Yaz cases: a lot of tough talk, but an abject fear of a trial which will lead to massive numbers of settlements.

Anyway, the DePuy ASR hip replacement injury cases, most of them merged in a class action known as an MDL, are heading to trial. Dates for two bellwether cases have been set—May 6, 2013, for one, and July 8, 2013, for the other.

We don’t know which cases will go to trial yet, only that two trials are set. Among the thousands (4,451 as of July 10) of DePuy hip implant cases filed and merged in the United States District Court for the District of Ohio, the lawyers get to pick. The judge has requested that each side choose four cases that they would like to see go to trial. The cases chosen must involve a revision surgery and must satisfy certain discovery requirements.

Here’s the timeline, according to Case Management Order No. 14:

August 8, 2012: Each side selects four potential cases.
November 1, 2012: End of discovery for the eight selected cases. This is not full discovery, but limited discovery to help identify the ideal bellwether cases.
December 1, 2012: The parties should tell the court which of the eight cases should be bellwether cases. The parties can agree on the cases to be used.
December 15, 2012: If the parties do not agree on which cases should be bellwether cases, the court will pick four total (two primary cases, and two backup cases).

Additional time will be allocated for specific discovery in the four cases.
The bellweather trials are a vital part of the MDL process. The chosen cases guide both plaintiffs and defendants in deciding whether hip replacement settlements are possible, and for how much. It is instructive to see how a jury will evaluate these cases. For that reason, the parties often must fight the urge to pick what they see as the best cases—it is more instructive to choose garden variety cases representative of most cases. That said, there is a certain appeal to winning the bellweather cases, even if they are not necessarily representative of the rest of the cases. Winning plays a huge psychological role in how the other side views their chances for other cases. Continue reading

August 11, 2012

New Dog Bite Law Would Flip Maryland Court of Appeals Ruling

by Ronald V. Miller, Jr.

A few months ago, the Maryland high court ruled in Tracey v. Solesky, that in dog bite cases involving a pit bull or cross-bred pit bull mix, a plaintiff no longer needs to show that the dog in particular, or pit bulls are dangerous to bring a claim against both the dog’s owner and the landlord – the deep pocket in many dog bite claims. (You can find my posts on this case (here and here). This opinion was one of the most controversial tort opinions issue by a Maryland court in recent years. (NOTE: THIS LAW DID NOT PASS BUT THE MARYLAND HIGH COURT ACTED ON ITS OWN TO REVERSE PART OF THIS RULING.)

The new law may not last long. The Maryland Senate took a quick break from its efforts to bring table gambling within 100 yards of every man, woman, and child in Maryland and passed a new law that would create a strict liability standard for owners – but specifically not landlords – in all dog bite cases. The vote was a whopping 41-1, with Carroll County Republican Joe Getty casting the only dissenting vote. Senator Getty apparently claims that dogs are people too, just like corporations. (I may have made that up.) Continue reading

August 3, 2012

Do You Need a Certificate in an Informed Consent Case?

by Ronald V. Miller, Jr.

Do you need an affidavit/certificate of merit in an informed consent case? Last week, the 3rd Circuit said that you need a certificate under New Jersey law in Mulholland v. Thomas Jefferson University Hospitals. This blog post is about this case and how the result would likely be different under Maryland law.

Do You Need an Expert at Trial in Maryland to Support an Informed Consent Claim?

To support an informed consent claim, expert testimony is “required to establish the nature of the risks inherent in a particular treatment, the probabilities of therapeutic success, the frequency of the occurrence of particular risks, the nature of available alternatives to treatment and whether or not disclosure would be detrimental to a patient.”

So, in Maryland at least, expert testimony is required for informed-consent claims because jurors cannot answer these questions of fact.

But that is a different question from whether you need a certificate. Let’s look at this case.

Facts

Crazy facts. Plaintiff had kidney problems and a co-worker, the unsung hero of the story, offered to give him one of his. Plaintiff had the HHV-6 virus, a herpes virus. Plaintiff alleged that his doctors neglected to tell him he had herpes and how that would affect the risks and benefits associated with the success of the transplant surgery.

That sounds bogus enough. You needed a kidney, right? But the plaintiff further alleged that the donor had the CMV virus. What is the CMV virus? Let’s just say you might have it and not know it. It is easily transmittable but rarely a problem for anyone. But plaintiff argued that if he had been advised by the defendants of the donor’s positive CMV blood test result or his own positive HHV-6 result, he would have received a kidney from his wife instead of his co-worker.

So your wife would have given you a kidney, but you took one from a co-worker instead? Did the co-worker know that when he offered you the kidney? Crazy. Court TV needs to do an “Inside the Lines” type story in this case. Continue reading

July 30, 2012

Is Your Client’s Motorcycle Accident Covered by Her Uninsured Motorist Policy?

by Ronald V. Miller, Jr.

The purpose of uninsured motorist coverage – which most of us blindly have because our state requires it – is for protection if we get hit by a driver with no insurance or not enough insurance to provide compensation for our injuries. Most uninsured motorist policies compensate the victim for any amount, within the policy limits, that would have been recoverable from the at-fault driver as money damages resulting from a car collision.

What happens when your client is on a motorcycle that is not listed on your insurance policy? Does your uninsured motorist coverage kick in? This issue is usually framed by breaking down the language of the uninsured motorist agreement that considers a motorcycle an excluded vehicle. But the analysis does not end there. Some states – Maryland is a prime example that I will get to in a second – will rewrite the terms of an insurance policy to meet public policy objectives. This is done either by judicial fiat or by the state’s uninsured motorist statutory scheme.

So outside of Maryland, Plaintiffs’ lawyers in these cases argue that the state uninsured motorist laws provide protection that extends not just to the vehicle but to the person. This argument goes, UM coverage is broadly construed to cover all motor vehicle accidents. The insurance companies, argue that its insured should not be able to have their cake and eat it too by doing someone inherently unsafe while not paying for the coverage. There is merit to both arguments. Continue reading

July 26, 2012

Defense Verdict in Malpractice Case Affirmed

by Ronald V. Miller, Jr.

The 8th Circuit affirmed a defense verdict in a medical malpractice action this week in Avichail v. St. John’s Mercy Health System. The case had a few interesting legal issues: a Batson challenge and a dispute over whether a witness could use an interpreter. So, given the Maryland appellate courts’ inability to come up with much interesting for us this summer, let’s turn to Missouri.

This was a permanent brain injury case involving a young girl who had Beckwith–Wiedmann Syndrome, an aliment that causes macroglossia, which causes the tongue to be abnormally large. Plaintiff’s counsel alleged that during a surgical procedure to reduce the size of her tongue, her oxygen levels were unattended for hours during which her oxygen saturation plummeted from 94% to 50%, causing permanent brain damage. Just an awful case any way you slice it. Continue reading

July 25, 2012

Win for Dog Bite Victims in Minnesota (Sort of.)

by Ronald V. Miller, Jr.

New Dog Bite Opinion in Minnesota

We have our own issues here in Maryland with dog attacks and dog bites, particularly now that no one really knows what the law is and whether it will change regarding pit bulls (see our post on Tracey v. Solesky). Right now, the legislature seems poised to come up with some solution to the high court’s problematic ruling that pit bulls are inherently dangerous.

The question is one of what the solution will be—a return to the status quo and the “one free bite” rule; or a rule that all dog owners are responsible for any injuries caused by their dogs. One thing is for sure—the legislators should read up on Minnesota’s rule for guidance on how to best craft their rule.

Minnesota’s rule is problematic, as shown by this month’s Minnesota Supreme Court ruling, Anderson v. Christopherson. Minnesota’s rule (Minnesota Statutes § 347.22) is deceptively simple:

If a dog, without provocation, attacks or injures any person who is acting peaceably in any place where the person may lawfully be, the owner of the dog is liable in damages to the person so attacked or injured to the full amount of the injury sustained. The term “owner” includes any person harboring or keeping a dog but the owner shall be primarily liable. The term “dog” includes both male and female of the canine species.

Reading just the rule, it appears to make sense. To me, it sounds like “the owner of any unprovoked dog who attacks or injures a person is responsible for those injuries.” That is a good, common-sense rule. If you own a dog, and that dog causes harm, you are responsible. It doesn’t matter if the dog is a pit bull or a poodle. It doesn’t matter if the dog never harmed a fly, or has bitten ten people. That rule seems to place responsibility squarely on the shoulders of people who should accept that responsibility—the dog owners.

Let’s be clear: this would not be an anti-dog rule. No one Reasonable people do not blame the dog when they bite. It does not mean that the dog should be put down. It means the dog’s owner must take responsibility because the owner should bear the loss instead of the person who got bit. Many of the comments to my prior posts on Maryland’s new dog bite law for pit bulls (here and here) were from dog rights activists who also believe this should be the law.

Anyway, back to Minnesota which has a hodgepodge of judicial opinions interpreting the decision, some contradictory, and they mutate what seems like a simple rule into something that is anything but simple. A prior court opinion interpreted the phrase “attacks or injures any person” to mean one of two things: (1) attacks means that the dog moves with violent intent; and (2) injures means nonhostile behavior (like playfully jumping up on a person in greeting) that injures a person. Never mind that “injures” actually means “to cause injury.”
So now we have a law that a dog owner is responsible for injuries caused when the dog attacks a person or causes injury to a person when not acting violently. Here, the Minnesota Supreme Court was then asked to decide in Anderson whether a dog owner was responsible in this scenario: Dog A (50 lbs) attacks Dog B (20 lbs). Dog B’s owner was lawfully walking Dog B. Dog B’s owner tried to save his dog, and falls, breaking his hip. Continue reading

July 24, 2012

Schneider v. Little: Recent Evidence Rulings From a Harford County Medical Malpractice Case

by Ronald V. Miller, Jr.

Yesterday, I was lamenting the lack of interesting Maryland appellate opinions to write about on this blog. But, I let one slip by last month: the Court of Special Appeals’ opinion in Schneider v. Little.

This is a medical malpractice case that was initially tried in Harford County in 2010 and resulted in a verdict of over three-and-a-half million dollars ($3,557,398.00). That’s a large verdict anywhere, and an excellent verdict in this relatively conservative county.

The plaintiff’s injuries warranted the verdict—during the surgery she lost the equivalent of her entire body’s blood volume, and after the surgery, she suffered a major injury to her spinal cord. In fact, she was permanently paralyzed from the waist down, with little ability to control her bladder or bowel. Continue reading