Maryland Injury Law Center

January 17, 2012

Uninsured Motorist Waiver

I had a prospective client call in a few weeks ago with an interesting uninsured motorist waiver issue that I thought I would share.

To keep the world simple, Maryland law requires that insurance companies match up their insured liability coverage to their uninsured motorist coverage. But it allows for an exception in those cases where the insurance offers uninsured/underinsured motorist coverage in the same amount as their liability coverage and the insured signs a waiver that its liability coverage will exceed its UM coverage. This is an odd bet for the insured who is more worried about getting sued and not having enough coverage than making sure they are protected when they get in a car crash caused by someone who had no or little insurance. But, I don’t disagree that in the free market economy (I’m talking to you, Mitt), people ought to have the right to make this odd choice as long as it is a knowing and intelligent waiver. I think the law makes sense.

But what about these waivers? In this case, I have a high wage earner who gets into an accident with a driver with a minimum limits policy. He has a $300,000 liability policy that would clearly be offered if his uninsured motorist coverage mirrored the liability policy. Instead, he has the minimum $30,000 UM policy. Continue reading

January 4, 2012

Gross Negligence Bar Is High Hurdle

by Ronald V. Miller, Jr.

In Maryland, and in most states, there are immunities for police, fire and rescue agencies and personnel from civil liability for negligence. There is an exception for intentional torts and a “grossly negligent act.” Of course, this begs the question of what is a “grossly negligent act”?

In Markevicz v. Garcia, U.S. District Judge Alexander Williams, Jr. issued an opinion reminding car accident lawyers (who did not get the memo provided by the last zillion cases on this topic) that the bar to get to a “grossly negligent act” is high.

In this case, a fire truck operator allegedly did some dumb things in what I think was an effort to get to the car accident scene. The opinion does not spell it out, but I’m assuming the fire truck ended up hitting the vehicle during the rescue. Plaintiffs’ Complaint and the driver defendant both alleged that the fire truck driver contributed to plaintiffs’ injuries when they drove the wrong way on the Beltway, dangerously jockeyed for position to pass through a gap in the median that was too small, and so forth.

Judge Williams said that even if true, these facts fall short of gross negligence, citing Boyer v. State for a proposition that gross negligence is inflicting injury with such indifference to “to the rights of others to the extent of acting like the victim had no rights at all.” I’m paraphrasing and I still don’t know what that means. Continue reading

January 2, 2012

Dear USAA: An Open Letter

by Ronald V. Miller, Jr.

Dear USAA:

You have some of the best, most sophisticated adjusters of any car insurance company out there. Generally speaking, you make more reasonable settlement offers than the other companies with big car insurance market share in Maryland (better than GEICO, State Farm or Allstate). Sure, you force us to try some cases against you to pay our clients a fair settlement value. And, yes, you would probably shoot your own parents in the head to save a buck. But, really, in the insurance company world of relativity, you are not that bad.

Now that I have finished the flattery, could you do me one small favor? Teach your insurance adjusters in personal injury cases that there is something called the collateral source rule in Maryland. You simply cannot deny a lost wage claim because you “suspect the client was being paid anyway.”

At first, I thought it was just one bodily injury adjuster at USAA who did not understand Maryland law. But I’m now convinced that less than half of USAA adjusters understand this rule.

Even more maddening, when the adjuster is called out on this obvious point of law that Maryland has had for – count them – 112 years, that the claimant is paid for time missed from work regardless of whether they used vacation time or their employer paid them out of the goodness of their heart, USAA adjusters simply refuse to admit or deny the existence of the collateral source rule.

Thank you in advance for your anticipated cooperation.

Sincerely,
Ron Miller

December 23, 2011

New Maryland Circuit Court Judges

by Ronald V. Miller, Jr.

In all the hubbub about Robert McDonald’s selection to the Maryland Court of Appeals, I neglected to mention the new Circuit Court judges:

Baltimore County District Judge Nancy Purpura (Baltimore County)
William Rogers Nicklas Jr., a personal injury lawyer (Frederick County)

December 22, 2011

Bob McDonald Pick for Maryland Court of Appeals

by Ronald V. Miller, Jr.

The Maryland Daily Record is reporting that Governor O’Malley today named Robert N. “Bob” McDonald to the Maryland Court of Appeals. Soon to be Judge McDonald is the chief counsel of the Opinions, Advice and Legislation Division in the Office of the Maryland Attorney General where he has been for 15 years.

McDonald writes or edits all formal opinions of the Attorney General’s Office. I don’t have occasion to read many Attorney General opinions and, even if I did, I don’t think it would be a great lens to predict how McDonald will vote. Ultimately, the AG is making the call on those opinions.

There are a lot of 4-3 decisions by the Court of Appeals. I have no idea how this will affect that court and I doubt many people do.

December 21, 2011

Top 10 Maryland Personal Injury Opinions of 2011

by Ronald V. Miller, Jr.

This is a time of year for top 10 lists. So I have put together a list of the top 10 opinions of interest to personal injury lawyer from the Maryland Court of Appeals and the Maryland Court of Special Appeals and from the federal bench:

Poole v. Coakley Williams Construction: the court softens its position on snow and ice slip and falls.
Jackson v. Dackman Company: court strikes 1994 Reduction of Lead Paint in Housing Act provisions that limit recoveries to children who suffer brain damage from lead paint

December 15, 2011

Bragging About Your Verdict

by Ronald V. Miller, Jr.

The Defense Line – a publication of the Maryland Defense Institute – publishes a quarterly newsletter that includes a few “Hey, look, Ma, we got a defense verdict” pieces. Here is a sample:

Johnson, et al. v. Dr. Rosemarie Filart, M.D., et al. — Bonner Kiernan Obtains Defense Verdict in the Circuit Court for Baltimore City, Maryland — Alleged Medical Malpractice/Wrongful Death

A 53 year old man, [name deleted], developed deep vein thrombosis (DVT) after completing a course of anticoagulant therapy prescribed by Dr. Rosemarie Filart of Johns Hopkins. One of his primary care physicians, Dr. Mark Saba, subsequently placed the patient on a blood thinner to treat the DVT, but Mr. Johnson still went on to suffer from a pulmonary embolism (PE) and died. The decedent’s family (including a wife and two adult children) filed a lawsuit against Dr. Filart, Dr. Saba, and Dr. Saba’s partner, Dr. Lawrence Boas, alleging that Mr. Johnson’s pulmonary embolism was a result of the premature discontinuation of anticoagulant therapy (by Dr. Filart) and/or improper treatment of the DVT (by Saba and/or Boas). Drs. Boas and Saba, represented by E. Phillip Franke and Ace McBride of Baxter Baker Sidle Conn & Jones, were both voluntarily dismissed by the plaintiffs in the middle of the trial. Plaintiffs elected to continue their case against only Dr. Filart, represented by Carolyn Israel Stein and Jason Engel of Bonner Kiernan Trebach & Crociata. After a three week trial, the jury returned a defense verdict in favor of Dr. Filart after 45 minutes of deliberation. Plaintiffs had sought $1,200,000 in economic damages, plus noneconomic damages for the decedent’s alleged pain and suffering and the family member’s suffering due to the loss of their decedent.

December 9, 2011

Slip and Fall Verdict Reversed: Sovereign Immunity Strikes Again

by Ronald V. Miller, Jr.

The Maryland Court of Special Appeals turned back another injured victim under the archaic “Really, do we still have that in 2011?” doctrine of sovereign immunity.

The plaintiff alleged she suffered an ankle injury when she slipped and fell on a wet platform after exiting a train at the Cheverly Metro station in Prince George County. The defendant, the beloved Washington Metropolitan Area Transit Authority, made all the usual – and appropriate – defenses. You knew the platform was wet, didn’t you? You even saw a yellow warning cone that the platform was wet, right? No one appeared to have mopped the floor to make it wet, did they?

The plaintiff’s lawyers got creative and did some research. They found out that WMATA used a cleaning agent “Super Shine-All” to clean its train platforms. The coefficient of friction on the floor, the plaintiff argued, was that it should have surprised no one that the woman would fall. In a trial before Judge Maureen M. Lamasney, a Prince George’s County jury agreed and awarded damages (I’m not sure how much). Continue reading

December 6, 2011

Drunk Driving by Maryland County

by Ronald V. Miller, Jr.

I was always into statistics. When I was little, baseball statistics were the outlet. I was doing Moneyball when Billy Beane was still learning what a double steal is. (This is hyperbole. I like to exaggerate the things I saw coming.)

Like a lot of us, I looked at risk differently when I became a parent. Now I’m more interested in what the authors of Freakonomics tell us about what matters when raising a child. (Here’s the transcript of a podcast I recently listened to which I found more than a little depressing. It really makes you question the efficacy of piano lessons.)

Freakonomics interests me because it uses statistics to assess the risk that questions largely held assumptions. I try to use statistics in parenting to make sure my kids are avoiding the risks that we can reasonably avoid. Car accidents are on a big blip on the radar screen. Car accidents are a major risk of serious injury and death for young children, a far greater risk that 95% of the things you worry about as a parent.

December 5, 2011

Road Rage Judge Steps Down

by Ronald V. Miller, Jr.

The Washington Post reports that Montgomery County Judge Brian G. Kim resigned after reports of a road rage incident circulated.

Apparently, Judge Kim was accused of tailgating a woman – yes, it matters to me – because he was believing he’d been cut off. She reported to the police that Judge Kim was “zooming up beside me, yelling through the windows and gesturing.” She also said that the Honda reached about 70 mph and zoomed over to her lane, causing her to slam on her brakes to avoid a wreck.

I don’t know if it made a difference, but judges that make a lot of enemies on the bench have a much harder time making it through a minor scandal. Court Watch Montgomery was not really excited about Judge Kim after sitting in on six months of restraining-order hearings in Montgomery County.