Maryland Injury Law Center

July 26, 2011

Inside the Mind of a Car Accident Claims Adjuster

This post was supposed to be about Medicare set-asides but I started with such a long intro about the psychology of claims adjusters that I’ll just hit the Medicare issue in a later post. (Or I’ll completely forget about it.)

To understand claims adjusters, get inside the labyrinth that is the claims adjuster’s mind. (Why labyrinth? I’m just trying to use mildly inflammatory language. I’ll stop.) Insurance claims adjusters are more Pete Rose than Barry Bonds: they get paid for singles, not home runs. The great things a claims adjuster does vanish into thin air; the mistakes live on. Ironically, plaintiffs’ lawyers operate in the exact opposite world: hit a few million-dollar verdicts in a row and everyone forgets your losses. Reason #42,353 why plaintiffs’ attorneys and insurance adjusters are the Montagues and Capulets.

Accident lawyers have a misconception about this, thinking adjusters get hugs from the higher-ups for ripping off a plaintiffs’ lawyer in a settlement negotiation. Actually, hugs is the wrong word – they do get hugs. But mostly, that’s it. The way to make a name for yourself is not by screwing plaintiffs’ lawyers but by not screwing up yourself. Make sure everyone likes you and don’t make any mistakes. Overpaying on an accident case is not that big of a screw up: but failure to have a death certificate in the file before paying a wrongful death case? That is a federal crime in the insurance world. Under-reserving a case? That’s an aggravated felony.
Continue reading

July 20, 2011

Fat and Smelly Plaintiffs: David Ball on Damages, Part 4

by Ronald V. Miller, Jr.

One thing I like about David Ball’s “Damages 3” is his willingness to talk about tough issues that personal injury lawyers deal with but no one really talks about in polite conversation much less in a trial advocacy book.

In his book, Ball writes about attacking stereotypes head-on with juries. Although things are changing a bit in recent years (like him or hate him, Doug Christie is a part of the solution), discrimination against fat people is one of the few remaining politically acceptable outposts for bigotry and discrimination. Ball says that jurors particularly associate fat people with being lazy, greedy, sloppy, and worse. Ball does not say this but let’s face another fact: people are harder on fat women than they are on fat men.

Are these stereotypes ridiculous? Of course. It is criminally ridiculous. But trial lawyers don’t have the luxury of climbing above the fray on our high horses. Lawyers have to take their juries as they find them and live in the real world. In our real world as plaintiffs’ lawyers, we are required to give jurors the facts they need to conclude that the plaintiffs deserve the compensation we believe they are entitled to.

Personal injury lawyers instinctively know this. So many of us counter this groundless assumption with the empty and the trite. “She’s was always on the go” or “She had barrels of energy” is the testimony often elicited. Continue reading

July 19, 2011

Who Can You Friend on Facebook? The Lawyers Guide

by Ronald V. Miller, Jr.

It is becoming cliché to say that social media is the next big thing in litigation discovery. In personal injury cases, I think social media captures the imagination of insurance adjusters and in-house counsel who inflate the likelihood of finding evidence on Facebook and Twitter that will be a game changer at trial. There have been more articles and blog posts about social media discovery than “Holy Grail, We Will Have Our Perry Mason Moment” discoveries.

One issue that has received little attention is just how creepy insurance defense and other lawyers can be in snooping into people’s social media postings. Admittedly, the creep factor is low for just Googling what is available on the party or witness online. But anything beyond that… well, it is not exactly Jack Nicholson in “The Shining” or Steve Buscemi in “Fargo” territory but, still, I would think most lawyers would at least want to take a quick shower after playing amateur voyeur.

San Diego County Bar Legal Ethics Committee looks at where the line is from needing to take a shower and unethical behavior. In an advisory opinion, the committee says that it is unethical for opposing counsel to try to Facebook friend a client’s former employer’s employee in a wrongful termination lawsuit.

July 18, 2011

Maryland Local Government Tort Claims Act

by Ronald V. Miller, Jr.

The Maryland Court of Appeals decided another case in the ongoing saga that continues to burn forests that is the Maryland Local Government Tort Claims Act.

First, it is worth noting: the LGTCA is stupid. Really stupid. There is just no reason in 2015 why we put unreasonable burdens on people that are hurt by the local government. Personal injury lawyers blow or miss the LGTCA de facto “state of limitations” to give notice of a claim all the time. Most of those lawyers should know better. But in this case, there is just no reason the Plaintiff (actually, the estate of the decedent in this case) should have to know about complying with the Local Government Tort Claims Act.

President Obama was asked a tough question at one of the debt ceiling press conferences this week: why do – in massive numbers – the American people shrug off the debt ceiling? The President said – in so many words – the American people know nothing about the subject. Sounds condescending, but then he adds the caveat that is germane here: they shouldn’t. People are too busy with their lives – their jobs, their kids, American Idol, and whatnot – that they don’t have time to focus on the nuances of the debt ceiling.

The same goes with the Local Government Tort Claims Act. You have to realize: most lawyers handling car accident cases don’t understand the Local Government Tort Claims Act. Why do we expect people on the street to understand and follow these rules?

(Brief Post Interruption: Ultimately, if you read the case, you know I’m retrofitting the facts to fit my narrative. There was a lawyer involved in the case early on who – putting it politely – could have set this case up a little better. And plaintiff – who filed a tort claim but was not injured in an accident – didn’t really lose the case for failure to provide sufficient notice under the LGTCA but for failure to allege compliance with the LGTCA in the Complaint. I think this is the wrong call, too. I’ll get to that point, I promise. But the court makes clear they would have hammered him on the notice if it had been alleged in the Complaint. )

July 16, 2011

Defense Firm Insults Entire Region Then Runs from It

by Ronald V. Miller, Jr.

I’m not in the habit of offering advice to injury defense lawyers. Okay, actually I am. So here goes: defense attorneys, it is highly impolitic to combat a study suggesting that people who live near mountaintop mining operations are at higher risk of birth defects by saying the study didn’t take into account the effects of “consanguinity” in Appalachia. Yes, that’s right; Crowell and Moring, which has deep ties to the National Mining Association, implied that Appalachians who live near mines are having babies with birth defects, not because of the mines… but because they’re inbred.

The ABA Journal notes that, stereotypes aside, Appalachians aren’t any more inbred than the rest of us. Ultimately, if you will throw out politically incorrect invectives about something that causes children and their families significant pain, at least be right.

The firm is now backpedaling, saying that consanguinity should be taken into account any region and that it never meant to imply that Appalachians have a high rate of inbreeding. I would have liked to watch the video of the angst at the partners’ meeting where they panicked and drafted this PR back away.

July 12, 2011

Order Compelling Expert to Produce Financial Information

by Ronald V. Miller, Jr.

We got an order in Anne Arundel County requiring a recidivist defense expert to produce his financial records before examining the Plaintiff.

I think there is the assumption that my firm is involved in some jihad against IME doctors. Self-referential as this may be, I think we have done more than any law firm in Maryland legal history in fighting for the right to present to a jury evidence of just how deep into the back pocket of insurance companies the doctor is and let them conclude whether this should matter. I’m very proud of this. We are fighting for our clients at every turn and our work has created good case law and helped put our clients in the best position to get the settlement or verdict we think they deserve.

That said, I think there are a lot of frequent flyer defense IME doctors that are good people giving honest opinions. Some less so. (I understate a bit to gain credibility with you, dear reader.) The battlefield on IMEs is whether the expert is required to produce financial information to let the jury decide whether the doctor is unduly motivated by who is paying his freight. Is it the single biggest battlefield in crossing IME doctors? No, I really don’t think it is (David Ball apparently agrees with me). But does it matter? Is it the touchstone issue in a minority of personal injury cases? Absolutely. We get paid to advocate for our clients at every single turn. Defense lawyers do the same. It is the way this game is supposed to be played.

July 11, 2011

“State of Maryland Should Put Up a Jersey Wall” Opinion

by Ronald V. Miller, Jr.

The Maryland Court of Special Appeals reversed last week a Harford County judge’s dismissal of a claim against the state of Maryland for negligent failure to maintain, repair and reconstruct a bridge where accidents were beyond commonplace. Here, the bridge was the site of a fatal crossover car accident collision that led to the death of a young girl.

The Plaintiff’s claim is a Hail Mary: you should have erected a Jersey Wall because of the prior head-on and crossover accidents about which the state had notice. It is Hail Mary where, instead of throwing for the end zone, you are just trying to get a first down because the cap limits the claim to $200,000. Still, a lengthy line of Maryland cases have allowed individual suits against local municipalities for failure to properly maintain roads and sidewalks. The question is whether this same logic extends to claims against the State of Maryland.

Boy, this case has some powerful facts. The Director of Engineering for the Maryland Transportation Authority determined, well prior to this fatal crossover accident, that a concrete median barrier was both necessary and feasible. Plaintiff also claims the State of Maryland admitted in discovery that there had been a lengthy, unexplained and dangerous delay in installing that median barrier after the State realized it was a no-brainer to put up a Jersey Wall. Why a no-brainer? There had been 142 accidents on that bridge, according to Plaintiff. This is a “stop in your tracks” statistic. Continue reading

July 7, 2011

GEICO’s Valuation of a Wrongful Death Case

by Ronald V. Miller, Jr.

I have an unbelievably tragic wrongful death car accident case. A very good man with an unbelievably good family – here’s a clue: they were/are very concerned about injuries sustained by the man that caused the car accident – was rear-ended by another car at a high rate of speed in Prince George’s County.

GEICO Sees Claims Different Than I Do

At first, liability was in serious question. The police report took forever. But, ultimately, the Prince George’s County Police got it right to where it would be virtually impossible to contend otherwise. Liability is clear.

The defendant has a minimum limits policy with Allstate. The decedent and his wife had a $300,000 underinsured motorist policy with GEICO that, while better than most personal car insurance policies, is still awful. GEICO wants us to jump through every single hoop: death certificate, medical records after the accident, and so forth. I’m cool with that, actually. GEICO has auditors, and they have to answer for the details of their file. I’m more than happy to do my job.

So I talk to the GEICO claims adjuster yesterday- who is a good claims adjuster and otherwise a nice person (and someone I’m still dealing with in 2019) – who throws out a “So, ultimately, what do you think this case should settle for?”

Bracketing for just a second how insulting it is to think I might fall for this, I’m wondering: what if I had said, “I think it is worth $200,000.” Does the adjuster then extend a settlement offer – to its own policyholder – a value of the case that is certainly far less than it is worth?

2019 Update: This case settled for the $300,000 policy limits without having to file a lawsuit.

July 6, 2011

Women Are Bad Drivers Says University of Michigan Study

by Ronald V. Miller, Jr.

Women are bad drivers according to a new University of Michigan study. The study is too politically correct to say just that. These are serious people, not bloggers. But, really, it is impossible to ramrod any other conclusion from this study.

The study looked at 6.5 million car accidents and found that women cause more car accidents per mile driven than men. The study’s lead author found the difference “astounding.”

Maybe it is because she is looking the wrong way.

This is a very difficult argument to make. Not hard intellectually. But hard to make with a PC face on. Ultimately, I don’t think most women care much about this “attack” for the same reason I would not care about studies that show men are more violent and less caring. As long as you are not talking about me, you can say anything you want. Same goes for lawyers too. You think almost all personal injury lawyers are ambulance chasers? Fine. As long as you don’t include me, I’m cool. But there will be an outraged minority that will drive past the data and skip right to indignation. I’ve never really understood it, but I suspect it is outrage just because some people really enjoy being outraged. Look around your office. There are three people you can think of fast who love being outraged, right? Continue reading

July 1, 2011

New Medicare Lien “Law”

by Ronald V. Miller, Jr.

On Tuesday, Medicare and Medicaid set forth new and revised conditional payment final demand letters that are reported to comply with Haro v. Sebelius, No. CV 09-134 TUC DCB, 2011 WL 2040219 (D. Ariz., May 9, 2011). The word on the street is that Medicare has six new conditional payment final demand letters with all new lien language in personal injury and workers’ comp cases. The District Court’s opinion may have a real impact on how lawyers deal with HHS on the reimbursement payments owed to Medicare by operation of the Medicare Secondary Payer statute

This case is a class action of Medicare beneficiaries. The plaintiffs’ were frustrated by the way Medicare liens are handled. The District Court enjoined HHS from threatening to commence action to collect an MSP debt while a beneficiary’s appeal or waiver request is pending. The court enjoined HHS from requiring attorneys to hold back settlement or verdict proceeds pending the resolution of Medicare’s claim for reimbursement.

Is dealing with Medicare on product liability, malpractice and accident cases about to get a lot easier? I don’t know, but I’m giddy. I’ll let you know when I find out more details.