Maryland Injury Law Center

October 20, 2010

State Farm’s End Run Around Subrogation Waiver

In Maryland, if an uninsured motorist insurer waives subrogation against the at-fault driver in an underinsured motorist case, it also waives its liability defenses. Depending upon who you ask, this has either always been the law in Maryland (as Maryland high court tells us in Maurer v. Penn National) or is a recent law (as every Maryland accident lawyer or insurance company seems to think).

State Farm has responded to this recent law by refusing to waive subrogation in just about every case where the at-fault driver tenders the policy limits. It is a fair tactic. But what State Farm is doing is cutting side deals with the at-fault driver’s insurance company to waive subrogation to the extent of the UM coverage which allows the defendants to work together in preparing for and trying accident claims.

Two take-home messages. First, add in a discovery question to uncover these side deals so you know the score in advance. Second, make sure you argue at trial that the defendants’ interests are aligned and they should not both get jury strikes.

October 20, 2010

Drunk Pedestrian Accidents

by Ronald V. Miller, Jr.

Click to enlarge

ESPN is running a story about an NFL player who was arrested last night for public intoxication. I think if public intoxication was a regularly enforced crime, we would need to build more jails.

But I was interested in something the player reportedly said to police: “I know I am drunk, but does that mean I cannot walk home?”

October 19, 2010

Allstate Colossus Settlement

by Ronald V. Miller, Jr.

Allstate has agreed to pay New York $1.2 million as part of a $10 million regulatory settlement involving Colossus, its infamous computer software that values personal injury auto accident claims.

Under attack was Allstate’s use of Colossus, a software program Allstate and many other insurance companies use to determine the value of injuries in motor vehicle crash claims. The claim against Colossus would shock no one who handles these cases: there are inconsistencies in Allstate’s management and oversight of the Colossus software program. Specifically, Allstate failed to modify or “tune” the software in a uniform and consistent manner in personal injury accident claims.

Under the settlement agreement, Allstate will change how Colossus is used:

Providing notice to claimants that the Colossus software program may be used in the adjustment of their bodily injury claims
Enhancing its management oversight of Colossus to ensure that it adheres to established criteria and a uniform methodology in selecting claims to be used to “tune” or modify the software to reflect recently settled claims
Strengthening its internal auditing of Colossus and bodily injury claims handling to ensure adherence to written guidelines and procedures
Merging its bodily injury claims handling practices into a single claims handling manual
Not establishing a policy or rule requiring claims adjusters to settle bodily injury claims solely on the value recommended by Colossus and not providing incentives for claims adjusters to settle claims at or near the value recommended by Colossus.

October 11, 2010

11th Circuit Medicare Liens Ruling

by Ronald V. Miller, Jr.

Medicare liens are the bane of personal injury lawyers trying to settle every time. Settlements don’t and can’t parse out pain and suffering damages for medical bills. What goes to the wrongful death claim? What goes to the survival action? If you get a verdict at trial, this all gets resolved. But with undifferentiated settlements, it is hard to determine what money would have gone where.

Big picture: how to deal with Medicare on liens (2019 update)
Haro v. Sebelius: progress on Medicare lien process

Usually, the bigger problem is not that Medicare won’t reasonably reduce its lien. It is the cart before the horse logistics – it is virtually impossible to settle the lien before the case resolves, leaving clients up in the air and at Medicare’s mercy what their actual recovery will be. It would help settle personal injury cases with Medicare liens if clients could have a more clear ceiling to what the lien amount might be. The 11th Circuit Court of Appeals provided a little help on this with its recent opinion.

Underlying Facts of Case

The case was a Florida nursing home bed sore wrongful death case that settled for $52,500. (This was apparently the nursing home’s policy limit, which makes no sense to me.) Medicare had paid the medical bills so the plaintiff’s nursing home attorneys invited Medicare to take part in the settlement. Medicare did what I would not expect it to do in Maryland, claimed the entire amount. It also declined to take part in the probate hearing to divide up the settlement. So the trial judge moved along, valued the case over $2.5 million, and cut Medicare’s lien to $787.50.

The 11th Circuit ruled that Medicare may not claim full reimbursement from an undifferentiated settlement. The court found that Medicare must take part in any state-authorized process to prorate its lien claim or accept the result when it refuses to take part. Continue reading

October 8, 2010

Listen Up Clients: One Law Firm’s Approach

by Ronald V. Miller, Jr.

Above the Law provides an interesting link from a South Carolina family law firm that I can bet you is experiencing a real spike in web traffic. The firm lays down the law to its clients on its website, warning them to wait patiently for return calls (they are busy), not to call on weekends, stop by unannounced, or even to expect that they won’t make mistakes.

I have never handled a domestic case in my life. I couldn’t. I could never bear the bitter pettiness that comes with domestic battles. I deal well with people who are suffering from an injury – including emotional injuries that stem from a physical injury or a death. Pain, physical limitation, loss of someone you love? I can get my mind around that. Your bitterness because your husband cheated on you? Day in and day out, that has to be a tough road to hoe. But there was a sign-up sheet out for family law lawyers and these folks signed up. The job description would include dealing with a lot of stressed-out clients who will be upset when you make a mistake and may want to talk to you at odd times.

I do not intend this blog post to criticize this firm. Any law firm can set any policies for client expectations that they want. I am more interested in the answer to this question: would you ever hire this firm? I have no problem with their policy of not working on the weekends or with some other boundaries they set (except for their mistakes policy, which I will get to in a minute). But the brazen tone and tenor with which they announce these policies strikes me as odd.

You are going through a tough divorce. You think you need someone is really in your corner. What are the chances this firm will go the extra mile for you compared to Firm B? Maybe they would. They might be spectacular lawyers who fight to the end for their clients. But given the limited amount of evidence you have when looking for a lawyer on the Internet, what are the chances this firm, given this introduction, will be your choice?

There is a nice state-of-the-art car wash near my house that I would love to use. But when you pull up, the first thing you see is a huge laundry list – in all caps – of my obligations to them, followed by a clear statement that they have no responsibilities towards me, even if one if its employees comes up and socks me in the face. I’m fine with the terms, actually. And it might be a great car wash and the car wash owners may be very reasonable people who just feel compelled to lay out the rules unambiguously. But I just can’t stand that they are shouting at me before my car touches an ounce of soap. Sadly, my car stays dirty. Continue reading

October 7, 2010

Overstating the Texting While Driving Case

by Ronald V. Miller, Jr.

According to one study, driving distracted kills 5,500 people in car and truck accidents every year in this country. Don’t let the title of this blog fool you. It is beyond dispute that texting while driving is a growing part of this problem.

The Baltimore Sun reports that 25% of teenage drivers admit to texting while driving a car, and almost half say they’ve been in cars with someone who sent text messages. But kids are not the only problem. Adults that rolled their eyes at texting just a few years ago are now textaholics who read and write text messages while driving. The phenomenon is causing serious injuries and deaths on our nation’s highway. And the perpetrators are not degenerate criminals but people just like you.

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This all makes sense. The anti-texting advocates have me. But this is where they lose me: “Texting and driving is worse than drinking and driving.”

First, the statement is ridiculously misleading. Maybe, if some studies are true, you can better avoid an accident with a .08 blood level than you can in the middle of a text message. But you are drunk the whole time you are driving, not for an instant of receiving or sending a text message. So I’d rather be on the other side of a double yellow line of someone who sent a few texts than someone who is drunk any day.

But my larger criticism is the message the “worse than drunk driving” slogan sends. It is like we can’t say Heidi Klum is pretty without saying she is more attractive than Gisele Bundchen or complementing LeBron James without pointing out what he can do that Michael Jordan couldn’t. Continue reading

October 6, 2010

Personal Injury Lawyers and Blogging

by Ronald V. Miller, Jr.

Personal injury lawyers’ blogs are proliferating the web like Lindsay Lohan’s legal problems. It is hard to find any of us now without a blog.

I think a lot of personal injury lawyers see this and think the door is closed, and that it is too late to build up a readership base and develop a quality presence online. But I think there are lots of room for quality blogging on personal injury-related issues. In fact, I think the quality personal injury lawyer blogs of 2020 will include bloggers who have not yet written a single post. Why? Because most of what is out there is complete junk. There is a real demand for good, high quality personal injury-related blogs. If you are writing one, tell me about it because I’m always looking for new blogs to read.

October 5, 2010

Attorneys’ Fee Dispute Opinion

by Ronald V. Miller, Jr.

The Maryland Court of Special Appeals interpreted a mandatory fee dispute arbitration requirement for attorney fee disputes in the District of Columbia today.

The issue is whether a personal injury law firm was entitled to 40% of Plaintiff’s recovery or whether the fee increased to 50% because the “Plaintiff prevailed on appeal” clause in the retainer agreement had been triggered. The underlying claim arose from Plaintiff’s injuries, which occurred while Plaintiff was being rescued from a broken elevator at the Marriott Wardman Park Hotel in Washington, D.C. I suspect both the Plaintiff and the Plaintiff’s lawyer were Maryland residents, which triggered Maryland’s involvement in the case.

I’m interested in these cases because it is always interesting to see the fee agreements of other lawyers. We have had a nice brief run of appellate victories of late and it would have been nice to increase our fee agreement on those cases. Our client fee agreement specifically does not include appeals in our 40% fee. But when we have won appeals, we have stuck to the 40% fee anyway, probably as a Pavlovian reflex that 40% is what is appropriate after a lawsuit has been filed.

October 5, 2010

Are Doctors Selfish? The Defensive Medicine Paradox

by Ronald V. Miller, Jr.

Related Information

Opposing View: Overlawyered

Both doctors’ groups and medical malpractice lawyers are preening about a new study that shows that the cost of medical malpractice in the United States is 2.4% of annual health care spending.

Medical malpractice lawyers say the study shows that medical malpractice tort reform would have little impact on our health care costs. Doctors’ groups point to the fact that 2.4% equals $55.6 billion a year, a daunting number even in the post-TARP era when $500 billion is a mere half of a stimulus package.

But here is how the numbers break out:

Indemnity payments: $5.72 billion, of which $3.15 billion represents payment for economic damages; $2.4 billion for noneconomic damages; and $170 million for punitive damages. This includes the attorneys’ fees of medical malpractice lawyers who represented the plaintiffs.
Administrative expenses: $4.13 billion, which includes $1.09 billion in fees to defense attorneys; and $3.04 billion in overhead expenses. (Estimated fees to plaintiffs’ attorneys were $2 billion, but that amount is included in indemnity payments.)
Defensive medicine costs: $45.59 billion, of which $38.79 billion was estimated as the cost of hospital services and $6.80 billion as physician services.

There is something incredible in these numbers that no one is talking about. The researchers said their estimate includes $45.59 billion in defensive medicine care where doctors prescribe treatment and tests that may harm or expose the patient to risks because they want to avoid medical malpractice lawsuits. So health care providers spend $45 billion in additional costs (from which they often profit) to protect themselves from $6 billion in risk? If I hired a team of lawyers to oversee everything, our law firm does to make sure we are not committing legal malpractice and then complained about the cost…this analogy is not working. Let me try another: imagine hand grenade manufacturers swatting flies with hand grenades and then complaining about the rising cost of hand grenades. (That does not entirely work either, but at least it is closer. Because somehow you have to add that flies landing is actually harm that is fully insured. But you get the point without my metaphors.) Don’t these doctors’ groups feel a little odd parading this around? And why is no one pointing this out? This is right up there with Stonehenge on my list of great mysteries. Continue reading

October 4, 2010

Initiating a Medical Malpractice Suit: Maryland Requirements

by Ronald V. Miller, Jr.

The Maryland Court of Special Appeals provided yet another ruling from Maryland appellate courts about the nuances of malpractice law in Maryland that require a certificate of merit and other technical provisions before initiating a medical malpractice lawsuit.

In Maryland, the procedures for filing and litigating medical malpractice actions are established by the Maryland Healthcare Malpractice Claims Act, which governs medical malpractice lawsuits filed in Maryland. This statute requires plaintiffs’ medical malpractice lawyers in Maryland to jump through a lot of hoops. Most notably, a certificate of merit from a medical doctor is required before bringing a malpractice lawsuit.

Malpractice attorneys in Maryland dislike this requirement. I have mixed feelings about it because I think some frivolous malpractice lawsuits get filed in other jurisdictions and I think this is a way to weed out some of those suits.