January 2012 Archives

Phantom Vehicles: Is Help As Fictional As Ghostbusters?

January 31, 2012

Phantom Vehicle.jpgMany people come to us because they've been in an accident, but they are unsure what their options are. This is rarely more true than in the phantom vehicle case. This is where there is an accident, but no sign of the person who caused the accident. These cases are sometimes hit-and-run accidents, though phantom vehicle cases can happen where the phantom vehicle takes the right-of-way from another motorist, causing that motorist to hit a third motorist (while the phantom vehicle goes merrily along its way). In many cases, these are pedestrian hit-and-runs.

What can be done? Fortunately, Ghostbusters aren't needed. There are usually two options.

First, if you have uninsured motorist (UM) protection on your automobile insurance policy, you can file a claim against your insurance company, which will stand in the place of the phantom vehicle. You will have to prove your claim, either to the insurance company's satisfaction or to a judge/jury. In some cases, though, your testimony alone may be sufficient proof (independent witnesses who saw the phantom vehicle wouldn't hurt your case, however).

If you don't have uninsured motorist insurance (and you don't live with a relative who has such insurance), you may be able to recover from the Maryland Automobile Insurance Fund (MAIF). Here's how it works: MAIF gets a little bit of money from all of us, in the form of a fee in our automobile insurance payments. That money is used by MAIF to pay for Maryland automobile accidents with no other source of recovery. This is known as an Unsatisfied Claim and Judgment case (UCJ).

Normally, there is no hurry to go out and hire an attorney after an accident. It's a big decision, and one you want to take some time to think about. The exception is where you have a possible UCJ claim, or where the person/organization who hurt you was affiliated with some type of government (local, state or federal). Think MTA bus accident cases, for example. Those cases have notice requirements.

For UCJ claims, you must make a claim within 180 days of the date of the accident. That's six months. Not only must you make a claim, but the claim must fulfill very technical rules. Here's what needs to be provided:

  1. proof that the victim has no other available insurance;
  2. proof of lost wages from the victim's employer;
  3. evidence of all medical expenses accruing within the 180 days after the accident;
  4. all medical records and reports from the treatment of the accident injuries;
  5. evidence of any other accident-related damages; and
  6. all police or accident reports.
Failure to provide even one of these things could result in denial of an entire claim. MAIF tends to get snippy about minor deviations from the rules, so it's best to comply as fully as possible. 180 days after an accident goes by quick, and the notice package cannot be put together overnight--it takes some time to order medical records and bills, and police reports, for example. So, this is a situation where delaying just a short time could have disastrous consequences for a claim.

If you have questions about the amount of time you have to file a claim, contact us for a free, no pressure consultation. You can call us at 443.850.4426, or fill out our online consultation form.

Settling A Child's Maryland Automobile Accident Lawsuit

January 26, 2012

Child auto injury lawsuit.jpgThe State of Maryland protects minors. In lawsuits, the State has established rules to help ensure that children (age 18 and under) who receive money, by settlement, have protection against misuse of those funds.

First, if the minor is receiving less than $5,000 (not including attorneys' fees or costs), the check may be made out to the child's legal guardian. Typically this will be written something like "Hester Prynne, mother and natural guardian of Pearl Prynne-Dimmesdale." The parent may deposit the check in their bank account without any special arrangements, and may use the money as they see fit for the child's benefit.

If the minor receives $5,000 or more (again, exclusive of attorneys' fees and costs), the State has decided that special protections must be observed. There, the check would read like this: "Hester Prynne, trustee under Title 13 of the Estates and Trusts Article, Annotated Code of Maryland, for Pearl Prynne-Dimmesdale, minor." The trustee is anyone who will be responsible for the money--there is no other court paperwork required to create a trustee. That check must be deposited into an account set aside for the child--it cannot be deposited into the parent's or trustee's account. The money must be held in the interest-bearing account until the child turns 18, at which point the child gets sole access to it.

It's useful to note that, when calculating whether the minor's net recovery is $5,000 or more, the attorney should usually deduct the medical expenses. Under Maryland law, medical expenses usually belong to the child's parents (there are some exceptions).
Of course, a court may require other procedures, including appointment of a guardian. It's not likely that a court would get involved when a case settles without a lawsuit, however.

The laws are found in the Estates and Trusts section of the Maryland Code at 13-403. The complete text of the section is below.

Estates & Trusts ยง 13-403 provides:

(a) Payment by check to trustee - In general: Unless a court appoints a guardian of the property of a minor under subsection (c) of this section, if a minor or any other person in whose name a claim in tort is made or judgment in tort obtained on behalf of a minor recovers a net sum of $5,000 or more, the person responsible for the payment of the money shall make payment by check made to the order of " [name of trustee], trustee under Title 13 of the Estates and Trusts Article, Annotated Code of Maryland, for [name of minor], minor".

(b) Payment by check to trustee - No other act necessary- No other act is necessary to constitute the person named a trustee.

(c) Appointment of guardian - In general.-

  1. In accordance with the procedures for the appointment of a guardian under Subtitle 2 of this title, the court may appoint a guardian of the property of a minor on whose behalf a recovery in tort is sought or has been obtained if the court determines that the appointment would be in the minor's best interest.

  2. The petition for guardianship may be made by an interested person or a trustee under this subtitle.

(d) Appointment of guardian - Payment by check: If a court appoints a guardian of the property of a minor under subsection (c) of this section and the minor or any other person in whose name a claim in tort is made or judgment in tort obtained on behalf of the minor recovers a net sum of $5,000 or more, the person responsible for the payment of the money shall make payment by check made to the order of "[name of guardian], guardian under Title 13, Subtitle 2 of the Estates and Trusts Article, Annotated Code of Maryland, for [name of minor], minor".

Why Don't Buses Have Seatbelts?

January 23, 2012

School Bus Accident Lawyers.jpgI've wondered this question ever since grade school. Back then, we didn't have to wear seatbelts, but I remember dutifully doing so and chastising my parents when they didn't (probably something we learned in school). In Maryland, we weren't required to wear seatbelts until July 1986, and that was only for front seat passengers.

Buses were always an anomaly. School buses and commuter buses alike had no seatbelts. Even worse, you are allowed to stand up on commuter buses. There's a bit of a bias against commuter bus accident victims (probably stemming from the stories we all hear about people rushing onto a bus after an accident to try to get a piece of the insurance pie); but common sense suggests that bus passengers, not tethered to their seats, may very well sustain more injuries. If not, then what are seatbelts for?

We've been told by our safety leaders that school buses are safe because of the design of the seats--they are well anchored, padded and high enough so that injuries are rare. Essentially, our children are compartmentalized to prevent injury. These improvements were a result of a UCLA study from about 35 years ago. However, that study also recommended the following that have never been implemented:

  1. Lap belts
  2. Aisle side panels
Why are lap belts and side panels important? The main reason is obvious--not all collisions are rear-enders. If a truck comes out of a side street and t-bones my child's school bus, my child is going to move to the side, possibly fall into the aisle and onto the bus floor. If the bus rolls over on its side, my child will be propelled into the air. That's not safety.

Of course, that's not what the National Highway Traffic Safety Administration (NHTSA) would have you believe. For some reason, the same group that advocates a ban on all cell phones in vehicles can't even make gentle strides in bus safety. In 2002 the NHTSA issued a report. That report notes the high cost to schools (and taxpayers) of requiring changes Ford Pinto.jpgto our busing fleets. Maybe we should just send our kids to school in Ford Pintos--that might be cheaper, too. The report mentions that lap belts wouldn't make our kids much safer:

An analysis of test data by the National Highway Traffic Safety Administration (NHTSA) has concluded that lap belts appear to have little, if any, benefit in reducing serious-to-fatal injuries in severe frontal crashes.

Oh, right. Wouldn't make them much safer in SEVERE FRONTAL CRASHES. Did I miss the section on side impacts? The NHTSA didn't convince six states from requiring seat belts on school buses (New York, New Jersey, California, Texas, Louisiana and Florida).

Detractors note that children can't be relied on to properly use seatbelts. Even if that were the case, I best most would. Or, maybe we don't use seatbelts. What about those capsules with the downward bar that protects passengers on roller coaster rides? I bet an aspiring engineer could create an inexpensive device to accomplish just that. The point is, our children are not as safe as they could be. And this says nothing about commuter buses, some of which have sideways seats, and most of which are lacking in the protective cushioning of school buses...

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Proving Your Maryland Auto Accident Case

January 12, 2012

burden of proof scales.jpgBecause of television legal dramas, most people know about the burden of proof. For criminal cases, the burden of proof is usually "beyond a reasonable doubt." In civil cases, like car accidents, truck accidents and medical malpractice, the standard is "more likely than not."

Lawyers often use the "scales of justice" example. If you have a scale in perfect balance, and you place all of the victim's evidence on the left, and all of the defendant's evidence on the right, a victim wins if her side is ever so slightly heavier than the other side. 50.0000001% is a plaintiff victory. In a criminal case, the prosecution's evidence must be much "heavier"--basically, they have to be pushing it down to the ground.

That's all very abstract. Let's use a common scenario. Say you provide evidence at trial (say, your own testimony and testimony of an independent witness) that you are stopped at a red light for 30 seconds. You also provide evidence that the defendant crashed into the back of your car. Unless the defendant can provide some evidence that, for example, you backed into him, he will lose because your evidence indicates that it is more likely that he crashed into you. This is one reason why most rear-end collisions result in a plaintiff's verdict.

A second scenario helps to illustrate the point: two cars are driving on a two lane road, one in the left land and one immediately to the right. There is a collision. The plaintiff claims that the defendant merged into her lane; the defendant claims that the plaintiff merged into his lane. There are no useful road markings, and there are no witnesses. This is the classic "he said, she said" case. Probably 90% of the time, the judge or jury will find for the defendant, not because they believe the defendant's version of events, but because they don't know what to believe. The scales are still balanced, even after all of the evidence is added. 50% to each side is a defense verdict. Now, the other 10% of the time, the judge or jury will find for the plaintiff because, for whatever reason, the plaintiff seems more credible, more believable, than the defendant. This can be really hard, if not impossible, to predict. It helps if the defendant has something going against him--some sort of admissible criminal history involving lies, like forgery.

But, oftentimes, there is no such evidence, no reason (that I can see) to believe one side more than the other side. But it's not a factual analysis. It is a feeling by the judge or jury. The take-home message is that sometimes you can win a he said, she said case. It's a longshot, and it takes a little bit of luck, but it can happen.

Maryland Court Statistics

January 10, 2012

Statistics (12-13-11).jpgWhile doing some other research, I happened upon the Maryland Judiciary's Fiscal Year 2010 Annual Statistical Abstract (it covers July 2009 to June 2010). Whenever I see something law-related with statistics, I stop to take notice. I just have to look. There's a lot of great data here. For example in the Circuit Courts:

  • 107,814 new civil cases filed (5,698 of these (5.3%) were automobile accidents
  • 2010 featured 16,768 more cases than 2009, which was itself 6,129 higher than 2008
  • The number of automobile accident cases filed in 2010 was down 50 cases from 2009 filings
  • The report divides automobile accident cases filed by jurisdiction: 174 (Howard); 91 (Anne Arundel); 966 (Baltimore County); 1,463 (Baltimore City); 531 (Montgomery County); and 1,096 (Prince George's County)
  • We don't know the number of automobile trials, but we do know the number of civil jury trials for each county: 43 (Howard); 420 (Anne Arundel); No data (Baltimore County); 148 (Baltimore City); 172 (Montgomery County); and 295 (Prince George's County)
Compare that to the District Courts (civil cases up to $30,000):
  • Auto accident cases filed: 71,704 (Baltimore City); 133,240 (Prince George's); 87,135 (Montgomery); 47,338 (Anne Arundel); 79,824 (Baltimore County)
  • Sadly, there is no data on auto case judge trials

Interstate Truck Drivers Banned From Using Cell Phones

January 4, 2012

Semi Tractor Trailer.jpgAs of January 3, interstate truck and bus drivers (those driving between states) are forbidden from using hand-held cell phones while operating their trucks. The enforcement angle isn't as strong as it could be--drivers violating the rule are fined up to $2,750 per offense, and their truck-driving privileges can be revoked for multiple offenses. Employers may be fined up to $11,000. If we were really serious about this, there shouldn't be a warning period. One strike and you're out.

Truckers still have the option of various hands-free devices, including bluetooth or speakerphones.

It's hard to say where all this distracted driving/cell phone publicity is going to take us by the end of 2012. There are some groups that want to eliminate all cell phone use in all vehicles--whether hands-on or hands-free. If we were honest with ourselves, we would all probably admit that hands-free isn't much better than hands-on. On the other hand, drivers and the trucking industry are pushing back hard, arguing that this is an assault on our personal freedoms.

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