July 2012 Archives

Health Insurance and Auto Accidents

July 18, 2012

Pill and Rx pad.pngIn Maryland auto accident claims, the victim of a negligent driver is entitled to recover the cost of all reasonably related medical expenses. For example, if a driver runs a red light and hits another vehicle, the emergency room visit for the other vehicle's occupants should be paid by the negligent driver's insurance company.

Sometimes, however, the injured person's medical care is paid for by health insurance, or by personal injury protection (PIP) insurance. Maryland has a law called the collateral source rule, which says that the negligent driver cannot benefit from other payments made to the victim.

Under the collateral source rule, even if a victim's medical bills are paid by insurance, the negligent driver must pay the value of those bills directly to the victim. In some cases (notably, PIP), the victim gets to keep the money. This is something like a double-recovery in some cases. However, it helps many smaller accident victims by making them whole, when the attorneys' fees are factored in.

In other cases, however, the victim must pay back the insurance company. This is especially true where medical expenses were paid by medical assistance (Medicaid) or Medicare. But, it also typically holds true when private health insurance pays medical expenses. The contract between an insured and a private health insurer usually contains a provision that that requires a victim/insured to reimburse the health insurance company for payments made that were required because of the negligence of another.

The way that health insurance companies find out if the accident was caused by negligence is usually to send out a form to the insured, asking about the circumstances surrounding the injury. They send these forms out automatically when they find out about certain types of injuries that are typically caused by accidents--whiplash, back injuries, etc....

If there is an obligation to pay the private health insurance company back, the victim's lawyers can usually negotiate the amount owed down. One good argument is that the health insurance company would not have received any reimbursement at all, had the victim not hired a lawyer and paid his one-third to 40% in attorneys' fees. The argument we make is that the health insurer should have to pay the same fee by reducing the amount they are paid back. This gets more money into the victim's pocket.

If you have questions about paying back a medical provider after an accident, contact our firm at 443.850.4426, or send us an online message.

Maryland Auto Accident Settlement Calculator

July 18, 2012

How do lawyers determine the value of an automobile lawsuit? Check out the Maryland Auto Accident Settlement Calculator, on the Charm City Lawyer Blog.

Increasing Penalties For Distracted Driving

July 11, 2012

Given the prevalence of cell phones and smartphones, the likelihood is that many if not most automobile accidents are caused by distracted driving. The NHTSA estimates about 3,000 fatal distracted driving auto accidents in 2011. One study suggests that cell phones may be the cause of 1.6 million accidents per year, which is 28% of all auto accidents. Maryland has been improving the laws year after year, but some research questions whether existing laws around the nation are good enough.

distracted driving accident attorney.jpgAs far as punishment, some believe that higher fines will increase compliance, just as it did for seatbelt laws. New Jersey is considering a $200 fine for the first offense with a license suspension for 90 days for the third offense. Connecticut has already increased fines to $125 for a first offense. In Maryland, the fines are relatively light. Talking on a cell phone can cost $40 for a first offense and $100 for subsequent offenses. Sending or reading e-mails or texts is punishable by $70 fine for the first offense and $110 for subsequent offenses.

We should beef up the penalty provisions--larger fines and points (right now, there are no points issued for speaking on a phone for the first offense unless it causes a collision). Financial penalties provide most people with an incentive for good behavior, which will lead to safer roads.

Winning your trial in front of jurors who don't want to be there

July 10, 2012

Norwood jury box 2.jpgThe vast majority of people don't want jury duty. As a lawyer, I've always hoped for the opportunity to serve and experience "our civic duty" firsthand. I've been called twice, but have not been selected. Still, hanging out with the throngs of "potentials" has verified for me that some people will say anything to try and get out of jury duty, but most people will just hunker down and go through the process. But, they might not be happy about it.

Baltimore City lawsuits require Baltimore City jurors, and until recently, most people were called once every 18 months if not selected for a trial, and once every three years if they were selected for a trial. That is changing. Baltimore City residents are now being called every year.

The source for our jurors is voting records and driving records. Baltimore Sun writer Michelle Alston correctly observes that many Baltimore City residents neither vote nor drive, so there should be another way to identify those residents. The number of non-drivers in the City is especially disproportionate, where many people rely on buses and light rail. She suggests using social security numbers. There are, in fact, any number of ways to do it. Most residents pay taxes--any resident who files a return should be subject to the rigors of jury duty.

The reality is, though, that jurors who are called more frequently are not likely to be significantly more resentful. Those jurors who are extremely upset are going to be upset if called once a year or once every five years.

Lawyers must address the problem at two points. The first is during voir dire, which is the time that judges and lawyers are allowed to ask the jurors questions to determine whether they can be fair. Strong feelings of resentment should be probed, and the lawyers should ask the judge to strike those jurors for cause, arguing that they cannot be fair, and they are wild cards--in particular, they are more likely to punish the plaintiff for filing the lawsuit and forcing them to be there. If the judge will not grant the strike for cause, lawyers should be prepared to exercise their peremptory strikes--each side gets a limited number of these, though, so it might not always work out.

The second opportunity to deal with resentful jurors is during the trial. Lawyers should of course thank jurors for their attention and time. Many lawyers acknowledge the difficulties and inconveniences of jury service. Most importantly, the case needs to keep moving--delays are likely to cause resentment to bubble over, and if the jury believes that one side is causing those delays, the verdict may turn out differently than it should.

What If The Negligent Driver Was Not The Car Owner?

July 9, 2012

Insurance Policy (11-26-11).jpgInsurance is complicated business, and many of our auto accident clients get a crash course in coverage only after the collision. One common question from people involved in Baltimore auto accidents is whether there is insurance coverage for their automobile accident. Sometimes, this is in context of a negligent driver who was not the owner of the vehicle. There are three typical situations:

Auto Accident With Permissive Car Use

When the accident is caused by a non-owner, but the driver had permission of the owner to drive the car, the owner's insurance will cover the accident and all injuries related to it. In that case, any lawsuit filed will be against the driver, but the insurance company will step up to defend the case. The lawsuit can also include the owner of the car if that owner knew or had reason to know that the driver was a dangerous driver. That is a very high bar, and requires a clear showing that the negligent driver had a history of accidents that the owner should have known about.

Auto Accident With Non-Permissive Use or Excluded Driver

When the negligent driver is specifically excluded on the insurance policy, or if the negligent driver did not have permission from the owner to drive the vehicle, then that insurance coverage will not apply. This often happens in situations where the car is stolen. Typically, the only source of coverage in a situation like this is through the uninsured division of MAIF.

Auto Accident With Respondeat Superior--Agency

When an auto accident is caused by a driver who is employed and on the job, the driver's employer is typically going to be on the hook for all damages and personal injuries. In Maryland, the driver is treated as an extension of the company--a lawsuit will typically be filed against the driver, individually, and the company, as employer. That company's insurance coverage will apply to all claims.

New Regulations to Prevent Truck Accidents

July 3, 2012

electronic truck driver log.pngHeavy Duty Trucking Magazine published a fantastic review of a new highway agreement. Here are the important points:

  • Trucking interests were denied their requested increase in truck weight restrictions to 97,000 pounds (see more on this at our earlier post: Cutting Bigger Big Rigs Off At The Pass)
  • Electronic driving logs will be required
  • the FMCSA will conduct a study of the 34-hour restart rule
Electronic driving logs, if implemented correctly, will ensure accuracy, can prevent tampering, and can foster accountability. Driving logs are one of the most important sources of information in Maryland truck accident lawsuits--we obtain those records and comb through them in order to find rest and sleep violations, which are frequently the cause of serious or fatal truck accidents.