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Maximize Your Auto Accident Non-Economic Damages

January 14, 2013

Headache 2.jpgMaryland allows auto accident victims to recover for non-economic damages. These are injuries that cannot be easily calculated, and they include items as stated in the typical jury instructions:

In an action for damages in a personal injury case, you shall consider the following:
  1. The personal injuries sustained and their extent and duration;
  2. The effect such injuries have on the overall physical and mental health and well-being of the plaintiff;
  3. The physical pain and mental anguish suffered in the past and which with reasonable probability may be expected to be experienced in the future;
  4. The disfigurement and humiliation or embarrassment associated with such disfigurement;
  5. The medical and other expenses reasonably and necessarily incurred in the past and which with reasonable probability may be expected in the future;
  6. The loss of earnings in the past and such earnings or reduction in earning capacity which with reasonable probability may be expected in the future.
In awarding damages in this case you must itemize your verdict or award to show the amount intended for:
  1. The medical expenses incurred in the past;
  2. The medical expenses reasonably probable to be incurred in the future;
  3. The loss of earnings and/or earning capacity incurred in the past;
  4. The loss of earnings and/or earning capacity reasonably probable to be expected in the future;
  5. The "Noneconomic Damages" sustained in the past and reasonably probable to be sustained in the future. All damages which you may find for pain, suffering, inconvenience, physical impairment, disfigurement, loss of consortium, or other nonpecuniary injury are "Noneconomic Damages";
  6. Other damages.

It is a relatively simple matter to show what the economic damages are--lost wages and medical expenses can often be calculated with exactitude. But non-economic damages are fuzzy--their value will depend on two things--how well the auto accident victim testifies at trial, and the feelings of the decision-maker (either a judge or jury).

Lawyers have a limited ability to choose the decision-maker. We can decide sometimes whether to try a case before a judge or jury, and sometimes we can choose which county the case is tried in. For jury trials, we have a limited ability to select the actual jurors who will select the case. The universal factor for a significant non-economic damages verdict, however, is how much the decision-maker likes the plaintiff-victim.

So, the plaintiff-victim must testify at trial, and must explain to the decision-maker how the injury affected him during treatment and, if the injuries are permanent, after treatment. The difficulty at trial is for the plaintiff to remember the specifics of how the injury affected him. We recommend that our clients keep a log during recovery. Make notes about missed opportunities, like exercising, going out with friends, or playing sports. Keep a log of medication used to show how often you were in pain. Record what household chores were difficult to do, and what you needed help with (laundry, mowing the lawn, etc...). Most importantly, keep a good record of how the injury made you feel. Listless because it was hard to be mobile? Frustrated because you constantly dropped things? Embarrassed because of a limp? Feeling inadequate because you have to miss work for doctor's appointments?

Use strong words to describe your feelings. Judges and jurors don't understand "pain." We can say that pain was a 6 out of 10, but that doesn't mean anything because everyone has a different understanding of pain. Unless the injuries are so horrific, it's likely that a description of "it hurt every day," is next to useless in convincing a judge or juror to render a high verdict for non-economic damages. Ask your friends and family about what they observed during your recovery (or better yet, give your lawyer their names and numbers so he can do it for you).

This isn't something that can be done on the fly at trial. Most people don't like to describe their pain and emotions like this--no one wants to come across as whiny. But if you give this information to your lawyer, he can help you to present it appropriately at trial.

If you have questions about an auto accident or other Maryland injury claim, contact our personal injury lawyers at 443.850.4426, or send us a message online.

Limited Insurance Proceeds

January 5, 2013

Crash (2 vehicles).jpgI've had a few sad cases recently. In each case, my client was injured in an accident. In each accident, there were other people injured, as well. My clients went to the hospital, and were treated for their injuries. Neither of my clients had health insurance. Neither of them had UM/UIM insurance (neither of them drove a car, and neither lived with a family member who drove a car).

After they finished medical treatment, we sent demand letters to the insurance companies. In each case, the adjuster informed us that they could not settle our claims because there were limited insurance proceeds available, and that other victims were either still treating or hadn't submitted their demand packages, yet. The limited insurance proceeds were in compliance with the Maryland minimums--$30,000/$60,000. That means that the most any one person in an accident can recover is $30,000, with the total allowed for all people in a single accident as $60,000.

So, not wanting to wait, we filed lawsuits. Other victims of each collision did, as well (though not all). When it was time for the insurance company to answer the complaint in one case, and when their discovery responses were overdue in another, they cried "uncle." They tendered policy limits in each, and washed their hands of the whole matter saying "you plaintiffs divide it up."

So we did in one case (the other case we're still working on). For the one that fully resolved, my client received something along the lines of 60% of her medical expenses. There were too many other victims, many of them with injuries far more serious than my client's. We were able to get other medical expenses reduced, and thankfully there was Personal Injury Protection (PIP) available, so my client had a little bit of a take-home. But, it wasn't what it should have been. And sadly, there was no other source of recovery--no UM/UIM, and no chance at recovering personal assets of the defendant driver.

So how do you divide up limited insurance proceeds with other claimants? It's tough, because the process pits a plaintiff's lawyer against other plaintiff's lawyers, and we usually like to be on the same side. However, we must each zealously advocate for our clients. These are some considerations if you ever find yourself in the same boat:


  • Perhaps the simplest way is for each automobile accident victim to get a pro rata share of the proceeds based on total medical expenses. So, if the total insurance available is $60,000, the total of all medical expenses is $100,000, and your client had $20,000 in medical expenses, your client would get total of $12,000. ($100,000/$20,000 = 20%; 20% x $60,000 = $12,000). This method has some appeal--it is completely objective, and there is no need to compare amounts of non-economic damages (pain, suffering, inconvenience, etc...).

  • For cases that warrant the expense, a mediator or arbitrator (often a retired judge) can be brought in to help settle the matter.

  • Another method is to allow the court to decide--everyone files a lawsuit, the cases are consolidated, the defendant admits liability, and the judge or jury decides what everyone gets. Or, the defendant could place the money into the court with an interpleader action, basically inviting all of the plaintiffs to come to court and fight it out.

  • One particular consideration should be other means of recourse. Some accident victims may have UM/UIM insurance coverage available--meaning that they are more likely to be able to recoup their losses elsewhere. Lawyers who have access to other potential sources of recovery may be hesitant to take a discount on the first part of the case, though, until they have some assurance about what they can indeed recover from the UM/UIM insurance company.

In any event, everyone is going to end up with less than they deserve. This is one reason why it pays to have good UM/UIM insurance. We recommend everyone get as much as they reasonably can afford. The increase in premiums isn't significant, and $100,000 is the bare minimum. We highly recommend more.

Pedestrian Deaths in Maryland

September 27, 2012

Lahood Text.jpgOftentimes, pedestrian-versus-car accident cases are among the toughest to litigate. It's rare that we see that perfect liability scenario:

The pedestrian, observed by traffic cameras, dutifully waited her turn to cross from one end of the street to the other. The approaching traffic stopped, she got the white "walking man" signal, and after looking both ways, she proceeded across the cross walk to the other end. At that point, the independent and disinterested witness observed, the defendant ran the red light at twice the speed limit, hitting the pedestrian."

What we usually see is something like this:

The pedestrian, unobserved by anyone or anything, was crossing the road in the middle of the street, about 20 yards from the crosswalk. He said there was no traffic approaching at the time. When he was about 2 feet from the opposite curb, he felt the impact from a vehicle that "just came out of nowhere." Of course, he was listening to iPod at the time of the collision.

The reality is, in a state like Maryland where contributory negligence is the order of the day, plaintiff pedestrians probably lose 75% of the time (yes, this is a completely off-the-cuff and made-up-on-the-spot statistic). And, lawyers won't even take the really unlikely case. Contributory negligence is the rule that says, even if the defendant driver is 99.99% negligent, a plaintiff must lose his entire case if he is 0.01% negligent (we're hoping the Court of Appeals might change this arcane rule of law soon).

U.S. Secretary of Transportation Ray LaHood said recently that 80% of pedestrian deaths in 2010 were due to jaywalking. A little research indicates that 79% of pedestrian deaths were at "non-intersections." Not quite the same as jaywalking, and not quite the same as "caused by." As the article states, sometimes there is no crosswalk anywhere in the area; sometimes cars jump curbs and kill people at "non-intersections."

Of course, this is all largely irrelevant. The important point that Lahood wanted to make is that pedestrians should pay attention to traffic, not their cell phones, when crossing the street. Surely that's going to save a couple of lives.

Should You Hire A Lawyer For Your Maryland Auto Accident Case?

August 6, 2012

Car Accident (2 people)(11-22-11).jpgThis post won't go into detail about whether you can or should handle a Maryland auto accident lawsuit by yourself--that's a post for a different day (for information about filing a lawsuit on your own, see the legal Self-Help section of our website).

Instead, this is to help answer whether you should settle your case on your own, or whether you should hire a lawyer to do it for you. The analysis will depend on where you are in the process:

I Was Recently In An Accident And I'm Not Finished With Medical Treatment

Early on after an automobile accident, there are a few good reasons to hire a lawyer:
  • You need medical treatment, but you either have no health insurance, insufficient PIP insurance, and you can't pay a doctor to treat you
  • You don't want to deal with the paperwork (filling out a PIP application, or ordering medical records, for example) or time (dealing with insurance adjusters)
  • You want someone else to take care of your car's property damage
  • You're concerned that the insurance company (either yours or the negligent driver's) might take advantage of you

Of course, the converse of each of these is also true. If you don't mind spending the time to deal with the accident, you have enough PIP insurance, and you can handle your property damage issues, then you can do it all yourself. You can choose to hold off hiring a lawyer, or you might choose to just resolve the whole thing on your own. People who have limited medical treatment, for example a visit to the emergency room and maybe a primary care doctor appointment, can easily handle this on their own. The more medical treatment an auto accident victim has, though, the more complicated the case becomes. In those situations, it might be good to have the advice of a lawyer. Clearly, if the victim requires surgery, or is in treatment for more than 6 months, a lawyer is a good idea. Anywhere in between is something of a gray area.

I Have Finished All Of My Medical Treatment And I'm Ready To Settle My Auto Accident Case

If the case is ready for settlement, a person injured in an auto accident may try to settle the case on his own. He can probably do so if:
  • He's willing to spend the time and money to order all medical records and bills
  • He's willing to spend the time dealing with the insurance adjuster
  • He's willing to spend the time collecting other important evidence: witness statements, police reports, etc...

Beyond this, it becomes a simple mathematical calculation. A person who has reached this point might choose to try to settle it and, if the insurance company's offer isn't good enough, he can then hire a lawyer. The calculation to determine whether a lawyer is a good idea is as follows:

Unrepresented Settlement Offer ≤ 66.66% Represented Settlement Offer

Most lawyers take auto accident cases on a contingency fee basis, which means that they get a percentage of the final settlement or verdict. Most lawyers' agreements provide that the client gets 2/3 (66.66%) of any pre-lawsuit settlement, and 60% of any post-lawsuit settlement or verdict (this number doesn't include expenses, which are usually modest in the smaller District Court-level automobile claims). The real question is whether the lawyer, either by adding his name or by expert negotiation/litigation skills, can increase your settlement or verdict by more than 2/3 (if pre-lawsuit) or 60% (if post-lawsuit). If so, you will do better by hiring a lawyer.

The reality is that insurance companies do tend to make higher offers to auto accident victims represented by lawyers. Sometimes it is enough of an increase to justify the attorneys' fees; sometimes it is not. I suspect that the main reason is inertia--insurance companies know that an unrepresented accident victim who is negotiating his own case is already less likely to hire a lawyer under any circumstances--they will sometimes accept settlements because they don't know what their case is worth; or they will sometimes accept settlements because it is easier to be done than to go that extra step to hire a lawyer. Once a lawyer is involved, however, the proper response to a low offer is to file a lawsuit, which puts the insurance company's feet to the fire (some lawyers are settlement lawyers, and some lawyers are trial lawyers--you must make sure that you hire someone with a track record of going to trial).

The only difficulty for most people is that it can be hard to know what their case is really worth, and what offer a lawyer would get. Check out the Maryland Auto Accident Settlement Calculator for more information. As a very rough rule of thumb, if the insurance company is not offering you a settlement that equals at least double your medical expenses, plus your lost wages, then they are not even trying to give you full value. In some cases, that number should be much higher than even that.

The Value A Lawyer Brings To Your Case

So what can a lawyer do for your accident claim? Here's how they can help make your life easier:
  • Deal with your insurance company to ensure that PIP makes the proper payments
  • Deal with the negligent driver's insurance company to get your car's damage taken care of
  • Deal with the negligent driver's insurance company to settle your case
  • Help to recommend a doctor if necessary (I prefer that clients go to their own doctors; in some situations, however, this is not realistic)
  • Collect all evidence, including witness testimony, medical records and bills, and police reports
  • Educate you as to the settlement value and trial value of your case
  • Negotiate down the amount owed by you to your doctors or health insurance
  • File a lawsuit, if necessary

Contact An Experienced Maryland Auto Accident Attorney

You may be able to handle your own auto accident case, and that's great. If you have general questions, feel free to give us a call. If you don't want to take care of it by yourself, let us know at 443.850.4426, or send us a confidential online message.

Nuts & Bolts of a MAIF Uninsured Auto Accident Claim

June 27, 2012

MAIF logo.jpgMost auto accident lawyers hate filing MAIF claims. First, there are a lot of hoops to jump through, including a 180-day notice requirement that, if not met exactly, can capsize the entire claim. Second, MAIF uninsured claims are limited to $30,000 per person and $60,000 per accident (see our recent post on the increased minimums). Third, MAIF is really hard to deal with--these claims often require twice the amount of work as one against any other insurance company, and most MAIF uninsured claims have to be resolved at trial. MAIF doesn't like to pay out under any circumstances.

Auto accident victims may have to look to MAIF for recovery in these circumstances:

  • Hit-and-run auto accident ("phantom vehicle")
  • At-fault driver was excluded from the vehicle's insurance policy
  • At-fault driver was an out-of-state driver with less than minimum insurance
For lawyers looking to make their first MAIF Unsatisfied Claim and Judgment (UCJ) claim, here's what you need to know:

The Rules
There are quite a few rules on MAIF claims. Here's where you need to look:

Notice Deadline
There is a strict 180 day deadline to make a MAIF UCJ claim. There are some exceptions (for example, a victim must provide notice within 30 days of a liability carrier's notice of disclaimer), but failure to make the claim could leave auto accident victims without any recourse.
A claim must include the following, where applicable:
  • MAIF Notice of Claim Form, signed by the victim (it hasn't changed since 1998)
  • Description of the accident, including date, time, location, names and addresses of witnesses, vehicles involved
  • All medical records and bills up to date of filing of Claim
  • Police report of accident
  • Documentation of property damage
  • Lost wage certification
  • MVA records
  • Insurance company cancellations /disclaimers
  • Recorded statement
MAIF Settlements and Lawsuits
As indicated, MAIF doesn't like to settle these claims. In the majority of cases, victims will have no choice but to file a lawsuit. Where the negligent driver is known, the lawsuit should be against that driver. Sending a copy to the MAIF adjuster will allow MAIF to come into the lawsuit.

If the negligent driver is unknown (for instance, in a hit-and-run accident), the victim can file a lawsuit against MAIF directly if they can show that they used reasonable efforts to identify the negligent driver, and were unsuccessful. MAIF is usually of the opinion that "reasonable efforts" include moving heaven and earth. I think most judges interpret reasonable to mean reasonable.

Contact Us
If you have been injured in a hit-and-run auto accident or the negligent driver did not have any insurance, you may have a claim against MAIF. Many lawyers don't accept these types of MAIF claims because they are more difficult, and have strict notice requirements (MAIF must receive a specific notice within 180 days of the accident. We handle these cases--contact us at 443.850.4426, or online for a free consultation.

More on MAIF and Insurance Claims

Minimum MAIF Insurance: $30,000 Protection For Hit-and-Run/Phantom Driver Accidents

June 25, 2012

MAIF logo.jpgWe reported back in February that the Maryland legislature was considering a bill that would increase the minimum amount of MAIF insurance for uninsured drivers to $30,000 (Not Fair: Maryland Law Makes You Carry $30,000 Auto Insurance, But You Might Have a Maximum $20,000 Recovery).

The problem was that just over a year ago, the minimum amount of automobile insurance for all Maryland drivers was $20,000 per person and $40,000 per accident. Those minimums have been in place for over 35 years, and they were increased to $30,000 per person and $60,000 per accident. The law that increased the amount recoverable for Maryland automobile accident victims was missing one thing, though. It forget to mention the uninsured division of MAIF.

MAIF (Maryland Automobile Insurance Fund) is the insurance company of last resort for drivers who are rejected by most other insurance companies. They insure the uninsurable. MAIF also performs another function--when someone is involved in a Maryland automobile accident with someone who does not have insurance, or in a hit-and-run accident, MAIF will step in to help. They don't step in voluntarily--usually it takes a lawsuit, but if there is no other insurance available, MAIF will cover the accident up to the minimum amount. Even after the 2011 change, MAIF was still only on the hook for $20,000/$40,000.

The new law, approved by the legislature and signed by Governor O'Malley last month, requires MAIF to provide the same coverage as everyone else. So in any one accident where the victim proves that an uninsured or unknown driver caused the accident and no other insurance applies, MAIF is responsible to pay up to $30,000 (for one person) and $60,000 (for all people).

Contact Us
If you have been injured in a hit-and-run auto accident or the negligent driver did not have any insurance, you may have a claim against MAIF. Many lawyers don't accept these types of MAIF claims because they are more difficult, and have strict notice requirements (MAIF must receive a specific notice within 180 days of the accident). We handle these cases--contact us at 443.850.4426, or online for a free consultation.

More on MAIF and Insurance Claims

What do Doctors, Drivers, and Pedestrians Have in Common?

May 14, 2012

Distracted pedestrian.jpgNone of them should be texting. We've blogged before about distracted driving and even distracted doctoring. Now, Fort Lee New Jersey is issuing tickets to pedestrians who ignore traffic signals or who jaywalk while looking down at their phones.

There were 117 tickets issued in one month, at $85.00 a pop. The question here, as with all governmental cell phone regulation, is whether the government should be taking this parental role? Opponents of regulation say that the government should just leave us alone, and that if we are stupid enough to text and walk across the street, we deserve to get run over. Proponents say that the problem does not just affect those who text--it affects the motorist who hits us, the person who hits them, and costs taxpayers money when someone isn't insured and needs medical care.

The problem is of course, widespread. A New York State Senator commented in an ABC news article on one of two deaths in Brooklyn:

A gentleman was standing on the corner ready to cross the street wired into his iPod, he crosses over and walks right into an NYC bus.

Here in Maryland, one of the problems is the law. Let's assume these facts:

  1. A pedestrian texting while crossing the street at a crosswalk--he has a walk signal
  2. A driver runs a red light, hitting the pedestrian
In that circumstance, the driver will undoubtedly argue that the pedestrian was contributorily negligent--that is, the pedestrian was partially responsible for his own injuries. The pedestrian would argue that, even if he was paying attention, he wouldn't have been able to get out of the way in time. However, the issue might be close enough to get to a jury (and you never know what a jury is going to do in a case like that). The pedestrian's case gets even worse if he is not crossing at a crosswalk.

Maryland's contributory negligence law is harsh--we're one of a very small number of states that still have this archaic rule. Basically, if the person filing the lawsuit was the negligent cause of his injuries, even by 0.01%, he cannot win a lawsuit. In other states, the plaintiff would be able to recover 99.99% of his damages. This makes sense, because the other guy had the most negligence.

distracted runner.jpgThese types of laws might bleed over into non-texting scenarios. What about runners? Almost every runner has an iPod or MP3 player plugged into their ears. If she doesn't hear a vehicle, and get hit even though the driver was speeding excessively, the runner might not be able to recover for her injuries.

Now, laws like this don't always provide evidence of what's called negligence per se. Negligence per se means that violation of the law is presumptive evidence that the lawbreaker was negligent. Whether or not that applies, the fact that the law becomes part of the public consciousness and the expectation of behavior means that an absolute defense of contributory negligence is more likely.

So, whether Maryland chooses to adopt these "distracted walking" laws, the safest course of action is to walk carefully, head up, and phone tucked away.

Contact Us
If you've been in a Maryland auto accident where cell phones, text messages, e-mails or other forms of distracted driving played a role, contact us at 443.850.4426, or online for a free consultation. You will speak directly to a lawyer from your first call. Don't let your case be handed off to a paralegal.

Self-Driving Cars: Maryland Accident Prevention?

May 9, 2012

Self-driving car.jpgWe've all heard about Google's research into self-driving cars. Now the National Highway Traffic Safety Administration (NHTSA) is getting into the mix, believing that 80% of automobile accidents can be prevented if vehicles are given the ability to communicate with each other (see article, Detroit Free Press).

This "vehicle-to-vehicle" communication and related technologies can be used to implement crash-warning systems, and lane departure alerts. According to the NHTSA's Administrator:

Our research shows that these technologies could help prevent a majority of the collisions that typically occur in the real world, such as rear-end collisions, intersection crashes, or collisions while switching lanes.

Actual self-driving cars aren't really on the NHTSA's radar yet, but they promised to look at the technology as it develops.

More on Mandatory Back-up Cameras

March 19, 2012

Rear Backup Camera.jpgWe posted on March 6 about Mandatory Back-Up Cameras: Worth the Cost? It seems that Transportation Secretary Ray LaHood has been getting a lot of criticism for his delay in acting on the proposal.

The Tampa Bay Times has an editorial pointing out that the cost of backup cameras ranges from $58 to $203 per car (in our post, we only had data about the higher-end dollar figure).

But, is this even a worthy issue? Apparently, back-up cameras are already standard on 45% of all 2012 models. Based on that, it might appear that this is something the public is demanding. If so, why the delay in implementing the rule? And why is the automobile industry fighting back so hard? It appears that there is no objection to back-up cameras, just the nuances of the camera. From USA Today:

It's unclear exactly why the delay, but Drive On knows there has been some disagreement on how long it should take for the backup camera image to pop up on the viewing screen after the driver shifts into reverse. NHTSA wanted no longer than two seconds; some automakers argued for three seconds.

Under the extension, we now must wait to about April 13, 2012, the new deadline requested by the National Highway Traffic Safety Administration (NHTSA). That is when the NHTSA wants to finalize the collection of comments on the rule.

A public hearing has been set for March 23 from 9 a.m. to 3 p.m. at the media center at the Department of Transportation West Building, 1200 New Jersey Ave., SE, Washington, D.C., 20590.

Mandatory Back-up Cameras: Worth the Cost?

March 6, 2012

Backup Camera.jpgI am fortunate that I've never had to litigate a case involving a driver who backed up into a child or a person. Statistically, about 16,000 of these accidents happen every year, with about 300 deaths. The drivers are most often (70%) the parents or family members of children who are injured.

There have been proposals since at least 2008 to require all cars to feature backup cameras. Many thought the rule on rear visibility standards was going to pass this year, but it has been delayed once again. The automobile wants lawmakers to consider other alternatives.

One proponent likens backup cameras to airbags--prevailing wisdom was that the public didn't want them, but they did. Now, we accept that the cost of an airbag is built into the car, and if it increases the price a bit, that's the price for safety. Backup cameras could increase the costs of cars by $200.

To some, the question is a cost-benefit analysis:

An auto alliance presentation noted that the cost of the regulation per life saved is $11 million under the rear visibility rule, compared with $9.8 million per life saved under a roof strength regulation and less than $4 million for side impact regulations.
So, what's a life worth? We actually know the answer to that. In Maryland, the legislature has decided the value of a life by setting the "cap" on damages, including wrongful death. For 2012, a life (in a non-medical malpractice situation) is worth $1,887,500. That doesn't include "economic" damages (lost wages, medical expenses, etc.). It's purely the value of the life and the value of the pain and suffering borne by the surviving beneficiaries. If those numbers are correct (my opinion? They're not), then we shouldn't get back-up cameras because they are too costly. A single Maryland child is not worth $11 million.

Tell that to her mom and dad.

For More Information

  • Stories of children killed because they were in a vehicle's blindzone
  • 60 for Safety: Blindzone Awareness Initiative
  • On a lawyer feelgood note (we're not all bad!), this fall hundreds of lawyers will pledge to give talks to hundreds of organizations in the U.S. and Canada to help increase blindzone awareness. For more information on that initiative, or to help out, click here

Bus and Taxi Accidents in Maryland

February 24, 2012

Maryland Bus Accident.pngI've learned to not take things for granted at trial. I had a case once where a witness was going to testify about something, the defense lawyer objected, and the judge sustained (agreed with) that objection. I explained the the judge the objection was improper, that the evidence was allowed under Maryland law, and that my client should have been allowed to testify. He didn't even spend a second reconsidering, but denied my request.

[It's not important for the purpose of the story, but the judge ruled that the witness could not testify about what she heard an employee of the defendant corporation say immediately after an accident on company property. The judge ruled that the employee was not the corporation, so the statement did not qualify as an admission by party-opponent. Therefore, it was hearsay and forbidden. This is dead-wrong on the law].

So, I've learned that judges are people, too. They don't always have all of the answers. It must be hard to be a judge--they have to know a little about the law for criminal cases, family/domestic cases, and civil cases. Of course they will get things wrong from time-to-time. I was caught off-guard because I thought the evidence rule was a basic one that everyone knew. I never made that mistake again.

When I go into court, now I prepare Trial Memoranda to give to the judge, with copies of caselaw, to make sure that the judge is aware of the law on any issue on which the outcome could hinge (and to make sure the record is clear if I need to appeal the case). A few weeks ago I had one such case. Here's the story.

My client was stepping onto a bus. The bus driver refused to lower the bus (they have pneumatic mechanisms to help injured or disabled people get on so the steps are not so high). It was icy out, and my client was afraid of falling. After asking the driver twice, and being twice refused, my client attempted to board the bus and fell.

In Maryland, taxis and buses are known as "common carriers." Common carriers have a higher duty of care than the rest of us. I needed the judge to know that, in this case, the bus driver had a higher duty of care toward my client. I couldn't assume that the judge knew it, particularly where my client had not even completely boarded the bus. So I submitted a trial memoranda, which the judge read while on the bench. In his ruling, he specifically noted that he also read one of the cases I cited in the memoranda, and that I was correct. Maybe he would have gotten the law right on his own--he's a smart judge. But maybe not, and I didn't want to take the chance.

If you are interested, here are the main points of the memo. When you go into trial, make sure your lawyer is prepared for the unexpected--ask what research he or she is going to give the judge.

Common Carriers Have A Heightened Duty To Provide Safe Entrance for Their Passengers.

It is axiomatic that common carriers, including commercial buses, taxi cabs and trains, have a heightened duty to their passengers. A common carrier: "...must employ the utmost care and diligence which human foresight can use. It is required to use the utmost degree of care, skill, and diligence in everything that concerns its passengers' transportation but is extended further and requires the carrier to provide a safe means to enter and exit the bus." Leatherwood Motor Coach Tours Corp. v. Nathan, 84 Md.App. 370, 376 (1990) (emphasis added).

This duty applies when vehicle is in motion, but it also applies when the vehicle is stopped. A common carrier "owe[s] a duty to be watchful and alert at all times." Jacobson v. Julian, 246 Md. 549, 559 (1967).

Maryland courts have defined passengers, to whom this heightened duty of care is owed: "[a] person becomes a passenger when, with the implied consent of the carrier, the person enters upon the bus, but actual entry upon the bus is not necessary to create a relationship of carrier and passenger in which one may become a passenger." Leatherwood, 84 Md.App. at 375-376. Further, "the duty begins when a passenger who has paid his fare or a prospective passenger intending to do so starts to enter upon the conveyance or upon the carrier's station, platform, waiting room, or other facility maintained by the carrier for the passage and convenience of its passengers...." Leatherwood, 84 Md.App. at 379 (emphasis added).

Common carriers that pick up or drop off passengers must ensure that the location selected by the driver is reasonably safe. In Baltimore Transit Co. v. Brooks, the plaintiff alleged that the driver of a trackless trolley stopped directly in front of an isolated patch of sheet ice, which the plaintiff stepped on when exiting the vehicle. 224 Md. 242 (1961). The plaintiff prevailed at trial, and the Court of Appeals agreed that the case was properly submitted to the jury to determine "whether the driver either saw, or in the exercise of the care required of him for his passenger about to leave the vehicle, should have seen the relatively large sheet of ice, and either driven onto it so the plaintiff could have stepped on the dry pavement, or have stopped short of it on the dry street." Baltimore Transit Co., 224 Md. at 245.

Not Fair: Maryland Law Makes You Carry $30,000 Auto Insurance, But You Might Have a Maximum $20,000 Recovery

February 13, 2012

I'm Just a BillIn 2011, the Maryland Legislature decided that the minimum limits for automobile insurance, which were over 35 years old, needed to be increased. The limits were $20,000 per person/$40,000 per occurrence. They were increased to $30,000/$60,000. Not quite a cost-of-living adjustment (one inflation calculator told me that $20,000 in 1972 would be $107,626 in 2011 dollars). But, it's something, anyway.

The goal of the 2011 legislation was further protect Maryland drivers. Healthcare costs and lost wages following a Maryland automobile accident can be high. The increase eases the pain a little bit. The problem with the 2011 change was that it did not include the uninsured division of the Maryland Automobile Insurance Fund (MAIF).

Not only does MAIF insure (the otherwise uninsurable) drivers of Maryland (who are now required to have $30,000/$60,000), but it also provides protection to people who are in accidents with uninsured motorists, when the victims have no other source of insurance. For example, pedestrians hit by uninsured drivers; and people in bus accidents or taxi accidents who are injured in hit-and-run accidents. In order to pay those claims, MAIF collects a little bit of money from other insurance policies. So, a portion of my Allstate insurance premium goes to the MAIF fund.

This year, the Maryland legislature will be considering a bill (House Bill 279, Senate Bill 82) that will raise these MAIF limits to $30,000/$60,000, just like the rest of the automobile insurance requirements. This is a good bill that will serve to further protect Maryland families. I urge you to call or e-mail your legislators (find out who they are here), and ask them to support the increase in coverage.

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.