Tips for Injury Lawyers

Intro to Plaintiff’s Tips

            The Plaintiff’s Tips represent tips published in the Newsletter of the Frederick County Bar Association submitted by Mr. Campen.  Needless to say, the law and information may have changed since their original publication and, accordingly, the information therein should not be used as the basis for an actual cash wager.

Adverse Party – Consider Calling the Adverse Party in Your Case-In-Chief

 

            As plaintiff’s lawyers, we all know we have to work twice as hard as defense attorneys, because we have the burden of proof.  Accordingly, we need to take every opportunity we can to pound home our client’s message to the jury.  A valuable tool in our arsenal is included in CJ § 9-113 that allows an adverse party to be called, and cross-examined, in the plaintiff’s case.  (See also Maryland Rule 5-607, which appears to allow the same for any witness).  By calling an adverse party in your case, you may accomplish two objectives:  1) control of the initial questioning of the defendant, such that he is thrown off the script which has been carefully crafted for him by the defense lawyer; and 2) gain a second opportunity to cross-examine the defendant, if the defense lawyer decides to call his client again in the defendant’s case-in-chief.  The latter may allow you to cover new ground which you overlooked in your case or simply emphasize the favorable points you made in your initial questioning of the defendant. 

            You likely do not want to use this method if the defendant makes a good impression (and will connect better with the jury each time he testifies) or is an experienced witness who takes every opportunity he can to advocate from the stand.

Amnesia In A Death or Serious Injury Case – In A Death or Serious Injury Case Involving Amnesia, Don’t Forget The Plaintiff Is Entitled To A Rebuttable Presumption That He Acted With Due Care As To The Issue Of Contributory Negligence

 

            In a case in which the Plaintiff died as the result of his or her injuries, the Plaintiff is presumed to have been exercising due care when the accident occurred (and entitled to a jury instruction in that regard) in order to overcome the issue of contributory negligence only.  See Young v. Dietzel, 13 Md. App. 159, 164,  282 A.2d 150 (1971)  and the myriad of cases cited therein.

            This presumption has been extended to the case in which the Plaintiff was so seriously injured in the collision that he or she cannot recall the facts surrounding the same.   See Nizer v. Phelps, 252 Md. 185, 249 A.2d 112 (1969).

            The presumption, however, only allows the Plaintiff to overcome the allegation of contributory negligence, absent some evidence supporting the allegation, and is not dispositive of the issue of primary negligence (ie. the Plaintiff doesn’t prevail simply based on the presumption; the presumption only allows him to overcome the issue of his own contributory negligence and get to the jury on the primary issue of whose negligence caused the accident, if anyone’s). 

Assignments – Don’t Forget That An Assignment Survives A Client’s Bankruptcy Filing

 

            Here’s another example of a bad day at the office for a plaintiff’s attorney, as described in Hernandez v. Suburban Hospital, 319 Md. 226, 572 A. 2d 144 (1990).  The client and the lawyer had signed an Authorization and Assignment protecting the Hospital’s charges for treatment and promising to pay the same from settlement of the accident case.  After the Assignment was provided, the client filed for bankruptcy and received a general discharge of all of her debts, including Suburban’s.  After reduction for his fee and costs, the lawyer then disbursed all of the settlement proceeds to the client,  ignoring the Assignment because he believed it had become unenforceable due to the bankruptcy discharge.  Suburban then filed suit against the attorney personally for the $18,499 owing for the client’s treatment.  The Court of Appeals affirmed the trial court’s ruling in the Hospital’s favor, finding that the lawyer was contractually bound by the Assignment he had executed and that its provisions survived the bankruptcy discharge.  So when in doubt, don’t “give out” to the client until you are sure you are on solid footing in terms of paying liens and fulfilling Assignments.  And, if at all possible, avoid providing such Assignments unless your client absolutely cannot afford health care and cannot receive the same, absent the provision of such an Assignment.

Attorney’s Fees – Protect Your Fee If the Client Takes the Case Elsewhere.

 

            If you are ever fired from a case (and, of course, it has never happened to me), make sure to send the appropriate notices to the client, new counsel and the insurers, pursuant to Business and Occupations Article, § 10-501 and Maryland Rule 2-652 or you may find yourself without compensation when the case settles.  If you haven’t jumped through the necessary legal hoops, and strictly abided by the statutes, it is my opinion the new law firm will have no professional, ethical obligation to protect the previous attorney’s fee and expenses.  (Personal, ethical obligations may be a different story).  The new attorney’s professional obligation always runs to his or her client and if the appropriate notices are not binding and the client instructs his or her attorney not to withhold funds to pay the previous lawyers, said lawyers will likely be out of luck.

            Also, remember, if the client can show good cause for discharging you, the prevailing rule is that an attorney cannot recover his/her fee in that scenario. Attorney Grievance Comm’n v. Korotki, 318 Md. 646 (1990). If the discharge was without cause, you get what you earned.

Boulevard Rule vs. Contributory Negligence

            Ever had an adjuster tell you your injured driver, who was on a thoroughfare at the time of the accident and is, by law, the favored driver, cannot claim the Boulevard Rule because he or she was speeding and, therefore, contributorily negligent? Well, tell the adjuster to put it where the sun doesn’t shine (but in more respectful language, of course). The Court of Appeals has repeatedly upheld the Boulevard Rule, holding as follows: The relative rights of travelers on two intersecting roads are not to be held to depend on nice calculations of speed, time and distance, lest the obvious and essential purposes of the Boulevard Rule to accelerate the flow of traffic over the through highway at the permitted speed, without interruption, be frustrated. Harper v. Higgs, 225 Md. 24 (1961). See also Brown v. Ellis, 236 Md. 487 (1964); Dean v. Redmiles, 280 Md. 137 (1977). And exceedingly nice calculation of speed, time and distance would be directly contrary to the often repeated policy of the Boulevard Rule to avoid them and would inevitably conflict with its other frequently declared purpose dto expedite traffic on the through highways. Dunnill v. Bloomberg, 228 Md. 230 (1962). See also Kopitzki v. Boyd, 277 Md. 491 (1976); Barrett v. Nwaba, 65 Md. App. 281 (2005).

Children Now Have a Claim Against Other Family Members Who Negligently Caused Their Injuries to the Full Extent of the Liability Coverage in the Policy

            The following is somewhat old news, but I am somewhat old, so what the hey!  A couple of months back, the legislature finally provided the protection for our children that it should have provided years ago.  As most of us are painfully aware, prior to 2001, insurance companies were allowed to include a “family exclusion” provision in auto policies, making it impossible for a child to recover for injuries negligently caused by another family member.  In 2001, CJ 5-806 was passed, abrogating that doctrine to the extent that insurance companies had to offer the minimum $20,000/40,000 coverage for children.  Recently, the statute was further amended such that auto insurance companies must now offer liability coverage to children, covering the negligence of their parents, to the full extent of the liability coverage purchased.  Accordingly, if your policy has liability coverage of $250,000/500,000, that coverage must be offered to cover your children as well.  However, it is my understanding that the old law may apply until a new policy is issued or renewed, so get on the phone with your agents and make sure you do what is necessary to cancel old and/or renew new policies that will provide the full amount of coverage for your kids.

Chiropractor Can Offer the Same Medical Opinions an M.D. Can

            Don’t forget that, according to the ancient case of O’Dell v. Barrett, 163 Md. 346-47 (1932), which is still good law, a chiropractor can offer expert testimony regarding the same kinds of opinions that any other medical expert can provide (eg. causation, permanency, necessity of medical care and reasonableness of medical bills).  Often the chiropractor has been treating as long as any other doctor in the case and is generally less expensive and more available to appear at trail, than an orthopedist or neurologist.  In addition, they are often great witnesses.  In light of the differences of approach and theories of treatment, however, I would not suggest using both a chiropractor and a medical doctor in the same trial.

 

 

Claims Histories – Obtaining Them

 

            Often, it is prudent for a plaintiff’s lawyer to obtain a claims history regarding his or her client.  This is helpful to ascertain any previous accidents such client may have been involved in and to help jog the client’s memory concerning previous injuries that may have been suffered and may affect the value of the case.  Certainly, you do not want to be surprised by the disclosure of such previous accidents during litigation.  Claims histories can be obtained for a fee from the American Insurance Services Group, 545 Washington Blvd., 22^nd Floor, Jersey City, NJ 07810 (201-469-2000).  You will need to sign up with the company and provide them with a consent form signed by your client.

Collateral Source Rule and Claim for Value of Medical Services

            Don’t forget the collateral source rule in Maryland allows a plaintiff who received medical treatment at a military facility to make a claim for the value of the medical services, even though covered by the military. See Plank v. Sommers, 203 Md. 552 (1954). It will take some review and preparation by your medical expert, but it is certainly worth it if treatment was extensive.

Collateral Source Rule – Beware of Opening the Door to Piercing the Collateral Source Rule

            As we all know, the Collateral Source Rule is one of the few plaintiff-friendly rules in Maryland holding that payment of the plaintiff’s medical bills by a collateral source such as health insurance is inadmissible at trial and not relevant to the issues.  However, in the recently decided case of Abrishamian v. Barbely, No. 1370, September Term, 2008, decided October 5, 2009, the Court of Special Appeals ruled that evidence of the plaintiff’s insurance coverage was admissible as an exception to the Collateral Source Rule to rebut the plaintiff’s claim that he did not have the financial ability to get all the treatment he needed to mitigate his damages.  The CSA upheld the jury’s award of only 1/2 of the plaintiff’s medical bills and zero for non-economic losses (which resulted, no doubt, from the jury’s belief the plaintiff was not telling the truth about the extent of his injuries).  So the bottom line, as in every case, is to have the plaintiff tell the entire truth and not try to enhance his or her pain and suffering.  Today’s juries will figure that tactic out in a heartbeat.  Thus, it is much better to downplay a weakness in the case than to appear to be overreaching and dishonest.  There is another side to this coin, however.  I would think that if the defense is attempting to argue that the plaintiff failed to mitigate his or her damages by failing to get all of the treatment allegedly necessary, the plaintiff would then be free to argue that he or she either did not have insurance to cover the treatment or did not have adequate insurance to cover the bills.   

Collateral Source Rule – Paid Leave Pursuant to the Collateral Source Rule

The one pro-plaintiff’s rule that is still strong in Maryland is the collateral source rule.  Remember that paid leave for a vacation or other time off from work that cannot be used due to an injury caused by a third party can still be claimed in the third-party claim as an expense pursuant to the collateral source rule, the justification being that the leave time could have been used absent the injury and was wasted due to the injury.  See Gillespie-Linton, v. Miles, 58 Md. App. 484 (1984) in which the plaintiff received paid leave for a honeymoon he could not go on because of his injuries but was allowed to claim wage loss for that period. 

Collateral Source Rule – Paid Leave for A Vacation That Cannot Be Taken Due To An Injury Is Still Compensable Pursuant To The Collateral Source Rule

 

The one pro-plaintiff’s rule that is still strong in Maryland is the collateral source rule.  Remember that paid leave for a vacation or other time off from work that cannot be used due to an injury caused by a third party can still be claimed in the third party claim as an expense pursuant to the collateral source rule, the justification being that the leave time could have been used absent the injury and was wasted due to the injury.  See Gillespie-Linton, v. Miles, 58 Md. App. 484 (1984) in which the plaintiff received paid leave for a honeymoon he could not go on because of his injuries, but was allowed to claim wage loss for that period. 

Contingent Fee Agreements No Longer Need To Be Approved By The Orphan’s Court If Certain Conditions Are Met

 

            Contingent fees charged to estates do not require approval by the Orphan’s Court provided:  1) the fee agreement is filed with the Register of Wills; and 2) the attorney who handled or is handling the contingent matter files with each estate Account a statement that the scope of his or her representation does not extend to administration of the estate. 

Contributory Negligence Must Be the Cause of the Collision to Defeat the Plaintiff’s Claim

 

            Remember that even if there is contributory negligence alleged on your client’s part, that contributory negligence must have been the cause of the collision and the plaintiff’s injuries to defeat his or her claim.  Just as it is the Plaintiff’s burden to prove the Defendant was negligent and that such negligence caused the collision and his or her injuries, once the Defendant raises a contributory negligence claim, the burden of proof shifts to the Defendant on both the issue of whether the Plaintiff was negligent and whether that negligence caused the collision.  For instance, if a Defendant ran a redlight and T-boned your client but it can be proven your client was texting at the time of the collision, does your client’s contributory negligence defeat his or her claim. NO! The Defendant’s running of the red light caused the collision and resulting injuries and would have done so even if the Plaintiff hadn’t been on his cell phone.  The Plaintiff’s contrib did not cause the collision and, thus, does not defeat his or her claim.

Defense Medical Exam Should Be Limited To An Examination Only!

            Regarding Defense Medical Exams (sometimes know as “Independent” Medical Exams), remember that allowing your client to discuss the facts giving rise to the accident, or his or her medical history, with the defense physician is much like allowing a criminal defense suspect to give a statement to a police officer – it will never, ever, ever, ever inure to the benefit of your client. Pursuant to Maryland Rule 2-423, the defense doctor (a.k.a the defendant’s professional advocate) has the right to physically examine your client, not to depose him or her. Strongly consider sending an RN or other medical professional with your client to record the actions of the physician in examining your client. If the defense objects, force it to obtain a court order to allow the IME and ask the court to limit the scope of the exam (in terms of duration and types of questions to be asked) and to require the physician to provide his or her handwritten notes, as well as financials from forensic work, as a condition of the exam.

            In addition, Rule 2-423 does not allow for “interviews” by defense experts, such as vocational rehabilitation specialists and economists. The defense has plenty of opportunities for discovery. Don’t sell your client out in the name of “professional courtesy” by agreeing to give more input to defense experts than is required by way of interrogatories, depositions and document productions.

District Court Jurisdiction and Filing of 10-104 Cases

          CJ §4-401 has been amended, to take effect on October 1, 2007, to increase the District Court monetary jurisdiction in contract and tort cases to $30,000 (up from $25,000). Accordingly, if you have a case in which you intend to rely upon CJ §10-104 to admit medical records and bills, without the presence of a physician, and the case is believed to be worth $30,000, it is recommended the case be filed after October 1 (assuming, of course, waiting will not run afoul of the statute of limitations).

Driver as Agent of Owner – Both in Maryland and D.C. the law presumes the driver of a vehicle is the agent of the vehicle’s owner.

 

            When first taking a case and attempting to determine liability, remember that you can start with the proposition that the driver of a vehicle is the agent of the vehicle’s owner.  This is of great assistance if you have been able to ascertain the owner of the vehicle involved, but not the exact identity of the driver.

            Said proposition is included in Maryland case law.  See Toscano v Spriggs, 343 Md. 320, 325-26 (1996) for starters. In D.C. it is codified in the Owners Financial Responsibility Act, D. C. Code 50-1301.08.

            This often happens in hit-and-run scenarios when someone gets the tag number of the vehicle driven by the at-fault driver but said driver flees the scene.  Thus, if you can’t identify the driver, you can notify the owner of the vehicle and his or her insurer of the claim.  And, ultimately, if necessary, sue the owner and discovery will generally identify the driver. 

Experts – Eliciting Rebuttal Testimony from a Medical Expert on Direct Examination

 

            In light of the escalating cost of paying for an expert’s time to testify, the question often arises whether or not it is permissible to elicit testimony from a treating doctor in the plaintiff’s case-in-chief which rebuts the methods and opinions contained in the defense physician’s IME report or deposition testimony.  The defense, of course, will take the position that such is not permissible rebuttal testimony because the defense doc has not yet testified.  (The main objective of the defense, of course, is to hope that the plaintiff will not be able to pay his or her expert to come back a second time, after the IME doctor has testified, to rebut the defense doctor’s testimony).  In Fireman’s Fund v. Bragg, 75 Md. App. 709, 548 A.2d 151 (1988), the Court of Special Appeals upheld the trial court’s allowance of such out-of-order testimony, ruling that the defense expert was given ample opportunity during the defendant’s case-in-chief to rehabilitate himself from the attending physician’s attack on his findings and that such a ruling would not be the basis for a reversal, absent a finding that the ruling was an abuse of discretion and resulted in clear prejudice to the defendant.  (The lead case on rebuttal witnesses in general is Riffey v. Tonder, 36 Md. App. 633 (1977)).

Expert Communications – Keep Written Communication With Experts To A Minimum

            Remember that anything you send an expert is discoverable. Accordingly, keep your correspondence to a minimum and follow the same rules you would at trial – don’t ask any questions, in writing, to which you do not know the answer that your expert will give. Those answers should be ascertained orally before any reports are obtained. Also, minimize the written reports from your experts, as they will simply be used by the defense as a springboard to further discovery and a vehicle for cross-examination. The defense generally has no right to written reports from experts (aside from attending, health care providers) and should be given no unnecessary ammunition. Finally, don’t forget to get all the adverse expert witness’ information, including correspondence.

Experts Impeachment – Maryland State Board of Physicians Records Are Inadmissible To Impeach A Medical Expert

            When faced with either a defense discovery request regarding a physician’s records with the Maryland State Board of Physicians, or an attempt during a deposition or at trial to impeach a medical expert with such records, “Just Say No”!   Md. Health Occupations Code Ann. §14-410 (2012) expressly states:

            (a) Records of Board not discoverable or admissible – In general – Except by the express stipulation and consent of all parties to a proceeding before the Board or any of its investigatory bodies, in a civil or criminal action:

            (1)  The proceedings, records, or files of the Board or any of its investigatory bodies are not discoverable and are not admissible in evidence; and

            (2)  Any order passed by the Board is not admissible.

The only exception is regarding a civil complaint that is actually before the Board itself.

Expert Testimony is Not Necessary to Prove Pain and Suffering

            While we need expert testimony for a lot of things, it is not required to establish the causal relation between trauma experienced in an accident where the causal connection to the injury is obvious.  See Vroom v. Anne Arundel Gas Co., 262 Md. 657 (1971); Wilhelm v. State Traffic Safety Commission, 230 Md. 91 (1962).

 

Facebook Posts – Beware of Your Client’s Facebook Posts

            Facebook, of course, can be a powerful tool in the Plaintiff’s arsenal.  For service of process, we recently discovered the location of a Defendant in a significant injury case who was a college student at the time he caused the collision and had moved several times since then.  We found him because he had friended one of Ms. Manganaro’s personal FB friends and discussed his new job as a stockbroker and his new company’s location.  Bam!  Gotcha.

            However, it can also be exceedingly harmful to your client’s case.  If your client has been injured and claims it is difficult to participate in, for instance, hiking to the same extent he could before the collision, but posts photos of his recent camping adventures on his FB page, those photos will doubtless be discovered by a diligent defense firm and used against him (even if it was only a one-time event and he was in significant pain while participating).  Thus, when initially taking a case, remind your clients of that fact and discourage any FB posts describing any physical or vacation activities they have been involved in subsequent to the collision.  Those can be cherry-picked by the defense and used to great advantage against your client.

Finding the Missing Defendant

 

            If you are having difficulty locating a missing defendant, don’t forget the provisions of CJ § 6-311 which mandate that the defendant’s insurance company (generally identified in the police report) must provide its insured’s last known home and business addresses upon written request and certification: 1) that the defendant had applicable insurance coverage at the time of the accident; 2) that the plaintiff has made good faith efforts to locate the defendant (description to be provided); and 3) that the defendant is evading service or his whereabouts are unknown to the plaintiff.  A copy of the certification must be filed with the Clerk in the county where the action is pending and the insurance company must be served in accordance with the Maryland Rules.

Government Tort Claims Allegations – In a Case Involving a Local Tort Claims Act, Be Careful To Expressly Allege Compliance With Statutory Notice Provisions

 

            In Hansen v. City of Laurel, 193 Md. 80, 996 A.2d 882 (2010), the Court of Special Appeals found (among other things) that the failure of the Plaintiff to allege in his Complaint that he had complied with the notice provisions of the Local Government Tort Claims Act (CJ 5-304) was fatal to his cause of action and upheld the trial court’s granting of the City’s motion to dismiss.

            Thus, in all tort claim act cases, first be exceedingly careful you initially comply with the notice provisions in each statute, and; second, allege such compliance up-front in the Complaint.   At a minimum, the Complaint should state that “The Plaintiff asserts he/she has complied with all conditions precedent to the filing of this action” and should attach as Exhibits all notices given to the government body and the applicable return receipts proving service of the notices were made.

 

Government Tort Claims Notices – When In Doubt Regarding Municipal Notices, Use the Shot Gun Approach

            Often we are faced with a client who reports sustaining an injury he or she believes was caused by the negligence of a municipality (whether it be a slip and fall on  a municipal property, an injury in a government owned vehicle or a beating by a local law enforcement officer).   Unfortunately, many cannot recall what municipality is actually involved, ie. whether City, County or State.  In the case of Halloran v. Montgomery County Dept. of Public Works, (a reported opinion in the Court of Special Appeals, Docket No. 219, Term 2008; not yet published, but likely to be included in the 185 Md. App. volume), the plaintiff sustained injuries when she fell due to an alleged defect in the roadway.  Four days later, she sent a letter to the County Department of Public Works, specifically indicating the date, time and precise location of the incident, as well as a description, and photographs, of her injuries.  The Department of Public Works acknowledged receipt of her letter but referred her to the Washington Gas Light Company.  Ultimately, however, Montgomery County was found to have been the proper defendant.  Because she had failed to comply with CJ §5-304 and had not given notice to the County Commissioner, County Council or the County Executive within 180 days of her injury, the CSA upheld the trial judge’s granting of summary judgment to Montgomery County, thereby completely defeating her action. 

            When handling a case of this nature, it is best to use the shot gun approach and notify any and every municipality that may be liable for the client’s injuries as quickly as possible.  CJ §§ 5-303 and 5-304 govern claims against cities and counties, and require notice within 180 days of the injury, while the State Government Article, § 12-106 governs claims against Maryland and requires notice within one (1) year.

            Needless to say, if the client is outside the timeframe for giving notice, it is best not to take the case unless there are catastrophic injuries involved.  While CJ §5-304 (d) provides a possible waiver of the notice requirement unless the defendant can affirmatively show that its defense has been prejudiced by the lack of the required notice, the plaintiff must still file a motion and establish good cause for the court to entertain the suit.  In the Halloran case, the CSA found that such good cause had not been shown because, within 180 days of her injuries, the plaintiff was aware Montgomery County was a potential defendant and had engaged an attorney during that time, but failed to provide the required notice.  Accordingly, it found the trial court judge had not abused his discretion by ruling the County had not waived its defense.

“Gross Negligence” Is Still Important

            Many of us have been frustrated when we have represented clients who were injured by a drunk driver but that fact was suppressed at trial because the judge felt compelled to rule that the defendant’s intoxication was irrelevant (its inflammatory nature outweighing its probable value). However, while gross negligence is not a basis for punitive damages in Maryland, it should not be forgotten as a valuable tool in the Plaintiff’s arsenal. The Court of Appeals, in Soba v. Darling, 72 Md App. 487, 531 A.2d 696 (1987) is still good law and holds that contributory negligence is not a defense to gross negligence. Accordingly, while gross negligence is hard to prove, it is not impossible and may be particularly helpful in cases involving a drunken defendant. It certainly should be helpful in getting drinking and driving before a jury.

Injuries as the Result of Not Clearing Ice from the Top of Vehicle

               Is a driver liable for injuries suffered to others as a result of not clearing ice from off the top of his/her car? In most instances, yes. Look to the case Faya v. Almaraz, 329 Md. 435, 449 (1993) which states, “the seriousness of potential harm, as well as its probability, contributes to a duty to prevent it.” (emphasis added by the Court) Additionally, other states have recognized this duty extends to tractor trailers even though it may be harder to remove snow and ice from that vehicle. See Alaska Freight Lines v. Harry, 220 F.2d 272 (9^th Cir. 1955) and Kaminsky v. Hertz Corporation, 288 N.W.2d 426, 429-30.

The duty of tractor trailers to clear snow and ice may also extend to Maryland using Supreme Court case Unites States v. Carroll Towing Co., Inc. 159 F.2d 169, 173 (2^nd Cir. 1947). In that case the Court considered three variables when considering negligence for injuries that occurred when a barge broke loose from its moorings and rammed another ship. Those variables were: 1) the probability that it will break away; 2) the gravity of the resulting injury, if it does; and 3) the burden of adequate precautions. In other words, is it foreseeable that a devastating car crash could occur because a tractor trailer didn’t clear snow or ice off of the vehicle? Yes! And if a client comes into your office with injuries resulting because another person didn’t snow or ice off of their car (or potentially any other type of debris) that person could certainly have a viable claim.

Injuries to Other Drivers or Passengers are Irrelevant.

 

            Be prepared for the defense argument or intimation (through cross-examination) that your client could not have been seriously injured in the auto accident because neither the defendant, nor the other drivers/passengers were injured.  Clearly, this is not relevant because each person’s bodily structure is completely difference and the position of each driver and passenger, when the forces are applied at impact, are entirely distinct.  The defense should not be able to have it both ways.  Certainly, it would object strenuously if the plaintiff were to attempt to use the injuries to others involved in the accident to support the plaintiff’s claim that he or she was injured in the accident.  So be ready to shut this argument down before trial by filing a Motion In Limine and be ready to object again when, and if, the subject comes up during cross-examination by the defense.  (Failure to object during trial, despite the ruling on the Motion In Limine, will fail to preserve the issue for appeal).

Insurance Coverage – Methods To Ensure There Is No Additional Insurance Coverage

            We have all had cases (although we could always use more) in which alleged policy limits have been offered by the defendant’s insurer.  The issue then arises as to whether or not there are other policies out there that may afford additional coverage to the defendant on behalf of your client.  First, at least as of a couple of years ago, MEA Investigations (www.meainvestigations.com) was offering a service in which they would look for additional insurance and not charge a fee unless they found something.  Second, at the very least, you need to procure both:  1) a written statement from the insurer that the defendant has no other insurance with it that will cover you client’s injuries and; 2) an Affidavit from the defendant himself indicating that he has no other liability policies or umbrella policies that will cover the incident and that he was not on the job or driving for his employer at the time of the accident (which could expose his employer to liability).  Third, if the case involves serious injuries, you may want to hire an investigator to do an asset search and/or ask the insurer to have the defendant provide you with a financial statement, signed under oath, disclosing his assets.  Finally, don’t forget for pedestrian or slip-and-fall cases that there may be PIP or BI policies that will provide coverage in addition to the liability policies. 

Interrogatory Asking for Work Product – Object, and Let the Insurance Company Make

Its Own Argument

            Have you ever encountered an Interrogatory asking you to disclose all standards, laws, and articles you or your expert will be relying upon at trial? For instance, let’s say you have a case in which there was a rear end collision with minimal damage to the vehicles. You are, potentially, going to have your expert discuss articles explaining minimal damage does not mean minimal injury.

            You do not need to provide these articles to the defense as they are attorney work product, and readily available to the Defense since they are published articles. It is important to object to Interrogatories like these, because there is no reason to give your entire strategy away. You did the work to find the articles your expert will be relying upon. The insurance company should take their own time to do the research to make their arguments. If the truth is a person cannot be badly injured in a minor auto accident (which we all know is not true), then they should find the information to back up that statement.

Interrogatories – Using Standard Form Interrogatories

            Many of us seasoned (translated “old as dirt”) attorneys, as well as rookies, forget that the Maryland Rules Committee has generously provided us with form interrogatories for various kinds of cases, including ones for use in personal injury, motor vehicle, product liability and medical malpractice cases.  They are located at the end of Maryland Rule 2-434 and their use is helpful in that, because they are Standard Interrogatories, their inclusion of multiple parts should not be objectionable.  Of particular interest these days, take a look at Form No. 7 – Motor Vehicle Tort Interrogatories, No 26, which inquires into information about whether or not there were any electronic devices capable of two-way voice, text, data or image transmission in the vehicle at the time of the accident (a great way to find out if the driver was distracted and to springboard to subpoenaing information to determine if the driver was on a cell phone or texting at the time of the collision).

Last Clear Chance

            Don’t forget this little-used doctrine in assessing your cases.  In the land of “contrib”, it may breathe life into some of the tougher liability claims.  A couple of years ago, I used it in a Montgomery County case in which it was alleged my client was contributorily negligent because he had been at a party and gotten into a car with a driver whom he should have known had been drinking and might be impaired.  The evidence showed that when the driver began to drive erratically, my client demanded that the driver stop and let him out of the car.  The driver refused and ultimately rolled the vehicle.  The jury found contrib, but rendered a plaintiff’s verdict after asking for further instruction on “last clear chance” doctrine and finding in the Plaintiff’s favor on that issue.  However, see Nationwide v. Anderson, a recently decided CSA opinion, to review the elements of the doctrine.

Lend Your Vehicle At Your Own Risk

            Here is every parent’s nightmare.  You give your son permission to drive your vehicle.  Because he has our permission, he is a covered, insured driver under your ato insurance policy.  He lends the vehicle to a friend who gets in an accident.  Guess what?  Now there is no coverage.  See Liberty Mutual Insurance Co. v. Maryland Automobile Insurance Fund, 15 Md. App. 604 (2004).  So, needless to say, be exceedingly diligent when lending your vehicle to anyone and make sure they understand they are the only driver authorized to drive the vehicle.

Locating a Driver/Defendant

 

            How often have all of us had a prospective client come to an initial interview with incomplete information regarding the at-fault driver who caused the collision in which they were injured.  We have all been in a situation in which a client procured the tag # and insurance information of the at-fault driver at the scene of the collision but forgot to procure the driver’s identity or contact information.  From the tag #, the identity of the owner of the vehicle can be identified.  If the insurance company refuses to give you the name of the insured, threaten to sue – or sue – the owner.  In Maryland there is a rebuttable presumption that the driver is the agent of the owner.  See Toscano v. Spriggs, 343 Md. 320, 325-26 (1996).  Once suit is filed against the owner, you can procure the identity of the proper defendant, ie. the driver, in discovery and amend your Complaint accordingly.

            In addition, while I find the implications of the following profoundly disturbing on a personal level, Google has now implemented a new feature in which one can type a phone number onto its search bar and procure the address of the person with the matching phone number.  Once procuring the address, or if you only have an address, you can then type the address onto the search line, hit “Search Maps”, and procure directions to the person’s residence.  Needless to say, this will be a useful tool in the hands of ethical Plaintiff’s attorneys.  (Not such a great thought in the hands of child predators, thieves and the like).

Mediation Settlement Agreement Need To Be In Writing

 

            In Erie Ins. Exch. v. Estate of Jeanne R. Reeside, et al., Case No. 2941, Sept. Term 2009 (just filed on September 1, 2011), the Plaintiffs alleged WSSC sewage pipes backed up and caused raw sewage to flood the Plaintiffs’ basement, causing damage to personal property.  Plaintiffs brought suit against WSSC and their homeowner’s insurer, Erie.

            For whatever reason, the Plaintiffs and WSSC went to mediation without Erie being present.  At mediation, WSSC made a monetary offer which was orally accepted by the Plaintiffs.  However, when WSSC sent Plaintiffs’ counsel a proposed Settlement Agreement, it was rejected because it included either a release of Erie or a provision that the Plaintiffs would indemnify WSSC if Erie successfully cross-claimed against WSSC.

Eventually, the Plaintiffs refused to sign the Settlement Agreement and had the Court reinstate the case on the trial docket.

            Erie then filed a motion to enforce the settlement agreement, claiming it had been a party to the contemplated settlement amount offered by WSSC and should be dismissed from the case. The Court of Special Appeals agreed with the trial judge that there had been no binding settlement agreement reached because nothing had been memorialized in writing at the end of mediation and, therefore, it was unclear what material terms had been reached.

            Accordingly, be careful to get those agreements reached in mediation memorialized in writing, particularly if there are multiple parties or any reservations about signing a Release that includes indemnification language (which is now standard in most insurer’s form Releases).  It will be well worth the extra time and effort at mediation.

Medical Records – Medical Care Provider’s Response Time and Copying Costs Regarding Medical Records

            Governed by Maryland Health General Code Ann. §4-304(a), 21 business days is what is considered the outside limit of a “timely” return of copies of medical records once a request has been placed.  Md. Health General Code Ann. §4-309 (a) states:  “If a health care provider knowingly refuses to disclose a medical record within a reasonable time and no more than 21 working days after the date a person in interest requests the disclosure, the health care provider is liable for actual damages.”

            Both the Maryland Code and HIPPA allow health care providers to charge patients a fee for copying medical records.  See Md. Health General Code Ann. §4-304(c).  The charges are adjusted annually for inflation in accordance with the Consumer Price Index.  Currently, the fee for copying my not exceed sixty five cents ($0.65) per page, plus any actual costs for postage and handling.

            A preparation fee is also allowed, but only if the records are requested by someone other than the patient.  This preparation fee may not exceed $19.70.  HIPPA prohibits the health care provider from charging preparation fees for records provided directly to a patient.  To avoid confusion and excess charges, you may wish to have the medical records requested by the client/patient, with a note from him or her to the health care provider that the copies of the records should be forwarded to their attorney instead of their home address.

            The authorized maximum fees do not apply to copies of x-rays and similar films.

            Under Maryland Health General Code Ann. §§4-304(d) and 4-309, so long as a health care provider is charging their fees properly, they have every right to withhold copying and sending copies of the records until their fees are paid.

Medical Records – Obtaining Medical Records from Uncooperative Doc

            It is hard to believe, but we are often still faced with the doctor or health care provider who refuses to send us a copy of our client’s medical records unless the client’s bill is paid, in full, or we provide an Assignment against the settlement proceeds of the case. Practically speaking, we may be stuck with providing the Assignment, particularly if the client is still treating with the physician or we will need the health care provider as an expert in the case. However, legally, § 4-309(b) of the Health-General Article specifically states: “A health care provider may not refuse to disclose a medical record on the request of a person in interest because of the failure of the person in interest to pay for health care rendered by the health care provider.” And, of course, an Assignment is an agreement to pay for heath care. In fact, such a refusal is a misdemeanor punishable by a $1,000 fine for a first offense, and a $5,000 fine for each subsequent violation. So the next time you face this problem, perhaps faxing of a copy of the statute to the doc will resolve things.  

Medicare Liens – Procuring Action on Resolving Them

 

            Have you been faced with the aggravation of attempting to settle an accident case involving one of those annoying super Medicare liens?  Often, it takes months to find someone who actually has the authority to negotiate a reduction in the amount of the lien and the courtesy to call you back.  Needless to say, this delay causes a delay in the ability to settle the case and, at times, makes it impossible to settle the case without going to trial.  Try contacting your Congressman’s office.  Each member of Congress generally has a person who deals with Medicare issues on his or her staff.  If you contact that person and provide him or her with specific information, they are very helpful in getting the attention of personnel at Medicare who, after a call from a Congressman’s office, suddenly become responsive and cooperative.

Medicare Liens and How to Deal with Them

Medicare liens, of course, are “super-liens” which must be protected by the attorney in each accident case whether or not the client or lawyer have been formally notified of the lien.  It is up to the lawyer to determine the amount of the lien and to protect it from the settlement of the case or he or she can be personally liable to pay the lien.   This can be exceedingly annoying not only because the lien can be substantial, but  because it takes so much time to ascertain the amount of each lien.

You can procure forms at www.msprc.info.  To determine the amount, one needs to request a “conditional payment letter” which shows the amount Medicare claims it has paid for treatment of the client.  For accident claims the request should be sent to:  MSPRC Auto/Liability at PO Box 33828, Detroit, MI 48232-5828 and for Workers’ Comp claims the request should be addressed to Workers’ Compensation MSP Recovery, MSPRC WC, PO Box 33831, Detroit, MI 48232-5831.  Medicare claims it will provide the letter within 65 days of receipt of the request and will also post the letter to your client’s “MyMSP” tab at the www.mymedicare.gov website, if the client has established such a tab.

If there is anything good about Medicare liens it is that the client is entitled to an automatic reduction for attorney’s fees and costs.  The formula is:  attorney’s fees + costs = total procurement cost (TPC).  TPC divided by the settlement amount = the % of reduction of the Medicare lien.  Once the case is settled, a “final settlement detail document” should be submitted to Medicare (at the Auto/Liability address above) to make certain of the exact amount of the reduced lien to be paid.

MTLA Membership

 

            If any of you are not presently members of the Maryland Trial Lawyers’ Association, join now.  For relatively minimal expense per year, you can join and take part in the MTLA online list serve.  The list serve allows you to ask questions and seek guidance regarding experts from some of the best trial lawyers in Maryland (and the nation, for that matter).  Where do you think I get all of these great tips from?  The service is invaluable and can save a ton of time in legal research, because in most cases other members will be able to immediately cite a case that will address your question.

 

PIP or BI Coverage May Be Available in Addition to Liability Coverage

If you are handling a pedestrian or homeowner’s liability claim in Maryland, do not overlook the possibility that there may be PIP or Bodily Injury coverage available to your client, in addition to the liability coverage.  (Kudos to Judge Dwyer for reminding me of that fact in a recent case involving a court-approved settlement for a juvenile, in which I had failed to follow up on the issue due to my concern about the following issue; DOH!).  However, be aware that in D.C., you must make an election, within 60 days of the accident, as to whether or not your client wishes to pursue a PIP claim or liability claim.  (See DC Code, § 31-2405).  Filing of the PIP forms, as you would likely do as a matter of course in Maryland, will be seen as an election and bar you from pursuing what could be a much larger liability case (mega, notify your carrier, DOH!).

 

PIP Deadlines – Don’t Let Adjusters Confuse the Deadline for Filing a PIP Claim with the Deadline for Submitting Medical Bills to be Paid by the PIP Carrier

 

            Often, we will have PIP carriers refuse to pay client’s medical bills because they claim the bills were not submitted within one (1) year of the date of the collision.  WRONG!

            Maryland Insurance Article §19-508 sets the deadline for filing a PIP claim at one (1) year from the date of the incident.  But Maryland Insurance Article §19-505 sets the deadline for submitting bills in a PIP claim at three (3) years from the date of the incident. 

            A PIP carrier has no basis to refuse to pay medical bills simply because they are not submitted within one (1) year of the date of the incident. 

Whether or not they have a right to refuse to pay bills based on the allegation they are unrelated to the incident or are excessive are other issues entirely.

 

PIP Or Medpay Proceeds Provided Under An Out-Of-State Insurance Policy May Include Subrogation Rights

 

            Most of us are very happy that we generally do not have to deal with subrogation claims regarding PIP or Medpay payments because by Maryland statute Maryland insurers do not have the right to pursue such claims.  However, be careful to check the state of origin of the particular insurance policy in each case.  If the policy was issued out-of-state and includes subrogation provisions for PIP or Medpay payments, Maryland will generally uphold the law of the place where the first-party insurance contract was made, unless there is some overriding public policy, and allow such claims.  See Allstate v. Hart, 327 Md. 526 (1992).

 

PIP Coverage – An Insurance Company Must Give Notice When It Reduces PIP Coverage

            PIP coverage is so important to personal injury clients, and many of them don’t realize how important covered for one amount, only to find the insurance until they are in their first car accident. As Plaintiff’s attorneys, we are always hoping our clients have that illusive $10,000 policy. Looking at those dec sheets, we cross our fingers, hoping to see a number that may allow our clients to escape those collections calls and perhaps double dip on lost wages and some medical bills.

            So, what happens when a client believes he/she is company has reduced PIP without notice? You can look to Maryland Code § 27-613 of the Insurance Article; and COMAR § 31.08.03.05. Insurance companies cannot reduce coverage without notice. And guess what, they’ve been known to do it. Our firm recently got a communication from a fellow attorney stating State Farm reduced his policy from $10,000 to $5,000 without his permission or notice. Thus, the practice tip here is, ask your clients what they think their coverage is. If you find an insurance company has reduced a client’s policy without notice, hold that company to their previous coverage by way of the laws stated above.  

 

Referring Injury Victims to a Physician

 

            All of our injured clients, either in deposition or at trial, encounter the cynical question by defense counsel as to who referred the client to the treating physician.  The implication, of course, is that if the greedy plaintiff’s lawyer was the referring party, he or she simply made the referral to a hand-chosen physician in order to enhance the case or drive up the medical expenses.  Clearly, the best way to avoid the appearance of subjectivity on the treating physician’s part is for the plaintiff’s lawyer not to be the primary referring party.  Most clients have a family doctor and it is best if the referral comes through normal channels.  However, there is no reason you cannot make suggestions to your client concerning good specialists and have your client request that his or her family doctor refer to one of those specialists.  A suggestion is not a referral, and the referral best comes for another doctor. 

If, however, you have referred a client to a specific physician and that fact is brought out in trial, do not try to explain it away or apologize for it.  Take full responsibility and tell the jury, in no uncertain terms, that you made the referral because you care about the client and it was your ethical obligation to do so.  If any member of the jury panel came to you with an injury as the result of someone else’s negligence, you would do no less for them.  Since the jurors have, no doubt, heard from the doctor at trial, ask them to determine for themselves whether the physician would make things up under oath just to help the plaintiff, who is one of hundreds of patients.  And don’t fail to remind the jury that the defense hand-picked its own IME physician and isn’t making any apologies for relying on his or her opinions.  Certainly, the defense does not want the jurors to apply a double standard when determining whether the testifying physician is objective.

Road Rage Does Not Prevent a Phantom Vehicle Uninsured Motorist Claim

 

During these days of increased stress, often due to traffic delays, the incidents of “road rage” appear to have increased.  So in the unfortunate situation in which your client has been a victim of an intentional tort (such as being intentionally driven off of the road or driven into another vehicle) and the tortfeasor leaves the scene, is your client’s UM coverage available to cover injuries even though they were apparently the result of an intentional tort?  In Harris v. Nationwide Mutual Insurance Company, 117 Md. App. 1, 7-13, cert. denied, 348 Md. 206 (1997), the Court of Special Appeals answered in the affirmative.

Seatbelt Usage – Nonuse of a Seatbelt in Inadmissible

 

            Don’t be lulled into allowing testimony regarding the use of a seatbelt by your injured client, even if you are kind enough to provide that information during discovery.  Transportation Article, § 22-412.3(h) is very clear on the subject:  (1) Failure of an individual to use a seat belt in violation of this section may not: (i) Be considered evidence of negligence; (ii) Be considered evidence of contributory negligence:  (iii) Limit liability of a party or an insurer; or (iv) Diminish recovery for damages arising out of the ownership, maintenance, or operation of a motor vehicle.  Clearly, §(iv) is exceedingly important because a jury may well reduce the amount of its verdict if it finds the plaintiff was not using his or her seatbelt.  So, keep it out of evidence per the express direction of the legislature.

Services to Injured Child Can Be Recovered as a Part of the Liability Claim

            Don’t forget that Maryland law supports the recovery for the “reasonable value” of a parent’s services in caring for an injured minor child.  See County Commissioners of Hartford Count v. Hamilton, 60 Md. 340 (1883).  F.2d 983 (D.C. Cir. 1973), a tort case applying Maryland law because this accident occurred in Maryland and citing the County Commissioners case; and Muenstermann v. United States, 787 F. Supp. 499 (D. Md. 1992).  Proof, however, may be the difficulty, although a properly prepared physician should be able to offer an opinion as to the reasonable value of services in providing daily nursing care to the minor.  Maryland has not yet ruled that a parent’s lost wages in caring for a child are recoverable, although the D.C. Lester court did allow lost wages.  There are states that have ruled both ways, (Schurk v. Christensen, 497 P.2d 937 (Wash. 1972); recoverable; Mancino v. Webb, 274 A.2d 711 (Del. Super. Ct. 1971); not recoverable), with the issue being whether the lost wages of the parent are a “foreseeable” consequence of the negligence.  The CSA has ruled that the parents of a minor child have a right to an action “for consequential damages such as loss of services and expenses resulting from injury to the minor child,” Herbert v. Whittle, 69 Md. App. 273, 295 (1985), cert. den. 309 Md. 49 (1987).  Accordingly, it seems logical that if one injures a minor child, it is entirely foreseeable that his or her parent will have to take time off from work to take the child to the doctor or care for the child at home.  Thus, lost wages are proper consequential damages.  (But watch out!  My Republican and doctor friends will soon be attempting to cap such recovery at minimum wage).  

Settlement Sleazy and Quick – “No Way, Jose!”

            The poor, horribly maimed gentleman, with $120,000 in current medical bills, explains how he was injured by the clear negligence of a second driver who has a $1,000,000 liability policy. Your heart races until he explains that the culpable driver’s insurance adjuster kindly visited him in the hospital the day after the accident and generously agreed to pay him $5,000 for his pain and suffering, explaining that his health insurance company will pay all of his remaining medical bills. He now wonders if he should have taken the check and signed a Release or talked to an attorney first. Dejected, you explain that his case would be worth a great deal of money if only he hadn’t signed the Release. WRONG! You heroically pull out MD. CTS. & JUD. PROC. §5-401.1 and explain that, since the Release was signed within five (5) days of the accident, it is voidable within 60 days. (CJ §5-401 also prohibits the procuring of any release or statement from any hospitalized person within 15 days after accident, making such a release or statement inadmissible and effectively non-existent).

            You then do one of the most satisfying things you have ever done in your career. You send a certified letter to the liability carrier, voiding the Release, along with your copy of the $3,000,000 suit you’ve just filed on behalf of your client, as well as a copy of the letter to the culpable driver (you will be serving with the Complaint) indicating to him that, if you obtain a judgment in excess of his insurance coverage, you will be happy to accept an assignment of his bad faith action against his own insurer (which allows for punitive damages), in lieu of going after his personal assets.

Soft Tissue Should Not Mean Soft Settlement

 

            Insurance adjusters and defense lawyers are fond of denigrating the injuries suffered by a plaintiff as “only soft tissue” injuries. While you won’t get far convincing the adjuster differently, you need to remind a jury that soft tissue injuries include injuries to the heart, lung, liver, kidneys, discs and nerves.  All consist of soft tissue.

Adjusters really mean that you do not have objective findings of injury and, therefore, have less proof to justify a significant settlement or judgment.  Of course, they are unfortunately correct; but remember the following when presenting your “soft tissue” case, either for settlement or at trial:  1) spasm that can be felt by a doctor or physical therapist is an objective finding of injury; 2) simply because an injury doesn’t show up with current imaging technology does not mean there is no injury; it simply means the technology has not developed sufficiently to detect it.  Indeed, not long ago, MRIs were not available to detect herniated discs.  Even most defense doctors will agree that MRIs are not infallible and that they have often found internal damage during surgery that was not seen on a MRI; 3) doctors from all specialties treat patients all of the time based on subjective complaints and will often admit that the clinical complaints of the patient are the most important diagnostic tool available to them; 4) your client is credible, his or her complaints have been consistent (hope, hope!) and there will be equally credible, everyday folks from all walks of the plaintiff’s life who will testify that the plaintiff’s mannerisms and statements have been consistent with pain. 

Whatever you do, don’t ignore #4 and fail to call those folks at trial.  They will typically be on the stand for 5-10 minutes maximum, will be subjected to little or no cross-examination by the defense and may be your most convincing witnesses.

Stacking Liability Policies

            Don’t forget that, while one can’t stack coverage from uninsured/underinsured motorist coverage on top of liability coverage, on can often stack coverage from two or more liability policies.  For instance, if the defendant driver was driving a friend’s vehicle and injured your client, there may be at least two liability policies; one covering the vehicle and one covering the defendant driver which can be stacked for more coverage.  Make certain to obtain all of the insurance policies and determine which is primary and which may be secondary.  Also, be very careful with settlement of such cases.  These are not UM claims in which the Insurance Article allows (and sets fort the procedure for) acceptance of payment of the policy limits of one policy without prejudicing your client’s rights to pursue the coverage in the additional policies.  Without universal agreement among the insurers, the one offering policy limits will require a release of the tortfeasor, which you cannot provide without letting the additional insurer off the hook.  (Footnote:  In Virginia, separate uninsured/underinsured policies can be stacked for maximum coverage).

Storage Costs – Dealing With Outrageous Storage Costs

Many of us have had to deal with the situation in which our client’s vehicle has been towed from the scene of an accident and delay occurs in settling the property damage portion of the case, often because there are liability or coverage issues.  Once those issues are resolved, the storage company claims storage costs have been running at $20.00 plus per day and refuses to release the vehicle to either the client or the insured until the storage costs are paid.  A twofold attack is available in those cases.  First, Commercial Law Article, § 16-207(f)(1), which arguably deals with the storage However, be aware that in D.C., you must make an election, within 60 days of the accident, as to whether or not your client wishes to pursue a PIP claim or liability claim.  company’s sale of a vehicle if the storage cost is not paid for over 30 days, limits the storage cost to $5.00 per day, and a total of $300.00.  Second, the storage company is required to mitigate its damages.  Thus, if the vehicle is a total loss, the company should not be allowed to simply rack up days and months of storage costs without attempting to sell the vehicle to mitigate its damages.

 

Statutes of Limitations – Link to Find Foreign Statutes of Limitations

 

            Often, we are contacted regarding accidents or injuries that occurred out-of-state.  A good resource to quickly ascertain the statute of limitations in each state is http://law.freeadvice.com/resources/personal_injury_statute_of_ limitations.htm which has a link to the relevant statute in each state.  Of course, the safest way to insure the accuracy of the information is to contact an experienced attorney in the state in question.

 

Traffic Light Sequencing  

            Often, we are faced with a situation in which the sequencing of traffic lights are important to liability aspects of the case (eg. did the defendant go through a red light and cause the collision or was there a malfunction of a light at the time of the accident?).  Records can be subpoenaed from the State Highway Administration’s light timing coordinator for each particular intersection.  With the request, you should ask for documents establishing the light timing in advance, and at the time of, the collision and written documentation that there was no malfunction on that date and time.  If you can send that information to defense counsel, he or she may stipulate to the sequencing and the absence of malfunction (and even, perhaps, liability) before trial.  Be careful, however, to procure a stipulation regarding when the lights were what color and in what direction, as opposed a stipulation regarding the authenticity of the sequencing diagrams (which can be confusing).  In the absence of such a clear stipulation, it may be necessary to subpoena a live witness for this issue, since the sequencing diagrams can be hard to understand, particularly when involving multiple lights, turn signals, turn lanes, motion-sensor controlled lights, etc.   

 

Traffic Tickets – Admissible?

 

            After being confused most of my career (what’s new?) about when the results of a traffic ticket case may be admissible in a subsequent plaintiff’s case against the defendant, I think I finally have it straight, thanks to fellow MTLA member Charles Matz.  (Of course, as for all of these tips, the following should be used for guidance only and not as the basis for an actual cash wager): (1) If the defendant pleads guilty in traffic court, the guilty plea is admissible in a subsequent civil case as an admission.  See Miller v. Hall, 161 Md. 111 (1931); (2) If the defendant pays the ticket, that action (and the fact that a citation was issued by the officer) is not admissible because it is treated as a “no contest” plea.  Paying the ticket does not mean the defendant is admitting guilt; he or she may be paying because it is more costly to fight the ticket than to simply pay it.  See Briggeman v. Albert, 322 Md. 133 (1991); (3) If the defendant is tried in traffic court and found guilty, the conviction is not admissible.  While the burden of proof in traffic court is higher than in a civil suit, there is much less at stake  (for example, in terms of a $75.00 traffic ticket versus a $100,000+ civil suit).  Often, in District Court traffic matters, the defendant does not hire counsel, has no right to a jury trial and has limited rights of discovery.  Accordingly, it has been held it would be unfair to allow the conviction to come into evidence in the civil matter.  See Aetna Casualty & Surety Co. v. Kuhl, 296 Md. 446, 450(1983); Eagan v. Calhoun, 347 Md. 72 (1997).

 

Uninsured/Underinsured Coverage Issues Must be Considered at the Outset

 

            Consideration of “uninsured/underinsured” (UIM) issues should begin as soon as one meets a new client, since there is often no way of knowing the extent of liability coverage until suit is filed.  Make sure to procure a copy of the client’s relevant declaration sheet (and double-check the dates of coverage) so that the extent of UIM coverage can be ascertained and the carrier can either be put on notice of a possible claim or named as a party if a suit becomes necessary.  Should there be any question whatsoever of a deficiency in the liability coverage, put the UIM carrier on notice of a possible claim immediately so that the carrier will have an opportunity to protect its interests and not be allowed to walk away from coverage in the future.

Uninsured Motorist Status and Proving the Same

            In a case in which you suspect the liable driver/vehicle is uninsured and you wish to tap into your client’s UM coverage, it is the plaintiff’s burden to prove the uninsured status of the liable driver/vehicle. CJ § 10-921 provides the acceptable means and standards to meet that burden of proof. However, if you have the tag number of the driver, why not let the MVA do the work for you for a change? (It would be about time, after all of those occasions in which you have had to pay numerous visits to the MVA to procure a simple tag or license renewal). Go to the MVA website at www.mva.state.md.us, click on “Forms” and go to the “Insurance Compliance” forms. Download the “Uninsured Motorist Complaint Form” (#ICD-034), fill it out and send it to the MVA. The MVA will do a search and send you its conclusion as to whether or not the vehicle was insured, which letter will comply with § 10-921.

UIM Coverage is for Property Damage, too!

            Many of us Plaintiff’s lawyers who handle car crashes do some legwork for our clients for free, and one of those things is often helping them to settle their property damage claim. This can be one of the must frustrating parts of the struggle to get a client what he/she is owed after a collision. One thing we have come to realize is people really love their cars and are almost always shocked how low the fair market value can be. (which, in Maryland, is all the Plaintiff can recover if his/her vehicle is destroyed aside from a fews days to rent a temporary vehicle) There’s not much we can do about that, but it is important to remember in the cases where there is not enough on the property damage policy of the tortfeasor to cover that UIM and UM covers property damage, too!

            So let’s say the tortfeasor has $15,000 in coverage, your client’s vehicle is totaled and its fair market value is $20,000. Where does that extra $5,000 come from – your client’s UIM/UM coverage. Some insurance companies have been known to insist that coverage is only for uninsured vehicles. Not so. This coverage exists for both uninsured and underinsured vehicles.

Uninsured Motorist Recovery May Not Be Subject to Subrogation Claim

            If you are procuring or have recovered an uninsured/underinsured motorist insurance claim (by way of settlement or judgment) and a private health insurance company asserts a subrogation claim, you may not have to pay the claim, based on Erie v. Curtis in which the Court of Appeals held that HMOs have no right of subrogation because they generally are written to allow subro recovery from 3rd party claims only, as opposed to 1st party claims. Since an uninsured motorist claim is a 1st party claim against your client’s own insurance company, unless the health insurance policy allows for recovery against 1st party claims, it will have no enforceable subrogation claim against UM claims. Make sure to procure a copy of the policy and look at the language before paying the claim.