In the real world, people have damage to their cars that they would just rather not get fixed. They would rather pocket the insurance money and drive around with a big dent in their car.
If there was a liability dispute, it has been hard to pull this off in Maryland because there was no way to get the property damage estimate into evidence unless you brought the guy who did the estimate to trial as a witness (If you actually had the repairs done, you could get the cost in under Maryland Courts and Judicial Proceedings Code Annotated § 10-105).
Now, under a new Maryland law passed last week, you can get a repair estimate into evidence at trial, at least in District Court. Now, a plaintiff can testify that a written vehicle repair estimate, prepared by an insurer or its authorized representative is admissible, without the testimony of the preparer of the estimate, as evidence of the authenticity and the fairness and reasonableness of the estimate that you would otherwise need.
We are proud that John Bratt from our office testified before the Maryland General Assembly and helped get this bill passed. This bill does not help our law firm; we stopped handing state District Court car accident cases some time ago because our firm handles only serious injury and wrongful death accident claims. But, we still fight for the rights of accident victims everywhere.
You can find Maryland Senate Bill 80 here. This bill passed with an amendment limiting it to district court but otherwise I think this is the bill that became law.
Two weeks ago, I wrote a post explaining what car insurance special investigations units (SIU)do and their purpose. Today, I stumbled across a new opinion that went up to the 10th Circuit Court of Appeals. The basis for the lawsuit seems that the plaintiffs were annoyed that Progressive Insurance – undoubtedly an aggressive car insurance company – sent their claim to their special investigations unit.
The case involved the plaintiffs’ claim that someone had stolen and damaged their car. Progressive Insurance referred the claim to its Special Investigations Unit because: (1) the vehicle was for sale at the time of the loss, (2) the column was not compromised, (3) the vehicle was a “gas guzzler” (the claim arose at the height of the gas prices in 2008); and (4) both sets of keys were in the Walkers’ possession at the time of loss.
Progressive Insurance asked the plaintiffs to produce photos from the vacation they were on at the time of the loss. The plaintiffs sent them some pictures which overzealous Progressive thought were altered. Goofy stuff that all got squared away. The Special Investigations Unit concluded the loss was legitimate and paid the claim.
Plaintiffs were not happy and made a federal case out of it, alleging bad faith from Progressive Insurance in paying the claim. It is pretty clear that they did not find a lawyer to make their claim. I guess they were just plain mad and wanted to get back at Progressive.
To establish a first party bad faith claim in Oklahoma and in most jurisdictions (including Maryland), a plaintiff must show that the insurance company’s action were unreasonable under the circumstances, and that the insurer failed to deal fairly and act in good faith in the handling of the claim. Here, Progressive was wrong and admitted they were wrong and paid the claim. But the court found that they were reasonable to investigate further because there were suspicious things about the claim.
There are two take home message here. First, Progressive Insurance is overzealous and difficult to deal with in car accident claims. Alas, this we already knew. The second is another truth that has stood the test of time: filing lawsuits because you are mad is really not a great idea.
You can read the court’s opinion in Walker v. Progressive Insurance here.
When you settle a large case with a minor in Maryland, the parties typically file what is called a “friendly suit” advising the court of the settlement – and asking the court to bless the agreement.
Maryland law does not require this. This does not, naturally, stop defense lawyers from demanding that you file a friendly suit. They do it this way because, arguably, the law required it before 2004 and because they think – probably incorrectly – that a judge’s blessing gives them more protection in the event that the minor seeks to disavow the settlement.
To file a friendly suit, you file your lawsuit along with a joint motion for settlement and a draft order for the court to sign.
In Dunbar v. State Farm, a federal judge in Oklahoma granted summary judgment to State Farm in what was really a silly bad faith case.
This case involved a pedestrian accident where somebody backed out of their driveway and hit someone. USAA tendered, albeit slowly, its $100,000 limits for the at-fault driver. State Farm did what it does, it slowly increased the offers over time. But in this case, medical records were provided, for whatever reason, over time, making State Farm’s increase in offers seem quite reasonable. Eventually, State Farm tended its entire policy of $200,000. Because it was an uninsured motorist case, that should have resolved the claim. But Plaintiff’s accident lawyer proceeded with the claim under the theory that State Farm should have made the offer sooner, but was dragging their feet.
I don’t get it. Neither did the appellate court. The opinion also underscores Oklahoma law – and Maryland’s – that regardless of the severity of injury, an underinsured claim does not kick in until the underlying policy tenders its limits. So if you have a death case and the at fault driver has a $30,000 policy, the underinsured motorist coverage obligations do not kick in until the underlying policy has been offered.
In Carr v. Cinnamon, a California appellate court applied the same rule we have here in Maryland: the finder of fact can award whatever they want for noneconomic damages, including zero even when it seems preposterous that a person could suffer medical bills and have no pain and suffering.
Plaintiff’s premises liability lawsuit alleged that her leg fell through the floor of a patio on defendant’s property. The jury found the defendant partially responsible and awarded a whopping $6,207.08 with no damages for pain and suffering. Improbably, Plaintiff’s attorney appealed, arguing that the damages award was inadequate as a matter of law and the trial court should have awarded damages (additur) or awarded a new trial.
The appellate court disagreed, finding juries can essentially do whatever they want. One thing is for sure: this jury was not a big fan of this plaintiff.
You can find the opinion here.
In accident cases, our lawyers make sure we know what expert testimony defendants are will see at trial. One weapon in our discovery arsenal is a good expert interrogatory.
Identify any and all experts you intend to call as witnesses, and whose reports you intend to mention and/or introduce at trial or in any Motion, including his/her area of expertise, and identify and attach to your Answers any and all written reports prepared by said experts, and indicate the content of any and all opinions reached by said experts and the factual basis for each such opinion and the amount of compensation paid to each such expert.
In its response, State Farm says, “Hey, cool your jets, we will produce experts pursuant to the discovery order.” Technically, State Farm’s answer is not satisfactory. This interrogatory, served with the Complaint, is due within 30 days of service. But there is the rule and there is the way things are done. Filing a motion to compel to answer an expert interrogatory before the scheduling order requires expert designations would be just too ticky-tacky. It is a tell to State Farm and the judge hearing the motion that you are more interested in fighting for the sake of fighting than really trying to engage in legitimate discovery.
So, we wait for the expert deadline. We get a cut and paste document that tells us absolutely nothing.
A critical component of damages in wrongful death car accident cases is loss of services of the survivors from the victim. Loss of services is a dumb legal expression we would do best to get rid of. Solatium damages is an awful phrase, too. But at least it does not imply in the definition that the loss is pretty much someone doing less for you. (Noneconomic pain and suffering damages is a little better, I guess. We will use that.)
In Maryland, we describe these wrongful death damages to a jury as “mental anguish, emotional pain and suffering, loss of society, companionship, comfort, protection, marital care, parental care, filial care, attention, advice, counsel, training, guidance, or education where applicable.” Most states use similar strange language but the gist of it is: what has really been lost – calculating everything – from the death of this person?
Here are the statistics nationally on noneconomic pain and suffering jury awards:
The study provided some more interesting data:
Loss of Services Awards to Spouses of Decedents to Age 49
- Award Median: $1,000,000
- Award Average: $1,799,530
Loss of Services Awards to Spouses of Decedents Age 50+
- Award Median: $742,591
- Award Average: $1,790,938
Overall Loss of Services Awards in Death Cases:
- Award Median: $900,000
- Award Average: $2,834,460
I’m not surprised by the gap between victims under 50 and those over 50. It is probably cold and unfair. But jurors do have a clear understanding of life tables and the idea that loss is relative. In Maryland, this is not ultimately a big issue in wrongful death cases because of the cap on non-economic damages.
I wrote a blog post this morning on the Maryland Injury Lawyer Blog about the Maryland Court of Special Appeals’ opinion in Tollenger v. State. Plaintiff’s got a reversal of a summary judgment entry to the State of Maryland in a wrongful death claim that involved the failure to erect a Jersey Wall on a bridge in Harford County.
So at some point, Plaintiff will get a trial date. The wheels of justice can churn slowly: this accident happened 9 years ago.
Last October, a little known new law with a catchy name – the “Move Over Law” – went into effect in Maryland. The law tries to deal with a problem that won’t go away: the safety risk in emergency situations to police, fire, emergency medical services personnel, and, not insignificantly, at least to me – the rest of us.
This new Maryland law requires drivers approaching from the rear of an emergency vehicle using visual signals while stopped on a highway to, if possible, “move over” one or more lanes. If moving to another lane away from the stopped emergency vehicle is not possible, the law requires drivers to ‘slow to a reasonable and prudent speed that is safe for existing weather, road, and vehicular or pedestrian traffic conditions.’
I don’t see a ton of tickets being generated from this new law. But, theoretically, violation of the “move over law” is a primary offense with a fine of $110 and one point. If the violation contributes to a traffic crash, the fine is $150 and three points.
Like most of us, I panic a bit when an emergency vehicle with a siren comes zooming past. But the key, clearly, is to get out of the way.
Should traffic ticket guilty pleas be admissible in a civil case? Most courts, including Maryland, believe that it is unfair to defendants in civil cases to allow traffic ticket guilty pleas to hover over an accident case because tickets are – for better or worse – not a big deal to most people. Maybe the defendant pled guilty because he didn’t feel like presenting a defense or taking the day off work. Or maybe the pain of sitting through all of the idiotic arguments of silly people in traffic court was just not their cup of tea. (Has anyone actually seen a decent argument made in traffic court? Does such footage even exist?)
Another school of thought – my preferred school of thought – is the “juries are not stupid” argument. Novel idea, sure. But here is how it goes. “Okay, Mr. Defendant, you skipped your criminal trial, pleading guilty, because you didn’t feel like going. Fair enough. Tell the jury that.”
Makes sense, right? The defendant is free to explain the circumstances of the decision to the jury. It is not unduly prejudicial or complex. Everyone gets it. Let the jury decide how much weight should be given to the evidence.