Uninsured Motorists

Maryland Uninsured/Underinsured Motorist Law Lecture

Rod Gaston will speak on Advanced Underinsured/Underinsured Motorist Law at the Treemont Grand Hotel in Baltimore, Maryland on Friday, March 9, 2012. You can get information here.

Rod will provide information both on Maryland uninsured motorist law and how to use that law to maximize the value of serious car and truck accident claims in Maryland. If you can’t make the seminar, you can also order the audio CD and course materials.

Calculating Pain and Suffering Damages

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.

Can You Stack Insurance Policies in Maryland?

Maryland law – specifically Insurance Code Section 19-513 – prohibits the stacking of insurance policies. Accordingly, under Maryland law, if there is uninsured/underinsured motorist coverage, the insurer is liable to its insured for the full amount of the accident victim’s damages minus the amount paid by the liability carrier or the Defendant.

In other words, let’s say you have a Maryland accident case where the defendant has a $100,000 liability policy and the injury victim has a $300,000 uninsured/underinsured motorist policy. If the $100,000 is paid by the liability carrier, the uninsured/underinsured motorist obligation is $200,000, not $300,000. So if the liability policy is lower than the UM/UIM limits, you are going to be capped in your recovery for the uninsured/underinsured motorist claim by the amount of the policy.

Lawyers in other jurisdictions – Pennsylvania leaps to mind – are shocked at how conservative Maryland accident law is on stacking insurance policies and lots of other issues related to the handling of car accident claims. We are a blue state with very red accident laws.

Deposition Questions

When you prepare a client for deposition, you can prepare them for hours but it is hard to give them a feel for what the process is really like. Short of taking them to a deposition, it is hard to get someone all the way there mentally. But you have to get your clients as close as you can to understanding what is coming in as complete a way as is practicable.

I think one more thing you can do so they get idea of what the deposition questions will be is simply showing them a deposition or two so they can see the question defense counsel will pose.

Serving a Lawsuit Against an Insurance Company in Maryland

There is a popular conception that lawsuits in car accident cases are filed directly against the insurance companies. It is easy to understand the source of the confusion. The insurance company that insured the driver or the vehicle is going to stand behind their insured and pay any claim up to the policy limit of the policy. The insurance company is also going to make the decision as to how much to offer as a settlement, not the actual defendant, who is usually kept in the dark on the entire process from initial settlement offer though the tactics the insurance company will take at trial.

Technically, in Maryland car accident lawsuits are generally filed against the defendant themselves. This technical distinction makes a difference at trial because the jury is not told there is insurance behind the case under Maryland’s collateral source rule. I remember trying a case against a defendant once where we got a good verdict ($298,000 award after a $25,000 offer before trial). When we met with the jurors after the trial, their big concern was whether there was insurance because they were concerned that the defendant – who was a pretty good guy – would have to pay the verdict themselves.

The exception to this is underinsured/uninsured motorist cases. In Maryland, claims are brought directly against the insurance company. To serve an insurance company defendant with a lawsuit in Maryland, you can serve the Maryland Insurance Administration. It looks like this:

Uninsured Motorist Coverage

I hate to be a shrill for the insurance companies. Maryland accident lawyers and insurance companies rarely hold hands on an issue related to car accidents and insurance. But there is one thing we both agree on when it comes to uninsured motorist limits: they should be high. How much? That depends on how comfortable you are but I just don’t think it makes sense to have less than $1 million in uninsured motorist coverage.

No one has been able to give a good answer as to how many people are uninsured in Maryland and I think Maryland is doing a better job of keeping uninsured motorists off the road (the FR-19 system). But our accident lawyers know one thing for sure: people who are uninsured disproportionately cause more accidents than people who have valid car insurance. Why is this? I speculate that people who will take risks by having no car insurance also are willing to take risks on the roads.

This argument takes particular force in cases if you have a preexisting condition such that you are more susceptible to an injury from the trauma of a car accident.

 

Maryland State Farm Accident Claims

Certainly, State Farm is major player in auto accident insurance market share in Maryland, getting barely nudged out of the top spot by GEICO. According, Maryland accident lawyers see plenty of State Farm… over and over again. State Farm is not a bad company. They have quality accident lawyer in Maryland and good adjusters. In fact, the only issue our Maryland accident lawyers differ with State Farm over typically is the value of individual accident cases. The problem is, of course, is that value is the key ingredient in Maryland accident cases.

Our Maryland car accident lawyers lift up the veil behind State Farm in Maryland and explain some important details worth knowing in attempting to achieve a settlement with State Farm in the Baltimore-Washington area. Click on the preceding link for our attorneys’ analysis of State Farm.

 

New Pedestrian Accident Case: Maryland Court of Special Appeals

In MAIF v. Baxter, the Maryland Court of Special Appeals ruled that Maryland law does not require a car insurer to provide uninsured motorist coverage to an uninsured stranger/pedestrian who is struck by a car driven by a person excluded under the insurer’s policy. Basically, the court found that the Maryland Legislature only required that UM coverage be extended to an “insured.”

For once, MAIF was – albeit accidentally – fighting for the good guys, because the pedestrian’s estate asserted a claim against the Uninsured Division of MAIF. The Plaintiff’s estate was relatively indifferent because the UM limit was $20,000 in either event. So, incredibly, we have MAIF fighting unsuccessfully to create good case law for Maryland accident lawyers.
I have not read the nuances of this case closely enough to find great flaw in the court’s interpretation of Maryland uninsured motorist law (and it does not sound as if reading MAIF’s briefs would be of much help in this regard). But this is just bad law. The woman is an innocent pedestrian walking down the street. There is insurance coverage on the car. That should be enough. (But I understand reasonable people can disagree with this premise.)

One funny thing about the case – and this sounds just like MAIF – is that MAIF asserted for the first time in its reply brief that the insurance policy issued by the insurance company that covered the car (Interstate) should have provided coverage.

Uninsured Auto Accidents Expected to Rise

The recession has created another problem for Maryland accident victims: more uninsured motorist accident lawsuits. A new study indicates that one in six drivers in the U.S. might be driving without insurance by 2010. Uninsured drivers had been declining due to sharper enforcement efforts. (In Maryland, the hammer is the FR-19 which Maryland sends out every time you leave your current insurance company.) In fact, the estimated percentage of uninsured motorists in the United States decreased to 13.8% in 2007 from 14.9% in 2003, but it’s expected to sharply increase because of the recession.

A recent study estimated the number of uninsured motorists by using a ratio of insurance claims made by people injured by uninsured drivers to claims by people injured by insured drivers. I’m not sure about the accuracy and I doubt there is an entirely linear relationship but the theory is that an increase of 1 percent in the unemployment rate causes a nearly three-quarters of a percent increase in the uninsured motorist rate.

That sounds incredibly high but I don’t know. In Maryland, we have never really gotten a handle on the number of Maryland uninsured drivers. A study from 1977 – sorry it is all I have – suggested the uninsured motorist rate in Maryland was 2.8%. I cannot imagine it was that low, either.

I think most uninsured drivers probably had low policy limits close to the Maryland minimum of $20,000 per accident, $40,000 per occurrence. So from the perspective of the Maryland car accident lawyer, I don’t think it matters a great deal practically if the uninsured motorist rate in Maryland is on the rise if – a big IF I know – your client has insurance coverage.

Maryland Uninsured Motorist Statute

Car insurance is mandatory thoughout the country, including Maryland. Yet you would be amazed how many uninsured motorist claims we see every week. As many as 20% of Americans do not have any type of car insurance. The numbers in Maryland have not been estimated in years (that I have seen, anyway) but while not approaching that figure, the number is still too high.

In Maryland, the legislature made uninsured motorist coverage mandatory in 1975.