Maryland Accident Lawyer Blog

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. You can see examples of these by clicking on the preceding links.

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 law) 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. Well, here is what we get from State Farm.

Seriously? First, anyone who has ever cut and pasted a document knows that this is a cut and paste document. The chance that any of these experts know anything about the Plaintiff approaches zero.

Continue reading "State Farm's Expert Designations" »

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:

Continue reading "Calculating Pain and Suffering 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?)

Continue reading "Are Traffic Ticket Guilty Pleas Admissible in Accident Cases?" »

Wear your seat belt. I know we have said this before. Now it is "on the real", as Smash Williams would say. Maryland police have now gotten the memo that wearing your seat belt is a law. Police across Maryland are upping the ante on enforcement of seat belt laws with its new "Click It or Ticket" campaign.

We are not doing an awful job in Maryland. Approximately 93% of us are wearing seat belts. We are 9th in the nation, according to the CDC. Who is lagging behind? Women, older drivers and Hispanics are doing just great. But we struggle mightily with young men and anyone in a pick-up truck.

Continue reading "Maryland Police Are Serious Now: Buckle Up" »

The reason defendants parties do not provide meaningful discovery responses is that you are likely, in garden variety accident cases in Maryland, to get away with it. Why? Because filing a motion to compel is hard work. Here is a sample motion to compel John Bratt wrote in a case earlier this week.

This motion is set up using the "lay it out" format most judges in Maryland require.

A while back, I wrote about the issue of what the punishment should be in Maryland fatal accident cases where there are no aggravating factors (almost always alcohol) but still someone dies because someone just was not paying attention. Should this mean prison? Is the pain of killing someone enough punishment?

Clients usually feel strongly about this issue one way or the other, there is very little in between. Either they view the defendant as a killer or they see the accident as a mistake that could have happened to anyone.

A bill has been floating around the Maryland legislature for years that would give prosecutors more latitude when charging these drivers. In a swap, House Del. Luiz Simmons, a criminal defense lawyer from Montgomery County, proposes a law that would sentence someone to up to three years in prison for killing a person as the result of a “substantial deviation from the standard of care.” Standing in the way of the bill is Maryland State Senator Brian Frosh, a Montgomery County Democrat, who questions whether prison should follow for drivers who negligently kill another person.

Continue reading "Tougher Maryland Laws in Fatal Accident Cases?" »

A lawsuit has been filed in a fatal car accident that caused the tragic death of a 7-year-old girl in Pittsburgh. Plaintiff's lawsuit is against the driver who was, according to the claim, driving at twice the legal BAC limit. The suit also names the bar that allegedly continued to serve the Plaintiff.

This case would not survive summary judgment in Maryland. Famously - okay, maybe not famously but I think someone read it - the Maryland Injury Lawyer Blog changed its position on dram shop laws in this post.

The CDC reports that Maryland is 9th in the nation in the percentage of people who report they always wear a seat belt. Oregon is first which is surprising because the study also found that seat belt use among rural drivers is much lower than usage in urban and suburban areas. So whatever Oregon is doing, we should be copying them. Ninth is not bad but why can't Maryland be first? Couldn't someone start some sort of campaign? Nothing like competition to bring about the best results. The fact that seat belts reduce car accident deaths is underscored by this study: seat belts reduce the risk of death in car accidents by 45-50%.

Wearing a seat belt may become more and more important if oil prices continue to rise. Oil prices so far have not led Americans to buy more fuel efficient but less safe vehicles. Oil is now at $93 a barrel. If it goes to $150, as some have predicted, we are going to see $5 to $6 per gallon at the pump and it is going to cause people to buy smaller cars. If cars are going to get smaller, they need to build safer small cars and we need to improve our driving habits or the recent improvements in the number of car crash fatalities are going to diminish.

Another interesting finding from the study is that seat belt compliance is significantly higher among women, older drivers and Hispanics.

• Maryland Seat Belt Law
• Baltimore Sun blog post on this story

Let me begin this post with a disclaimer. I am a Maryland accident lawyer who handles serious injury cases only. My law firm does not handle property damage or minor injury claims. But, without a doubt, property damage claims are vexing for the vast majority of people who are involved in a car accident. So let me give you my thoughts on property damage cases. You can also find more information along with my law firm's thoughts on property damage claims on our website.

Continue reading "Property Damage Claims" »

Our accident lawyers see more rear-end car crashes than any type of car accident in our law practice. Statistics bear this out. In Maryland, rear-end accidents are the most common type of automobile accident reported. In fact, incredibly, for every 100 miles traveled within the state of Maryland there are approximately 27 rear-end accidents reported. Most are harmless and do not cause any injury. But it is still an incredible statistic.

People, fortunately, even sometimes insurance adjusters, generally presume that in a rear-end car crash, the person that strikes another from behind is automatically deemed negligent and at fault for the accident. Though a rear-end accident does not produce a high amount of injury in comparison to front-end collisions, the human and property damage and losses cost residents in the state of Maryland millions of dollars in medical expenses, loss of production, time and insurance claims. Nationally, the Department of Transportation estimates that over $5 billion dollars are spent each year on recovering from rear-end accidents - another mind numbing statistic.

As stated earlier, when it comes to who is at-fault for a rear-end accident, it is typically assumed that the vehicle that strikes from the rear is automatically at fault. This is usually attributed to the fact that the rear vehicle is following the lead vehicle too closely. Therefore when sudden braking or other actions are required, the driver operating the closely following rear vehicle is unable to correct their actions and avoid the accident. Maryland law echoes that populist sentiment in Andrade v. Housein, in which the Maryland Court of Special Appeals found that in rear-end collisions, the rebuttable presumption is that the rear ending driver is at fault for the accident. This presumption can be rebutted but the rear-ended car has a leg up in the battle for evidence.

• More on rear end car accidents in Maryland
• Overview of Maryland car accident claims

After a serious car accident, the tow truck comes to take your car away. The New York Times writes today about an issue we have not seen a lot of in Maryland: tow truck scams.

How much can a tow truck driver charge? If there is no agreement on fee, the tow truck driver/company cannot charge beyond what fair, reasonable and customary in the tow truck industry. How much that is is going to vary upon jurisdiction, distance, difficulty of the tow and a lot of other factors. But, certainly, tow truck companies cannot set any price they like and lawfully require payment.

What is justice in a fatal car accident in Maryland? Your view of this usually depends on which side of the fence you find yourself. If you love someone who has been killed in a car accident, justice usually demands jail. The logic is unassailable: a very special person has been killed. How can you walk around free, paying a ticket and letting your insurance company pay for the loss after killing someone I love? Justice dictates punishment.

If you or someone you care about negligently killed someone in an accident, you see it very differently. Accidents happen. You know you are going to live with it for the rest of your life. But lots of people make mistakes and cause accidents and you "drew the wrong cards" when your accident proved fatal.

Certainly, it is fair to say that there are two categories of drivers: drunk and not drunk. If you killed someone while drinking and driving, it is hard to argue you should not be punished. The harder issue is the person who chooses not to pay attention behind the wheel and causes a fatal accident. It is their fault, it is their responsibility. But they are not criminals, at least in the usual sense of the word. What do we do with them? Having represented a lot of families who have lost a loved one, I can tell you where 85% of these people sit: real, substantive punishment.

• How does a criminal conviction impact a fatal accident claim?
• Montgomery County police officer back to work after causing accident that paralyzed a 14 year-old boy.

As we have written before, slip and fall cases in Maryland on snow and ice are going the way of the Betamax and the VHS. The Maryland Court of Appeals has so broadly set forth how it defines assumption of the risk in slip and fall snow and ice cases that Maryland lawyers are going to have a tough time getting these cases past summary judgment.

Why, then, are slip and fall lawyers in Maryland constantly telling us that we are wrong and they got a settlement in a snow and ice slip and fall? There is no question you can still get a settlement for a snow and ice slip and fall case in Maryland if the injuries are serious. But our law firm does not take cases because we think we might be able to get a settlement. When we get into a case, our lawyers are in for the long haul. We are not going to make a demand, threaten to file suit, and then drop the case. If our lawyers did this, we think we would lose credibility in all of our other accident cases with the insurance company.

I know there are clients out there reading this blog post looking for information about slip and fall settlements in Maryland on snow and ice. If you are looking for a lawyer who will work to get you a settlement in your case, I think you will eventually find one and that lawyer may very well be able to get you a settlement, particularly if the adjuster is not familiar with the latest Maryland law on slip and fall snow and ice claims. But our law firm will not be able to help you with your case.

• Sample Slip and Fall Complaint
(snow and ice complaint we filed years ago)
• Sample Motion to Defeat Summary Judgment in Snow and Ice Slip and Fall Case
• Recent Snow and Ice Slip and Fall Maryland Court of Appeals Opinion
(MSU v. Walker)
• $370,000 Jury Verdict in Anne Arundel County in Snow and Ice Slip and Fall
(Miller & Zois verdict)
• Assumption of the Risk Doctrine in Maryland
(explanation of Maryland's doctrine on assumption of the risk that we believe is unfair but is nevertheless Maryland law)

One big issue for clients in car and truck accidents - particularly in cases where the injuries are extremely serious or fatal - is whether the at-fault driver is convicted of the traffic offense(s) for which the driver was cited. In wrongful death car accident cases, the clients are usually interested in one more thing: a manslaughter charge.

Accident victims and their families care about this for two fundamental reasons: (1) the desire for some measure of justice and, (2) because they believe it impacts their civil case. But, in most cases, a criminal conviction for conduct relating to a car or truck accident is inadmissible to establish liability in the civil lawsuit stemming from the wrong committed in the accident.

The logic of this escapes me. Maryland courts reason that there is a difference in the parties, objects, issues, procedure, and results in civil and criminal proceeds. But all of these things actually make it harder to get a conviction in a criminal case than a finding of primary negligence (setting aside contributory negligence) in a civil case. I think the real logic is quite practical: most of the time this situation arises in auto accident cases and our courts want defendants to be able to just pay a fine without an admission of guilt in a civil action.

Interestingly and importantly, Maryland seems to have an exception in wrongful death cases. In one 1997 Maryland Court of Appeals opinion (Eagan v. Calhoun), the court allowed the admission of the husband's guilty plea to manslaughter of his wife into evidence in the wrongful death case, as a judicial admission that the defendant had committed the killing and that the killing constituted voluntary manslaughter. The doctrine of judicial estoppel can also be a weapon in this context to the extent that a court might find that while the conviction is not an admission of liability, the defendant may not be permitted to offer evidence that contradicts the plea. In most liability dispute car accident cases, this makes liability almost a certainty.

Two take home messages for the Maryland accident lawyer: (1) a criminal conviction for the conduct now subject to a civil lawsuit may not be game/set/match for your liability case on primary or contributory negligence so don't assume liability is established and, (2) make sure you get a copy of the transcript of the criminal trial if the defendant testified.

The underlying premise of uninsured motorist coverage insurance in Maryland, as it is in most states, is to put the car accident victim in the same position they would find themselves in had the at-fault driver had liability coverage equal to the coverage to that of the accident victim. I'm oversimplifying a bit because you can have UM coverage in some instances that is less than your liability coverage. But, in the vast majority of cases, your liability coverage mirrors your uninsured motorist coverage.

So in a pure uninsured motorist case where the other driver either cannot be identified (hit-and-run or phantom vehicle are the most prominent examples) or has no insurance, your own insurance company essentially steps in the shoes of the defendant, assuming the at-fault driver's liability for the accident but also his damages.

This is a simple concept but for Maryland accident victims, it is conceptually difficult to get your mind around. Why is my insurance company defending the guy who hurt me? Why is my own insurance company now essentially my adversary?

As crazy as it seems and as aggregating as it might feel to have your own insurance company turn against you, it is actually a good thing for you because while the insurance company is essentially defending the bad guy, they are also paying the money that bad guy would have paid you if he had insurance.