Is there a Maryland law that says that you should not be able to have snow on your car so it does not come flying off and blind me? Sort of. Transportation Code §21-1104 states that a person may not drive a vehicle if obstructs the driver’s view of the front or sides of the vehicle. They may not drive a vehicle if it interferes with the control of the driver’s. However, the law would likely have a broad application in cases involving snow on top of cars. But no one is going to pull you over for having too much snow on your case.
If you drove to a New Year’s Party in Utah on Monday and decided to have a few drinks, the risk of getting arrest for drug driving increased dramatically. On Saturday (December 30th) Utah lowered its legal blood-alcohol content (BAC) limit from 0.08 to 0.05. This gives Utah the strictest DUI laws in the country. This follows a National Transportation Safety Board (NTSB) recommendation that all states should lower their legal BAC limits to 0.05.
Before we go further, you are saying you know you fine at .05, right? But define “fine”. Do I feel like I can drive a car at .05? I do. Do I ever drive at .05 with my kids in the car? I don’t. Setting aside the stunning hypocrisy for a second, I do this because I’ve been competing with my friends and family at goofy things my whole life. So I know that a little bit of alcohol slows me down just a bit because I can’t play video games or golf or anything else quite as well after two drinks than zero.
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.
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.
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.
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 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:
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.