The American Academy of Pediatrics (AAP) has firmly stated its opinion: “[t]he trampoline should never be used in home environments or in school physical education classes or outdoor settings or recreational settings.” Yet, in massive numbers, no one follows this advice. Injuries can still occur despite padding and netting.
This is a guest post by Anthony Castelli, a car accident personal injury lawyer in Cincinnati, Ohio.
A car accident attorney’s primary job is to put as much money as they can in their client’s pocket. It does not benefit the client that has serious injuries and damages to get a large settlement, but after the attorney’s fee, expenses of preparing the case, and payment of medical bills and subrogation claims, there is little left for the client.
The old adage “it takes money to make money is also true.” The good personal injury lawyers know that in most cases they will need to pay a doctor for a comprehensive report detailing the nature and extent of the car accident victim’s injuries, how those injuries will affect the client in the future and the cause of the injuries. This helps drive the car accident settlement amount up, in some cases substantially.
I remember learning about spoliation in law school. I never imagined how frequently these issue would affect my law practice. Particularly in truck accident case where defendants seem to lose everything imaginable. Spoliation, for non lawyers and new lawyers, is when the defendant purposefully or stupidly destroys evidence that it knows or should know would be relevant evidence at trial. Under Maryland law, there are many means to deter, penalize, and ameliorate the prejudicial effects of spoliation. The most common weapons, evidence sanctions, and/or corrective jury instructions, are available to Maryland trial judges as remedies to deal with acts of spoliation. These judges have wide discretion to deal with these parties that destroy evidence.
In a bizarre story this morning, U.S. Secretary of Commerce John Bryson was charge with felony hit-and-run. Police say Bryson caused two car accidents within minutes of one another in southern California. He was found unconscious in his car.
If you have a pulse, you first thought was that he was drunk out of him mind. But the preliminary reports show that alcohol was not involved. Let’s put tis together. He causes two accidents. No alcohol. They find him essentially in a third accident because he was found unconscious. My prediction is that the man was either on drugs or, more likely, suffered some sort of seizure.
Let’s wait and see how it plays out. But my prediction is that this is not a bad guy, hit and run case but something very different.
In our practice handling serious car accident cases, we regularly spar with insurance companies over the conditions for “independent” medical exams where an insurance company hires a doctor – usually a doctor they have paid hundreds of thousands of dollars to over the years – to testify for them. Some of these doctors take incredibly bizarre and illogical paths to concluding that the plaintiff was not really hurt or, if the injuries are extreme, that the plaintiff has made a full recovery or that the injuries were not caused by the accident. If you are a lawyer regularly handling serious car accident cases, you know what I’m talking about. If you are not, please trust me: this is a ridiculous racket that gives justice a black eye.
It looks like the insurance companies in Maryland workers’ compensation cases want to end run any battles over anything and everything related to independent medical exams. They have proposed a new Code of Maryland Regulation (COMAR), regulation 14.09.01.20, that would pretty much give defense lawyers carte blanche to both schedule and compel plaintiffs claimants IMEs at will with potential stiff penalties for the failure to appear.
Take a look at these regulations. They begin with an insult. “Either party may schedule an independent medical examination.” Gee, thanks for the equanimity but when does the plaintiff schedule an IME in a workers’ compensation case?
When I’m in another state, particularly on the West Coast, I’m always amazed at how far our culture extends. Going to Starbucks in Seattle is like getting Starbucks in Baltimore; people look the same, act the same, and largely talk to the same way (although they don’t seem to know how to say “hon”).
But, boy, when it comes to the risk of accidental death, its like we all live in separate and very different countries. New Mexico residents are nearly three times more likely to die as a result of injuries than inhabitants of New Jersey. Mississippi residents are about four times (get that, four times!) more likely to die in motor vehicle accidents than those in Massachusetts or New York. Statistics can put you to sleep sometimes, but these are incredible. I’m not even sure I believe it.
You can find the results of the study and see how Maryland does here. (Sneak preview: we are pretty safe here.)
As a matter of law, I believe that the uninsured motorist carrier cannot require any statement – recorded or otherwise – from their insured after a car accident. Notwithstanding the fine print language in almost every Maryland car insurance contract that requires a statement, Maryland law requires your own car insurance company to pay all damages that the insured is entitled to from the person that caused the accident up to the uninsured motorist limit, if the “bad guy” has insufficient insurance.
The Maryland high court has affirmed that Maryland insurance law substantially rewrites car insurance contracts and that provisions that are not authorized by Maryland law are unenforceable. This would clearly seem to fall into that category because, if the insurance company is imposing any additional conditions on payment, then it is not providing the compensation required by the statute.
So you can just ignore your own insurance company’s request for a recorded statement just like you can ignore the at-fault driver’s insurance company’s request for a statement, right? Not so fast. The law I just gave you is what I call “The Law According to Laura.” This law comes with an important caveat: it is often wrong. The Maryland Court of Appeals has never ruled on this issue and could disagree completely or limit the coverage without a recorded statement to the minimal limits.
In every state, there is a stretch of the highway or an intersection where car accidents commonly occur. We certainly have them in Maryland.
A group of folks got together (let’s be honest, a creative car accident lawyer got them together) and filed a class action lawsuit against the Missouri Highways and Transportation Commission. The lawsuit claimed that a particular stretch of highway on Interstate 44 was dangerous and the state should have done something to make the road safer.
The trial judge certified a class action finding that there were common questions of fact as to whether the pavement surface lacked proper skid resistance and was otherwise dangerous.
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.
Accident reconstructionists are often used by lawyers in auto accident and truck accident cases to answer questions about how the accident occurred. An accident reconstructionist might be able to tell you who was driving, how fast the car or truck was going, whether the driver and/or occupants of the vehicle were wearing seat belts, where on the road the accident occurred, and so forth. Sometimes, they are useful in car accident cases on discreet issues. But, there is a growing sentiment in car accident cases that juries just don’t listen to accident reconstruction experts. Juries, this thinking goes, want to figure out how an accident happened on their own. They don’t need any help. (My view is not quite this strong on whether you should use accident reconstruction experts in liability dispute cases. Certainly, I don’t think they hurt in most cases.)
Reconstructing truck accidents is more complicated than car accidents, and there is a larger role for accident reconstruction experts who understand the nuances of truck accident cases and can communicate effectively with a jury. Unlike car accident cases, juries understand that they don’t understand trucks the way they understand cars.
One of the big issues our lawyers typically face in auto accident and truck accident cases is the debate as to the speed of the vehicles. The biggest difference in investigating truck accidents as opposed to car accidents is the number of different variables at play with respect to stopping or slowing. Car accidents are relatively easy, the investigator looks primarily to the skid marks and the type of surface on which the vehicle skid. Truck accidents are far more complex. Trucks generally take 30% to 75% longer to stop than a car. Because large commercial trucks are more difficult to stop, a truck accident reconstructionist must include other variables beyond the usual friction values to calculate vehicle speed, such as brake balance and brake lag time. If speed calculations do not include these adjustments, then the calculated speed of the truck will be off base and Plaintiff’s theory as to the speed of the truck can look ridiculous and inconsistent with the witnesses to the accident. In cases like this, the truck accident lawyer needs to find a neutral accident reconstructionist to recreate the speed of the truck and to take into account all of the relevant considerations.
