Defendant in Default Maryland Failure to Answer

In a case involving personal injury lawsuits in Maryland a defendant once served has a responsibility to file an answer. There are circumstances where the defendant fails to file an answer. In that case the plaintiff would ask the court to enter a default judgment against the defendant for failure to file an answer. The question however still remains to what extent the defendant can participate in a hearing to establish damages. The Maryland Court of Special Appeals addressed this issue in Fisher v McCrary Crescent City, LLC 972 A 2d 954 and(2009). Ultimately the court determined that a defendant in default still has the right to participate in the hearing affecting damages. Specifically the defendant in default, for failure to file a responsive pleading, can present evidence to mitigate damages; cross-examine witnesses regarding damages; present evidence on damages; object to evidence and make arguments. It is my position that discovery must be executed to a defendant in default to identify his evidence on mitigation, causation issues, damages and what if any evidence he finds objectionable.

Average Weekly Wage in Maryland Waiver of Amount Disputed

You will find information on the Maryland workers compensation average weekly wage in the COMAR regulations. It is interesting to note that the employer has a responsibility to provide documentation to the employee or his/her attorney if they are disputing the workers compensation commission's determination of the average weekly wage. The employer will have 60 days from the date of the initial order to provide an accounting of the average weekly wage. If the employer fails to act within that 60 day period of time they will have waived their dispute. Below is the COMAR section on point.

.07 Average Weekly Wage.

A. Preliminary Determination. For the purpose of making an initial award of compensation before a hearing in the matter, the Commission shall determine the claimant's average weekly wage from gross wages, including overtime, based on the information filed with the Commission. That information shall include:

(1) The average wage earned by the claimant during the 14 weeks before the accident, excluding the time between the end of the last pay period and the date of injury, provided that periods of involuntary layoff or involuntary authorized absences are not included in the 14 weeks;

(2) Those weeks the claimant actually worked during the 14 weeks before the accident;

(3) Vacation wages paid; and

(4) Those items set forth in Labor and Employment Article, §9-602(a)(2), Annotated Code of Maryland.

B. Subsequent Determination.

(1) Amount Disputed. If the employer, employer's insurer, or the Uninsured Employers' Fund asserts that the average weekly wage determined by the Commission under §A of this regulation exceeds the actual average weekly wage of the claimant, that party, before paying benefits at the lower rate, shall file with the Commission, with a copy to the claimant, or the claimant's attorney if the claimant is represented, a statement containing the basis of the assertion that the actual average weekly wage is less than the amount determined by the Commission. The statement shall be filed within 60 days after the date of the initial award.

(2) Waiver. The failure to file the statement in compliance with §B(1) of this regulation constitutes a waiver of the right to dispute the average wage as originally determined.

Attorney Fee Schedule Under Maryland Workers Compensation Law

.25 Schedule of Attorneys' Fees.
A. The Commission shall approve attorneys' fees in accordance with the schedule of fees established from time to time by the Commission and set forth in §B.
B. Schedule of Fees.
(1) Final Award—Definition. For the purpose of this section, "final award" means the award of compensation determined by the Commission after exhaustion of all applicable appeals, regardless of whether the award is increased or decreased as a result of any appeal.
(2) Fee in Excess of Limits. The Commission may approve an attorney's fee in excess of the limits set forth in this section only if exceptional circumstances are shown.
(3) Permanent Partial Disability.
(a) General. Except as otherwise provided in §B(3)(b), in a case in which a final award of compensation is made for permanent partial disability, the Commission may approve an attorney's fee in a total amount not exceeding 20 times the State average weekly wage and computed as follows:
(i) Up to 20 percent of the amount due for the first 75 weeks of an award of compensation awarded;
(ii) Up to 15 percent of the amount due for the next 120 weeks of an award of compensation; and
(iii) Up to 10 percent of the amount due for an award of compensation in excess of 195 weeks.
(b) Disability Due to Amputation or Loss of Vision. In a case in which a final award of compensation is made for permanent partial disability due to the amputation of an arm, leg, hand, or foot, or total loss of vision in one eye, and the sole issue before the Commission is the nature and extent of disability, the Commission may approve an attorney's fee in an amount up to 5 percent of the compensation awarded, but not exceeding 6 times the State average weekly wage.
(4) Permanent Total Disability.
(a) General. Except as otherwise provided in §B(4)(b), in a case in which a final award of compensation is made for permanent total disability, the Commission may approve an attorney's fee in an amount not exceeding 20 times the State average weekly wage.
(b) Special Cases. The Commission may approve an attorney's fee in an amount not exceeding 13 times the State average weekly wage in a case in which compensability is not an issue and an award of compensation is made for permanent total disability established either pursuant to:
(i) Labor and Employment Article, §9-636(b), Annotated Code of Maryland, for the loss of two or more scheduled members; or
(ii) The stipulation on the extent of disability.
(5) Temporary Total and Temporary Partial Disability. The Commission may not approve an attorney's fee in a case in which final award of compensation is made for temporary total or temporary partial disability or temporary total disability paid while a claimant is receiving vocational rehabilitation services unless the claimant's right to the compensation is contested and the issue is resolved by evidentiary hearing or by stipulation. In such a contested case, the fee may be in an amount not exceeding 10 percent of the compensation that has accrued as of the date of the award.
(6) Dependency Claims.
(a) In a case involving a claim of dependency, if compensability is not contested, but the extent of dependency, partial or total, or the identity of a dependent, or both is contested, the Commission may approve a total attorney's fee for attorneys representing all dependents in an amount not exceeding five times the State average weekly wage in a case of partial dependency and not exceeding 12 times the State average weekly wage in a case of total dependency.
(b) In a case involving a claim of dependency, if neither compensability nor dependency is contested and a record is being made solely to determine to whom payments of compensation shall be made, the Commission may approve an attorney's fee in an amount not exceeding two times the State average weekly wage.
(c) In a case involving a claim of dependency, if compensability and dependency are contested, the Commission may approve an attorney's fee in an amount calculated under §B(3)(a) in a case of partial dependency and calculated under §B(4)(a) in a case of total dependency.
(7) Settlement Agreements. Notwithstanding a case of a structured settlement of a claim, in a case in which an agreement for final compromise and settlement is approved, the Commission may approve an attorney's fee in a total amount not exceeding $7,500 and computed as follows:
(a) Up to 20 percent of the first $10,000 of compensation awarded;
(b) Up to 15 percent of the next $15,000 of compensation awarded;
(c) Up to 10 percent of the compensation awarded in excess of $25,000.
(8) Increase in Last Award of Compensation for Permanent Partial Disability.
(a) Except as otherwise provided in §B(8)(b) of this regulation, in a case in which the Commission increases the last award of compensation for permanent partial disability upon which an attorney's fee was previously approved, the Commission may approve an additional attorney's fee in an amount not exceeding the difference between the fee approved for all prior awards and the fee computed under §B(3) or (4)(a), as the case may be, of this regulation on the increased award.
(b) In a case in which the Commission increases the last award of compensation for permanent partial disability upon which the attorney or attorneys were previously awarded the maximum fee permitted under §B(3) of this regulation, the Commission may approve an additional attorney's fee in an amount up to 5 percent of the difference between the prior awards of compensation and the increased award of compensation, but not exceeding five times the State average weekly wage.
(9) Appeals.
(a) When a compensation award of the Commission is appealed to a circuit court and the case is tried on appeal, the Commission may approve an additional attorney's fee in an amount up to 5 percent of the final award of compensation, but not exceeding six times the State average weekly wage.
(b) When a decision of a circuit court on an appeal from a compensation award of the Commission is appealed to a higher appellate court and the appeal is briefed and decided on its merits, the Commission may approve an additional attorney's fee for each appeal in an amount up to 5 percent of the final award, but not exceeding six times the State average weekly wage.
(c) When an appeal from a compensation award of the Commission to a circuit court is not tried, or an appeal to a higher appellate court is not briefed and decided on its merits, the Commission may approve an additional attorney's fee in an amount up to 2.5 percent of the final award, but not exceeding three times the State average weekly wage.
(d) When a final award has not been made and a decision of the Commission on the issue of compensability of a claim is appealed to a circuit court, if the claim is determined on appeal to be compensable, the Commission, upon remand of the case to the Commission for the passage of a final award, may approve an additional attorney's fee in an amount up to 5 percent of the final award, but not exceeding six times the State average weekly wage.
(10) Attorney's Fee Not Allowed.
(a) Absent exceptional circumstances, the Commission may not approve an attorney's fee in a case in which it is determined that the claimant is not entitled to any compensation or benefits.
(b) Absent exceptional circumstances, the Commission may not approve an attorney's fee in a case involving issues such as medical care and treatment, or vocational rehabilitation, in which the claimant does not receive any monetary award.

Slip and Fall Maryland Personal Injury Lawyer

It is that time of the year again. When snow and ice are the reason for a person to slip and fall and be injured there is a potential for liability to the owner of the property. Where a injured party can show that a dangerous condition has been created by the owner such as when an owner has permitted water or ice to accumulate in a manner not apparent to the injured person and the injured person is forced to encounter the condition the owner may be liable. Additionally even if the owner of the property undertakes the effort to remove, but fails to correct or creates an artificial condition, the owner may be liable. In order for a property owner to be liable, the property owner must have had actual or constructive notice of the unsafe condition in sufficient time prior to the injury to have it corrected or to have warned the party that was injured. There are countless examples where persons have fallen on ice in parking lots of shopping centers where the owner has been held liable. Maryland courts have stated when the public is led to believe that the premises have been offered for this entry, the law is clear that the occupation assumes the duty of reasonable care. The court has further found that a land owner may be liable when it allows the snow removal service to pile snow at one end of a parking lot while the parking lot drains at the opposite end. In such an example the court has found that the owner knew that the water from the melted snow would flow across the parking lot to the drain and on cool evenings the water would freeze. This is a perfect example of when an owner has created the dangerous condition. If you a family member or friend has been injured in a slip and fall accident please feel free to call my office 1-888-760-7339.

Estatblishing permanent Injury in a Maryland Personal Injury Case

Before you can establish that the effects of an injury are permanent you first need to establish that the injury was caused by this accident at issue. Typically this is accomplished by the timing of the onset of the complaints of pain and for some people diagnostic test confirming injury. Once you have established this causal connection you will may need expert testimony to establish that the effect of the injury is not likely to change. The only exception to this requirement for expert testimony to establish permanency is when the injury is of such a nature that common knowledge is sufficient to justify its probable permanent nature. For example in Cluster v Upton, 165 Md. 566 (1933), the issue of permanent injury was submitted to the jury without expert testimony where the plaintiff's finger, fractured in the accident, was still crooked 11 months after the accident.

Lost Wages and Future Loss of Income as Damages in Maryland Personal Injury

I receive several communications each week either by telephone calls or e-mails from people inquiring about the difference between lost wage claims and loss of future earnings arising out of injury in a Maryland personal injury case.

Lost wages from the date of the accident to the date of trial or to the date that you return to work, even if in some modified capacity, represent your claim for lost wages.

Future loss earnings represents the lost income you can expect from the date of trial forward into your future. Proof of future loss earnings typically requires a doctor who is familiar with your work requirements and your physical limitations as a result of your injury caused by the accident to testify within a reasonable degree of medical probability that you cannot return back to your prior employment. Coupled with that you will need a vocational rehabilitation expert, or someone of like credentials, to tell us what your post accident physical capabilities are and what job markets exist for people with your capabilities. Finally, you will need an economist to calculate the total amount of your future loss earnings. They will then have to reduce those future loss earnings to a present value. The only other piece of evidence you will need to prove future loss earnings will be the work life expectancy calculations which will be provided by the economist.

If you have any questions on these issues or any other issues affecting Maryland personal injury please feel free to call me at 1-888-760-7339.

Maryland Products Liability Lawyer

In a typical product liability suit one who designs, manufacturers or sells any product in a defective condition unreasonably dangerous to the user or consumer is subject to liability for physical harm caused to the user or consumer. The liability claim can be grounded in strict liability and also negligence. An issue sometimes arises in situations where the defective condition causes injury not to the user or consumer rather to a bystander. In the case of Valk Mfg. Co. v. Rangaswamy 74 Md. App. 304 (1987) the Court of Special Appeals addressed strict liability asserted by a bystander, plaintiff. In this case the plaintiff was killed in a car accident. The plaintiff's counsel argued his client's death could have been avoided had the arms of a snow bucket assembled to the front of a truck been removed prior to the impact. Testimony indicated the assembly was not easily removable as design. As such, the workers who had completed all of their snow removing responsibilities failed to remove the fixture and subsequently crashed into the plaintiffs vehicle. Unfortunately the fixtures projecting forward from the front of the vehicle pierced through the plaintiffs passenger side window making contact with this person and causing his death. The plaintiffs successfully argued that the projecting arms enhanced the injury and could have been removed with little effort had the assembly been properly designed. In fact the plaintiff produced an expert to testify that the fix to the design was as simple as a quick disconnect hose. The importance to the plaintiff's case in proceeding on strict liability was the elimination of the defendants claim to contributory negligence. You see in a strict liability claim the only defense a defendant can raise is assumption of risk.