Minimal Property Damage and Personal Injury In Maryland

The defendants are always making the argument that minimal property damages equals no personal injury. For example how can the person inside the car be hurt when the car is hardly hurt. The argue has some persuasive value in spite of the fact that it ignores the human factor that people are not cars. I use the example in trial of going to the play ground and seeing children pushing children at play. The child falls get back up and the game continues. Well if you push an elderly person the force of the push would break the person in half. The same is true of people not in shape or turned in an odd way at the point of impact, or susceptible to injury due to pre-existing conditions. The list goes on depending upon the facts of your case. In any event the Maryland Court of Appeals addressed the issue of whether property damage photographs can be offered into evidence with out expert testimony to establish the relationship, if any, between property damage and personal injury. The Court in the matter of MASON v. LYNCH. 388 Md. 37, 878 A.2d 588 held "Courts have generally held that photographs and testimony, showing or describing vehicular damage or the nature of the impact, are relevant with respect to the personal injuries suffered in a motor vehicle accident and, in the trial judge's discretion, are admissible." In this matter Plaintiff argued because greater vehicular damage does not result in greater personal injuries, and lesser vehicular damage does not result in lesser personal injuries, in every accident, there can be no correlation between vehicular damage and personal injuries; therefore, vehicular damage evidence is not relevant. However, the Court determined this is not the test for relevancy. Maryland Rule 5-401 defines “ relevant evidence” as follows: ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”
Courts, almost uniformly, have taken the position that there is in motor vehicle accident cases, as a matter of probability, a correlation between the nature of the vehicular impact and the severity of the personal injuries. As the plaintiff herself acknowledges in Morgan, “[t]here apparently exists among laypersons a belief ... that significant injuries are unlikely in the absence of substantial property damage.” Courts have generally taken the position that this belief is rooted in common sense. Moreover, in personal injury actions based on motor vehicle accidents, evidence, including photographs, of the accident scene and of the damage to the vehicles, is, within the trial court's discretion, admissible under Maryland law.
In sum, the trial court in the instant case did not abuse its discretion in admitting the photographs showing the damage to the plaintiff's automobile.

Injured During Work Driving the Company Vehicle

If you have been injured during work while driving the company vehicle you have two claims to bring in a Maryland injury case. The first claim is against the driver of the other vehicle. This is what we call the third party claim. The other case you have is a claim for workers compensation benefits against you employer. There are a few things you need to know before you start. One is you can not get both PIP benefits and TTD (lost wage benefits) in this situation. Additionally, the workers compensation insurer will have a credit against your third party recovery. Furthermore, in the event your third party case also gives rise to a UM claim. The workers compensation insurer will argue for a credit against the UM recovery as well. I have negotiated three cases in the past 12 months involving these issues. Each case resulted in a mid six figure recovery for my clients. Each case involved a third party claim, a UM claim, and a workers compensation claim. If you think fighting one insurance company per case is interesting try fighting three at the same time. Fortunately we were successful in each case. If you have any questions regarding this type of case, please feel free to call me I am happy to help you through this maze.

Maryland Personal Injury 19-511 UM Insurance

In Maryland personal injury law you may encounter the situation where the defendant's insurance carrier has offered the liability policy limits as a full and final settlement. In this circumstance the UM carrier must be notified of the settlement offer (see Maryland Injury Attorney for information on this statute). That procedure is simple enough. However,the circumstances become a bit more complicated when the liability insurer makes this offer with in 60 days of the trial date. In this situation the UM carrier does not have the respond before the trial is held. As such arguably the parties risk the loss of the benefit of settlement or the plaintiff losses the opportunity to proceed against the UM carrier, if the plaintiff should choose to accept the settlement before the UM carrier responds. The solution is to postpone the trial to allow the UM carrier time to respond. I have had success with this approach and citing the case of Ohio Casualty Insurance Company v Chamberlin, 172 Md. App. 229, 914 A.2d 160 (2007), which reviewed section 19-511. In Chamberlin the Court soundly determined that the statute “was enacted to protect the innocent victim from irresponsible drivers with out insurance”. Or as in this case a driver with inadequate insurance. Furthermore, the Court stated the statute “is not intended to deprive the insured of the benefit of a settlement with the liability carrier.” Please feel free to call me if you encounter this problem.

Settlement to Minors In Maryland Personal Injury Cases

There are unfortunately many instances where a minor child is injured as a result of the careless choices someone else had made. In these circumstances special attention must be given to the future consequences of the injury, if any. In Maryland personal injury cases the law requires certain provisions be observed when settling a minor's claim. These provisions are to insure that the minor child receive the benefit of the settlement. The law governing settlement of a minor's claims is outlined below. The provision apply only in situations where the proceeds the minor is to receive exceeds $5,000.00. And require funds to be held in trust for the benefit of the child until age of majority. Particualr language must be written on the check in distribution to the minor as outlined below.
§ 13-403. Payment to trustee

(a) Unless a court appoints a guardian of the property of a minor under subsection (c) of this section, if a minor or any other person in whose name a claim in tort is made or judgment in tort obtained on behalf of a minor recovers a net sum of $5,000 or more, the person responsible for the payment of the money shall make payment by check made to the order of


"................................., trustee under Title 13 of the Estates and
          (name of trustee)

Trusts Article, Annotated Code of Maryland, for .............................,
                                                               (name of minor)

minor".


(b) No other act is necessary to constitute the person named a trustee.


(c)(1) In accordance with the procedures for the appointment of a guardian under Subtitle 2 of this title, the court may appoint a guardian of the property of a minor on whose behalf a recovery in tort is sought or has been obtained if the court determines that the appointment would be in the minor's best interest.
(2) The petition for guardianship may be made by an interested person or a trustee under this subtitle.

(d) If a court appoints a guardian of the property of a minor under subsection (c) of this section and the minor or any other person in whose name a claim in tort is made or judgment in tort obtained on behalf of the minor recovers a net sum of $5,000 or more, the person responsible for the payment of the money shall make payment by check made to the order of ".........., (name of guardian), guardian under Title 13, Subtitle 2 of the Estates and Trusts Article, Annotated Code of Maryland, for .......... (name of minor), minor".

Statute of Limitations Against Your Underinsured Motorist Coverage

This issue covers those circumstances when you know the defendant insurance coverage will not be adequate to cover the extent of the injury you have sustained. This can happen when the defendant has no insurance or the insurance they have is not enough to compensate your damages. So the issue sometimes arises as to when do you have to file suit against your own insurance company or more accurately the insurance company covering the vehicle you were in at the time of the accident. Some people argue the time frame starts when you are injured. However in Maryland personal injury cases the suit against the UM carrier is a claim in breach of contract. As such according to Lane v. Nationwide Mut. Ins. Co., 321 Md. 165, 582 A.2d 501 (1990), the court determined the Statute of Limitations will not begin to run on a suit by the insured against the insurer for the breach of the contractual duty to indemnify until that breach literally occurs.

In the Lane case husband and wife were involved in an automobile accident that was the apparent fault of an uninsured motorist. They notified their insurance company of the accident shortly after it happened. On December 14, 1982, they brought suit against the uninsured motorist. The insurance company, however, made no effort to intervene. On April 17, 1986, over three years later, the Lanes sued their insurance company for uninsured motorist benefits. The insurance company filed a motion for summary judgment, asserting that the action was barred by the three-year Statute of Limitations. The Court of Appeals held the Statute of Limitations cannot begin running until there is an actual breach of the contract.

Maryland Medical Malpractice the Twenty Percent Rule

Maryland medical malpractice law places a limitation on who can testify in the cases to certify and/or testify to the standard of care to those medical providers who devote no more then 20% of their professional time to testifying in personal injury cases. Specifically, MD Code, Courts and Judicial Proceedings, § 3-2A-04 b(4)

A health care provider who attests in a certificate of a qualified expert or who testifies in relation to a proceeding before an arbitration panel or a court concerning compliance with or departure from standards of care may not devote annually more than 20 percent of the expert's professional activities to activities that directly involve testimony in personal injury claims.

The issue was addressed in in Witte v. Azarian where the court addressed what kind of activities “directly involve testimony in personal injury claims,” within the meaning of CJ section 3-2A-04(b)(4), so as to constitute the numerator in the 20 Percent Rule. The court reasoned that the operative statutory phrase at issue (“activities that directly involve testimony in personal injury claims”), was ambiguous, as its meaning could not be ascertained from its plain language, and that, in light of the legislative history of the Act as amended, including the amendments establishing the certificate of qualified expert requirement, that language had to be read narrowly, so as to avoid “creat[ing] an unreasonable impediment to the pursuit, or defense, of a common law right of action” for medical negligence. The Court determined a standard to determine the issue as follows:

A more reasonable approach, we think, is to regard the statute as including only (1) the time the doctor spends in, or traveling to or from, court or deposition for the purpose of testifying, waiting to testify, or observing events in preparation for testifying, (2) the time spent assisting an attorney or other member of a litigation team in developing or responding to interrogatories and other forms of discovery, (3) the time spent in reviewing notes and other materials, preparing reports, and conferring with attorneys, insurance adjusters, other members of a litigation team, the patient, or others after being informed that the doctor will likely be called upon to sign an affidavit or otherwise testify, and (4) the time spent on any similar activity that has a clear and direct relationship to testimony to be given by the doctor or the doctor's preparation to give testimony.

Litigation Themes

I have been reading and studying the use of themes in litigation. I thought some of what I have learned might be helpful to you. As I research on this issue I actually found a lot of material but very little concisely condensed material.

First themes are essential to success in litigation. I found a great deal of really useful information by ordering and listened to audio recording of trials in the area. I typically select the larger verdict trials. If you are interested in doing this also it is easy. You can order the audio and video (video in Baltimore City circuit court, with the consent of parties or counsel) for about $25-$45 per day of trial testimony. Interestingly I discovered every successful plaintiff's case is really just the advancement of themes. The successful attorneys have captured the simplest understanding of the human drama of their case and reduced it to a easily identifiable set of concise words. Those successful themes inherently carry the proposition that the defendant has made a careless choice and is now trying to side step responsibility for the harms by dodging responsibility or passing the buck. Like revenge these themes are best served cold and dispassionately. One author proposed developing a theme by first asking yourself what do you want from this case and then outlining the facts that support why you should have it. Others propose a similar formula which ask why should I win this case? All agree formation of the theme early in the case even before discovery is essential. Understanding the theme will be modified to changing facts as discovery progresses. Once trial is viewed as theme advancement evidential issues become some what secondary requirements. Obviously necessary but still secondary to theme advancement.