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Auto Accident Blog

That Was So Long Ago

Wednesday, May 09, 2012

One of the phrases that I hear at trial and at depositions that makes me cringe is: “That was so long ago.” Everyone says it: Plaintiffs, Defendants, witnesses, everyone. It doesn’t matter what the person’s role in the case is, or whether they have been properly prepared by their attorney, whether they have no attorney, or even if they have been “coached.” Eventually they say it: “That was so long ago.” But what does that mean?

Essentially when a person tells you that an event happened “so long ago,” they are apologizing or at least trying to explain a perceived defect in their memory. If you can imagine the questioning of Ms. Smith, a victim of a rear end collision by a Defense attorney:

Attorney: On the date of the accident, January 2, 2010, where were you going and where were you coming from?

Ms. Smith: I left my home in Gaithersburg and I was traveling to work in Rockville.

Attorney: At the time of the collision, what road were you traveling on?

Ms. Smith: I was traveling on Rockville Pike.

Attorney: What was the nearest cross street?

Ms. Smith: Wooton Parkway, that is where the collision occurred.

Attorney: Was your vehicle moving at the time of impact?

Ms. Smith: I was standing still, stopped in traffic at a traffic light, when I was rear ended.

Attorney: How many vehicles were in front of you when you were stopped at the traffic light?

Ms. Smith: Oh, that was so long ago, I don’t remember.

Ms. Smith was doing just fine in describing the collision until she uttered that phrase. Most people, unless they are the first or second vehicle at a traffic light, generally do not take note of, or if they do, do not recall the number of vehicles in front of them at any time. Think about the last traffic light you stopped at, how many cars were in front of you? What was the make and model? What color? You can’t remember. Most people, if not the first or second vehicle, don’t forget how many cars were in front of them, they never actually counted and therefore never knew. You cannot forget that which you never knew. The question asked of Ms. Smith is a very common one, and a very common type of question asked by defense attorneys. It requests information that almost no one can recall. That way, the Defense attorney can later go back and point out to the judge or jury how poor the Plaintiff’s memory is and argue that her credibility is suspect. Instead of simply stating, “I don’t remember,” which would have been an appropriate response and likely only reflected on a single fact, she tainted her entire testimony.

By stating that the collision was a long time ago, Ms. Smith has called into question her memory of the entire event if not the next year of treatment and related pain and suffering. If it was so long ago that she cannot recall, then perhaps her testimony regarding her injuries and experiences are incorrect. Perhaps her testimony regarding her hourly wage or the time she missed from work is suspect. Perhaps a judge or jury should discount her testimony in general. Perhaps, if she can’t remember this allegedly large event in her life, it wasn’t really that bad, and you should not award monetary damages to her. It is a terrible sentence to utter.

A decent Plaintiff’s attorney can rehabilitate a witness by asking details of relevant events related to a client’s injury, but it may not erase the full damage. This issue then begs a few questions. Why did it take so long to get Ms. Smith in front of a judge, jury, or to a deposition? What could she have done prior to her testimony to refresh her recollection?

The reality is that the legal process can take a long time. In a simple case, a person is rear ended and goes to a doctor. She treats with the doctor for four months and is released. Her attorney collects her records and waits a short while to make sure she is okay and that she will not have to go back to the doctor. After that short cooling off period the attorney sends a demand package to the insurer. The insurance company takes two months to evaluate the claim and then makes a low offer that is not acceptable. The attorney files a lawsuit and is give a trial date in the District Court four months after filing. A year has passed. If this case were more complex, the client may have treated for a year or longer. Instead of filing in the District Court, she filed in the Circuit Court and received a court date 18 months from the filing date. It is not unusual for a Circuit Court case to go to trial three years after the actual injury. “That was a long time ago.”

How do you keep the information fresh? After a collision, immediately after, the client should record what happened. This does not mean giving the insurance company a recorded statement. Instead, write a letter to your attorney explaining everything that happened, or sit down with your attorney and let your attorney take notes as you describe everything in detail. You do not want to produce a document that will have to be turned over the Defense attorney later, instead, make all written recordings in a format that is for your attorney only. It will be protected by attorney client privilege. Also, make sure you tell your medical providers EVERTHING that is wrong. Tell them if you cannot sleep, tell them if you have pain trying to put on your socks. If you don’t tell the doctor, then it is like it didn’t happen. This way, you can go back later and review your letters to your attorney, you can read your medical records, and it will refresh your memory. If you have experienced a severe injury or have prolonged pain, keep a diary. Remember, however, that this diary may find its way into the Defense attorney’s hands. You should consult with your attorney before doing that. An alternative is to essentially keep a diary of your pain and suffering, but instead of a notebook, send the entries to your attorney as emails. These are communications protected by attorney client privilege and do not have to be turned over to the Defense attorney.

The key to remembering important facts for depositions or trials is to not forget in the first place, or to give yourself the tools required to refresh your memory later. If you can’t remember, just say so, but don’t apologize for forgetting and don’t feel the need to explain yourself. We already know, “That was so ago.”

By Craig I. Meyers, Esq.

The Recent Court Of Appeals Decision Regarding The Firefighter’s Rule: Now What?

Tuesday, May 10, 2011

It has not been an easy few weeks for the autotort practitioner or motorists in Maryland. A few cases have come down from the appellate courts that have left a stinging sensation in their wake. The first is one that may not apply to too many people reading this blog, but is important for many of my firm’s clients. It was truly a disappointment in that I had been waiting for well over a year for the Maryland Court of Appeals to decide this case, as the decision would affect a different case I had pending. Now that we have the decision, I could have kept on waiting. In the recent case of White v. State of Maryland, the Court of Appeals had an opportunity to lessen the harshness of the common law Fireman’s Rule, but didn’t.

As a background, this firm represents a significant number of firefighters and police officers. The Fireman’s Rule, now the Firefighter’s Rule “is a common law rule that generally precludes police officers and firefighters injured in the course of their duties from suing those whose negligence necessitated the public safety officers’ presence at the location where the injury occurred.” White. Basically, it is a rule that says if a firefighter or police officers come to your house, then they can’t sue you because they got injured.

The Court of Special Appeals initially heard the case and applied the rule rather strictly. The Court of Appeals then had the opportunity temper the Rule, however, the facts of White were not really conducive to good law. In White , a state trooper responded to an armed robbery call and initiated a high speed pursuit of the suspect. The problem was that the dispatcher made an error in that the crime was only a simple theft or even shoplifting, instead of the felony of armed robbery. During the high speed chase, the trooper lost control of his vehicle and crashed. He then sued the State of Maryland as the employer of the dispatcher, arguing that he would not have pursued the suspect at such a high speed if he knew it was only a petty theft.

As the cliché goes, bad facts make bad law. Perhaps the Court of Appeals knew this and is why they worded their holding as follows:

“We hold that, under the facts of this case, the firefighter’s rule bars Petitioner, Richard White, a police officer injured during a high-speed chase of a fleeing suspect, from suing Respondent, State of Maryland, the employer of a police dispatcher whose negligence caused Petitioner to engage in the high-speed chase.” (Footnote omitted).

In my practice, and for most personal injury attorneys representing public safety officers, the issue isn’t what happens when a trooper has a single car accident; in that situation, I agree with the Court. But the real problem is below.

Officer (O) stops motorist A for speeding. O follows all of the rules and does everything he is supposed to do. The vehicles are safely on the shoulder; O’s vehicle is at an angle giving him some protection as he speaks to A. While O is standing beside A’s vehicle, motorist B negligently strikes O causing bodily injury to O.

Under the Firefighter’s rule, it is clear that O has no cause-of-action (meaning no case) against A. It was A’s speeding that caused O to have to exit his cruiser and is one of the causes for O’s injury, but, any case against A is barred by the Firefighter’s rule. The real question is whether O has a claim against B. It was not B’s negligence that caused O to be on the side of the road and out of his cruiser. Some attorneys believe that O is barred from any claim against B under the Fireman’s rule, and that essentially, O accepted the risk of that injury when he entered the Academy. This is the prevailing defense in such a case. I disagree, and many jurisdictions are on my side. O is barred from a claim against A for putting O in a dangerous situation, but B acted directly in injuring O and was not one of “those whose negligence necessitated the public safety officers’ presence at the location where the injury occurred.” White .

The Court in White did not address all of the important issues related to the Fireman’s rule. Considering the number of officers injured in the line of duty, I am sure that in time, the Court will have to address the above fact pattern. I can only hope that the Court will force B to take responsibility for his negligent actions. In the current state of the law, O is generally forced to settle with B’s insurer for change on the dollar and B avoids personal responsibility for his actions.

By Craig I. Meyers, Esq.

Automobile Insurance

Thursday, December 30, 2010

It is impossible to discuss personal injury law without a basic knowledge of insurance. The aftermath of a crash is the wrong time to begin understanding insurance. This entry will introduce you to the basics of car insurance. If you look at your policy, you should have a document labeled as a declarations page. This is a summary of all of the different coverages that you have purchased and tells you the limits, or maximum amount an insurer will pay, of your policy.

Bodily Injury Liability:

First, you should look at the bodily injury liability coverage. This coverage is the maximum your insurance company will pay to someone that was injured due to your error. This could be a person in a car that you strike, it could be a pedestrian, or it could be a passenger in your car. An example of this is, if you rear end someone or run a red light and strike another vehicle, it is the bodily injury liability coverage you purchased from your insurer that is paid to cover the other driver’s medical bills, lost wages, and pain and suffering.

There are two numbers associated with this coverage. For example, your coverage may be listed as $50,000/$100,000, which means that any single person injured due to your negligence (or fault) may receive up to $50,000; however, your policy will not pay out more than a total of $100,000, no matter how many people are injured.

Property Damage Liability:

You also have property damage liability coverage, which pays for any damage you may do to someone else’s vehicle, telephone pole, or structure. This is a single limit, unlike the bodily injury liability, and therefore there is a single pool of money to satisfy claims against you.

Uninsured Motorist Bodily Injury Coverage:

This coverage is called a first-party coverage and protects you, the people in your car, or qualified people in your household in the event you are injured by someone who does not have insurance to pay your claim. To qualify for this coverage, you must be struck by an uninsured motorist and you cannot be at fault. This is also the coverage that protects you in a hit and run accident.

In addition to uninsured motorists, your uninsured motorist bodily injury coverage will provide coverage for underinsured motorists. An underinsured motorist is a driver that does not carry enough insurance to cover your whole claim. If your uninsured motorist bodily injury limits are higher than the underinsured motorist’s bodily injury limits, then you can make a claim on your own policy. An example is an at fault-driver with a policy limit of $50,000 per person, when you have a claim worth $100,000 as well as uninsured motorist coverage of $100,000. In such an event, the at-fault driver’s policy will pay the first $50,000, and your own insurance will pay the second $50,000. Don’t worry, your insurance rate will not go up.

Uninsured Motorist Property Damage Coverage:

There is not much to discuss, it is what it sounds like. If an uninsured motorist strikes your vehicle, you do not have to use your collision coverage, you can use your uninsured motorist property damage coverage. There is usually a deductible associated with it.

Personal Injury Protection:

While bodily injury liability and uninsured motorist bodily injury coverages are required by law, there are other coverages that are optional. You may have personal injury protection (PIP) coverage. This is a no-fault policy, meaning it will pay no matter who is at fault for the accident. PIP will pay for medical bills and lost wages (reduced by 15%) up to the policy limit. Policy limits are usually between $2,500 to $10,000 in $2,500 increments. To collect your PIP benefits, you must file an application with your insurance company within one year of the accident.

Collision and Comprehensive:

Collision and comprehensive coverages are also optional. Collision will pay for the repair or replacement of your vehicle in the event of a crash. Comprehensive will pay for the repair or replacement of your vehicle in the event of a loss that is not a crash (i.e. theft or vandalism). You likely will have a deductible to pay.

By Craig I. Meyers, Esq.

Car Crash Case Study Part I

Thursday, December 30, 2010

Not long ago, I had a case where a husband was driving in Baltimore City on a Saturday morning with his wife in the front passenger seat. As the husband approached an intersection, he faced a green light. At the same time and place, on the intersecting street, another motorist (other guy) approached the intersection facing a red light. The other guy had a passenger, his cousin, whom he was taking to the bus station. As the husband entered the intersection, so did the other guy.

The cars crashed violently. There were pieces of bumpers, turn signals, and other parts everywhere.

Immediately after the collision, the husband checked to make sure there were no life-threatening injuries to anyone in either car. He then pulled his damaged vehicle to the side of the road and made sure his car was in a safe place. He then called the police. An officer arrived but refused to make a report; he only did an information exchange. In addition, while the other guy apologized no fewer than half a dozen times prior to the police officer’s arrival, he told the police officer and later his insurance company that it was the husband that ran the light. While the police officer was at the scene, the husband took photographs of the scene, damages, and parties.

There were several witnesses to the collision including a car directly behind the husband, but no one stopped to provide their contact information. In the excitement, neither the husband nor the wife took down the license plate numbers of any of the potential witnesses. Eventually, the cousin admitted that admitted that the other guy was on the phone, was lost because he could not find the bus station, and was not paying attention. Even with her admission, however, a lawsuit had to be filed.

By Craig I. Meyers, Esq.

Case Study Part II: The Husband

Thursday, December 30, 2010

As you recall, we were following a husband and wife involved in a motor vehicle accident. The husband had immediate pain in his neck at the scene of the accident. The pain was not severe so he decided to go home, take some Advil, and see how he felt the next morning. When he woke up, he had severely stiffened and was in significantly more pain than the day before. This is very common with sprains and strains. Since it was a Sunday, and he was in pain, the husband went to the emergency room, where he was examined and x-rays were taken. He was released with medication and told to follow up with his doctor.

As it turns out, the husband had a prior sports injury to his lower body and was already under the care of chiropractor. On Monday, he contacted his chiropractor and went to see him. Because the husband already had a pre-existing injury, unrelated to a motor vehicle accident, it was important for the chiropractor to define exactly what the husband’s condition was prior to the accident so he could give an opinion as to the worsening of the husband and the changes that he underwent.

The chiropractor’s examination showed spasm and trigger points (essentially knots). The chiropractor prescribed conservative chiropractic care including chiropractic manipulation, massage, and electrical stimulation. After about three to four months, he was back to his pre-accident condition. Several months after that, a demand was sent to the at-fault driver’s insurance company. The demand described the accident and how the husband was thrown forward and backward and into the driver’s side door. It included property damage photographs showing the totaled vehicle. It included a summary of the medical records and bills and further described the inconvenience and pain the husband endured during after the accident. The insurance company made an offer, I negotiated with them over a week or so, and eventually, the insurance company made a reasonable offer to which the husband agreed and the case settled. All in all, the husband was happy with the result.

The husband’s case was a typical soft tissue case. He followed the doctor’s instructions, he got better, and the case settled. The wife’s case was another story.

By Craig I. Meyers, Esq.

Case Study Part III: The Wife

Thursday, December 30, 2010

The wife’s case was a bit more difficult than the husband’s. Although she felt pain immediately in her neck and shoulder, she did not go to the emergency. When the pain increased the following day, she figured Advil and hot showers would be sufficient. After about two or three weeks, she decided that she should see a doctor. She contacted a local orthopedist and scheduled an appointment for the following week. The doctor noted pain in her neck and shoulder and diagnosed her with a sprain/strain and an impingement of her shoulder (inflammation in the rotator cuff of the shoulder). She underwent physical therapy, but did not improve quickly.

After treating about a month of physical therapy, the wife had a second accident. She was stopped in traffic and was rear ended. The property damage was not severe, but the wife was thrown forward and backward and suffered a worsening of her prior injury.

The wife went to the emergency room that night due to the pain and to the orthopedist the following day. The doctor confirmed that there was no new damage but that the second accident exacerbated the first. The wife required months of physical therapy.

Once the wife was better, the time came to send demand packages to the insurers. I obtained a written opinion from the treating orthopedist explaining which accident was responsible for which part of the wife’s injury. The wife was able to settle part of her claim initially, but I had file a lawsuit to force the insurance company to pay her for the second part of her injury.

As often happens with insurance companies, once the lawsuit was filed, they came to their senses and we were able to settle the case. The insurance company raised two major defenses against the wife. The easy one, was the second defense, that she had a second injury and that cut off any liability relating to the first accident. This was not in the wife’s control, she did not ask to be rear-ended. However, the first defense, and a very common defense used by insurance companies was that the wife did not seek treatment for the first injury until almost four weeks had passed and therefore she obviously was not really injured in the crash.

For non-life-threatening injuries many people do not go to the emergency room, but if you do not, the insurance company will conclude that you are not injured. Further, many people self treat for a week or have to wait over a week to get an appointment with a doctor. Again, the insurance companies cite these “gaps” in treatment or delays in treatment when denying claims. The wife should have gone to the emergency room and should have seen the orthopedist sooner. As a result, her case took a year longer than the husband’s. In the end, however, I obtained good results for both the husband and the wife.

By Craig I. Meyers, Esq.

What To Do In The Event Of A Crash

Thursday, December 30, 2010
  1. Check for life threatening injuries. This includes you, your passengers, and the other vehicle. Call 911 if anyone requires emergency assistance.
  2. Make sure you are in a safe location. Pull off to the shoulder, or walk to an area of safety. Do not remain with your vehicle if it is not safe to do so, but do not go too far.
  3. Call 911 if you have not done so already. You should note that if no one is complaining of injuries and the vehicles are functional, the police may refuse to respond. But, you should still call. If you truly believe you need their assistance, don’t be afraid to demand it. But, be prepared to wait.
  4. Identify witnesses. Sometimes people witness accidents and do not give you their information. If there are vehicles in the immediate area and you believe someone witnessed the crash, get their information. If they refuse, take down their license plate numbers. Your attorney can run the tag and locate them later.
  5. Exchange your information including name, address, and insurance information.Do not forget to take down the make, model, and license plate number of the other car.
  6. Do not admit fault. This may seem to go against what your parents taught you, but your understanding of the law may be incorrect. You should not admit fault if you are not truly at fault for the collision. If it turns out that the collision was your fault, then you and your insurance company can take responsibility later, but only after analyzing the facts and applying the law. A common example is as follows: A driver is travelling on a through highway at 40 mph in a 30 mph zone. He is clearly and intentionally exceeding the speed limit. A vehicle with a stop sign attempts to cross the through highway and would have made it across if the speeding driver had been traveling slower, but instead, the two vehicles collide. The speeding driver may feel responsible and may wish to apologize for the collision. BUT, under Maryland law, the speeding driver had the right-of-way and was not at fault, even though he was speeding. Do not admit fault until you are sure you really are.
  7. Take photographs. Use your camera or cell phone to take photographs of the scene, witness vehicles, and the crash vehicles, especially if they have not been moved.
  8. Seek medical help. If you are injured go to the emergency room. Go by ambulance if necessary. If you go home and realize you need medical care, it is not too late to go to the emergency room. Go.
  9. Contact your attorney. We are here to help. Don’t make a mistake early on that you cannot fix later. These mistakes include giving recorded statements, talking to people you shouldn’t talk to, and accidently disposing of evidence. Don’t do it, call us.
  10. Contact your insurance company. But, DO NOT give a recorded statement to any insurance company until you have contacted your attorney. DO NOT speak with the other driver’s insurer unless you have first discussed it with your attorney.

By Craig I. Meyers, Esq.

What Should You Do If Your PIP Is Denied?

Thursday, December 30, 2010

First, you should have an attorney that focuses their practice on personal injury cases. You need someone who is up to date on autombile insurance.

The insurance companies and your agent are sloppy when it comes to PIP waivers. The waiver must be in 10 point font, certain sections must be bolded, it must have certain information, and it must list the cost of the coverage with and without PIP. Probably a dozen times this year, I have received a letter from a client’s insurance company telling me there is no PIP due to a waiver. The first thing I do is request a copy of the waiver. If they cannot produce the waiver, then the client is entitled to PIP coverage in the amount of $2,500, even if they have not paid for it. Second, I compare the waiver to the statute. You would be surprised how many times the cost of the coverage is not listed. The result is $2,500 in PIP coverage. Finally, if the provisions of the law are not listed, you guessed it, PIP coverage.

I had an adjustor tell me it was wrong for me to obtain PIP coverage for a client who did not pay for it, but she did not understand the law. The PIP waiver law is a consumer protection law. The provisions of the law are there so that consumers of automobile insurance can make an educated decision about whether they wish to purchase PIP coverage. If the insurer does not give the consumer the minimum amount of information required by law to make an educated decision, then the insurance company has violated the law and must provide the coverage. It is not fair to the consumer to withhold material information just to sell a policy.

The penalty for failing to provide PIP coverage to one of my clients when the waiver is invalid is a lawsuit filed by me. Some attorneys don’t like to bother with PIP lawsuits because they don’t generate a large fee, but in the bigger picture, it important that the adjustors know which attorneys will sue and which will not. If the waiver is proven invalid in court, the law allows the client to collect the $2,500 minimal PIP, plus 18% interest, plus attorneys fees. The attorney’s fees are a new provision, the result of which is that the insurance companies are more willing to settle and provide the coverage without a lawsuit.

As an example of this process, this past summer I had a married couple come to me after being involved in a motor vehicle crash. I sent a letter to their insurer requesting PIP applications only to find that the husband signed a PIP waiver 13 years earlier. PIP waivers do not expire. If you waive PIP, it remains waived until you purchase (not renew) a new policy or change insurers. I requested the waiver and immediately noticed multiple defects, at least under the current law. I then pulled the applicable law from 1997 and learned that the waiver was defective when it was purchased. I called the adjustor and explained the defect; she disagreed. I then sent a letter to the adjustor explaining my position. Prior to filing suit, I requested that she have the waiver reviewed by their in-house counsel, which she did. In the end, the attorney for the insurance company agreed with me and PIP was provided to the clients in the amount of $2,500 each. I did not have to file suit, it just required some legal research and trip to the law library (neither Lexus nor Westlaw had the old statute).

Below is an excerpt from the letter that eventually resulted in $5,000 in coverage for my clients.

Dear Ms. X,

As we discussed this afternoon, I reviewed Mr. XXXX’s alleged PIP waiver, and have found it to be defective. The PIP statute in effect on April 12, 1997, the date of alleged waiver, is substantially similar to the current PIP statute, Insurance Article, § 19-506. The old statute, Art. 48A. § 539 (1993), requires at part (f) (2) (iv),

The form shall clearly and concisely explain in 10 point boldface type:

1. The nature, extent, and cost of the coverage and benefits that would be provided under the policy if not waived by the first named insured;

Clearly your purported PIP waiver lacks any language as to the cost of the coverage, a common error on many supposed PIP waivers. In addition, the waiver is silent as to the extent of coverage. Further, any allegedly proper language may be in 10 point font, but is not boldfaced. Finally, you may also notice that [name of insurer] even cited the statute incorrectly on its waiver. As you know, any substantive or even technical violation of the PIP statute compels the insurer to provide minimal PIP benefits; $2,500 coverage each for Mr. and Mrs. XXXX.

The PIP statute is a consumer protection statute and was written into law to make sure that the insured has all of the knowledge necessary to make an informed decision. [The insurer]’s defective waiver took that right from Mr. XXXX. In this case, the PIP statute functioned as it was intended by the Maryland legislature. [Insurer] is a highly sophisticated negotiator and should have been able to provide Mr. XXXX with the proper waiver.

The lesson learned is that you should never take the insurer at its word when any coverage is denied. Also, make sure you have an experienced and knowledgeable personal injury attorney who knows the law.

By Craig I. Meyers, Esq.

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