Auto injury accident attorney Craig Meyers of Berman, Sobin,
Gross, Feldman & Darby LLP shares his insight in the video below on how long auto accident injury cases can take to come to completion. Learn more about Craig and our attorneys by visiting http://www.bsgfdlaw.com/our-attorneys.
It is a fact of life that police officers, on occasion, find themselves in their own personal vehicles but in uniform. Whether it is on the way in to the barracks, on the way home after a shift or for a multitude of other reasons, accidents and injuries do occur under these circumstances. The question arises, under the Maryland Workers’ Compensation law, as to whether these injuries are covered or “compensable.” Generally, the law provides that injuries suffered going to or coming from work are not compensable – this is the “going and coming rule.” Then there are the exceptions to the rule – many of which have created a great amount of litigation.
Act One – Montgomery County, MD v. Pamela Wade (1991) - Montgomery County police officer Pamela Wade was operating her marked police cruiser, off duty - not in uniform and on a personal errand – driving her mother to her grandmother’s house for dinner. She was rear-ended and injured significantly – so much so that she eventually had to retire on disability. The undersigned filed a Maryland workers’ compensation claim alleging that the use of the police cruiser, in full compliance with the County’s personal patrol vehicle program was a significant benefit to the County and that, as such, the “employer conveyance exception” to the going and coming rule applied. A jury and both Courts of Appeal agreed. Officer Wade’s injuries were therefore compensable under the law – and this rule has state-wide application for all law enforcement officers by virtue of the decision of the Court of Appeals.
Act Two – State of Maryland v. Oliver O. Okafor(2014) – Trooper First Class Oliver Okafor was operating his own vehicle, in uniform, while on his way in to the Forestville barracks on January 25, 2013. His purpose – to obtain a fleet vehicle for use on patrol because his assigned cruiser was disabled. The evidence demonstrated that the State provided Trooper Okafor with a take home cruiser for his use - and typically, the officer would call in upon entry of that cruiser - at his residence - that he was “in service.” When Okafor was involved in an accident and sustained injuries on January 25, 2013 while in route to the barracks, it was at a time when he would have been, but for the fact that his cruiser was disabled, operating the take home cruiser and in service. The Court of Appeals considered the “going and coming “rule but determined that the evidence supported a finding that the “free transportation” exception to the “going and coming” rule applied. When the State agreed to furnish free transportation to Okafor to and from work, Okafor’s work day started when his commute to work started and ended when that commute was over. Significantly, the Court noted that the injury would have been covered even if the free transportation was not being used at the time – because the employment begins, under this exception, when the work day began – at the beginning of the commute – whether it was by means of the “take home cruiser”, personal vehicle, or public transportation. (Note: The Court, in part, utilized a 1977 non-public safety case, Ryan v. Kasakeris, to reason that when the employer provides the commute, an injury occurring anywhere during the commute arises out of and in the course of the employment) The Okafor case made significant advances in coverage for law enforcement officers who are provided take home cruisers.
Act Three – The future? There can be no doubt that future cases will deal with accidents with other factual scenarios – such as injuries that occur while an officer, who is assigned a take home vehicle – is injured on his way to retrieve it at the County line – because he/she lives outside the County. Will this commute be compensable given the free transportation exception to the “going and coming” rule? We take the position that this commute is within the course of employment because law enforcement officers have jurisdiction state wide to exercise their powers depending upon the circumstances. If the officer would normally be using the take home cruisier, the fact that he/she lives outside the County and must retrieve it at the County line should be insignificant to the greater purpose of providing law enforcement services to the public at all times when the officer would normally be utilizing a police vehicle. Stay tuned.
I am often asked by clients how long it will take to complete their case. It is a tough question to answer and much of the time depends on how long it takes for an injury to heal.
For minor injuries such as sprains and strains, it may only take a month or two to heal; but for more serious automobile accident injuries such as fractures or herniated discs, treatment may last years.
Generally, the process is as follows:
- Client treats and either gets 100% better or reaches the point of maximum medical improvement. That can be a few weeks to over a year.
- We collect medical records and bills while the client is treating, and collect any outstanding records and bills when the client has completed treatment. This step is generally completed within 30 days, depending on the doctors’ offices.
- We review the records and write a demand letter to the appropriate insurance company. This takes one to two weeks.
- The insurer reviews the demand package and makes an offer. This step varies on the complexity of the medical records and the workload of the individual insurance adjustors. Usually, it takes the insurer 4-8 weeks to make an offer.
- If the client accepts, the insurer send a release and eventually a check. This usually takes 30 days to complete.
Considering the times above, if a client has a minor sprain or strain, then as case make take 6 months. If the medical providers are slow in providing records or if the insurer is slow in producing records, then a simple case could take close to a year to close.
Of course, if the insurer denies the claim or makes an offer that is not worth accepting, then we have to file a lawsuit. In district court, it takes around 3 months to get a trial date. In the circuit court, depending on the county, a trial date may be 12 to 18 months away.
By Craig I. Meyers, Esq.
After being injured in a motor vehicle collision, you may receive a letter from your health insurer telling you that it looks like you were injured in an accident. At first, you may think, “How nice.” But if you read further, you will see, THEY WANT YOUR MONEY! Even worse, they are entitled to it by law, at least some of it.
The letter will generally tell you that the type of treatment you received is generally consistent with an injury that could have been caused by the negligence of someone else. It will ask you to fill out a form and return it to them. Generally, the form will ask how your injury occurred, it will request the liability insurance information for the person that caused your injury, and it will ask whether you have an attorney. The insurer is looking to exercise its right of subrogation: its right to stand in your shoes and collect back the money it paid for your health care. This may surprise you.
Luckily, the insurer’s subrogation right takes the form of a lien on any money you recover, and is not a debt that you must pay out of your own pocket. A lien is a property interest that the insurance company has in your legal case either created by law, or by your health insurance contract. If you don’t pursue your case, you never have to pay them back.
The lien upsets many injured people, but it is really not as bad as it seems. The reaction I hear the most from clients is, “Why do I have to pay them?” or “What have I been paying for all these years?” On some occasions, clients have not believed me when I have explained the lien to them. But it is true. The public policy behind the lien is that you have health insurance to protect you, but it is not the health insurer’s fault you were injured. It would be unfair to the health insurer if you collected money for your injuries, which includes payment of medical bills, and then did not have to reimburse them. The term is double dipping. But really, if you use your health insurance, for the most part, you are going to wind up ahead, even if you have to pay them back.
Let’s start with the basics of health insurance and its involvement in your personal injury claim. First, you should always use your insurance, don’t let the fear of a lien prevent you from using the benefits that you and your employer have paid for. Although it may seem unfair, if you look at the math, it’s really okay. For example, if you examine a one of my client’s bills, you will see a scenario where a client went to her doctor three times and went to about ten physical therapy sessions. The bills total about just over $3,000. Ignoring other insurance such as PIP (personal injury protection) and ignoring any other treatment (hospital, MRI, etc.), if she did not use her insurance, she would have to pay the medical providers back the full $3,000 at the end of her case, win or lose. Sure, I may be able to negotiate the bill down, but legally, she owes the full $3,000. Now look at the same treatment with health insurance. The providers billed $3,000, but because she had health insurance, the contracted rate is lower, and the insurer might pay $1,800. Then, under Maryland law, when the case settles and the time comes to pay the lien, we only have to pay back $1,200. In our demand to the at-fault driver’s insurer, we are permitted to demand the full $3,000, that is paid (along with lost wages and pain and suffering), but we only pay $1,200 back to the insurer, that nets $1,800. We are permitted to claim the larger amount due to the Collateral Source Rule. This rule states that since the client paid for the health insurance, she gets the benefit. In other words: Why should the injured person pay thousands of dollars a year for insurance that in reality benefits the at-fault party? Health insurance makes a huge difference in the amount of money a client receives at the end of the case.
One issue may arise when the health insurance policy is controlled by federal law as opposed to Maryland law. These policies (for example, ERISA insurance policies) are not controlled by state law, and the insurer may not be required to reduce the lien. Whether they must reduce is contract specific. The attorney must look at the subrogation language to see what her client’s rights are. In addition, she must also check the policy’s legal status to see if it is truly the type of policy that can refuse to reduce.
If you are injured in a motor vehicle collision, or suffer any type of bodily injury, you should almost always use your health insurance. Don’t worry about the liens, relax, take care of yourself, get better, and let your attorney worry about it.
By Craig I. Meyers, Esq.
One of the worst types of collisions is the pedestrian strike. There is no real positive outcome when a 2,000 lb. vehicle strikes or runs over a person. Generally, the law in Maryland is that pedestrians have the right-of-way in a crosswalk, after that, each case has to be reviewed individually. A few years ago, the law was that anyone who crossed the street outside the crosswalk was at fault as a matter of law, until proven otherwise. That meant that a pedestrian struck outside the crosswalk started the case off with the presumption that he or she caused or contributed to her injury and could not win her case until she proved that the collision wasn’t her fault. This was a difficult uphill battle. Although that is no longer the law, the idea that the pedestrian contributed to the injury still prevails among many Maryland citizens and jurists. The shifted burden is difficult but not impossible to overcome.
For a pedestrian to have contributed to a collision, the fact that she was outside the crosswalk must be an actual and legal cause of the injury. In legal terms, this legal cause of the collision is called the “proximate cause.” For instance, if a pedestrian is two feet from the crosswalk, it is often fair to say that the motorist should have seen her, forget that she was outside the crosswalk, and therefore her position did not contribute to the collision. If a pedestrian is crossing mid-block, and a motorist has been traveling straight for a half mile, and a collision happens away from the curb, it is often fair to say that the driver should have seen the pedestrian, and therefore should have avoided the collision. The fact that the pedestrian was outside the crosswalk was unrelated to the fact that the motorist did not see her. This is because if the motorist did not see the pedestrian prior to the strike then she wouldn’t have seen the pedestrian if she was in the crosswalk. Here, the pedestrian was simply in the wrong place at the wrong time; and under Maryland law, that is not negligence.
These are very hard cases, but not impossible. Before pursuing such a case, a client must know that there are no guarantees and that the odds of winning and losing are about equal.
By Craig I. Meyers, Esq.
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