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Auto Accident Blog

Injuries while in uniform: Am I covered if I am injured in my own personal vehicle?

Tuesday, October 04, 2016

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.

Health Insurance Liens: That’s Not A Get Well Card

Friday, August 30, 2013

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.

It’s A Fall And Injury, Not A Slip And Fall

Thursday, July 26, 2012

In addition to motor vehicle collisions, another type of case commonly seen by personal injuries attorneys is the “slip and fall.” First, I don’t call them slips and falls; that is too general and carries a negative connotation with some of the general public and especially with tort reformers. Plus, many “slip and fall” injuries are really trip and fall injuries or fall-in-a-hole-and-break-your-ankle-and-fall injuries. I call them what they truly are, a Fall and Injury. It is much more accurate.

Fall and Injury cases can be very difficult to prove, but not impossible. In the case of a slip on a wet surface, you may have to prove the following:

  1. What you slipped on;
  2. How the substance got there;
  3. How long the substance was there;
  4. Who owns or controls the area;
  5. Was there a warning;
  6. What is the standard of care for that area or defect; and/or
  7. Is there insurance.

Although late night television may joke about “slip and fall lawyers”, the truth is, the deck is stacked against you when you fall, and your attorney has a lot of work to do.

Owners of a business, for example, are liable for your fall and injury if you slip on a wet surface and they have actual or constructive notice of the wet surface and they fail to warn or protect the customer. They have actually knowledge generally, if they know the defect is there, or if they create the defect. Examples include employees of the company mopping a floor; if there is a spill that the company or its employees know of; if there is a hazardous condition such as a leaky refrigerator the company knows of. The store has constructive knowledge, meaning even though they did not know of a hazard, they should have known of the hazard due to its characteristics, if the hazard has been in place so long that they should have discovered it. An example is a spill in a grocery store that a surveillance camera shows was present on the floor for an hour, but no one cleaned it up.

Proving your case can be difficult. It helps to have an employee admit fault at the scene before someone tells them to be quiet. For example, after a patron falls at a restaurant, an employee says, “I am sorry, I spilled that water, but I have not had a chance to mop it up.” It also helps to have a video showing an employee mopping a floor, but without a wet floor sign. Often, the insurer for the store or business will deny these claims, and it will be up to a judge or jury to decide who is telling the truth.

Proving constructive notice can be even more difficult. Stores, businesses, and their respective insurers will NOT give you their video surveillance. To obtain this evidence, you must put the company on notice that they must retain it, and then subpoena the materials once you have filed a lawsuit. Many lawyers do not wish to take a case that can only be proven after a lawsuit is filed. It helps to have a witness who can testify to the condition and how long it is present. I was able to convince an insurance adjustor that a defect had been present because my client took a photograph at the scene. In that case, the client slipped and fell on a soft drink. The photograph, taken immediately after her fall, showed that the borders of the puddle had dried. I successfully argued that the drying of the puddle indicated that the puddle had been present for a prolonged time.

Even if you can prove who caused the spill or that there was knowledge, you must watch out for the insurer’s defenses. Remember, that in Maryland, if you contributed to your injury by just 1%, you are forever barred from recovering, no matter how serious the injury or how obvious the negligence of the other party. Because of that, insurers love to tell you that the defect or hazard was open and obvious. This means that the injured customer was negligent for not seeing the hazard and for not avoiding it. The problem with that defense is that people do not look down at their feet when they walk, nor are we required to. The Maryland Court of Special Appeals really hit the nail on the head in a 1997 decision in which it addressed customers looking at a store’s shelves rather than at their own feet:

The storekeeper expects and intends that his customers shall look not at the floor but at the goods which he displays to attract their attention and which he hopes they will buy. He at least ought not to complain, if they look at the goods displayed instead of at the floor to discover possible pitfalls, obstructions, or other dangers, or if their purchases so encumber them as to prevent them from seeing dangers which might otherwise be apparent. Patrons are entitled therefore to rely to some extent at least upon the presumption that the proprietor will see that the passage ways provided for their use are unobstructed and reasonably safe.

Tennant v. Shoppers Food Warehouse Md. Corp. , 115 Md. App. 381, 392 (1997).

In short, public opinion and prejudice against people that makes claims after a fall, and Maryland Law, make fall and injury claims difficult, but not impossible. Also, remember that the store owner has a special and elevated duty to find hazards and to make them safe. This, unsurprisingly, is not the same for municipalities and state or county owned property. I will address falls on sidewalks and the like in a separate entry.

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.

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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