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Auto Accident Blog

Don’t Get Run Over

Saturday, June 29, 2013

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.

You Can’t Split Your Claims

Tuesday, June 18, 2013

I was in court a few weeks ago at the cashier’s window and I overhead a gentleman asking some questions on how to serve an insurance company. I generally try not to listen to other people’s business when in court, it can be personal, but on the other hand, I also try to help if I can. The gentleman was involved in a motor vehicle collision and was unhappy with the offer for the total loss of his vehicle. He was suing the insurance company for what he thought was the fair market value. I asked a few questions and learned that he was also injured as a result of the collision and had started a bodily injury claim with the same insurance company. He was nowhere near the statute-of-limitations, so I stopped him from filing his lawsuit.

The gentleman I spoke to in court that day was splitting his claim. Unless there is a law otherwise, you must file all claims arising out of a single event against the same person (or company) at the same time. That means if you have both property damage and bodily injury claims, you cannot sue for one, wait until the other claim ripens, and then file for the other. The effect is that after the first claim has been resolved, the other claim dies. It is important not to make such a mistake.

Of course there are statutory exceptions. For instance, you are permitted to file a PIP lawsuit separate from any other liability-based or uninsured/underinsured lawsuit. But, it is important not to extinguish one set of rights by pursuing another.

By Craig I. Meyers, Esq.

I’m Not The Type Of Person To Sue

Wednesday, June 27, 2012

Are you affected by TORT REFORM? The short answer is “yes.” We all are, but how do you know? I know because my clients keep apologizing to me when you come into my office. It is very common for me to meet with a new client for the first time and hear, “I am not the type of person to sue anybody.” Already, the tort reform movement has you feeling self conscious about being repaid for medical bills and lost wages, and for being made whole. My general response is that of course you are not; this is the first time you have been injured. Doesn’t an injured person have a right to be made whole? The entire basis of tort law (torts are civil wrongs for which the law provides a remedy) is to make the injured party whole, meaning, to place them in the same position they were in prior to injury. Insomuch as we cannot go back in time and undo a wrong, we instead make up for it monetarily. Generally when one is injured, one is entitled to recover the cost of medical treatment, reimbursement for lost wages, reimbursement for damaged property, future care if required, and payment to offset the pain and suffering experienced by the injured party. These are not new rights. The basis of these rights, and the foundation of tort law, is over 3,000 years old, and arising directly from the Bible. See Exodus chapt. 21 (Mishpatim). You should not apologize for being injured. But, that is what tort reform does. But what is tort reform?

From a trial lawyer’s standpoint, the answer is that it is a national movement organized to prevent my clients from being made whole. It is a national movement organized by very highly paid lobbyists for insurance companies and similar entities, that wish to protect their interests to the detriment of my clients. It is a national movement that can afford to pay for billboards, TV commercials, radio ads, time with politicians, and a host of other very expensive and effective techniques to make you think that anyone who is injured is faking it and just out to get money. It is a national movement backed by large corporations that has changed our laws stripped us of our rights.

Tort reform whether here in Maryland, or in any other state functions by limiting your right to initiate a claim, and then when you get over that hurdle, it caps your right to collect damages. Tort reform stops you from being made whole. Examples include mandatory mediation clauses in contracts, choice of forum clauses, and the Maryland Health Care Alternative Dispute Resolution Office. Many people don’t know that when they sign a consumer contract, whether it is for mobile phone service, a credit card, or even replacement windows, the small print will often include a clause that says that the consumer cannot sue them. Instead, they must submit to an arbitrator, outside the court system. That may seem fair at first, figuring an arbitrator is a professional, the arbitrators do hundreds if not thousands of these for the credit card company, how many do they do for you? Why should you have to give up your right to a trial or trial by jury just to get a cell phone? The purpose is to shift the balance of justice from you to the large corporation. Also, you may not know it, but if you are permitted to file a lawsuit, your Maryland contract dispute may have to be brought in a Delaware court. The purpose is twofold. First, the corporation chooses a forum that is favorable to the corporation. Second, many people will not file suit hours away from their home. It is a win-win situation for the corporation. After all, you signed the contract. Didn’t you read the fine print? But what other choice did you have? If all of the mobile phone providers have the same clause, and you cannot negotiate the terms, what can you do?

Many people do not know that you cannot sue a doctor in Maryland for malpractice until you have first filed a claim in the Maryland Health Care Alternative Dispute Resolution Office (HCADRO). The HCADRO is a State agency which operates out of the William Donald Schaefer Tower in Baltimore. The sole purpose of the HCADRO is to protect doctors, not injured patients or the families of deceased patients. After filing with the HCADRO, you must then file a Certificate of a Qualified Expert for each specialty involved in the claim, stating that the doctor you wish to sue violated a duty owed to the patient, and what that violation was. The State further limits the doctors that you are permitted to use for your Certificate. The doctor you use must be a clinician, the doctor cannot have been retired for more than 5 years, and there is a limit to the amount of forensic work the certifying doctor performs. There is no other profession in Maryland with this type of State protection.

Other ways that tort reform affects you is with caps. Maryland for example has a cap on pain and suffering. No matter how bad your injury is, if your state has a cap, you cannot collect. For example, if today, you are waiting for bus in Maryland at a marked bus stop, on the sidewalk, and you are run over by a tractor tailor, and you are paralyzed from the neck down, the most you can recover for pain and suffering is $755,000.00. Most people would find offensive. The purpose of tort law, or personal injury law, is to make people whole, these caps simply protect negligent parties, mostly large corporations, from taking responsibility for their negligent actions.

Another tactic by tort reformers is to damage the reputation of trial lawyers. If you go online, you can find a host of websites illustrating frivolous lawsuits and stories of how trial lawyers are ruining the economy. If you, however, research these websites on snopes.com or similar sites, you will find most of these stories are false. They are made up by tort reformers to libel trial lawyers and convince the public that there is a crisis, and that tort reform is needed. In reality, it is the trial lawyers, not the tort reformers, that are concerned with the safety of the public. It was trial lawyers that uncovered the fact that Ford had done a cost benefit analysis on the Pinto and had decided it was cheaper to pay off families of those killed or injured in the vehicles rather than making their cars safe. It is trial lawyers that keep doctors, businesses, and pharmaceutical companies in check, reminding them that there are consequences to their negligent actions.

When a new client comes into my office and tells me that they are not the type of person to sue someone for an injury, I think to myself, “Lucky for you, I am.”

By Craig I. Meyers, Esq.

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.

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