April 7, 2014

General Assembly Takes Aim at Distracted Driving, "Move Over" Law

Thumbnail image for Maryland Statehouse Sign.jpgStiffer penalties for distracted driving and an expansion of Maryland's little known "move over" law have already seen action by Maryland lawmakers.

"Jakes' Law," legislation named after a five-year-old boy who was killed in an accident involving a texting driver, has been approved by both houses of the Maryland legislature but is presently in a conference committee where differences between the two bills are being worked out. Under the new law, drivers would be assessed 12 points against their driver's license, would be guilty of a misdemeanor and could be subject to imprisonment for up to one year and a maximum fine of $5,000. In addition, the 10-year maximum sentence for manslaughter would apply.

Presently, a violator is subject to one point against their driving record and a $70 penalty unless the activity contributes to an accident; in that case, the penalty is $100 and three points assessed against the driver's record.

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January 6, 2014

Court Tackles Question of Future Wages and Medical Expenses for Undocumented Aliens Involved in Auto Accident

Crashed blue van.jpgThe Maryland Court of Special Appeals in Ayala v. Lee has addressed a long-standing question over whether a plaintiff's illegal immigration status can be raised by defense counsel at a trial involving claims for personal injury where future lost wages and future medical expenses are claimed by a plaintiff. The court ruled that in certain limited circumstances, one's illegal status may be relevant and admissible, but that the trial judge must first weigh the potential prejudice of the line of questioning proposed against the probative value of allowing a jury to hear such evidence. The appellate court's opinion provides important guidance to future litigants, attorneys, and judges on an issue that is arising more regularly in civil trials.

The case involved personal injury claims by several undocumented aliens who were struck in a company truck that had been parked on the side of Route 50 after it pulled over due to mechanical difficulties. The plaintiffs were outside of the vehicle, standing in front of it, when it was struck from behind by a vehicle that entered onto the shoulder. The plaintiffs were injured. The driver who hit the plaintiffs claimed he was forced onto the shoulder by a vehicle traveling in the lane to his left and that he had no choice but to move off the road to avoid a collision.

The case went to trial on the issues of negligence and damages. Plaintiffs presented evidence of their past and likely future medical care costs for their injuries along with their past and projected future wage loss due to work limitations caused by their injuries. During cross-examination, the trial judge allowed defense counsel to question the plaintiffs and their experts at length about plaintiffs' illegal status. In response to plaintiffs' objection, defense counsel argued that plaintiffs' immigration status was relevant since their inevitable deportation would impact their future medical and wage claims since the medical care and employment opportunities in the United States, upon which their claims were based, were not similarly available in Plaintiffs' home country.

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December 24, 2013

Court Keeps Rule That Denial of a Request to Change Venue Can Not Be Immediately Appealed

Thumbnail image for Court Room.jpgDeciding the best place to try a case - forum selection - is important in many ways to a lawsuit. How long it takes for a case to conclude, the likelihood of victory and the amount of damages awarded by a judge or jury can be vastly different, depending on the county where the case is heard. As a result, lawyers on both sides of the case carefully scrutinize the places where a lawsuit can be filed so as to determine the best location for handling the case.

The fact that venue is important means that lawyers often maneuver for the best judicial forum for their clients even before the trial begins. In a case of first impression, Maryland's Court of Special Appeals has clarified the law on the question of whether a trial court's denial of a request to transfer a lawsuit before trial has begun can be immediately appealed.

Relying on what had been written about the issue in lawsuits dealing with other matters, the appeals court said it was persuaded to refuse Aleksey Kulikov's attempt to immediately appeal the court order denying his request to take his case to another court.

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December 13, 2013

Maryland's "Move Over" Law: It's Not New; But It's Not Understood

Ambluance with flashing lights on.jpgMaryland motorists are being reminded by overhead traffic alert displays of Maryland's "Move Over" law. The law requires motorists traveling in the lane next to an emergency vehicle to move over one lane to make it safer for the responders. The law is also designed to make drivers more aware of the dangers confronting those who are stopped on the shoulder or in a travel lane due to an emergency.

The problem with the law is that it's not understood and, thus, not obeyed in many instances. Drivers see the signs advising of the "new law" but don't know when they need to move, particularly during rush hour when no one else seems to be moving. Having seen the new message, drivers are now beginning to take note of a law that's existed since 2010; yet, they're wondering: "Is that vehicle an emergency vehicle?" "Does it matter whether their flashing lights are on or off?"

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December 6, 2013

Insurance Company Gets Out of Paying Underinsured Motorist Benefits Because of Workers' Compensation Lien

Wrecked car blue.jpgWhen a workers' compensation lien exceeds the amount of a judgment resulting from an automobile accident, an insurer does not have to pay underinsured motorist benefits. The ruling stems from a lawsuit over an auto accident involving both workers' compensation and uninsured motorist claims.

David Ross was involved in a rear-end collision caused by John Agurs that occurred while Ross was driving within the scope of his employment with Shelton Transportation. Ross' left knee and lower back were injured.

Shelton had a workers' compensation policy through the Injured Workers Insurance Fund (IWIF) providing coverage for bodily injury and medical expenses. Ross filed a claim and received workers' compensation benefits of $84,446.21.

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October 8, 2013

New Jersey Court Opens Door to Liability for "Remote Texters" In Auto Accident, Maryland Not Expected to Follow

Cellphone in hand.jpgMaryland lawmakers continue to grapple with where to draw lines on texting while driving. In 2011, Free State politicians refined the "texting while driving laws" by putting into effect legislation imposing a $500 fine for glancing at a text message or an e-mail while at the wheel of a car. Previously, Maryland drivers were barred from writing text messages while negotiating traffic but allowed to read them.

In a recent ruling, a New Jersey appellate court has ramped up the "texting while driving" debate by deciding that texting while driving with knowledge or reason to believe the recipient would view the text while driving can be the basis for liability if an auto accident occurs.

"The sender has knowingly engaged in distracting conduct, and it is not unfair also to hold the sender responsible for the distraction," the appeals court said in Kubert v. Best, while holding one of the teenage texters in the case harmless.

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August 27, 2013

Supreme Court Rules for Health Plan that Sued Worker to Recover Medical Costs for Auto Accident

Plane Silhouette.jpgThe United States Supreme Court recently made a ruling that allowed a self-funded employer health plan to recoup its costs by taking all of an employee's financial recovery from a personal injury lawsuit. US Airways v. McCutchen is an important decision that means that personal injury lawyers must question potential personal injury plaintiffs about the type of health insurance they have before starting the case.

The case started with an auto accident. James McCutchen suffered serious injuries in January 2007 when another driver lost control of her car and collided with McCutchen's. McCutchen was an employee of US Airways at the time and a participant in its self-funded health plan. The plan paid $66,866 in medical expenses on McCutchen's behalf.

McCutchen hired an attorney to seek recovery of all of his accident-related damages -- estimated to exceed $1 million. McCutchen and the attorney agreed that the attorney's fee would be 40 percent of the recovery. The attorney sued the driver responsible for the crash, but settled for only $10,000 because she had limited insurance coverage and the accident had killed or seriously injured three other people. McCutchen's attorney also obtained a payment of $100,000 from McCutchen's automobile insurer -- the maximum amount available under his policy.

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August 5, 2013

State's Top Court Declines to Hold Bars Responsible for Acts of Drunken Customers

Bar.jpgThe Maryland courts have once again declined to hold tavern and bar owners responsible for the acts of their intoxicated patrons.

The Court of Appeals has held that Maryland does not recognize a cause of action against a tavern for harm caused by an intoxicated patron, off premises, in the absence of a special relationship between the tavern and the person harmed or between the tavern and the actor who caused the harm. Absent such a relationship, the court held, the tavern does not owe a duty to the injured party to prevent the harm caused by the intoxicated patron.

The issue is called dram shop liability. "Dram shop" is an archaic term for a bar or tavern. Dram shop liability refers to the potential liability of a commercial seller of alcoholic beverages for personal injury caused by an intoxicated customer.

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July 5, 2013

Expert Witness Not Needed to Prove Back Injury after Multi-Vehicle Truck Accident on Baltimore Highway

Truck accident.jpgA magistrate judge's ruling that expert testimony was needed to show that a truck driver's back injury was caused by a five-vehicle crash on a highway near Baltimore was a mistake, according to a recent ruling by a federal appellate court.

Arthur Galloway, an Alabama-based truck driver, was driving his tractor-trailer on I-95 in Harford County, northeast of Baltimore in September 2006 when traffic slowed and Galloway came to a stop in the center lane of the highway. Galloway was sitting behind a tractor-trailer operated by Apollo Incorporated. Sasa Djuric, who was also driving an 18-wheel tractor-trailer, then came to a stop behind Galloway. Djuric's rig was rear-ended by a dump truck driven by a Horne Concrete Construction employee who failed to stop in time. As a result, the Djuric tractor-trailer was "pushed violently into Galloway's rig" and Galloway's rig was pushed into the back of Apollo's truck. Galloway's tractor-trailer was later declared a total loss by the insurer.

Galloway did not receive medical treatment at the accident scene but did start experiencing lower back pain during the night he spent in his vehicle when it was at a Maryland salvage yard. Galloway told the insurance adjuster the next morning that he needed to go to the hospital. The adjuster told Galloway to hold off on medical treatment until he returned to Alabama. Galloway complained of severe back pain during his doctors visits, eventually resulting in his getting surgery - a spinal fusion - in 2007 after an MRI showed a herniated disc.

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June 24, 2013

Maryland Couple Not Liable in Auto Accident When They Refused to Leave Stalled Vehicle

Broken car.jpgA Maryland couple was not contributorily negligent when they refused to leave their vehicle after it stalled at a busy Suitland, Maryland intersection, the Court of Special Appeals has ruled in a Maryland auto accident case.

The personal injury law ruling stemmed from a 2010 automobile accident involving vehicles operated by Cherice Willis and Derrick and Tylisha Ford. Willis rear-ended the Fords' SUV after it stalled at the light.

The Fords filed a complaint for negligence against Willis in the Circuit Court for Prince George's County in September. The trial judge gave the jury an instruction on contributory negligence. Under the legal concept of contributory negligence, if a plaintiff is found to have contributed to the personal injury in any way, then the defendant can win the case. Maryland is one of the few states that still uses the concept; although, it is under review by the state's top court. The jury returned a verdict for the Fords, awarding $4,800.76 for Mr. Ford's medical bills, as well as $4,200 for Mr. Ford's non-economic damages. The jury also awarded $1,292.53 to Ms. Ford for medical bills and $5,000 to Ms. Ford for non-economic damages.

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June 10, 2013

Decision to Hide Insurer's Participation in Personal Injury Case Reversed by Appeals Court

Urban Accident.jpgA trial judge's decision to exclude any mention of a woman's insurance policy or State Farm as a defendant in an auto accident was recently reversed by Maryland's Court of Special Appeals. The circuit court abused its discretion in excluding evidence of underinsured motorist (UIM) coverage from the jury, the appeals court said. The trial court's decision was not an evidentiary one that constituted mere harmless error, but rather one of basic trial procedure that led to the jury not knowing which party State Farm's attorney represented at trial.

Dionne and Darryl Davis sued Tania Martinez for negligently causing an automobile accident after a vehicle operated by Martinez collided with the Davises' automobile in January 2008. Mrs. Davis said she suffered bodily injuries and other damages. The Davises alleged a loss of consortium. At the time of the accident, Martinez was insured by USAA Insurance Company with a liability limit of $20,000. The Davises were insured by State Farm and carried $50,000 in UIM coverage.

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June 4, 2013

Court Upholds Insurer's Refusal to Pay Claim Under Umbrella Policy after Auto Accident

Claim Form.jpgThe state's top court has upheld an insurer's refusal to pay out on a claim under an umbrella policy made by a Maryland woman after her husband was killed in an auto accident. The Court of Appeals held that an umbrella policy does not fit within the definition of "private passenger motor vehicle liability insurance" contained in Section 19-504.1 of the state's laws on insurance.

Joan Stickley was a passenger in a motor vehicle accident in 2008 in which the driver, her husband, was killed and in which she suffered serious injuries. According to the court's opinion, Stickley's husband "negligently" drove into an intersection.

The Stickleys had motor vehicle insurance and umbrella policies with State Farm. The motor vehicle liability policy had coverage of $100,000 per person and $300,000 per accident with State Farm Auto. The "Personal Liability Umbrella Policy" had uninsured motorist coverage of $2,000,000.

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May 17, 2013

Motor Vehicle Bills Passed into Law

Maryland Statehouse Sign.jpgSixty-eight insurance bills were introduced in the 2013 session of Maryland's General Assembly. Eighteen of the bills dealt with motor vehicle insurance issues, only a few survived the legislative gauntlet to become law. These are the motor vehicle bills that passed this years' session:

Senate Bill 736/House Bill 763 forbids a person from directly or indirectly compensating, or offering or promising to compensate, an insured for all or part of an insurance deductible under a policy as an inducement to contract to furnish goods and services. Violation of the bill would be a fraudulent insurance act, subject to criminal penalties. While there is no current state law prohibiting a person from offering to pay a deductible as inducement to contract for goods or services, according to the fiscal note filed with the bill, there are laws against a specified insurer or insurance producer offering premium rebates. Paying, or offering to pay, an insured's deductible is insurance fraud in several states. The bill goes into effect on Oct. 1.

Senate Bill 446/House Bill 342 forbids an insurer, from denying, refusing to renew or canceling coverage with respect to homeowner's insurance or renter's insurance solely because the applicant or policyholder does not carry private passenger motor vehicle insurance with specified insurers. It also prohibits an insurer, with respect to private passenger motor vehicle insurance, from taking specified actions solely because the applicant or policyholder does not carry homeowner's insurance or renter's insurance with specified insurers. The bill becomes effective on Oct. 1.

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May 6, 2013

Appeals Court Rejects Argument that Statute of Limitations Should Have Been Extended in Insurance Case

Opened law book on desk.jpgIn a strongly worded opinion, Maryland's Court of Special Appeals has rejected the notion of expanding the amount of time for filing a civil claim. Maryland courts will not recognize an exception to the Statute of Limitations without action from the legislature, the state's intermediate appellate court has declared in Samuel Antar et al v. The Mike Egan Insurance Agency, Inc. et al.

The statute of limitations is a law that determines the amount of time in which a legal action must be taken or else that right expires. Under the Maryland Code - the statutes of the state of Maryland - a civil action must be filed within three years unless another provision of state law provides a different time period. For example, the statute of limitations on most medical malpractice claims is five years (see the Medical Malpractice section of this website for a more in-depth discussion of the statute of limitations in medical malpractice claims).

Maryland courts are very strict when the statute of limitations is raised as a defense because judges want to remove stale claims from the court system. Stale claims cause problems for everyone. Witnesses die, memories fade, records are lost or destroyed and cases become far more difficult to administer. Thus, certain deadlines are established.

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April 29, 2013

Cases Involving Texting and Driving Dismissed by Court

Texting.jpgLawsuits involving texting and driving are starting to make their way through the courts. One recent set of cases involved a multi-vehicle accident that, some say, stemmed from a commercial driver being distracted by the texting system in his vehicle.

In an opinion handling combined appeals, the United States Court of Appeals for the Fourth Circuit recently decided a product liability case that arose from a motor vehicle accident. Carroll Jett allegedly drove a fully loaded tractor-trailer into vehicles that were slowed or stopped in front of him, causing injuries to one family and the death of another family's child. The injured motorists claimed that Jett became distracted by the texting system in the cab of his truck. The texting system was manufactured by a subsidiary of Xata, a company that provides fleet management software.

The injured families contended before the federal trial court that Xata owed them a legal duty of care because injuries to the traveling public were reasonably foreseeable based on the texting system's design that (1) required the driver to divert his eyes from the road to view an incoming text from the dispatcher, and (2) permitted the receipt of texts while the vehicle was moving. The district court granted Xata's motions to dismiss, concluding that the accident was caused by the driver's inattention, not the texting device itself and that manufacturers are not required to design a product incapable of distracting a driver.

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