A Voice to Be Heard

May 14, 2018 | Nyasha A. Largen

It’s nearing the middle of 2018…18 years into the 21st century, and 170 years since the birth of the women’s rights movement. Yet, in the very arena that plays the most pivotal role in enforcing the rights of others, the disparity between men and women is ever more clear: women account for drastically fewer numbers of trial attorneys than men. What gives? Actually, for me, the more pressing question is, “What can be done about it?”

I want to be a lawyer when I grow up!

….and now I am all grown up, and I’m an attorney. But the reality of being a female attorney, and an aspiring female trial attorney, has brought some disturbing facts to light. Women attorneys have been found to be lead counsel for private parties in litigation roughly 20% of the time, and only about 17% of partners in big law firms are women. These are alarming figures considering that now, more than ever before, women have been graduating from law school at rates almost on par with men. There have been several theories put forth that may contribute to this phenomenon, some of the most prominent being:

  • Implicit bias in and out of the courtroom;
  • Clients’ views of the competency of a female attorney;
  • Family caretaking and its apparent clash with the culture of some firms;
  • Managing expectations regarding progress and advancement in a male-dominated field.

I think most would agree that intelligence is not the issue (and if you disagree, I dare you to tell me to my face). In fact, women historically have had a lot to offer in the workplace—the most obvious being diversity in thinking, more creative energy and a more relatable team, as you now have another gender to appeal to those in the jury pool of that similar gender.

What then, is the problem? The data and studies point to societal and structural factors that are stumbling blocks in the road to success as a female attorney. A man is three times more likely to be lead counsel in a civil case than a woman. Even more daunting is the fact that you are even less likely to be on the team trying a case if you are a woman. Furthermore, the numbers for women that are lead counsel in a case favor the representation of defendants (as opposed to representing plaintiffs).

How that translates to me is that the road to female lead counsel, while navigable, requires you to be sharper than your male counterparts to get there. Ladies, are we up for the challenge?

The Female Touch

Even with women trailing behind their male counterparts when it comes to courtroom presence, there are some unique benefits to having women on the legal team:

  • Women connect with jurors better than men;
  • We are viewed as more credible and trustworthy;
  • We tend to be more over-prepared than underprepared; and
  • We listen better (after all, we have learned to listen all our lives).

I can foresee a myriad of instances where clients may feel more comfortable with the female touch—cases where the client’s injury is one acutely specific to a woman, for example, a lawsuit for a woman scarred from a breast reduction surgery or a woman who may have experienced a wrongful birth injury, among other possible scenarios.

While acknowledging our benefits, we still need to look at the harsh realities that give rise to the disproportionate gender representation in the courtroom. Some factors that contribute to the inequity are outside of the immediate control of women, such as implicit bias (which can affect the types of work women receive), performance evaluations and the ability to meet billable hour requirements. Others are more readily in a woman’s control, such as taking time off to tend to family responsibilities. There are also some stereotypes that reflect the double-standard that still exists between the sexes—for example, the belief that a woman is prone to too much emotion, while a man who exhibits emotion on the same level may be seen as “passionate” about the case. This is especially true when it comes to the inevitable accusation of being that “angry, aggressive woman” when you raise your voice, but when a male litigator does the same, he would be viewed as zealously advocating for his client. These biases also spill out into society at large, hence possibly polluting the client’s thinking and encouraging a penchant for selecting male attorneys to represent them in court, as they view them as more competent and able to handle complex cases.

Progress, always!

Some law firms and even judges have acknowledged these gender disparities and have found ways of removing some of the obstacles that hamper a female trial attorney’s growth. For example, one senior federal judge in New York encouraged junior members of legal teams to argue the motion they assisted in preparing and to question the witnesses they have prepared in an effort to increase minority and junior level attorney participation. Such actions have the inevitable effect of giving female attorneys more of a voice, especially when female attorneys are more likely to be second chair on a case or are more likely to have assisted in the trial preparation process but are less likely to ultimately have their voice heard in court.

The torch should not stop there. Law schools, law firms, clients, and even WOMEN should begin to make changes so that we can feel that we are in the 21st century (only 170 years from the beginning of the women’s rights movement). Law schools can increase their push for women to become trial attorneys by introducing coursework into their curriculum that encourages frank conversations about the implicit biases that exist in the courtroom. To take a step further, these schools should provide tools and skills for women to navigate courtrooms that are majority male in a myriad of scenarios; which will in turn boost the female students’ confidence and better prepare them for the obstacle course that may lie ahead.

Law firms can actively encourage the assignment of women to depositions and cases that have lower stakes to build their female attorney staff’s confidence in being trial attorneys in a court system that favors male attorneys. Similarly, junior staff should routinely be assigned to motions hearings that are not central to the life of the case. Doing so fosters a work environment that is actually favorable to the growth of all attorneys—even those who tend to be in the minority—and makes for a strong and diverse legal team.

Last but not least, women can step up to the plate by letting their voices be heard! Women lawyers can reach out to their own firms to be assigned to cases, be proactive in the development of their skills as trial attorneys and attend seminars and training designed to give them the tools to be effective trial lawyers. While this suggestion may muster more than a fair share of eye rolls, honing the skill of maintaining a calm appearance is a gem that will last a lifetime while practicing in court. By doing this, we can “own” the courtroom with our presence by maintaining an air of confidence (even when our calves hurt from wearing pumps all day and the courtroom is too hot for pantyhose). Furthermore, we should feel obliged to talk at higher volumes than we normally would—so that they can never tell us to “speak up!”

I would touch a bit more on attire, however, I haven’t quite wrapped my head around the conversation just yet. I find myself vacillating between understanding and indignation at the slant it can take into policing women’s bodies. The presence of so many rules regarding female attire in the courtroom is frustrating and annoying, and at times, the antithesis of progress.

In any event, as a young and aspiring trial attorney, I have been forced to take heed of the issues above. While a good attorney is a good attorney no matter what, we cannot deny the societal barriers that are forced upon women that sometimes make it all the more difficult to shine as brightly as your male counterpart would. I don’t have all the answers, but I believe taking the chance to face the truth is the first step in overcoming the barriers that still exist.


What’s a Companion Case at ChasenBoscolo?

May 07, 2018 | Monique Lee

One day you are at work driving for the local delivery company delivering packages. It’s rush hour, so traffic is heavy. You are at a red light waiting for the light to change, and out of nowhere, another truck slams into the back of your vehicle. Your neck jerks back and forth from the impact. You are experiencing pain in your back. Your right leg hurts from slamming on the brakes to avoid hitting another vehicle. What do you do? Who do you sue? Who’s going to cover your medical bills? What if you cannot return to work?

Well, if you are injured while on the job and it is the fault of someone else who is NOT your employer or coworker, here’s what you can—and cannot—do.

Can I sue my employer?

No, you cannot sue your employer. But, because your injury occurred during the course of your employment, you can file a workers’ compensation claim so that you can get the cost of your medical treatment covered and receive monetary benefits while you are unable to work. Workers’ compensation is a no-fault system, and as long as you can show that you were injured on the job, you can make a claim. Immediately, you need to report your injury to your employer. If possible, I would report it in writing and keep a copy for your personal records. Your employer should have you complete a claim form, and they should file your claim as soon as possible. This will begin the process for your workers’ compensation claim.

But what about that person or entity who caused my injuries? Can I sue them?

This particular scenario creates a unique situation where you could collect workers’ compensation benefits AND pursue a third-party claim for damages against the person or entity that is at fault (often referred to as a third party). If a third party is responsible for your injuries, i.e. they were negligent, you have a right to bring a third-party claim against them. This unique scenario is what we at ChasenBoscolo call a “companion case.” We call it a companion case because you have two different claims that arise from a single event. Although there are two different claims, let me explain how they go hand-in-hand and how we can help.

How Workers’ Compensation Works

Because workers’ compensation is a no-fault system, you do not have to prove negligence to get workers’ compensation benefits. You basically just have to prove that you were injured in the course of your employment. The first benefit that is allotted to you is medical treatment. Workers’ Compensation will cover all medical treatment that is causally related to your work-related injury that is reasonable and necessary. Second, if you miss time from work due to your work-related injury, you may be eligible for partial wage loss reimbursement. There are four types of wage loss reimbursement benefits:

  1. You can receive Temporary Total Disability (TTD) benefits if you are unable to work at all as you recover from your injury over the short-term.
  2. You can receive Temporary Partial Disability (TPD) benefits if you are unable to return to your pre-injury employment but have found a new job that would accommodate your injury. You may receive a wage loss benefit that is equal to 2/3 the difference between what you earn at your current job that accommodates your injury versus what you earned at your old job.
  3. You can receive Permanent Total Disability (PTD) benefits if your injuries are so severe that they are deemed permanent after you have reached maximum medical improvement. This benefit will warrant you a lifetime wage replacement benefit.
  4. You can receive Permanent Partial Disability (PPD) benefits if your injuries are permanent but do not completely limit your ability to work.

Last, there’s a fifth benefit, which is vocational training. You can be retrained to work in a new field if your injury prevents you from being able to return to work in your pre-injury field. This benefit can get you back to earning a meaningful wage.

How does the third-party claim (aka a negligence claim) work?

First, we have to be able to prove negligence. This requires having evidence to show four legally required elements at court.

The first element that you have to prove is that the other person had a duty to you or to the general public to exercise reasonable care for others’ physical safety and the safety of their property at the time that you were hurt. For example, if we are driving a car on the roadway, we have a duty to other drivers and pedestrians on the roadway to follow the safety rules to prevent harm or death.

Second, you have to show that the person’s choices breached the duty they owed to you by failing to conform to the required standard of care. For instance, a driver who chooses not to pay full attention to the road and causes a motor vehicle collision does not meet the standard of care.

Third, you must be able to show that the person’s choices were the proximate cause of your injury. Proximate cause simply asks if the harm or injury that you suffered was foreseeable. For example, if a driver negligently drives his vehicle, it is foreseeable that he might cause a motor vehicle collision with another vehicle, hit a pedestrian or crash into a storefront?

Finally, you have to show that you were in fact harmed and harmed in a way that can be compensated. (However, if you are making a claim against a manufacturer for a defective product, you may only need to prove that there was a defect and that it caused your injury. This is what is called strict liability.)

Unlike a workers’ compensation claim, you can receive compensation from a third party for the following:

  1. All past and future medical care and treatment;
  2. All past and future loss of earnings;
  3. All time lost at work, even if paid under sick leave, vacation time or other benefits (third party does not get to benefit by the benefits you earned and may have used up);
  4. Loss of enjoyment of life and activities that you have missed out on;
  5. All past and future pain, suffering, emotional distress and inconvenience;
  6. Property damage if you were using your own property (ex: driving your own vehicle).

What kinds of work injuries create companion or third-party cases?

Any combination of circumstances and people can come together to cause a work-related injury. However, many work-related injuries tend to fall into the following categories:

  1. Someone gets into a car crash while driving for work — If you are driving as part of your job and get into a car collision that is not your fault, you may be able to sue the other driver in addition to collecting your workers’ compensation benefits.
  2. Slips and falls and other injuries that happen on someone else’s property — If you are working on someone else’s property and you are injured due to a dangerous condition, you may be able to sue the building owner, property manager and/or cleaning company in addition to collecting your workers’ compensation benefits.
  3. Injuries to subcontractors working on construction sites — If you’re injured on a construction site while working for a subcontractor, you may be able to bring a lawsuit against the general contractor in addition to collecting your workers’ compensation benefits.
  4. Defective products — If you are using a certain tool or device and it is defective due to faulty manufacturing, you may be able to sue the manufacturer in addition to collecting your workers’ compensation benefits.

What else should I know about companion or third-party cases?

No matter the category that your claim may fall under, it’s important to know what impact your third-party claim will have on your workers’ compensation claim and vice versa. Because ultimately that third-party is the cause of your injuries, they do not get to benefit from workers’ compensation paying for your medical treatment and partial reimbursement for lost wages. In fact, the workers’ compensation carrier (your employer’s insurance carrier) has a right to be reimbursed for benefits paid to you as a result of this negligent third-party. The workers’ compensation carrier may place a lien on your claim, which basically means they have to reimburse out of the proceeds of your third-party claim. This process whereby the insurance carrier claims a right to reimbursement from the third party, who is also responsible for the loss, is known as subrogation.

Having a workers’ compensation claim and a personal injury claim going on at the same time can be overwhelming and time-consuming. Therefore, it is very important to have an experienced attorney handle your companion case. There are many traps and pitfalls that an attorney who is not well versed would not be able to avoid. Having an experienced attorney can also be effective in making sure you recover for all your damages and help you maximize your possible recovery. An experienced and knowledgeable attorney, like those at ChasenBoscolo, can help by negotiating with your employer’s insurance carrier and the third-party’s insurance carrier to maximize your recovery and make sure you are fully compensated on both claims.


I was just injured on the job in Virginia. What should I be doing right now?

Apr 30, 2018 | Mike Herdman

If you have just been injured on or in connection with your job, the following can be used as a guide for your next steps. These steps are designed to make sure you avoid common mistakes that can hurt your chances of being properly treated and compensated.

While the internet can be a great resource, this information is being provided as generally applicable advice. Every case is different, and this guide is not a substitute for a competent, experienced lawyer. Please keep in mind that you can reach out to an attorney’s office, such as mine, for a free consultation if you’ve been hurt on the job.

Step One: Report the Injury to Your Supervisor as Soon as You Can

As soon as you reasonably can, contact your supervisor and let them know that you have been hurt. If you were rushed to the hospital right after the injury, you should try to contact your employer and report the injury as soon as you are able.

If the insurance company denies your claim, you may have to prove to a judge, in court, that you were injured on the job. If you cannot prove you were injured, you may receive no compensation in connection with your injury. One of the best places to start is by building a paper trail.

So, tell your supervisor you have been injured. Call them if you cannot speak directly with them. Whether you do or do not speak directly with your supervisor, try to send an email to your supervisor or HR explaining that you were injured, and keep a copy of that email for your own records.

If you can, take pictures of where you were injured, and take down the names of people who witnessed the injury. Try to see if there is a surveillance camera that captured the injury on camera.

Once you have notified your employer that you’ve been injured, they will generally try to fill out an incident report with you and ask that you sign it. It can be ok to sign, as long as you carefully read it over and confirm that the information is correct. Do not give in to pressure to sign something that is inaccurate. If you feel that something is incorrect, you can write corrections directly on the document before signing it.

If your boss tries to persuade you to not file an incident report or claim, this is an immediate red flag that indicates you may not be treated fairly.

Most importantly, tell the truth about what has happened. If the insurance company plans on denying your claim, one of their easiest defenses is to make you look like a liar. Your best defense against this is to always tell the truth, and to be clear about what details you do know, don’t know or don’t remember.

Step Two: Get Medical Treatment

Once you’ve notified your supervisor about the injury, your next step should be to get treatment for your injuries as soon as you can. If you go to your primary care physician 3 months after the injury, you may be forgetting important details about the injury, including when you were injured and how it happened. Delaying your care hurts your recovery, and it hurts your case.

When you are being examined by a doctor for the first time, tell them what happened. Explain to them how you were hurt. Make sure they are aware that you suffered an injury at work, as they should be explaining that in their report. How you were hurt will also give the doctor a better understanding of your current condition, so that they can provide proper medical care.

Next, make sure the doctor (and every following doctor or therapist that you see) is aware of every problem you are experiencing and have experienced since your workplace injury. Doctors are not perfect. The doctors cannot treat issues that they do not know about. If you have fallen from a ladder and broken both of your wrists, the doctor should be able to see the breaks and focus a lot of your treatment on those injuries. However, what if you’re feeling numbness in your fingertips, having nightmares, hearing ringing in your ears or having trouble controlling your bladder? You need to let the doctor know about these issues. Issues that you think may seem too insignificant to talk to the doctor about may in fact be because of something more serious than you realize.

Do not be shy. Sensitive or personal health issues which you may feel embarrassed or ashamed to talk about with the doctor need to be discussed. If you’re uncomfortable bringing it up with your current doctor or nurse, you can ask for somebody else to discuss it with—maybe somebody of the same gender. No matter what has happened to you, medical professionals have likely already seen issues like yours before through training and/or experience. Your injury is not the result of a personal failing, and you will not be judged for it. All of the horrible things that can result from workplace trauma can happen to anybody. Whatever you may experience is a problem which needs to be fixed, but it can only be fixed if the doctor knows about it.

Your medical records are evidence for your case. If your records are missing complaints about certain injuries or don’t describe how or if an injury has occurred, you can find yourself having a hard time receiving benefits from your workers’ compensation case.

Step Three: Dealing With the Insurance Company

In most instances, your employer has an insurance company that provides them insurance for workers’ compensation cases. If your employer does not have insurance, they may be “self-insured” and have the money themselves, or they may be covered by the Uninsured Employer’s Fund of Virginia.

In every case, you must keep in mind that the insurance company is a profit-driven business which is looking to spend the minimum amount of money possible. In many cases, the cheapest thing to do is to provide the injured worker with medical care in order to help the injured worker recover and get back to work without needing more extensive treatment or pay for time off from work. However, when the injury is more serious, the injured worker may find that the insurance company is actively trying to cut costs, and the most effective cost cutting measure is to try and deny any responsibility for your injuries.

If you are contacted by the insurance company and asked if they have permission to take a “recorded statement,” you do not need to comply with that request. A recorded statement is when someone from the insurance company interviews you about the injury and records your statement. A recorded statement provides the insurance company with extra details and information which can (and oftentimes will) later be used against you. You are never required to give a recorded statement.

After you are injured, the insurance company must decide whether they will accept responsibility for your injury. If they have decided to accept responsibility, you should be offered a choice of at least three different doctors who can provide treatment for your injuries. This is referred to as a “panel” of doctors in Virginia. You should choose one of these doctors. After you have made your choice, this doctor and their referrals will be the responsibility of the insurance company. If you try to get your own treatment outside of this doctor, you should expect to have to pay for those costs yourself.

Step Four: Get Disability Slips From Your Doctor

Every time you see a doctor after a workers’ compensation injury, you should never leave the appointment without the doctor writing down what your medical restrictions are. Your doctor will either (1) restrict you totally from doing any sort of work, (2) restrict you from certain activities but clear you for light duty or (3) release you to return to work full duty, without restrictions.

If your doctor has restricted you to light duty (meaning you can do some work, but not all of your normal work duties), it is very important that the doctor give you clear instructions about the sorts of activities you can reasonably do at work while allowing you to recover, and without putting you at greater risk of further injury. Some examples of light duty restrictions include limits on how much weight can be lifted, as well limits on bending, kneeling, climbing, sitting or standing.

Step Five: Follow Your Doctor’s Advice and Keep Your Employer Updated

If your doctor has released you back to doing light duty or full duty work, you should let your employer know about this as soon as possible in order to see if they can provide you with work. If your doctor has released you back to full duty work, you only need to ask to return to doing the job you were doing before the injury occurred. If you were released to light duty, you need to show the doctor’s restrictions to your employer and ask them if they can accommodate those restrictions in the workplace.

If your doctor finds that you are totally disabled from work (meaning you can’t work at all—also known as temporary total disability), you should be eligible to receive workers’ compensation payments for time that you are out of work. You should let your employer know that your doctor has determined you’re totally disabled from working for the time being.

Once you have been properly released to return to your preinjury work, your only chance at being paid is by returning to work and getting paid the way you were paid before the injury. However, if you have been released by your doctor to return to light or full duty work, you need to let your employer know you are eligible to return to work (with restrictions if you’re on light duty), in order to ensure you can get paid. If your doctor has released you back to work to light duty but you do not tell your employer, you may not be eligible for workers’ compensation benefits for time off of work.

If your employer says they can accept you back to work with your current restrictions, you should make sure that they are honoring those restrictions. If your doctor, for example, tells you to not do any overhead lifting at all, yet your employer asks you to stock the top shelves, you should remind your employer that your doctor has forbidden you from doing that activity. You are allowed to refuse to do activities which your doctor has advised you to not do. If you’re being asked to do something your doctor said not to do, or you are doing something you feel you cannot do, you need to notify your doctor right away.

Step Six: Follow Up With Your Doctor

The goal of medical treatment in a workers’ compensation case is to let you recover and heal from your injuries, be released from the doctor’s care and to return to your normal life feeling healthy and able to work. However, until your doctor or therapist says you are released from care and don’t need to come back to see them anymore, you should return to them for continued treatment. At the end of your appointments, your doctor should tell you how soon they want to see you again, and you should make sure to schedule your next appointment for that time.

With proper care, your condition should improve; however, there is always the possibility that your condition can get worse. The doctor needs to know about new problems which were either not there right after the original injury, or which came about afterwards as a result of the injury. If you start feeling new problems, you need to make the doctor aware of them so they can determine if those issues are related to your injury and treat them.

Continued visits to your doctor should also keep you updated about your current work status. If you are still on light duty or temporarily totally disabled (TTD) status, but do not visit your doctor for a disability slip, it can be hard to prove you are entitled to payments for periods that you are not being seen by a doctor.

Finally, you have the right to ask your doctor for referrals to different medical specialists if they are needed. If you are referred by your doctor to another specialist or treatment provider, it’s important you try to get an appointment with them as soon as possible.

Step Seven: Should you hire an attorney?

When you’re unable to get what you want, and you cannot figure out the solution yourself, it’s okay to ask for help. If you find you’re not getting what you want or need, or you feel like you’re not being treated fairly by your employer or their insurance company, you should consult with a lawyer.

Even if you feel that your employer and insurance company seem to be treating you well, you can still talk to a lawyer. Talking to a lawyer can cost you nothing beyond time, as many lawyers give free consultations. There are often benefits available to you which you are not even aware of.

If your case has been denied by the insurance company, you should definitely speak with a lawyer. This is also true if you are not being paid for time missed from work or when the insurance company is refusing to pay for or authorize medical treatment that’s been recommended by your treating doctor.

If you decide to hire an attorney in Virginia, keep in mind that you are generally only paying the attorney a percentage out of what they have recovered for you. If your attorney gets nothing for you, they do not get paid in Virginia. Every attorney’s fee must be determined and endorsed by a judge.

Step Eight: File a Claim to Protect Your Rights

Claims for Virginia workers’ compensation benefits generally must be filed within a maximum of two years of the date you were injured. In most instances, failing to file a claim within two years can prevent you from receiving any benefits. If you do not hire an attorney, you should still file a claim for benefits with the Virginia Workers’ Compensation Commission. The following link includes the form, as well as instructions: http://www.vwc.state.va.us/content/claim-benefits-form.

Hopefully, this has helped explain what your rights are if you’re injured on the job in Virginia. Remember, every case is different, and this guide is not a substitute for a competent, experienced lawyer. If you’ve been injured at work and have additional questions about your rights, you should reach out to a competent, experienced workers’ compensation attorney.

For information on workers’ compensation claims in D.C., check out my colleague David Kapson’s blog post on that topic. For information on how workers’ compensation claims work in Maryland and D.C. when you have more than one job, my colleague David Snyder has an excellent blog post you may find helpful. For information on why the workers’ compensation system is important and protects the rights of everyday, hard-working Americans, my colleague Krista DeSmyter lays out the case in a recent post that I also strongly recommend.


Virginia Personal Injury Claims: The Process and Why It’s Important

Apr 23, 2018 | Alicia Littleton Kimi

Most people do not head out in the morning thinking that, by the time they get home, their lives could be drastically changed because of the negligence of another person. But it happens every day. Your day starts out normal enough: you are going to work, heading home or maybe you are going to the grocery store. You could be leaving work and slip and fall on what looks to be a clean floor because someone forgot to put up a caution sign. Maybe a drunk driver hits you on your way home from a hockey game. You could even be sitting at a red light during your morning commute when a car suddenly rams into your vehicle.

These scenarios have not only happened to our clients, but the last one is something I went through myself. I found the whole process to be a headache: dealing with the crash itself, calling the police, getting the insurance companies involved, and the list goes on. I can say that I was lucky. My car had some damage, but the other driver whose car rammed into mine likely totaled his vehicle. I thought I was okay—definitely shaken up, but I had no broken bones. However, I was on blood thinners at the time. And the next day, I developed a pretty severe headache. I did not want to go to the hospital; who would? But after some gentle pushing from my family, I went to the emergency room. The ER heard car crash, blood thinners and headache, and rushed me to get a CAT scan. Thankfully, I was in the clear. I didn’t have any significant injuries from that crash, but it could have been a lot worse. I might not have known had I not taken care of myself by going to the ER. And while I am now a personal injury attorney, at the time of my crash, like many other victims, I didn’t know the process. I was thankful I really didn’t have to learn too much about it. Now, it makes me even more sympathetic towards our clients who are trying to navigate the system while in pain.

The More You Know, The Better

Most people who have to deal with the legal system are not happy to do so. Those who are injured and suing the responsible party are no different. I have never encountered a client who was happy to have to deal with their injuries or the process they had to endure to receive compensation for their injuries. Frustration with the process is a constant complaint and an understandable one. It sounds tedious, especially with everything you have going on: your life, the injuries, medical appointments, family obligations, work, school, whatever it might be, and now your lawyer is talking to you about some confusing and lengthy process. You are probably thinking, “I don’t need to pay attention to this. This is what I am going to be paying my attorney to do.” But the truth is, an attorney’s job is to educate our clients and advocate for them. This includes explaining and walking clients through the claim and legal process from the get-go. This not only makes sure you understand the process, but once you know what to expect, it helps cut down on that frustration and the anxiety of the unknown.

So, what is the process when you’ve been hurt in a crash? Why is it so important to understand? Without understanding the process for a personal injury claim, there is no way to protect yourself and make sure you get justice.

The Crash

This is really the preliminary part of the process. But it’s important that, at the scene of the crash, you collect important evidence that will help get the claims process moving. You should never leave the scene of the crash without getting the following information:

  • All other drivers’ names, contact information (phone numbers and addresses) and insurance information
  • The names, badge numbers, and phone numbers for any police officers who respond to the scene, as well as any police report numbers
  • Any names and phone numbers for any witnesses or people who stop
  • The name of the road you’re on and the closest intersection
  • Photographs of the cars involved and their damage, how the scene looked and the other drivers’ license plates. If the other driver gives you bad insurance information, this can help track them down.

If you end up needing to be taken to the hospital by an ambulance from the scene of the crash and aren’t able to collect this information, a police officer should contact you while you’re in the ER or afterwards. When that happens, try to get as much of the above information from the officer. Don’t just rely on him to collect it and get it from him later, as that can be very difficult to actually get, even when you’re the victim!

For information about what information you should gather at the scene after you’ve slipped and fallen, check out my colleague Patrick Stewart’s recent blog post.

The Injury

The actual “bodily injury claims process starts once you know that you’ve been hurt as a result of a crash or slip and fall. After being injured, you have to file a claim with an insurance company. Simple, right? Sounds that way. You might think, “I’m injured. I did nothing wrong. The person who harmed me is insured, so their insurance will take care of me.” But let me share what may come as a shock to some of you reading this: the insurance company does not care about you. They do not care who you are, what happened to you or really about anything but saving [their own] money. Shocking, right? The best way to protect yourself is to hire a lawyer to stand up to the insurance company for you.

Step 1: Treatment

The most important thing for you to do is get better! Go to the doctor. Use your health insurance if you have it. Talk to your doctor about your injuries. I do not mean just briefly describe them or tell them about how you are feeling at that particular moment. You to need tell your doctor about everything: any prior injuries, what happened to you in the crash, where the pain was and now is, how it hurts, how the injuries are impacting your life and everything that is bothering you. Always tell every doctor you see about your injuries, what happened to you, how you are doing and how it is impacting your life at EVERY appointment.

This next part is equally as important as talking to your doctor— you need to listen to your doctor and do what your doctor says! I cannot stress this enough. You cannot get better if you do not make taking care of yourself a priority. Easier said than done, but it is truly the most important part of the process. Before you move on to the next step in the process, you should be finished with any treatment (if possible). This means that you either have fully recovered from your injuries (in which case, hurray!) or you have healed as much as possible under the circumstances. This second part is called “maximum medical improvement.”

The reason completing treatment and reaching maximum medical improvement is so important before moving on to the next step is because with personal injury lawsuits there can be only one recovery. Once you have agreed to an amount to settle your claim, there is no opportunity go back and ask the insurance company for more if you are still treating or decide to go back for more medical treatment in the future.

Step 2: The Demand

Once you have finished treatment, the second step is making a settlement demand on the responsible insurance company. This involves collecting all of your medical records and bills related to your injuries, any police reports or incident reports that were made for the incident causing your injuries and making an initial request for an amount of money (the actual demand) to settle your claim. Once the insurance company receives your demand, they will review it and respond.

There are two options that the insurance company can respond with. One such response is that the insurance company may deny liability, which means they are not going to offer anything, and it is time to move on to the next step.

Alternatively, the other response you may receive from the insurance company is an offer to settle at an amount less (and likely, significantly below) your demand. You then can respond with a counter-demand, beginning negotiations with them. There may come a point at which it becomes clear the insurance company is not going to offer what you think your case is worth. If that happens, it is time to move to the next step.

It’s important to note that it may be recommended to skip step 2 (meaning going right to Step 3) in certain circumstances. This is something your attorney should discuss with you.

Step 3: Filing a Lawsuit

In Virginia, personal injury claims have a two-year statute of limitations. This means that, if your claim has not been resolved (or settled) with the insurance company within two years from the date of the injury (meaning the date of your fall or the crash), you MUST file a lawsuit before that two-year time frame ends in order to protect your claim. If the statute has run, and you have not filed a lawsuit, you have no legal recourse.

Once a lawsuit is filed, a trial must be imminent, right? Not so fast. The legal system, unfortunately, does not work as fast as you would think. There are several steps in the process before you get to trial, and in all likelihood, it will be at least 12-18 months before you get to a trial. Obtaining a trial date really depends on the individual court, as well as the schedules of the court, the attorneys and you.

Things in your lawsuit will not start moving until you have effected service on the Defendant, which means that someone has to physically deliver the lawsuit to them in some way. Think of it as tagging the Defendant by physically touching them with the actual lawsuit papers. Once that has happened, the Defendant has to file a response, which typically takes the form of what is called an Answer. At this point, the case moves to the next step.

Step 4: Discovery

The next step in the process is discovery. Each side gets to search for the truth, which is the purpose of a trial. There are two forms of discovery you will generally have to deal with in this process, although there are many other pieces that your attorney will be working on. Remember that each case is different, so in your case, there may be additional things you’ll be personally involved in.

Typically, the first form of discovery you will encounter is written discovery. Written discovery can consist of interrogatories, requests for production of documents and requests for admissions. You have 21 days after being served these documents to state your objections and answer these under the Rules of the Supreme Court of Virginia.

The second form of discovery you will encounter is called a deposition. A lot of people wonder if a deposition is in court or if a judge will be present, but this is not the case. A deposition is also set following the Rules of the Supreme Court of Virginia. It is a chance for the Defendant’s attorney to meet you in person and ask you questions under oath, while a transcript of the interaction is created by a court reporter. This will happen in someone’s office: the defense attorney’s, your attorney’s or a neutral meeting space.

The discovery rules are very broad, so it is important to be aware that this means the Defendant’s attorney gets to ask questions during discovery that you might not think are relevant to your case. This can be upsetting and hard for some people to understand, but that is why it is so important to be aware of what the discovery process entails. A broad discovery process allows for the truth to be uncovered, so be prepared for questions which may seem unrelated to the incident which caused your injury.

Step 5: Medical Examinations

So, the next step must be a trial, right? Well, that is not exactly right. There are several things that can occur before trial, including the insurance company extending a new offer and trying to settle your case before trial. The Defendant’s attorney may request that you undergo an “independent” medical examination (in Virginia, this is also known as a Rule 4:10 Examination). This means that they get to choose a doctor for you to go see to evaluate you and your injuries. These doctors are paid by the insurance company and working to help their case, not yours. Despite this, you must tell this doctor about what happened to you, your injuries and how they impact you. Just remember that they are not your doctor and are certainly not treating you.

Step 6: The Trial

Your trial date has finally arrived! This is your day in court, where you get to confront and hold the Defendant accountable for their actions. Not only have you gone through treatment and tried to move on with your life during this whole process, you have also endured over a year (if not years) of the legal process leading up to this moment.

Before the jury is even seated, there may be some “preliminarymotions related to the trial (before this step, there may have been different types of motions heard by the court that, if you have an attorney, they argued, but you did not have to attend). Then the jury is selected in a process that takes time. This jury selection process is called “voir dire.” Finally, your trial will actually begin.

The trial itself is an ordeal. You will likely have to testify on the stand, and the Defense Attorney gets to question you again (although its not nearly as invasive as the deposition). Our attorney will likely have witnesses come talk to the jury about how your injury and the Defendant’s conduct have impacted you. There may also be an expert witness to talk about your medical treatment and potentially additional experts depending on the facts of your case. Additionally, the Defendant’s attorney will be attacking your case and claims. They will have their own witnesses and experts testifying. This is the hardest part for a client to listen to, especially since you know you’re telling the truth, have been honest and aren’t the one responsible for what happened to you!

Finally, the trial will come to a conclusion, and it will go to the jury for them to deliver a verdict. The verdict is a ruling deciding who is responsible and who should pay what amount of money, or damages. The jury, made up of everyday Virginians who have been listening to your case, get to go back, deliberate and decide your fate. When they have reached a verdict, you will go back into the courtroom, and the jury will let you know if they find the Defendant liable and if so, what amount of damages they award you.

At the end of your trial, no matter the outcome, you can be sure that you have stood up for yourself by asking a jury of your peers to hold the Defendant liable for their actions.

Does this mean you’ve reached the end? Hopefully, yes, this is the end, and I sincerely hope that you never have to endure this process again. It is possible that, if you win, the insurance company may have their attorneys appeal. But that is another process I will not go into here. In Virginia, a party has 30 days to appeal a case heard in a circuit court; they only have 10 days to file an appeal in a general district court case. If there’s no appeal, then yes, the process is finally over.

Keep in Mind…

While this goes over the basics of the personal injury process, every case is different. It is important to know that this does not go over every scenario (nor would you want to read it if it did). It’s a long process, but the reward of justice is worth it for many. I hope you can also see why it’s incredibly helpful to have an experienced, knowledgeable trial attorney to help you, fight for you and guide you through this process. Since this post is only an overview, if you are dealing with the claims process and have questions, please make sure you talk to your attorney about them. If you don’t have an attorney and, after reading this, think you need to talk to one, you should start looking for one as soon as possible to make sure you’re protecting yourself and your rights.


After the Fall: Collecting the Best Evidence After a Slip and Fall or Trip and Fall

Apr 13, 2018 | Patrick Stewart

At CHASENBOSCOLO, we frequently consult with clients involved in trip and falls or slip and falls. These cases are so common because falls can happen anywhere, whether it be at home, at work or around a store or restaurant. Specifically, these cases are referred to as premises liability cases because the owner of the premises may be liable to the injured person. The owner may be liable for failing to fix a defect on their property, failing to warn guests or customers about a defect on their property or failing to prevent slips or falls on their property. For more information on slip and fall cases at rental homes or apartment complexes, take a look at my colleague Shakétta Denson’s blog post.

Premises liability cases almost always end up in litigation. When you pursue a claim, the property owner’s insurance company will commonly undervalue your injury as well as your pain and suffering from that injury. These minimal insurance evaluations happen no matter how serious the injury or how much it seems the property owner is at fault. The reason for this is twofold. First, insurance companies hope that injured people will take the low offer rather than go through costly and time-consuming litigation. Second, insurance companies know that if proper evidence has not been collected and maintained at the beginning of a case, it becomes harder for the injured person to prove their case in court.

The common mistakes people make after falling are:

  • Not getting full contact information for eyewitnesses
  • Not notifying any employees or managers on site
  • Not creating any written report or claim with the store on site
  • Not taking any photographs or video of the defect or hazard that caused their trip or fall

While your lawyer can help gather this information during an investigation, the best point in time to gather this information is immediately after your fall.

What should I do if I am hurt in a fall?

If you do fall, what steps should you take to increase the chances that you and your lawyer can win your case if and when it ends up in court? The best cases are initially built on four core pieces of evidence:

  1. Witnesses
  2. Employees
  3. Reports
  4. Photographs

1. Witnesses

In order to be liable to an injured person, a property owner must first have notice of the defect on their property. In other words, before the fall, the property owner or their employees had to have been aware that there was a defect or hazard that needed to be fixed, cleaned or warned about to their customers and/or guests. Sometimes when a person falls, an eyewitness will say:

  • “I almost just fell there too.”
  • “I just told them to clean that.”
  • “I just told them to fix that.”
  • “I just told them they should put a warning sign up.”

If someone says something like this to you after your incident, get their first and last names and phone number immediately. Their testimony may be the key to proving the owner had notice of the problem and failed to fix it or warn other people. However, that testimony may not occur until 2–3+ years after that incident. Your lawyer will want specific contact information for the witness so they can take a statement, get it in writing and have the witness sign it. During litigation, your lawyer can use this signed statement to refresh the witness’ memory when they testify. The more contact information and description about the witness, the better. Only obtaining the first or last name is not enough. If you only obtain the witness’ first or last name, it may be impossible to locate them to testify. Some witnesses may have to be subpoenaed to come testify, so this contact information will ensure that they can be served and compelled to appear in the future at a deposition or in court. In summary, you would want as much of the following information as possible from an eyewitness:

  • First and last name
  • Home phone number
  • Cell phone number
  • Home address
  • E-mail address
  • Physical description (in case they need to be subpoenaed in the future)

2. Employees

Another great source for notice of a problem on a property are the employees who work there. Employees can be the first people to respond to an injured person. Sometimes those employees may make an offhand comment that shows that the store was aware of the problem before the fall. Clients in the past have had employees tell them things like:

  • “That has been happening a lot lately.”
  • “We have been meaning to clean that up.”
  • “We have not gotten around to fixing that.”
  • “We really should put a warning sign up.”

If an employee says something like this to you, get their first and last name and job position immediately. Similar to eyewitnesses, these employees may not have to testify until 2–3+ years after your fall. During that time, the employee may have changed jobs or moved out of the area entirely. If that employee is no longer with the company, the company does not have to voluntarily produce that former employee as a witness. In that situation, your lawyer may have to locate and subpoena the ex-employee just like any other eyewitness.

Alternatively, there may be employees who do not help or talk to you after you fall. We have had cases where employees have seen our clients fall and have laughed, pointed or joked to one another about our client. These employees’ names and positions are just as important because their behavior shows a failure of the company to follow their own policies and procedures, as well as displays a lack of basic human decency. When jurors hear stories like that in court, it can help drive their verdicts.

Lastly, do not leave without talking to a manager-on-duty (MOD). These are usually the last company employees that will speak with you before you leave. If you cannot speak with all the employees discussed above, then the MOD should provide that information, as well as their own contact information, so you can make a proper insurance claim. In summary, when dealing with company or store employees and managers, you should gather the following information:

  • First and last name
  • Job title
  • Physical description (in case they need to be subpoenaed in the future)

3. Reports

Potential clients will often discuss how after they fell, they talked to one or two people and then left the scene to go seek medical attention. Your health and safety should always come before gathering evidence and talking to witnesses. However, if you can talk to employees and managers on the scene, then you should obtain a copy of the written report or a report/incident number. If you do not have this information, then your case is not starting off on the right foot.

Companies should have policies and procedures in place where they create reports after injuries occur on their property. These procedures are in place so that the company can notify their insurance company and handle the claim. These reports should list some combination of the date and time of the incident, a description of the incident, your name, witness name(s), employee name(s), manager name(s) and an incident or reference number. This is basic information that will help prove that you were at the site when you were injured and that you took the appropriate steps to notify the company. If the report is not immediately available and there is no reference number yet, you should also ask for the contact information for the store’s insurance claims representative. You can even call that representative while you are on site.

Occasionally, a manager may offer some incentive or giveaway to you as an “apology” for falling at the store or restaurant. These incentives could include a coupon or discount for a free meal or a free drink. While it is generally okay to accept these, they can really be meant to distract you from getting the right information and making a written report with the company. Remember to avoid these distractions and make a proper report. If you are injured, a $20 free meal will not make up for a life-changing injury.

4. Photographs and Video

Pictures and video can be the most credible forms of evidence because, while the plaintiff and defendant may tell their own version of the incident, the pictures and video speak for themselves. A verbal description of a hole, a puddle, a spill or a defect is never as accurate as photographs or video showing the actual problem. With all that in mind, if you leave the scene of your fall without taking your own photographs or video, it can be a major detriment to your own case. In a time where nearly everyone has a cell phone with a camera and video capabilities, leaving the scene of a fall without taking photographs is inexcusable.

The property owner’s initial response will be to clean a spill, fix the defect or put down a warning sign. If that happens and you do not have pictures that show the conditions at the time of the fall, then it becomes your word vs. the owner’s word. Furthermore, evidence that the owner fixed the defect or cleaned the spill is not admissible evidence at a trial. This is because courts want to encourage property owners to fix defects before another guest or customer is hurt. It is best to photograph or record the scene before any corrections are made.

Aside from not taking pictures at all, a common mistake is taking photographs that are blurry or so close-up that they are incomprehensible. A good photograph is one that you could show anyone on the street and they would immediately know what they were looking at. You should take as many pictures as you can from as many angles as you can. You can place a common object down next to the spill or defect to demonstrate its scale and size (e.g a shoe, a dollar bill, a pen, etc.). Take photographs and video from a 360° view from different distances. The more pictures, the better, because you and your lawyer can always choose which ones to present in court.

Many stores and restaurants will have security cameras inside and outside the store. If you have fallen, you should ask the manager to preserve the security video as soon as possible, and you should put that request in any written report. Since the cameras run for hours at time, owners will usually choose to record over old footage rather than preserve old footage where no incident occurred. Lawyers can send letters asking companies to preserve this information for court. However, if weeks or months have gone by since the fall, the footage may have already been erased. That is why taking your own videos and photographs is just as important as obtaining the store’s own camera footage.

Tl;dr (too long, didn’t read): Tips for Gathering the Right Info After You Fall

Falls can obviously result in severe injuries. Many commercial properties have insurance policies to cover injuries that occur on site. However, those insurance companies are not always eager or willing to pay claims related to those falls. More likely than not, an injured person will have to pursue a lawsuit to be fully compensated for their injuries after a fall. A good premises liability case begins with witnesses, employees, reports and photographs.

At CHASENBOSCOLO, we are not afraid to go to battle with an insurance company in court, but we have to have the right amount of ammunition to win. We have certainly pursued premises liability cases in the past with only some of the evidence listed above. Additionally, we can obtain witness names, employee and manager names, reports, photographs and much more during a lawsuit. However, the best time to gather this information will always be on site immediately after the fall. It ensures that visual evidence is preserved for the future and begins the process of making an airtight injury claim.


Safe Housing: The Intersection of Negligence and Sanctuary

Apr 06, 2018 | Shaketta A. Denson

Within their homes, more than 11,000 people die each year from preventable, unintentional injuries. Everyone deserves a safe place to lay their heads at night and the security of knowing that their home is indeed their castle. If you are a tenant in privately or commercially owned residential housing and you get injured through no fault of your own, you have rights. These types of incidents and injuries fall under what is called premises liability.

If I am a renter and I get hurt at home, who is responsible?

Unless required by the lease or by state or local law, the landlord/owner is not responsible for maintaining the property, other than to ensure that dangerous conditions do not exist on the property. Local laws mostly require that the property is habitable and that a specific unit meets certain minimal standards before it can be rented. Generally, if something in the rental unit needs to be repaired, the landlord is required to repair it. However, the tenant must notify the landlord about the problem in writing. If the tenant’s property or body is damaged by the landlord’s failure to make repairs required by the lease or law, the tenant may file a civil action for damages against the landlord. However, the landlord may not be liable for damages that are beyond his or her control.

Landlords and property owners are responsible for making a home safe and habitable for their tenants. This includes regular inspections, proper and plentiful maintenance staff and quick, proper and timely repairs. Many injuries such as slips, falls and injuries resulting from ceiling collapses can be the result of improper maintenance. Other more remote injuries, such as mold exposure due to the improper cleaning of moisture and lead paint poisoning, are also things that could be the result of potential negligence on the part of the landlord/owner.

The responsibility of the landlord is called a standard of care. Standard of care is a legal term that means the attentiveness, prudence and caution that a reasonable person must exercise under the circumstances. If the landlord/owner does not meet the standard of care, the landlord can be liable.

If You Are Injured in a Rental Property

Many people are aware that if there are serious defects in your rented home, you have Rent Escrow as an outlet. For a landlord/owner to be liable to someone for injuries sustained on their property, a few things have to happen. You must show that:

  1. The landlord/owner had a duty (responsibility) to fix the dangerous condition that existed;
  2. The landlord/owner breached this duty by not fixing the condition in a reasonable amount of time;
  3. The problem would not have been unreasonably expensive or difficult to fix;
  4. The landlord/owner had knowledge of the condition;
  5. The cause of the injury was the choice to not repair the dangerous condition;
  6. The injury that happened was one that is known to be caused by such dangerous conditions (i.e., “foreseeable”); and finally,
  7. The landlord’s negligence (i.e., their choice to not fix this condition) directly caused the injury.

To explain this a little better, here’s an example:

Let’s say that there is a terrible rainstorm and a tenant’s apartment floods from the ceiling in several places. The tenant promptly notifies her landlord by phone and emails photos of the leaking. The storm eventually stops, and so does the leaking. The landlord does not come to the apartment to inspect or check the ceiling for water damage. One month later while the tenant is sleeping, their ceiling caves in on top of them. They sustain a concussion.

In this scenario, the tenant can prove that the landlord had a duty to inspect the celling after the leaking and repair any water damage. Fixing the ceiling with new drywall would not have been unreasonable or unreasonably expensive. If the landlord had repaired the wet drywall it would not have fallen, and the tenant would not have been injured. Getting a concussion is serious and foreseeable as a result of someone being hit on the head with drywall, and the choice of the landlord not to fix the drywall directly caused the concussion.

If you are successful with all of these elements, you can potentially recover monetary damages to cover your:

  • Medical bills
  • Lost wages
  • Physical injuries
  • Emotional distress
  • Pain and suffering
  • Personal property damage

What if a child is injured on a rental property?

Additional care is shown to children, who are seen by the law as less able to appreciate the dangers and risks. Landlords/owners may not, however, be liable for the intentional, reckless or dangerous behavior on the part of the tenant that results in an injury.

What if I’m hurt as the result of a crime that happened on a rental property?

It is also important to keep in mind that negligence on the part of a landlord can also extend to potential criminal dangers to tenants. Landlords/owners are also under an obligation to ensure that the building is free from criminal activity as well. This means that apartments are equipped with deadbolts or other secure locks so that tenants can adequately secure their living spaces. They must keep buildings free from illegal activity.

What if I have friends or family over to my house?

Landlords can also be liable to visitors to the property who are allowed or permitted to be on the property. The landlord is responsible for maintaining shared common areas (stairways, hallways, parking lots, etc.), and if someone is injured in/on those common areas, the landlord could be held liable. There are some situations where a landlord/owner might not be held liable. Those are situations where the danger is “open and obvious.” This means something an average person would and could have identified and avoided.

Negligence Per Se

There are certain situations where there is a law that is specifically designed to protect tenants. For example, if smoke alarms are missing from an apartment and someone is injured as a result of a fire or carbon dioxide, this is called negligence per se. In these situations, the landlord will be held liable without the need for additional proof. The tenant simply has to show the following:

  1. The landlord/owner violated the law;
  2. The law was specifically designed to protect from the type of injury that resulted; and
  3. The tenant was injured as a result.

What if you’re the homeowner and someone gets hurt on your property?

Now, what happens if you are a private homeowner and someone is injured on your property? Do you have the same obligations to the mailman as you do to your visiting family? Do you have any obligations at all? Yes…and no.

If someone is injured on your property, you could be held responsible, and in some situations, there is no negligence needed. A slip, fall or trip on your property that resulted in an injury would be a situation where the injured person would have to prove that there was something you did not do that you should have done or that you did do that you shouldn’t have done to keep your property free from hazards. For more information on these kinds of cases, specifically when it comes to snow and ice, check out Tom Teodori and Ben Boscolo’s recent blog post on the topic.

However, there are some things that you are automatically responsible for. This concept is called “strict liability.” For example, in Maryland, if someone is bitten by a dog on your property, they may be able to make a claim without needing to prove that you did something wrong.

When someone is injured on your property, they are covered by your homeowners’ insurance policy. The liability coverage under your homeowners’ policy will pay all of the harms and losses that result from the injury. If there is a lawsuit filed against you, they will also provide you with a defense.

Despite all of this, it should be understood that every case and situation is different and no two are alike. Different states apply things differently, and the type of property that you are on, own or have contracted about may change the responsibility. If you’ve been hurt on someone else’s property, you should do your research and seek out someone you trust to help you protect your legal rights.


Why Your Car Insurance Sucks, and What You Can Do About It

Apr 03, 2018 | Ben Chasen

Most people who drive are covered by auto insurance in the event that they are involved in a crash. What most folks do not know is that car insurance is, for the most part, limited to whatever coverage is available under the at-fault driver’s insurance policy.

That is bad news for anyone who is unfortunate enough to be hit by a driver who carries the minimum coverage allowed under law, and it’s even worse news for those hit by a driver who has no insurance at all.

The likelihood of this is high—the Insurance Research Council (IRC) estimates that 1 out of every 7 drivers in the United States is currently uninsured. That can be devastating for anyone unlucky enough to be hit by one of those uninsured drivers, considering that any crash with an uninsured or underinsured driver can result in significant costs that are not covered by a basic insurance policy.

There is some good news: insurance companies in Maryland are required to offer a type of insurance coverage called “Uninsured/Underinsured Motorist” coverage (also known as UM/UIM coverage). If this type of coverage is included in your insurance policy, you have the ability to use your own insurance to cover damages that exceed the policy limits of the person who caused the crash.

But wait! There’s MORE!

Before October 1, 2017, if you purchased UM/UIM coverage in Maryland, the total amount of money available to you under your own policy was the difference between your coverage and the liability coverage of the at-fault driver. But as of October 1, 2017, drivers in Maryland have the ability to increase their coverage even more by opting into Enhanced UM/UIM Coverage.

Now, instead of being limited to the difference between the two policies, drivers who choose to “Enhance” their coverage are able to “stack” their own insurance on top of the at-fault driver’s.

Here are a few examples.

Example 1:

A is hit by B’s car. If A has no UM coverage and B is driving uninsured, A has $0.00 available to compensate her for any injures she sustained in the crash.

Max Total Recovery Available: $0.00

Example 2:

If A has UM coverage of $30,000.00 and B has an insurance policy at the Maryland mandatory minimum of $30,000.00, A will have $30,000.00 available to her from B’s policy, but there is no additional coverage available under her own policy.

Max Total Recovery Available: $30,000.0

Example 3:

If A has Enhanced UM coverage of $30,000.00, and B has an insurance policy at the Maryland mandatory minimum of $30,000.00, A will have $30,000.00 available to her from B’s policy and will have an additional $30,000.00 available to her under her own policy, should her medical treatment and lost wages exceed the amount covered by B’s insurance. 

Max Total Recovery Available: $60,000.00

Looking at the examples above, in Example 1, A is up the creek without a paddle. In Example 2, depending on A’s injures, how much medical treatment she will need, and how much work she misses, A might be covered. But only in Example 3 did A have the full benefit of the insurance coverage she paid for, giving her the best chance to make a full recovery by allowing for an additional $30,000.00 in available coverage.

And why shouldn’t she? It’s her insurance! She should be able to use it when she needs it!

If you remember only one thing from this article, make it this: Every single driver in Maryland needs to protect themselves and their families by purchasing enhanced uninsured motorist coverage.

Introduction to Uninsured/Underinsured Motorist Coverage

For as long as there has been car insurance, there have been drivers who lack adequate coverage to provide for the people and things they hit. Since 1975, Maryland has recognized the danger of having uninsured and underinsured motorists on the road and has fought back by requiring that automobile insurers offer uninsured/underinsured motor vehicle insurance. Every Maryland resident who reads this will either have UM/UIM coverage in their policy or will have affirmatively waived it.

So how can a driver in Maryland make sure they have the best and most up-to-date insurance coverage?

Brief Overview of Insurance Coverage

First things first. It is important to understand some information about your insurance policy and the way that it will express your coverage. Every insurance policy has a coverage or Declarations Page. That section of your policy shows you how much coverage you have available. It includes items such as:

  • Bodily Injury – Liability
  • Property Damage – Liability
  • Personal Injury Protection
  • Uninsured Motorist Bodily Injury
  • Uninsured Motorist Property Damage
  • And other additional coverages if applicable.

For our purposes, the most important terms above are “liability” and “uninsured motorist”. Bodily injury coverage is in place to compensate for, you guessed it, injuries to the body. Property damage is also a relatively straightforward type of coverage.

Liability is the coverage you have that goes to people you hit when it is your fault. The bodily injury and property damage coverage listed next to “Uninsured Motorist” are for you when you are hit and the crash is someone else’s fault.

What is UM/UIM coverage?

Uninsured motorist (UM) coverage is designed to step into the shoes of the at-fault driver’s insurance and allow for the recovery of monetary damages from an injured driver’s own insurance policy in the event they are hit by an at-fault driver who has no insurance coverage. For example:

Example 4:

Abby has insurance coverage of $50,000/$100,000, which includes UM coverage (also in the amount of $50,000/$100,000). She is hit by Bob, who does not have car insurance. Abby is injured in the crash and has incurred medical bills and lost wages from her job. Because Abby purchased the UM coverage, she will be able to make a claim against her own insurance policy for as much as $50,000.00.

This is a perfect example of why Maryland requires that UM coverage be offered to drivers. Had Abby not purchased the UM coverage, her only option would be to bring a claim against Bob personally, who in all likelihood will not be able to pay out of pocket for the injuries he inflicted on Abby, and the damage that he caused. When Bob can’t pay, Abby is left holding the bag for all of the costs and burdens that Bob’s negligence caused.

Things get a little tricky when a driver that is hit by someone who is classified under the law as “underinsured.” An “underinsured” driver (aka UIM) is anyone who has less coverage than the person who they hit. Using the same example as before:

Example 5:

Again, Abby has $50,000/$100,000 available under her underinsured motorist coverage. This time, however, Bob has liability insurance coverage in the amount of $30,000.00/$60,000.00. After Bob’s insurance pays the $30,000.00 that is available under Bob’s policy, Abby will be able to make a claim with her own insurance company for the remaining $20,000.00, because this is the difference between her policy and Bob’s policy. In this example, Abby can recover a maximum of $50,000.00 (between both insurance policies) for her medical bills, lost wages, and any non-economic damages.

Here’s the bottom line: When you purchase car insurance, it is critical that you include coverage to protect yourself from drivers who do more damage than their insurance policy will pay for.

If you are a resident of Virginia or the District of Columbia, you also have the ability to insure yourself against uninsured or underinsured motorists.

In Virginia, uninsured motorist coverage is (technically) not required, because car insurance is (technically) not required. If you do buy car insurance in Virginia, the policy must have UM coverage equal to minimums required for liability coverage ($25,000 for one injured person, $50,000 for two or more injured people, and $20,000 for property damage).[i] If a Virginia resident decides not to buy car insurance, they may remain legally uninsured by paying a $500 fee every year to the DMV.[ii]

Uninsured motorist coverage is required in D.C., but underinsured motorist coverage is optional.[iii] UM protection must be included on all D.C. auto insurance policies, with coverage of at least $25,000 per person, up to $50,000 per crash, and $5,000 in property damage. DC Law requires that insurance companies must offer UIM, but it can be declined by the driver.[iv]

For those folks who live outside of Maryland, you still have the opportunity to purchase uninsured/underinsured motorist coverage to protect yourself in the event that you are hit by a driver with minimum insurance coverage or, worse, a driver who has no insurance coverage at all. However, D.C. and Virginia have not yet opted to offer Enhanced UM/UIM coverage like Maryland does now.

But how is UM/UIM coverage being enhanced in Maryland?

Beginning July 2018, and being offered by insurers as of October 1, 2017, car insurance companies in Maryland will be required to offer “Enhanced Uninsured/ Underinsured Motorist Coverage”. Just like in 1975 when Maryland lawmakers enacted the uninsured/underinsured motorist statute, Enhanced UM/UIM coverage is designed to increase the protection of everyday Maryland drivers from the scourge of the uninsured and the cut rate policy.

With Enhanced UM/UIM coverage, a driver in Maryland who is injured by the negligence of an underinsured driver will no longer split the difference between the coverage available to them under their own insurance policy and the coverage available from the negligent driver’s insurance.

Let’s take a look at how this is going to impact Abby:

Example 6:

Abby’s insurance policy now includes enhanced UM/UIM coverage in the amount of $50,000.00/$100,000.00. On July 2, 2018, she is hit by Bob, who has liability insurance coverage of $50,000/$100,000. Abby is injured in the crash, and her damages amount to $100,000. Because Abby decided to enhance her underinsured coverage, she will now have a viable claim against Bob for up to $50,000. After Bob’s insurance company pays the $50,000, Abby will also have a claim against her own insurer for as much as the full $50,000 available under her enhanced UM/UIM coverage, meaning that she will be completely covered for the $100,000.00 in damages that she has suffered.

In the three examples we have looked at, Abby has had viable negligence claims in each. But only in this last example did Abby have the coverage available to cover her if she had $100,000.00 in damages.

Had Abby sustained injuries that resulted in $100,000.00 in damages in examples 1 or 2, she would have been in a world of trouble because there wouldn’t be enough coverage available to cover all of her bills. It should be noted that if Abby’s injuries resulted in medical bills and lost wages that fell below Bob’s coverage amount, there would be no need to tap into her policy at all.

That sounds great! How do I get enhanced UM/UIM coverage?

Great question! The Maryland General Assembly has already done the heavy lifting of passing HB5, which amended Maryland law to require all automobile insurance companies offer enhanced underinsured motorist coverage to their customers.[v] This means that the next time you are in the market to renew or purchase a car insurance policy, whatever insurer you choose will be required to offer you enhanced uninsured/underinsured motorist coverage.

Now, the important (and sometimes difficult) part is making sure that you do not affirmatively waive your coverage here. All of the insurance companies say that they can save you X amount of money in X time if you switch. DO NOT BE FOOLED. The way that these insurance companies save you money is by tricking you into waiving your coverage. You may save some money in premiums, but that cost will catch up to you in the event that you are ever hit by someone who carries less insurance than you do or no insurance coverage at all.

Why Does Any of This Matter?

The simple truth is this: in every case, by the time you realize that the cost of your injuries greatly exceeds the amount of insurance coverage available for you under the at-fault driver’s auto insurance policy, it is far too late to do anything about it. Only by choosing the best type of insurance policy to begin with can you be sure that you will have access to the amount of coverage you need if you are ever seriously injured in a crash.

That is why the next time you are looking at renewing or changing your auto insurance, make sure you are covered with enhanced UM/UIM coverage.

If you or someone you care about have been injured in a motor vehicle crash and have questions about your rights when it comes to your insurance coverage, it’s important to talk to an attorney who understands the complexities of UM, UIM, enhanced UM/UIM and how insurance companies play the game to protect their pocketbooks. Don’t let the insurance companies deprive you of the coverage you’re not only entitled to, but that you’ve already paid for as a policyholder and customer.

 


[i] Virginia Code § 38.2-2206(A)

[ii] Virginia Code § 46.2-706.

[iii] DC Code § 31-2406(f)

[iv] DC Code§ 31-2406(c)(1)

[v] See MD Ins. Art. §19-509.1(c)(1).


The Recipe for Successful Appeals: How ChasenBoscolo Approaches Appealing Cases to Ensure Justice for All

Mar 26, 2018 | Kevin Stillman

What is an appeal?

When a case is lost at the trial court level, the losing litigant does not need to accept defeat. Instead, the litigant can choose to have another group of judges set above the trial court judges review the case and offer their judgment. Every time we appeal, we are fighting to change the law for everyone. We are trying to take back the law from the subtle yet real pro-insurance industry slant that has tainted the court systems over the past twenty years.

Standards of Review

Sometimes, the appeal is “as of right”—that is, the litigant pays the filing fee with the appeals court and the appeals court must review the case. Other times, the appeal is “discretionary,” meaning the litigant has to ask the appeals court to hear the appeal and come up with a good explanation of why it is important for the appeals court to hear the case.

When the appeals court hears an appeal, they will always take into account the trial court’s decision. What happened at the trial court level—the evidence presented, the testimony taken and the judges’ legal opinions—are all considered by the appeals court. Because the appeals court is a higher court than the trial court, they can review a judge’s legal decision “like new” or de novo. When the review is de novo, they are not required to give any deference to the lower court’s legal decision. However, in many other questions, the appeals court is not so free to substitute its judgement for that of the trial court. When considering how the trial court interpreted the evidence, the appeals court will only review the evidence for clear error, meaning they can only reverse this type of finding if it is obviously wrong. When the trial court judge has made a decision about how to handle the procedural aspects of the trial, such as the introduction or exclusion of evidence or postponing a hearing, the appeals court must affirm the decision unless the judge abused their discretion.

Because the trial courts have a high degree of freedom in the conduct of a trial and in resolving the disputes before them, an appeal can be difficult to win. Furthermore, a decision at the appeals level has consequences for all cases going forward: lower courts will often rely on the decisions of the appeals court as either persuasive or precedential[1] authority. Therefore, I only like to appeal cases that are likely to be overturned on appeal or could otherwise produce a better outcome for my clients.

Planning Ahead: Winning the Appeal Before We Even Go to Trial

The vast majority of appeals are won before the litigant comes into the trial courtroom. An effective advocate knows to lay the groundwork well by developing legal tactics and strategies in advance, gathering the facts and evidence and presenting them to the trial court coherently from the very beginning. A victorious appeal is the endgame of a successfully executed trial strategy. Therefore, we have to prepare every case as if it will be heard by the appeals court.

To Win on Appeal, We Have to Have the Right Facts

When deciding whether a case is worth appealing, we want to ensure that the facts of the case are as close to ideal as possible. For a workers’ compensation case, that generally means the injured worker is a credible witness with a life-changing injury who demonstrates a desire to return to work or improve medically. We also want to make sure that the medical records demonstrate all of the complaints that the injured worker is suffering and causally relate those complaints to the work injury. While missing some of these facts will not necessarily doom an appeal, it will make success on appeal far less likely. An appeals court will want to find a way to help an injured worker who plays by the rules.

Did the trial court make a mistake?

A successful appeal must identify and resolve the mistakes made by the trial court. There are two types of mistakes: the first is a mistake in which the trial court misapplied the law in some fashion or misunderstood a key piece of evidence. The second mistake occurs when the trial court made a decision that we disagree with. The difference between those two types of mistakes is subtle but significant.

The first type of mistake (a misapplication of the law or misunderstanding the evidence) is easily identifiable in the record. The record is a written accounting of all the acts, proceedings, arguments and testimonies in a case. We can ask the appellate court, based on precedent, to fix the mistake and remand for further consideration. On appeal, we review the entire record and explain how a specific fact or inference relied upon by the Court is wrong when considered with several other facts. Other times, we explain why a provision of law cited by the trial court does not stand for the proposition that the Court says it stands for. Errors this simple are rare, however.

Most of the time, when we believe the trial court erred, it is a matter of interpretation of the law or the facts as we see them. For interpreting the law, the lower courts are generally not entitled to deference from the appeals courts and can thus interpret the law as we say it is despite the lower court’s interpretation. We can provide new cases that we did not rely on before or make the same arguments and hope the appeals court is more receptive to those arguments[2]. In this scenario, having helpful facts makes victory easier. A sympathetic set of facts will encourage the appeals court to interpret the statute in a way that will benefit a sympathetic injured person.

It is much harder to win these sorts of cases when disagreeing with the trial court’s interpretation of the facts, since generally a court’s interpretation of the facts is entitled to deference by the appeals court (the idea being that they are better positioned to judge the credibility of witnesses because they heard testimony in person). However, if we have managed to present the right constellation of facts, we can still prevail. We will be able to demonstrate that the trial court’s interpretation of the facts is utterly inconsistent with what the rest of the recorded evidence demonstrates.

Lastly, we must be able to explain how the trial court’s error caused our client harm. This is a difficult measure to gauge: It could be as simple as, “If the jury heard the evidence the court excluded, they probably would have changed their minds.” How a court’s mistake prejudices a party will differ in every case, but we have significant experience in explaining to the appeals court just how our clients suffer prejudice.

Is this the right case for an appeal?

While we almost always disagree when the trial court chooses not to rule in our favor, it is not the case that the trial court always made an error. We can disagree with the outcome but feel that the logic and legal precedents, as applied to the facts, are not incorrect. In those cases, we will almost certainly not appeal the court’s decision—unless we want to overturn the legal precedent.

Much as we need to have all the proper facts, mistakes on the attorney’s part could make a case unworthy of appeal. A case isn’t always lost at the trial court level because of an attorney’s mistake. The appeals court will focus on our mistake, disregard the merits of our case and say the mistake was the reason we lost. This happens, for example, when our medical evidence is not sufficiently comprehensive on the subject of medical causation[3]. This also happens when we do not timely object to the introduction of certain forms of evidence or an improper line of questioning. We cannot introduce new evidence for the appeals court to consider, because the record is set with the final judgment of the trial court. So, the failure to introduce key evidence at the trial court can make an appeal effectively impossible. Another instance in which we can make mistakes that hamper an appeal are when a certain legal argument is not timely raised before the trial court, because the appeals courts will generally only hear issues that were raised, argued, and decided by the trial court. That’s why we feel that it’s important that all of our attorneys are trained to avoid making such mistakes that are in their control to help ensure that we have the best chance of a successful appeal.

Is fixing the trial court’s mistake in both the public’s interest and our client’s interest?

In order to properly present to the appeals court why our case is worth overruling a trial court and changing the law for, we need to develop a factual basis and legal argument proving that our client has played by the rules and that the employer and insurer have not played by the rules so as to encourage the appeals courts to decide in our favor.

To that end, we conduct extensive legal research: We start by reading the statute to see if it supports our position or if it is ambiguous. We review years of case law from across the United States to see if other jurisdictions[4] have decided an issue and why they decided an issue a certain way. Other times we will review the notes of the state legislature or city council behind the creation of a particular law, sometimes delving through musty libraries in order to find out why a legislator had a certain provision entered into a new statute.

With the combination of a legal strategy, a thorough analysis of the facts, and a command of the research, we craft an appeal brief that contains a public policy section. We always explain (either explicitly or implicitly) why our interpretation of the law furthers the goals of the legislature and will make the lives of injured people better. This is why we need the right set of facts and a lack of mistakes on our part. We want to give the appeals court every incentive to rule in our favor. Conversely, we want to make sure the appeals court chooses not to publicly rule against us.

We take an appeal to protect our clients’ rights and to put their interests first. To that end, we prioritize that we do not put our clients in a worse position by appealing. An appeal can take anywhere from four months to two or three years to resolve, and during that time, it can be difficult or even impossible for us to arrange for our client to get benefits. To that end, we will attempt to find a way to meet our client’s goals on a faster time table. Therefore, we will often decline to appeal a case because we can still recoup benefits for our client under the trial court’s decision.

Other times, we may decline to appeal a case because the facts of the case will result in the creation of bad law. If the appeals courts do not like actions that a particular client has taken, they will attempt to interpret the law in a way that punishes a client for their mistakes. This sets a precedent that can then be used to punish other injured people for whatever transgressions the insurance companies or courts think the client has committed. As it is generally difficult to overcome established precedent, we do not want to create future bad precedent. If we think a bad precedent is a likely outcome, we will decline to appeal the case.

Having an Appellate Plan

It is far easier for us to appeal a case when we can create a plan as soon as we receive the trial court order. If we can determine how a case is going to be viewed by the appeals court, we can tailor our arguments to better attract the attention of the judges on the appeals court. Oftentimes, the easiest way to know if you have a plan is if you can outline your appeals brief before you even file the appeal! Conversely, if we do not have a plan in place before we start the appeal, it can be hard to focus on what the winning argument is. Without the ability to define the clear argument, victory becomes improbable to impossible. Simply because we, as attorneys, are upset about losing a case that we think we should have won is not a good enough reason to appeal. While we may think in our gut that the trial court came to the wrong decision, if we cannot articulate the reason why the trial court is wrong, we will lose on appeal.

Every case that an attorney loses is evaluated for appeal. And while each case is different, there are commonalities to successful appeals: If we have all of the evidence, and if we have made all the legal arguments, we can create a plan to explain why the system should lead our client to prevail. We have successfully won multiple appeals over the thirty-one years ChasenBoscolo has fought to protect our clients’ rights and put their interests first—and we have only just begun to fight.

Thought for the Day: “The foregone conclusion bypasses the necessity of the theoretical. What is preordained can never be questioned. Thus, ossified tradition rules without the benefit of reason. In the worst cases, the errors it leads to are so far from identified and corrected that reality itself is misread, misrepresented, and denied.”

– Roboute Guilliman, Essay on the Principles of Command, 8.17.xxiii


[1] A case is precedential authority when it is “reported” or “published.” These cases can be found on the Court’s website and in a series of books called “reporters.” Every attorney has a desire to win at least one published case, because to do so will grant a form of immortality.

[2] We will also explain why the reasoning of the lower court is wrong.

[3] Medical causation: Did we demonstrate that our client’s current disability is medically caused by the client’s work injury?

[4] Generally other states, though oftentimes in negligence cases we will have to resort to reviewing the Federal common law.


Safety Never Takes a Snow Day: How to Protect Yourself and Your Loved Ones During Winter Storms

Mar 21, 2018 | admin

This post was written by CHASENBOSCOLO attorneys Ben Boscolo and Tom Teodori.

Some view a blanketing of snow as a welcome occurrence, while others see it as an annoying disturbance. Regardless of your viewpoint, snow and ice frequently result in workplace injuries or negligence claims. In 2014, more than 42,000 people were hurt on the job in snow- and ice-related accidents. These types of injuries often result in time away from work and the need for medical treatment. The most common injuries are traumatically caused from slipping and falling or are exertional injuries from snow removal. These injury categories may be very broad, but they often involve strains and sprains to the neck and back, broken bones, concussions, joint injuries to the knees, hips or shoulders, spinal injuries and/or heart attacks. Although snow- and ice-related injuries affect people of all ages, the elderly are particularly susceptible.

If you were injured while working due to weather-related conditions, you may be entitled to workers’ compensation benefits. The District of Columbia, Maryland and Virginia have distinct laws when it comes to workers’ compensation, so knowing and being advised of your legal rights is important. For more information on those rights, check out David Kapson’s recent blog post.

How can I stay safe while walking in wintry weather?

The National Center for Injury Prevention and Control, a division of the Centers for Disease Control and Prevention (CDC), reports that falling is the leading cause of non-fatal injuries for those 24 years and older. In order to protect yourself while walking on snow-covered or icy sidewalks and parking lots, you should be mindful of the following:

  • If you do not have to go out, the best way to stay safe is to stay at home to allow snow and ice removal teams to do their jobs.
  • If you have to go out, please be patient with the working men and women who are cleaning up our communities. Here are a few suggestions:
    • Don’t rush. It’s normal to want to get inside and warm up, so people are often in a hurry to get out of the unpleasant weather conditions. However, it’s safer to take it slow and use flat-footed and small steps—almost like a penguin. Stay on cleared or treated walkways and avoid untreated shortcuts.
    • Wear proper footwear for the conditions—avoid heels and smooth-soled shoes.
    • Stay off your phone, watch where you are walking and try to avoid carrying heavy loads.
    • Be very careful when stepping on or off of curbs, as well as when getting in and out of cars.
    • Be mindful of areas that have been subject to refreezing and black ice.

Following these suggestions should help keep you safe. If you are being as careful as you can be but you still fall and are injured, there are laws in the District of Columbia, Maryland and Virginia to protect you. If this happens, it is important that you speak with a trial lawyer who is experienced in handling slip and fall cases.

How long do property owners have to clear sidewalks after a snowstorm?

The simple fact that you fell and are injured does not mean that the person who owns the property is responsible for taking care of your medical expenses, lost wages and potentially life-changing injuries.

In D.C., property owners are required to clear the sidewalks within 8 daylight hours of a snowstorm. Both businesses and homeowners face fines for not clearing sidewalks.

Maryland does not have a statewide snow removal law. The safety rules for snow removal are set by the individual counties. Montgomery County requires property owners to perform snow removal within 24 hours. Property owners in Prince George’s and Howard Counties have 48 hours to complete snow and ice removal. Charles County has no safety rules requiring property owners to shovel snow and clear ice from sidewalks.

Virginia also leaves the snow and ice removal safety rules to the local governments. The City of Alexandria requires snow clearing within 24 to 72 hours, depending upon the severity of the storm. Arlington’s snow and ice removal rules allow 24 to 36 hours, depending upon the severity. Neither Fairfax County nor Prince William County have safety rules for snow and ice removal.

Who is responsible?

While the law is designed to protect our communities and its members, actually holding the person who caused the injury accountable can be very tricky for multiple reasons:

Both businesses and homeowners have insurance to protect them if someone is hurt by their negligence or irresponsibility with snow and ice removal. But insurance companies employ armies of lawyers whose jobs are to protect the insurance companies’ money. They know all of the tricks that can be used to avoid having to pay for an injured person’s medical expenses, lost wages and life-changing injuries. When an injury in a fall changes your life, it’s important to talk with a trial lawyer who has actually gone to court in these kinds of cases to have a fighting chance against the insurance company’s lawyers.

Here are a few of the legal tricks that insurance company lawyers use:

  • First, the insurance company will say there’s nothing the business or homeowner could have done to prevent the fall or the resulting injuries. This is simply not true. An experienced trial lawyer will know how to show all of the steps that a responsible property owner should’ve taken in order to prevent ice and snow from creating the risk of a fall, much less the fall that actually happened.
  • Second, the insurance company’s lawyer will argue that the business or homeowner did not know that there was a dangerous condition on their property. This argument stops many innocent people from being protected since proving that the property owner had notice requires very specific evidence. Again, an experienced trial lawyer will know how to fight the insurance companies’ tactics and find the evidence needed.
  • Finally, and most dangerously, is contributory negligence. The District of Columbia, Maryland and Virginia are three of the five states in the United States that still follow the rule of contributory negligence. What that means is that if the insurance company’s lawyer shows that the injured person was 1% at fault for the fall, the property owner is not responsible to pay for the injuries.

Beware of Recorded Statements

When someone in our community is injured by a property owner’s choice to not follow the snow and ice removal safety rules, the injured person will likely get a phone call from a representative of the property owner’s insurance company. The insurance company will tell the injured person that they need to take a statement to set up the claim. DO NOT GIVE A STATEMENT. That statement will give the insurance company lawyer all the ammunition they need to shoot down your claim.

How do I stay safe while driving during winter storms?

People who are not able to stay at home during winter storms frequently have to drive. But driving in winter conditions is more dangerous than trying to cross slippery sidewalks and parking lots on foot. According to the National Highway Traffic Safety Administration (NHTSA), 17% of all vehicle crashes are caused by winter weather conditions. More than 1,300 people lose their lives in snow- and ice-related vehicle crashes each year. In addition, more than 116,000 people are injured in snow-related crashes annually.

IF YOU CAN STAY OFF THE ROADS, YOU SHOULD DO SO.

If you do have to leave your home, here are a few suggestions to keep you safe while you are driving to help protect both yourself and those on the road around you:

  • Make sure your vehicle is winterized and that you have appropriate clothing and supplies in your car in the event that something goes wrong.
  • Since everything takes longer on snow covered roads, remember to accelerate, brake and turn slowly. Give yourself and your vehicle time to safely respond.
  • Double your following distances.
  • Try to avoid stopping on hills. Maintain some momentum in order to prevent getting stuck.
  • Try to avoid coming to a complete stop. If you can slow down enough to keep rolling, you will lesson your chances of getting stuck.
  • If all else fails, be mindful that if its not necessary, don’t go out until government crews have safely treated the roads.

If you are injured by an irresponsible driver during winter weather conditions, the laws of the District of Columbia, Maryland and Virginia will protect you. The irresponsible or negligent driver is required to pay for your medical expenses, lost wages and interruption in your life that they cause.

We all know that the drivers on the roads in our community are covered by insurance. If you are injured in a car wreck during winter weather conditions, you should talk to a trial lawyer who has a track record in court with these kinds of cases. Many people believe that making a claim for injuries in a car wreck will cause their insurance bills to go up. THIS IS NOT TRUE. Only the person who causes the wreck will pay higher insurance bills.

How Insurance Companies Protect Irresponsible Drivers in Winter Weather Crashes

Just like in fall cases, drivers who do not follow the traffic safety rules are protected by insurance companies and their armies of lawyers. Everything the insurance company says to you and asks you to do after a wreck is carefully planned. The plan is designed to make sure the insurance company lawyer can make the injured person look like a liar, a faker or a fraud at trial. DO NOT TALK TO THE INSURANCE COMPANY WITHOUT GETTING LEGAL ADVICE FIRST.

Just like in slip and fall cases, there are legal defenses that relate to winter weather conditions that can be used to protect drivers who do not follow the traffic safety rules—and their insurance companies’ wallets. Two of these defenses are the “sudden emergency doctrine” and contributory negligence.

An insurance company will argue that winter weather conditions create “sudden emergencies.” They will say that these emergencies make car wrecks unpreventable. But this is simply not true. If the injured person gives the insurance company a recorded statement, one of their goals will be to gather facts from that person that can be used in court to prove that the injury was the result of an unpreventable sudden emergency. A trial lawyer that fights insurance companies in court will know how to stop the insurance lawyer from using this trick to avoid accountability.

Contributory negligence in a car wreck case is the same as in a slip and fall case. What this means is that if the insurance company’s lawyer shows that the injured person was 1% at fault for the wreck, the irresponsible driver gets a pass for the injuries they caused. Again, this is why it’s important to talk to an attorney before you talk to the insurance company, even if it is just to know your rights.

Winter weather can be very dangerous, especially when people behave irresponsibly. Thinking about the dangers is the first step in protecting ourselves and our loved ones from suffering life-changes injuries. No matter how careful we are, the choices other people make can still lead to life-changing injuries. If that happens, its important to know your rights and your legal options. This doesn’t just help you get justice—it helps make our communities safer by making it clear that property owners and drivers who take a snow day on the safety rules won’t get a pass.


Duels Over Dual Employment: What happens when I am injured at work, but I have two jobs?

Mar 19, 2018 | David Snyder

As recently as 2016, over 7.5 million Americans held multiple jobs in order to make ends meet. An on-the-job injury can cause a huge disruption to a person’s life, but an on-the-job injury for a person working for multiple employers can be particularly devastating.

When you are injured on the job, there are certain benefits that your employer’s workers’ compensation insurance company must provide to you under the laws of either Maryland, the District of Columbia or Virginia. Despite the fact that each jurisdiction has its own wrinkles through the laws, these benefits are largely the same. As a brief aside, I hesitate to use the word “benefits,” because that makes it sound like you are gaining something by getting money from the insurance company when you are injured. In fact, what these payments ensure is that you are not losing your livelihood, your ability to put food on your table or your ability to keep a roof over your head. Because the laws of each jurisdiction refer to this money as “benefits,” however, I will use it here.

What are wage replacement benefits?

In my years of handling workers’ compensation cases, I can tell you that one of the most important types of benefits, aside from medical care and treatment designed to get you better and back to work, are the wage replacement benefits you are entitled to receive while you recover from your injuries and are unable to work. These are known as temporary total disability benefits.

When an injury at work causes you to not be able to work and you lose your regular stream of income, it can have a devastating effect on both your life as well as the lives of your family members for whom you must also provide. Because of this, making sure that my clients are receiving their full temporary total disability benefits in a timely fashion is always my number one priority when I am first hired by a new client. I have had the great fortune to develop some tools for making sure that this happens sooner rather than later so that my clients’ lives are disrupted as little as possible by their work injuries. Insurance companies, however, are not always willing to pay these benefits in full or on time, which means that we sometimes must go to court to fight for our clients’ rights to their benefits.

But what if I’m working 2 jobs? A fight over temporary total disability benefits for one of my clients recently gave me the opportunity to change the law for the better not just for that particular client, but also for all injured workers in the District of Columbia.

For a little more background, in the District of Columbia, injured workers are entitled to “stack” their wages for purposes of the calculation of workers’ compensation benefits. This means that injured workers who are working at two or more jobs at the time of their injuries are entitled to be paid based upon lost wages from both jobs. Unfortunately, this is a key area of the law where Maryland and Virginia are lacking. In Maryland, injured workers cannot stack their wages at all. So, if you are injured while working at your part-time job and miss time from a much more lucrative full-time job, the state of Maryland has determined that you are out of luck and just have to deal with the very limited income replacement benefits. See why I hate to use the word “benefits”? In Virginia, injured workers can only stack their wages if their second job is similar to the job at which they are injured, but not otherwise. Again, this is hardly a “benefit” to someone who works two different types of jobs to provide for themselves or their family.

How We Changed the Law in D.C. to Help Injured Workers

Back to our story. My client in this particular case was working two jobs at the time she was injured. She was working in the District of Columbia for the employer where she injured her shoulder, and she also had a part-time job working for a different employer. When she was originally injured, her employer was still able to provide her with modified work so that she could continue earning an income. Her part-time employer, however, could not provide work within the physical restrictions that her doctor imposed on her. Actually, her doctor restricted her from working at her part-time job because he was concerned that she would overexert her injured shoulder. As such, her employer correctly began to pay her wage loss benefits based upon the partial loss in her total stacked wages that she sustained.

However, at a certain point in time, my client then injured her other shoulder and the originally injured shoulder got worse while she was in physical therapy. At that point in time, her employer was no longer able to provide modified work for her. When that happened, her employer should have begun paying her full temporary total disability benefits based upon the wages she was now losing from both of her jobs. The insurance company disagreed, and we had to go to a hearing. We won that hearing and the employer was ordered to pay my client based upon her lost wages from both jobs.

The employer was not satisfied and appealed to the Compensation Review Board (the highest level of appellate review within the D.C. Department of Employment Services). The Compensation Review Board agreed with the administrative law judge and we won again. The employer was still not satisfied and appealed one last time to the District of Columbia Court of Appeals. The District of Columbia Court of Appeals is the highest court in the District of Columbia and therefore, what the Court says is final. In July of this year, the Court of Appeals issued a decision that would affect all injured workers in the District of Columbia for the better.

First of all, we won, which was awesome for my client (and, of course, was the right decision in my opinion). The Court noted that the issue in our case was one of first impression; somehow the Court had never had the opportunity to rule on this issue. That, in and of itself, is pretty exciting to me because it’s an opportunity for me to affect a great change in the law to the benefit of many people, both now and in the future.

  • If an injured worker works more than 1 job and can’t work at their second job because of a work injury from their first job, they are entitled to compensation for those lost wages from the second job, too.

In response to the employer’s argument that the Court would somehow create confusion and a conflict of legal principles if we prevailed, the Court of Appeals stated, “A legal paradox is not created by this decision. It is permissible to have two separate awards attributable to one injury because there are two separate jobs—and earnings—being affected by one injury. One injury can impact a person’s concurrent earnings differently because of differing job responsibilities—the examples are infinite.” Basically, the Court implicitly recognized that people do work different jobs that can both be impacted by a work injury, but also that people who are working two different jobs may have vastly differing job responsibilities at each job. As noted above, I think this is the most logical approach of the three local jurisdictions. Virginia and Maryland simply are not grounded in the realities of modern employment and are doing their citizens who sustain work injuries a massive disservice by failing to require that they be compensated for lost wages at both jobs.

  • Employers have to show that alternate jobs don’t just actually exist, but that the injured worker could actually likely get that job.

The Court also delved a bit more into the evidentiary burdens of both injured workers and their employers at hearings. The Court reviewed more well-settled case laws that allowed an employer to escape liability for payment of temporary total disability benefits if a job might be available within an injured worker’s physical restrictions from his or her doctor. The Court, however, went one step further in this case and stated that an employer “must establish job availability in fact,” meaning that the employer “must prove that there are jobs reasonably available in the community for which the intervenor is able to compete and which she could realistically and likely secure.” Essentially, the Court prohibited what used to be the normal practice of employers/insurers and their defense attorneys coming into court and stating that a job would be available without providing any more evidence than that mere statement.

  • Defense doctors who work for insurance companies can’t be the only evidence used to show that an injured worker could work.

Similarly, the Court prohibited employers from relying solely upon an opinion from a doctor selected and paid by the employer and insurance company to render an opinion about an injured worker’s ability to work. The Court noted that, logically, all a doctor’s opinion may (or may not) do is establish that an injured worker could work in some way, but it does not establish that a job is actually available. That makes sense to me because, unless the injured worker worked in that doctor’s office (and we would then be discussing conflicts of interest), how could the doctor ever know the business dealings and job availabilities at the employer’s place of business? Inexplicably, judges had previously allowed the defense attorneys to get away with this. Fortunately, the Court of Appeals saw through that charade in this case and clarified the law, making life much better for injured workers. My colleagues and I have already been able to apply this new requirement to the benefit of our clients in hearings.

  • Just because an injured worker suffers a second new injury doesn’t mean the employer is off the hook for paying wage replacement benefits.

Finally, the Court found that my client’s subsequent injury to her other shoulder did not affect her rights to ongoing temporary total disability benefits. The Court focused on the definition of “disability,” which means an injury that causes a loss of wages. Although she had a new injury, her disability (i.e. her inability to work in a full-duty capacity) was unaffected by the second injury. This was specifically stated by her doctor, who indicated that her physical restrictions were still in place and unchanged by the new injury to the other shoulder. This was an important new development in the law because previously employers and insurers would rely upon the mere happening of a new injury to terminate any and all present and future benefits for our injured clients, again putting them into a predicament.

A ChasenBoscolo Victory for Injured Workers in the Maryland Court of Appeals

Even more astounding, in the same week that the D.C. Court of Appeals decided in this case that a subsequent injury did not necessarily impact an injured worker’s rights to ongoing wage loss benefits, the Court of Appeals of Maryland (which is the highest court in the state, just like the D.C. Court of Appeals) issued an opinion in another case of ours dealing with a similar issue. In that case, my colleague’s client had sustained a very serious injury to his back that caused him to have a permanent disability. Years later, he was involved in a minor altercation that, for a brief period of time, made his back hurt more. The employer and insurance company jumped all over that new incident to deny our client’s benefits. After a long and drawn out fight at the Maryland Workers’ Compensation Commission, the Circuit Court for Anne Arundel County, the Court of Special Appeals of Maryland, and ultimately the Court of Appeals of Maryland, found that our client’s subsequent minor injury had no impact on his disability as a result of his work-related injury.

All of the points of law held or clarified by the D.C. Court of Appeals and Court of Appeals of Maryland in these two cases represent important victories for the rights of injured workers. As a lawyer, I am incredibly proud of the work we do here at ChasenBoscolo to protect not just our clients, but also all injured workers, whether it be through litigating their cases in front of commissioners, administrative law judges or juries, or through our appellate advocacy to change the law for the better.