Protecting the Shield: Where the NFL Got Authority to Suspend Ezekiel Elliott and Why It Took So Long
June 18th, 2018|
On August 11, 2017, the National Football League (NFL) and NFL Commissioner Roger Goodell issued a six-game suspension to star running back Ezekiel Elliott, concluding their investigation into his alleged domestic violence. On November 9, 2017, Ezekiel Elliott began serving that suspension in Week 10 of the NFL’s season. Whether you follow football or not, it was nearly impossible to ignore the news coverage of this drawn-out dispute, but how we got from point A to point B still has many people scratching their heads. To understand this whole case, it’s necessary to back up a few years and compare it with other recent legal battles the NFL has fought with its players. I’ll guide you through what happened, why it matters and what it means for the future.
The Case Against Elliott
While the three-month dispute over Elliott’s suspension felt interminable to many, his case actually began back in July 2016, and the foundations of the legal suit trace back still further. It was on July 17, 2016, that Ezekiel Elliott first reportedly had an altercation with his then girlfriend, Tiffany Thompson, and there were subsequently two more instances over the next week that the NFL investigated. While a police report was filed in Columbus, Ohio, on July 22, 2016, the Columbus City Attorney’s office ultimately determined not to prosecute the matter. The NFL conducted its own investigation of the case, led by former assistant district attorney Kia Roberts, which they released concurrently with the publication of their penalty on August 11, 2017. This investigation and Elliott’s six-game suspension were issued by the NFL under the terms of its updated Personal Conduct Policy that the NFL announced on December 10, 2014. This policy change was a reaction to two similar scandals the NFL confronted that year, and the policy established new case review procedures, harsher penalties for violations and community resources meant to prevent such situations.
How is the NFL able to regulate player conduct?
The authority of the NFL to discipline players comes first and foremost from the collective bargaining agreement (CBA) that the league and its players negotiate every few years. In addition to disciplinary procedures, this agreement regulates issues such as player wages, hours, working conditions and a myriad of other issues pursuant to the National Labor Relations Act. The most recent NFL collective bargaining agreement went into effect in 2011 upon the resolution of an NFL lockout, and will last through the 2020 season. Article 46 of the collective bargaining agreement between the NFL and the National Football Players Association (NFLPA), which governs personal conduct, does not include a “just cause” provision for penalties imposed by the commissioner. The absence of a “just cause” provision means that the NFL is not entirely bound by the standards of industrial due process as they relate to “double discipline” and “disparate treatment,” but the league must still be fair and consistent in its disciplinary decisions. Legal challenges to the league’s discipline by individual players or by the NFLPA must demonstrate that the punisher abused their discretion in reaching a penalty that was arbitrary and capricious.  The events of the past few years should make the disciplinary powers of the commissioner a more contentious topic in the next round of negotiations than it ever was before.
Commissioner Goodell announced the first iteration of the Personal Conduct Policy in April of 2007, with the support of then NFLPA head, Gene Upshaw, as part of a sweeping move to resuscitate the League’s image following a series of high-profile player arrests. When issuing the first two punishments to Pacman Jones and Chris Henry, Goodell explained “your conduct has brought embarrassment and ridicule upon yourself, your club and the N.F.L., and has damaged the reputation of players throughout the League … You have engaged in conduct detrimental to the N.F.L. and failed to live up to the standards expected of N.F.L. players.” The Commissioner’s statements illuminate the league’s goal of protecting its brand image, which is instructive for how the court of public opinion can influence their assessment of penalties.
The Cases That Came Before Elliott’s
Since 2007, the NFL has issued numerous suspensions pursuant to its Personal Conduct Policy, with the two main precursors to Ezekiel Elliott’s case being those of Ray Rice and Adrian Peterson in 2014. While many also analogized the situation to Tom Brady’s protracted legal battle with the NFL during 2015 and 2016, the uniqueness of that case’s facts do not provide as much insight as the similar offenses of Rice for domestic violence and Peterson for child abuse. For those who recall those suspensions and the litigation that followed, one key difference likely jumps out: both Ray Rice and Adrian Peterson won their court appeals of the NFL suspensions. Why did they succeed where Elliott failed? Well, the NFL learned something from those missteps, addressing some in their new 2014 policy, and others as Elliott’s case unfolded.
On February 15, 2014, Ray Rice hit his then fiancée, Janay, in the elevator of an Atlantic City hotel. Ray Rice was subsequently indicted, and under the 2007 Personal Conduct Policy, the NFL needed to wait until all criminal investigations were resolved before issuing any discipline.  That is no longer the case. The NFL now conducts more thorough investigations of their own and can react to situations as quickly or as slowly as it pleases, irrespective of criminal cases. When the NFL and Commissioner Goodell first assessed Ray Rice’s case, they issued a two-game suspension. At the time, that matched the harshest penalties ever imposed upon a first-time domestic violence offender. Some expected a harsher penalty and were disappointed by the league’s response, but that outcry grew tenfold when a second video of the blow itself came to light on September 8, 2014.  Commissioner Goodell suspended Ray Rice indefinitely in response, claiming that the video displayed a “starkly different sequence of events” from what Rice stated at their June 16, 2014, meeting. When the case reached Judge Jones, she felt that an indefinite suspension for Rice was unlikely to qualify as an abuse of discretion, if that was the initial discipline issued. She came to that conclusion despite evidence that a domestic violence situation never resulted in more than a two game suspension before. However, the indefinite suspension was not the only issue up for review, but also the Commissioner’s determination to increase his initial punishment. Judge Jones ruled that “Rice did not mislead the Commissioner and because there were no new facts on which the Commissioner could base his increased suspension, [she] found that the imposition of the indefinite suspension was arbitrary.” In future cases, such as Elliott’s, the NFL would spend significantly more time and money investigating matters before levying a penalty. The league would also err on the side of harsher penalties from this point on, since they maintained authority to reduce penalties if they chose, but now had a limit on their ability to increase penalties.
On November 4, 2014, Adrian Peterson pled no contest to a misdemeanor assault charge for excessively disciplining his four-year-old son by beating him with a stick. In response to public outcry over this example of child abuse, on the heels of Ray Rice’s domestic violence scandal, Commissioner Goodell chose to suspend Adrian Peterson for the remainder of the NFL season. The length of Peterson’s suspension, while longer than previous suspensions for similar cases, was not the basis of 2014’s second high-profile grievance that the NFL Players Association filed against the league. The union argued this case on behalf of Adrian Peterson because he supposedly reached an agreement with the league that stipulated he could return to playing once his legal case concluded if he accepted placement upon the NFL Commissioner’s Exempt List during the interim. Peterson played the first game of the 2014 NFL season prior to his indictment and the Minnesota Vikings originally announced that he would return for the third game of the season after his release on bond from Montgomery County. The announcement created a whirlwind of disapproval, coming from as high as the governor of Minnesota and U.S. Senators, while numerous corporate sponsors pulled their support. The League helped the Vikings quickly reverse course by negotiating Peterson’s placement on the Commissioner’s Exempt List, giving him full payment but precluding him from playing while his case resolved. Judge Doty concluded, “the Court finds no valid basis to distinguish this case from the Rice matter,” and overturned the suspension, deeming it was another example of the league changing its initial decision about how they would discipline a player. After a second straight defeat, the League needed to change tactics to put themselves on safer footing.
How the NFL Adapted After the Rice and Peterson Cases
The NFL would no longer be in the business of cutting deals with organizations or players. They still expected full cooperation from players during investigations but now made no offers in return. In fact, since the cases of Ray Rice and Adrian Peterson, the league has rarely tipped its hand about potential punishments until the date it is officially announced. This is likely how we arrived at the Cowboys owner, Jerry Jones, telling reporters on July 23, 2017, that domestic violence would not be an issue with the NFL’s yearlong investigation and that he did not expect Elliott to receive any suspension. This was barely two weeks before the Commissioner issued the six-game suspension.
During public outcry about Ray Rice’s second video, Commissioner Goodell sent a letter to the NFL Owners on July 15, 2014, writing that he “didn’t get it right” and was changing the Personal Conduct Policy from one that contained no minimum suspension for first time domestic abusers to a presumptive six-game suspension. The updated Personal Conduct Policy with this specification went into effect on December 10, 2014, after a vote of approval by the thirty-two teams. The suspension Goodell mentioned for first time offenders was the same amount levied against Ezekiel Elliott in 2017.
What Happened in Ezekiel Elliott’s Case
Elliott appealed his suspension first within the NFL and, pursuant to the conduct policy, it was heard by Commissioner Goodell’s designee, Harold Henderson, on August 29, 2017. In years past, a suspension appeal often meant a reduced sentence and that everyone would move forward, but after two high-profile losses, the League needed to show it meant business. Its revised policy put the League on stronger footing to hold its ground. The appeal hearings lasted two and a half days, and with the regular season only ten days away, Elliott filed a petition in the Eastern District of Texas to vacate the pending decision. The argument against the suspension was predominantly that the suspension and arbitration processes were unfair because the review was incomplete after certain pieces of evidence and potential witnesses were barred from consideration. The NFL relied upon the broad disciplinary powers provided to it in the collective bargaining agreement, and the later drafted Personal Conduct Policy, to review whichever evidence it deemed relevant and asserted that those requirements were met during this process. Elliott also filed his first motion for a temporary restraining order of the suspension.
A temporary restraining order (TRO) in this case provided for an emergency hearing to prevent the suspension from going into effect. To secure that ruling, Elliott needed to demonstrate that he would suffer immediate, irreparable injury unless the order was issued. In Elliott’s case, the potential for irreparable harm was always pretty clear with the season so close to starting. Waiting for the court to schedule a full hearing on the merits would mean that Elliott was forced to miss games and effectively serve part of his suspension before the court ruled on its legality. While appealing in the Eastern District of Texas, the NFL’s arbitrator, Harold Henderson, issued his ruling on September 5, 2017, that the six-game suspension would stand, and the NFL filed in the Southern District of New York, where the arbitration was held, to get an order affirming its decision. The Texas judge granted Elliott the TRO on September 8, 2015, and the NFL appealed to the U.S. 5th Circuit Court on the grounds that Elliott filed this case prematurely because he opposed the arbitrator’s decision before finding out what it was. On October 12, 2017, the 5th Circuit agreed with the NFL, rescinded the TRO, and ordered the District Court in Texas to dismiss the claim, which temporarily reinstated the suspension.
On October 16, 2017, Elliott filed in the Southern District of New York to get another TRO issued, while in the meantime he was unable to practice or have contact with coaches. The Court held a hearing the following day and the judge granted a TRO, thereby allowing Elliott to play in the next 2 games because the TRO was effective for fourteen days, as most are. On October 30, 2017, Elliott had another hearing before the Southern District to determine whether they would issue the one-time extension of their TRO for his case, but this request was denied. Extensions to a TRO are given out sparingly since they are intended to be a short-term stopgap before a more developed review of the case takes place through a petition for a preliminary injunction. A preliminary injunction, unlike a TRO, can stay in place up until a case gets to trial, but it carries an additional burden to the petitioner. Along with showing irreparable harm, petitioners must demonstrate it is more likely than not that they will win the case at trial to receive a permanent injunction.
Elliott applied for such a preliminary injunction with the U.S. 2nd Circuit Court of Appeals and on November 3, 2017, they issued an administrative stay postponing the suspension yet again until they could conduct a hearing on his request. On November 9, 2017, the 2nd Circuit denied his motion for a preliminary injunction, leaving him with few legal options to avoid serving the six-game suspension. Why did they reject his request? While the irreparable harm analysis still cut in Elliott’s favor, the Court supported the NFL’s position that it had broad authority over what evidence to consider in levying suspensions and what the appropriate severity should be. After the ruling by the 2nd Circuit’s three judge panel, Elliott had exhausted his guaranteed appeals under the law and only had two immediate options. He could appeal en banc to the 2nd Circuit and have all of its judges sit and rehear the request, or he could appeal directly to the U.S. Supreme Court. Neither court was obligated to accept his request to consider the issues, so on November 15, 2017, Elliott announced that he would give up his fight against the suspension and serve the remaining games.
What This Means for Future Cases
Elliott’s acceptance of the suspension occurred at the same stage of the case as when Tom Brady elected to discontinue his appeal. After a couple losses seemingly chipped away its authority, the NFL had won two high-profile cases in a row—that is, if you consider it winning to have a multi-year process drag a prominent league star through extensive legal proceedings for them to eventually miss a quarter or more of your sports season. Ultimately though, these battles were as much for the future of League discipline as they were for the individual cases. The League needed the courts to reassert its broad authority under the CBA and its Personal Conduct Policy to hopefully ensure smoother disciplinary resolutions in the future. After getting that affirmation, the NFL Players’ Association will likely strike back through their negotiations on the next CBA, which must be ratified for the 2020-2021 season, rather than continued challenges in court. With a number of contentious issues set for this next negotiation, including revised profit sharing, the right of players to protest, concussion concerns, and guaranteed contracts, the Personal Conduct Policy and player discipline may become another issue pushing the league towards a work stoppage. However, both sides seem to desire a smoother resolution to future disciplinary disputes like Ezekiel Elliott’s, so perhaps that serves as a bridge or a bargaining chip to weigh against the NFL’s many other labor issues.
 See John Breech Lead NFL Investigator In Ezekiel Elliott Case Reportedly Recommended No Suspension, CBSSports.com, (September 1, 2017), https://www.cbssports.com/nfl/news/lead-nfl-investigator-in-ezekiel-elliott-case-reportedly-recommended-no-suspension/
 See 29 U.S.C. § 159(a).
 See NFL CBA 2011-2020, Art. 46 §1(a) available at https://nfllabor.files.wordpress.com/2010/01/collective-bargaining-agreement-2011-2020.pdf.
 Ray Rice, Tr., 164:25-165:6 (Goodell); Ray Rice, Tr., 385:2-386:13 (Birch); see also Bounty, 16 Final Decision 4 (Dec. 11, 2012); Ray Rice, Exhibit 33.
 In the Matter of Ray Rice, Decision, 1 (Nov. 28, 2014).
 See National Football League, 2008 Personal Conduct Policy 1-3 (2007), available at http://www.prostaronline.com/draftee/personal_conduct_policy.pdf.
 NFL Communications, Key Elements of New Personal Conduct Policy, NFLcommunications.com, (Dec. 10, 2014), https://nfllabor.files.wordpress.com/2014/12/12-10-14-key-elements.pdf.
 See In the Matter of Ray Rice, Decision, 2 (Nov. 28, 2014).
 See id.
 See Ray Rice, Decision, 15.
 Id. at 18.
 See id.
 Molly Bloom, Adrian Peterson’s Suspension: What You Need To Know, MPRNews.org, (Nov. 18, 2014, 10:33pm), http://www.mprnews.org/story/2014/11/18/adrian-peterson.
 NFLPA v. NFL Management Council, CASE 0:14-cv-04990-DSD-JSM, 13, (USDC Dist. Minn. 2015).
 Ray Rice, Exhibit 42; Ray Rice Tr. 204:3-21.
 See Kate Hairopoulos Ezekiel Elliott Timeline: The Suspension, The Appeal, And Where The Cowboys RB Stands Now, Sportsday.Dallasnews.com, (November 15, 2017), https://sportsday.dallasnews.com/dallas-cowboys/cowboys/2017/11/09/ezekiel-elliott-timeline-suspension-appeal-cowboys-rb-stands-now
 See Kate Hairopoulos Ezekiel Elliott Timeline: The Suspension, The Appeal, And Where The Cowboys RB Stands Now, Sportsday.Dallasnews.com, (November 15, 2017), https://sportsday.dallasnews.com/dallas-cowboys/cowboys/2017/11/09/ezekiel-elliott-timeline-suspension-appeal-cowboys-rb-stands-now
 See Jeanna Thomas Ezekiel Elliott Suspension Back On Effective Immediately With 2nd Circuit’s Latest Ruling, SBNation.com, (November 9, 2017), https://www.sbnation.com/2017/11/9/16603064/ezekiel-elliott-6-game-suspension-domestic-violence-appeal
 See Kate Hairopoulos Why Ezekiel Elliott Withdrew Appeal Of Six Game Suspension; What’s Next For The Cowboys RB, Sportsday.Dallasnews.com, (November 15, 2017), https://sportsday.dallasnews.com/dallas-cowboys/cowboys/2017/11/15/ezekiel-elliott-withdrawing-appeal-six-game-suspension-according-report
April 6th, 2018|
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:
- The landlord/owner had a duty (responsibility) to fix the dangerous condition that existed;
- The landlord/owner breached this duty by not fixing the condition in a reasonable amount of time;
- The problem would not have been unreasonably expensive or difficult to fix;
- The landlord/owner had knowledge of the condition;
- The cause of the injury was the choice to not repair the dangerous condition;
- The injury that happened was one that is known to be caused by such dangerous conditions (i.e., “foreseeable”); and finally,
- 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:
- The landlord/owner violated the law;
- The law was specifically designed to protect from the type of injury that resulted; and
- 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.
April 3rd, 2018|
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.
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
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
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:
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:
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:
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.
[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
March 26th, 2018|
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 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. 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. 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 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
 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.
 We will also explain why the reasoning of the lower court is wrong.
 Medical causation: Did we demonstrate that our client’s current disability is medically caused by the client’s work injury?
 Generally other states, though oftentimes in negligence cases we will have to resort to reviewing the Federal common law.
March 21st, 2018|
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.
March 19th, 2018|
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.