Negligent Entrustment and You

Image

Dec 20, 2018 | Ben Chasen

When Are You Responsible for What Someone Else Does with Your Car?

Every licensed driver in the country goes through the same rite of passage: learning how to drive. Whether you learned from your parents, learned through a school program, or used a private company, every state requires some degree of on-the-road driving experience before it will grant a prospective driver a license. Think about all those times you purchased or rented a car. The dealership checks your license, proof of insurance, and your credit. But once they sell you that car, it is unlikely, absent some ridiculous facts, that the dealership will be responsible for what happens to that car.

Now I want you to think about all those times you let someone else drive YOUR car. Did you check their credit? Did you ensure that they had their own insurance? Have you ever asked to see someone’s drivers license before letting them borrow your car? Have you ever checked someone else’s license before getting in the car with them?

Let’s say for the sake of argument that you are the type of person who requests to examine the drivers license and insurance documents of every driver—just because a person is licensed to drive does not necessarily mean that they are competent to actually operate a car.

So what happens when some driver you let use your car (or other instrumentality) , either through their inexperience, youth, or reckless tendency, causes injury to another through the use of a car (or other instrumentality)? Are you, as the owner, responsible? The answer to that question, like all great legal questions, is that it depends.

Negligent Entrustment Generally: A Brief Overview

Lets start at the top: Everybody has heard the word “negligence,” but what does that word mean in the legal world? Negligence is a type of civil penalty called a “tort”. In English, a “tort” is a civil crime that one person can bring against another to recovery, in most instances, money damages The purpose of having these types of civil penalties is to allow people to hold each other accountable for the choices they make that result in some damage, or injury. A common example of a tort action is a car crash.

In a car crash, a person makes a choice to do, or not do, something that results in two cars colliding. In other words: When cars crash, it happened because someone failed to follow the safety rules that protect all of us on the road. Tort law allows for the injured person to recover, financially, for the harm caused by the conduct of the at-fault party. In a car crash, that takes the form of economic damages, like medical bills or lost wages, and non-economic damages, like the injuries’ impact on a person’s ability to do the things they want to do, the things that make them who they are, things like travelling, working, playing with their children, or pursuing their dreams.

So now that we have “negligence” and “torts” defined, what is Negligent Entrustment, and why should you care? Negligent Entrustment entered the legal scene in Maryland in 1934 when the Maryland Court of Appeals decided to recognize Negligent Entrustment but rejected the definition of the concept given by the Second Restatement of Torts, which is a guide used by many states in forming their tort laws.[1][2] The Restatement of Torts defines negligent entrustment as:

One who supplies directly or through a third person a chattel for use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience or otherwise, to use it in a manner involving unreasonable risk of physical harm to others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm… [3]

In 1989, the Maryland Court of Special Appeals articulated the elements required to establish negligent entrustment as: 1) the making available to another a chattel, 2) which the supplier knows or should have known the user is likely to use in a manner involving risk of physical harm to others; and 3) the supplier should expect to be endangered by its use. [4]

You may be asking yourself “Okay, great. But what the heck is a chattel?” I am so glad you asked. A “chattel” is any physical item; any piece of personal property other than real estate. With that in mind, you can see how negligent entrustment might apply to other situations outside of a standard car crash. For example:

Ex.1: A tour company regularly rents jet skis to non-English speakers. However, the company is only capable of providing safety instructions for using the jet skis in English. The tour company knows, or should know, that it is putting its “chattel” into the hands of people who will likely not understand how to operate the chattel, or jet skis, safely. The company is well-aware of the potential dangers that can result from operating a jet ski without proper instruction. Additionally, for the sake of this example, let’s assume that the safety instructor sees the riders operating the jet skis with reckless disregard for other people in the water, but does nothing other than yell to them to “cut it out.” If one of those jet ski-riders slams headlong into a fishing boat, it follows that the supplier of the jet ski (the tour company) should be held responsible for the damage that is caused. After all, they had the responsibility to make sure that their customers understood how to operate the jet skis safely.

Negligent Entrustment in Context: Focus on Relationships

A more relatable example might be when parents allow their child, a new and inexperienced driver, the use of the family automobile.

In order for Person A to be held liable under the theory of Negligent Entrustment as a result of the negligent conduct of Person 2, while Person 2 is driving Person A’s car, there needs to be some compelling circumstances that evidence Person A’ knowledge that Person 2 is a menace. For example:

Ex.2: Dad and Mom are teaching their 16-year-old daughter to drive now that the she has gotten her learner’s permit. Mom and Dad provide her with one of their cars, titled in Mom and Dad’s names, to practice driving while either Mom or Dad are in the car with her. They spend time discussing safe driving practices with her when she is a passenger in their cars. Unfortunately, during one of those practice sessions, the 16-year-old crashes the car into the rear of a car in front of them.

The Restatement specifically itemizes that the “inexperience” of a driver is one reason to find liability on the part of the supplier of the vehicle. However, the Maryland Courts have held that there is “no litmus test to determine whether a supplier had the requisite knowledge of an entrustee’s propensity to use the entrusted chattel in an improper or dangerous manner.”[5]. This means that, without some specific factual circumstance, the court will not automatically attach liability to the owner of a vehicle under the theory of negligent entrustment.

So what kind of facts should we be looking for in a negligent entrustment claim? Let’s take a look at another example, this time involving employees of a trucking company.

Ex.3: Derrick was hired as a commercial truck driver for XYZ Corp. Derrick does NOT hold a Commercial Drivers License. At the time of Derrick’s hiring, the company did not have any procedures for checking whether newly-hired drivers held a CDL. As a result, Derrick was hired to drive a vehicle that he is not licensed to drive. On his first run, while driving without any kind of supervisor or trainer or a more experienced truck driver, Derrick loses control of his truck, causing a massive crash which resulted in multiple injuries to other drivers.

In the above instance, XYZ Corp supplied a chattel (the truck) to an individual who they should have known would be incapable of operating the truck safely. Derrick would not have caused a crash without a) XYZ Corp. handing over the keys to that 26,000 pound piece of machinery, and b) Derrick having no idea whatsoever how to handle a commercial vehicle of that size and weight.

The example above demonstrates the true goal of negligent entrustment: to hold people accountable for their own negligence. In an any relationship like the examples above, the insurance purchased by the owner of the vehicle will cover another driver that operates that vehicle with the permission and consent of the owner. This means that when someone crashes a car that you own after you have given them permission to drive it, it is YOUR insurance that is going to cover the damage regardless of whether or not you know they can drive safely.

So, what’s the point of negligent entrustment as a legal theory if the injured person has an avenue to recover the expense of their injury through the insurance of the person who owns the vehicle? The point is that both the driver and the owner of the car have acted negligently in these circumstances: the person driving the vehicle did so negligently, resulting in the crash, and the owner of the car acted negligently in entrusting the car to the at-fault driver in the first place. If you only claim negligence on the part of the driver the company, or owner of the vehicle, learns nothing. They fire the driver, tell themselves that this was a one-time occurrence, and proceed with business as usual. But when an injured party brings claims against the company for their driver’s negligence AND bring the claim for the company’s choices regarding their system of entrusting property to their employees, XYZ Corp. and all of the competitors in their industry get the message that they have a responsibility to the public to only allow qualified individuals to operate their heavy machinery.

The civil justice system is designed to provide relief to people who are injured by the conduct of others, to impose liability on those who are responsible, and to deter others in the community from committing similar harmful acts. The theory of negligent entrustment couples well with all three goals of the civil system in that it provides an additional way for the injured party to recover, it imposes liability on those responsible (not just the driver, but the guy who put keys in his hand), and deters this specific company, and other companies in their industry, from operating with the subpar hiring, training, and supervision practices that created the situation with XYZ Corp. in Ex3. above.

End Game: When Will I Be on the Hook for Handing over My Keys?

This answer to this question may be frustrating but the reality is that it depends. Compare the outcome in the example with XYZ Corp. to the example of parents allowing their child use of the family car to gain driving experience. with Ex2. Mom and Dad in Ex 2In the second example, Mom and Dad did nearly everything they could to ensure the safe driving of their 16-year-old. Before allowing her to drive the car, Mom and Dad made sure that she had obtained her learners permit and they discussed safe driving practices with her while they were driving and she was a passenger in their car. Ultimately, the question becomes “What else could they have done?” If the answer is “nothing,” then there is likely no basis to bring a claim for negligent entrustment.

Now look back at the example involving XYZ Corp. In that example, the company had nor process to ensure that newly-hired drivers were actually capable of handling the trucks that they would be required to drive. They hired Derrick without checking his credentials. They put him behind the wheel of a tractor trailer without verifying that he was actually qualified to drive the truck. They put him out on the road without any training in their system and procedures, and without someone there to ensure his maiden voyage went smoothly. Worst of all, as a result of their choice to put their profits over people, Derrick causes a massive crash using their truck.

Here is the bottom line:

  • If a vehicle that you own is involved in a crash and the at-fault driver is someone who you allowed to use the car, your car insurance is on the hook for the damage caused by the driver, regardless of whether or not you “negligently entrusted” the car to them.
  • When there is “negligent entrustment” between individuals, i.e., when you are aware, or should have been aware, that the person you let drive your car is a menace on the road, or will likely be, if given the right opportunity, negligent entrustment means that you will be named personally in any suit that results—and rightfully so!
  • The best way for any vehicle owner to avoid liability under the negligent entrustment theory is to make sure that the people you allow to drive your car are safe drivers. That may include looking into their driving history on the internet, discussing the risks and rewards of safe driving with your soon-to-be teenage drivers or close friends who borrow your car, and to incentivize caution for anyone who will use your vehicles.
  • Keeping the roads safe is everybody’s responsibility. Please share with us things you have done to teach your teen drivers how to drive safely, or share with us things that you learned from the person who taught you to drive.

[1] See Rounds v. Phillips, 166 Md. 151 (1934).
[2] The Restatement of Torts is a text written by the American Legal Institute to “restate” common legal principles in the area of Tort Law. There are restatements in various other areas of law as well.
[3] See Second Restatement of Torts §390 (1965).
[4] See Wright v. Neal, 79 Md. App. 20 (1989).
[5] See Morris v. Weddington, 74 MD App 650 (1988)


Results: An Experienced Trial Lawyer’s Understanding of Brain Injuries in Personal Injury and Sports Injury Cases Takes Care of the Client

Aug 20, 2018 | Ben Boscolo

How does a trial lawyer who understands concussions, head injuries and traumatic brain injuries take care of people who are hurt in car wrecks, falls or sports?

If you have hurt your head in a car accident or crash, a trip or slip and fall or a sports injury, you may be having many problems that you do not connect to your head injury. If you are have injured in any of these ways, a concussion or brain injury can cause any of the following symptoms:

  • Headaches or feeling of pressure in the head
  • Confusion or feeling as if in a fog
  • Memory problems or amnesia about your accident
  • Dizziness or if you see stars when you were hurt
  • Ringing in the ears
  • Nausea or vomiting
  • Slurred speech
  • Sensitivity to light or noise
  • Appearing dazed
  • Problems responding to questions
  • Problems with word finding
  • Irritability
  • Fatigue
  • Depression

Questions about how brain injuries cause these kind of symptoms are answered in this blog.

scale

If you remember one thing, choosing to have your case handled from the beginning by an experienced trial lawyer who understands representing injury victims with head injuries increases your chance of getting justice.

Here are two examples of the results we secured for clients who asked for our help after they suffered a concussion:

Concussion or Traumatic Brain Injury While Playing Soccer

A soccer player reached out to CHASENBOSCOLO to help him deal with the complications of a concussion that occurred as a result of playing soccer. As a result of the player’s choice to hire an experienced trial lawyer who understands traumatic brain injuries, he received almost three quarters of a million dollars in benefits. More importantly, the player will receive all of the medical care he needs for his traumatic brain injury for the rest of his life.

Some people think a brain injury to a professional soccer player does not have much to do with the problems they experience from a concussion in a motor vehicle collision or a fall. Hearing the player’s story will help anyone who has a head injury understand: (1) the symptoms they can have; and (2) how the insurance company will behave.

Our client suffered a concussion when he was elbowed in the head. After the hit, our client experienced immediate symptoms included a loss of consciousness, dizziness and confusion. Over the course of the next two days he was dazed, confused and struggling to participate in the daily activities of life. However, like many folks who suffer traumatic brain injuries, he was in denial. Having grown up in a sports culture that encouraged him to “shake off” minor injuries like hitting his head, he did not think these symptoms prevented him from playing. More importantly, as a person who did not let anything stop him from accomplishing his goals, he was committed to not missing any games.

scoccer

The player was cleared by the team’s orthopedic surgeon, not a doctor who generally takes care of head injuries, to return to play. Based on his desire to play soccer and the opinion of the doctor, the player chose to play in another game two days later. He will regret this decision for the rest of his life. He started the game despite having ongoing symptoms of the concussion two days earlier. During the game, he was hit in the head for a second time. This hit caused a dramatic worsening of his post-concussion symptoms.

Since suffering that concussion, our client never regained full brain function. For about a year, his employer gave him a front office job that simply required him to sit at a desk, use the computer and telephone and talk to people. Even these simple job duties proved to be too great for him. This former elite athlete was not able to answer the phone or use a computer due to the symptoms of his brain injury.

Even worse, his life’s plans were derailed. While playing soccer, he had formed a business running soccer camps and coaching youth soccer players as a way to both supplement his income and to begin planning for his post-career life. Before the injury, he was involved in all of the activities that go into running a business. He marketed the business, entered into contracts, coached players, made personal appearances and participated in the day-to-day operation of the business. Before his concussion, he had no problems balancing the e-mails, phone calls and meetings that were required to build and run his business with the demands of his work as a professional athlete. Multitasking was part of his daily life. After the traumatic brain injury, he tried to keep his business running. Although he could no longer participate in camps or coach kids, he tried to help by making personal appearance and performing administrative work for the business. The player did what he could to market, negotiate contracts and respond to daily e-mails. As time passed, he learned that he could not even do these simple activities that required virtually no physical activity. Looking at the computer screen for an extended period of time worsened his symptoms. Attempting to multitask worsened his symptoms. He had no choice but to give the business to his partner

As a result of these back-to-back concussions, the player is now unable to work in any meaningful way. While he can function as a husband and father for a few hours each day, these back-to-back concussions prevent this former professional athlete from engaging in the simple activities of daily living for more than a few hours at a time. He is now forced to spend most of his time in his home without much noise or light in an effort to prevent the worsening of his post-concussive symptoms.

The player’s health was gone and his ability to care for his family was in danger. He asked us to protect his family. We decided that the best way to do this was to file a workers’ compensation claim.

When we did, his former team denied that he had any ongoing symptoms as a result of the concussions he suffered. The claim was contested from beginning to end. The club contended that the player did not have a traumatic brain injury. The club accused him of exaggeration. The club said he was doing this just to get money. Since there is no test that can prove a person has a traumatic brain injury, the club used that fact to support its argument.

We presented his case to an Administrative Law Judge. To overcome the fact that there were no tests prove there is a brain injury, we presented the testimony of two neurologists and a neuropsychologist who had cared for the player.

While the Judge was considering the case, the club agreed to a settlement that will allow the player to protect himself and his family. The player’s medical expenses, which to date exceed $100,000.00, have all be paid by the workers compensation insurance company. The club will continue to pay for the medical care he needs for the rest of his life. Finally, as a result of our efforts, our client received in excess of $600,000 to make up the wages he lost as a result of the end of his career.

If insurance companies doubt that a highly motivated professional athlete actually suffers from traumatic brain injury, you can be sure that they will doubt all hard-working men and women who suffer with post-concussion symptoms. If you have suffered a head injury while working, talk to a trial lawyer who is knowledgeable about traumatic brain injuries. If you do so, he or she will fight for an outcome that protects you and your family

Concussion or Traumatic Brain in a Car Accident or Motor Vehicle Collision

If you suffer a concussion in a motor vehicle collision, you should talk with a trial lawyer who understands traumatic brain injuries. A lawyer with experience in representing people with head injuries will help you get the results that you deserve.

In 2013, a woman who was a community fixture in a Maryland suburb of the District of Columbia suffered a head injury in a wreck. She was a long-time employee of the community’s school system. At the time she was injured, she co-owned a toy store in the center of town. Prior to the motor vehicle collision, she was in perfect health and had an excellent memory. She was responsible for maintaining her toy store’s inventory. Her former business partner told us that she had a computer-like recall of toys the store had in stock and what each toy cost.

On the day of the injury, the woman was leaving the store’s parking lot. A traffic light controls the exit. The woman stopped at the traffic light and waited until it turned green. She looked to her left, her right and back to her left to be sure that traffic was stopped. When she was sure it was safe, she entered the intersection. A driver coming from her left in the left hand lane of traffic ran the red light and crashed into the driver’s side of the woman’s car. The airbags deployed. The woman was tossed from side to side hitting her head during the collision. She immediately developed a lump on her forehead and had cut on her head. She was dazed but did not lose consciousness.

carcrash

In addition to injuring her head, she suffered injuries to her left shoulder, upper and lower back, and the left leg from the knee down.

At the emergency room, she denied she had lost consciousness. But, she could not remember anything between hearing a boom and realizing that someone was at her door asking her if she was all right. She has absolutely no recollection of the period of time right after the crash.

In the days, weeks and months that followed the collision, she had headaches, dizziness, balance issues and memory loss. Simple things like finding her keys or remembering what toys were out of stock escaped her mind.

Our client is a very tough person. She does not like or trust doctors.

Other than some treatment that was designed to try to improve her balance problems, our client chose not to get much medical care and treatment. When she was still experiencing memory loss, headaches, balance problems and dizziness, we sent her to see a top-notch neurologist. That neurologist determined that our client had a brain injury. He recommended neurological care. Our client chose not to get this care because it would only provide temporary relief and she does not like going to doctors. The neurologist concluded that our client lost 15% of the function of her brain.docotrhart

Our client also was afraid to drive because she thought another irresponsible driver would ignore the traffic safety rules and hit her again. Our client was sure that she was going to be in another crash. Her driving anxiety is so bad that she never drives past the intersection where the collision happened. In order to help her overcome her fear we sent her to see a highly regarded psychiatrist. That doctor determined that our client suffered from depression and anxiety as a result the motor vehicle collision. He recommended psychological care. Our client chose not to get medical care because it would only provide temporary relief and she does not like going to doctors.

The insurance company, as they always do, based its evaluation of the case on the medical care and its costs. Since our client did not like doctors and did not get much medical care, her medical expenses were not very high. In the weeks and months leading up to trial, the insurance company offered only $57,000 for the life-changing traumatic brain injuries that our client suffered.

We decided that the case had to be presented to a jury. The case was tried for two days. The neurologist explained how the traumatic brain injury occurred and a friend, family member and former business partner all testified as to their observations of how the motor vehicle collision changed our client’s life.

After learning about traumatic brain injuries in general and how our client’s life was changed, the jury returned a $500,000 verdict.

This is why it is important to have a trial lawyer who is knowledgeable about traumatic brain injuries handle your personal injury or workers’ compensation case

The Most Important Thing to Remember

The simple truth is that concussions and traumatic brain injury are serious, life-changing injuries. Traumatic brain injuries are common in car wrecks, fall or sports injuries. Traumatic brain injuries are hard to understand and treat. It is very hard to prove that a person has a traumatic brain injury. Insurance companies and their lawyers know how to get their clients off the hook if you suffer a traumatic brain injury in a car wreck, fall or sports injury. If you want the results you deserve, you should talk with a trial lawyer who has actually tried cases involving traumatic brain injury.

CHASENBOSCOLO has more than twenty experienced trial lawyers waiting to help you, and we’re ready to help day or night.


Crash Victims Matter: Understanding the Role of Law Enforcement After a Collision

Jun 11, 2018 | Melody Haynes

Victims matter. You may have heard or seen a version of this statement many times, given the apparent unrest and violent eruptions in many communities throughout the nation. Some may feel that this phrase (or a variation thereof) is probably a little overused and not always uttered with clarity or sincerity. However, that does not diminish its truth: victims do matter. Many of you, or at least people you know, have had the most unfortunate experience of being immobilized and victimized by a random stranger’s inept driving and recklessness. You do not have to feel powerless as you sit in shock, and maybe in pain, on the side of the road. Ponder this advice and let it embolden you and your loved ones if, or more likely when, you are put in that horrible predicament.

After being victimized by a car crash, what you do thereafter also matters. You can increase the capacity for physical and emotional healing, as well as reasonable compensation for this potentially life-changing event, notwithstanding the miserable harms and losses. The answer to how this can be accomplished may surprise you: so long as you are able to safely do so, get the police involved. If this seems underwhelming from previous police encounters, let us explore exactly how you can obtain useful information that can be decisive in future negotiations and/or litigation, if necessary.

Most will probably concede that in personal or critical injury and fatal crashes, the resources and investigation tactics employed by law enforcement officers are indispensable. However, even in collisions where there is no obvious trauma, only minor apparent property damage, in the event of a hit-and-run or in other roadside public disturbances, law enforcement officers can still render invaluable assistance and make additional determinations about commencing investigations that can prove vital as you are attempting to recover from the wreckage.

A responding law enforcement officer can help identify non-obvious safety hazards or additional threats to your personal safety. Witness identification, evidence preservation, traffic restoration, and property protection are further benefits of police involvement.

Regardless of the magnitude of the crash, Law enforcement officers have a duty to respond when called. Even in the event of no visible injury and when no official report will be issued, an officer can assist the involved parties with exchanging information. People can seem unapproachable or intimidating, especially when emotions are high after a collision. If it is safe, remain in your car and wait for the authorities to respond to facilitate the exchange. Parties should exchange driver’s licenses, vehicle registration, and insurance information. The responding officer should run a record check of all licenses and vehicle registrations, even when they appear to be valid. This can protect you against fraud. If the information presented cannot be verified or if additional issues or violations exist, the officer should issue applicable citations or supplemental reports.

In addition to verifying the identity and possibly charging the person who hit you, an officer can generate a report that objectively documents the date, time, location of the incident and comprehensive information regarding the cars and parties involved. In most cases, the weather, lighting and roadway conditions will be noted along with collision diagrams and pictures. Officers can obtain statements from the parties and examine the vehicles, assigning fault and registering contributing factors such as evidence of speeding, broken brake lights and missing signals. This can protect you against future false allegations that may attempt to shift any fault to you.

In every case in which a law enforcement officer responds to an incident, a Complaint Control Number (CCN) or case reference number will be assigned. Interested parties can then follow up with the local police station or barracks to acquire or make any related reports.

While the officer is running reports and gathering information, take a few moments to catch your breath. After a crash, your body may be in a bit of shock. Try to listen to your body; if something does not feel right, do not ignore it. Do not feel shamed about requesting medical attention when an injury may not be completely obvious. You may find that most law enforcement officers define “personal injury” as an injury that is observable or evident or for which a person is transported by ambulance. Police may totally discount only complaints of pain or discomfort without the request for hospital transport. Your health and safety are precious. Let a medical professional expertly assess any trauma. Even if you do not believe you need to be transported to a hospital, try not to needlessly move about the scene. Your body may have a delayed reaction to the impact as adrenaline can mask injury symptoms. Make sure you do not ignore any dizziness or pains. Get the treatment you need right away. Having a professional diagnose your injuries and correlate them with the motor vehicle collision can not only get you started on the path to physical recovery sooner, but it can also strengthen your credibility and secure the records needed for any future claims. Additionally, feelings of anxiety after a car crash can also be an unfortunate common occurrence. There are many ways you can work through those feelings with professional care, personal attention and time. Do not be afraid to explore your resources.

Take the opportunity to ask the responding officer questions. You may need to follow up by making your own report at the station. If new information is uncovered after a collision, a law enforcement officer will not likely have to produce a new or updated report. However, this is something that you can accomplish to preserve the record and chronicle all relevant happenings.

Hit-and-Run Cases

If you are ever the unfortunate victim of a hit-and-run, be sure to alert your local law enforcement agency right away. An officer will not be dispatched to investigate crashes that occurred on, or were discovered on, a previous date. When you delay in contacting law enforcement, you effectively diminish the chances of obtaining valuable evidence, rendering police investigation essentially moot. Again, when police arrive to investigate after a crash has occurred, and the scene has been stabilized as much as possible, their examination of the facts determines what happens next and whether an official report or additional resources are needed. To effectively develop investigative leads, the timing has to be just right to identify and interview potential witnesses and drivers, make observations of other vehicles near the scene close to the time of the occurrence, recover physical evidence that can properly be identified as being left contemporaneously to the incident and register as many details as possible while they are still fresh in your memory.

Law enforcement officers handling a hit-and-run can be expected to make all efforts to identify the striking vehicle and the vehicle’s driver. When the description of a suspect or suspect’s vehicle is available, it will likely be broadcasted from the scene. If the victim is able to record a tag or partial tag number that allows police to identify an owner, a report should document the subsequent contact with that person and record any explanations or relevant statements offered. Most law enforcement officers will have the authority to make a full custody arrest of a hit-and-run suspect, although other permissible procedures can include the issuance of citations or application for a warrant.

For a hit-and-run that has occurred on an earlier date, you may still file a report, but will need to contact your local law enforcement agency to determine the correct forms and processes.

Additional Situations That Factor Into Police Reports

As suggested before, Law enforcement officers are not required to generate an official report for every collision. In a single- or multi-vehicle property damage crash where the vehicles may or may not be disabled but are not on public property, an official report may be optional. Crashes on public roadways not resulting in disabling damage to any vehicle or not causing an impediment to the roadway may also not yield an official report. Nevertheless, you can still expect officers to follow proper procedure by ascertaining the possession and validity of drivers’ licenses, checking vehicle registrations and VIN plates against registration documents and plates and determining the wanted status of drivers or vehicles. In the event of a discrepancy, it should also be expected that the officer will then issue an official report.

Law enforcement officers are not totally infallible and the reports they generate may occasionally contain mistakes, mischaracterizations or important omissions. Law enforcement officers are primarily tasked with public safety concerns, civil infractions and criminal violations, and they may appear reluctant to get involved in determining civil liability. Try not to fret, as you can overcome these challenges as well. If an officer fails to attribute fault to the person who hit you, many times there is other evidence of contributing factors or even partial statements that can identify the negligent party. Insurance companies will often conduct their own investigation into what happened, especially if you are contesting what has been recorded. The evidence your insurance company uncovers can be sufficient to corroborate your recitation of the occurrence.

More often than not, reports of Law enforcement officers may be deemed inadmissible hearsay in civil proceedings. Accordingly, photographs of property damage and the scene of the crash, as well as repair estimates, medical records and testimony, can fortify your case. Notwithstanding any police error, with the assistance of competent counsel, you can attain a settlement or judgment that adequately endeavors to compensate you for all that has been lost.

In many cases, the law does not require you to contact the police. However, even when you do not make the call yourself, someone else does and an officer may arrive at the scene of your collision. The law enforcement officer has responded to ascertain if medical attention is required, to conduct an investigation into the occurrence and to prevent further disruption to the public or traffic. Naturally, one of the first things a responding officer will do is make contact with the drivers and attempt to discover what actually took place. There is no law that requires motorists to answer every question posed by an officer. However, being nonresponsive or rude is not appropriate either and will not prove helpful. For the most part, if an officer asks for your license, registration, and insurance information, you should comply with this request. If you fail to comply, you may then be issued citations or may be arrested.

When you are the regrettable victim of a car collision, there should be nothing to fear in dialoguing with the responding officer, especially if the other driver is quite obviously at fault and you have not done anything wrong. However, if for whatever reason you do not wish to speak with an officer, try to be polite and advise them that you do not feel comfortable answering any additional questions or that you would like the opportunity to first consult with an attorney. If an officer is generating a report, any statements you make can be recorded or noted as part of the investigation. What you say is important, and you should be afforded the opportunity to collect your thoughts or reserve your right to make an official report at a later time.

In conclusion, when someone else makes the decision to talk on his or her cellphone, run a red light or reach down for a coffee and crash into you, you have been victimized. Take time to assess your body and check on any passengers. If you can safely make a call, reach out to law enforcement. Regardless of how major or minor you feel the collision is, the assistance, verifications, evidence preservation, traffic restoration and reports that an officer can provide can empower you, changing you from a victim to a survivor, and from a survivor to a vanquisher.


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.


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).


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.


What is a bad faith claim?

Feb 26, 2018 | jeverett

A third party bad faith claim arises when an injured person obtains a judgment against a negligent driver that exceeds the negligent driver’s liability insurance limits (i.e., an “excess verdict”).

Example #1:

  • Driver A runs a red light and crashes into Driver B.
  • Driver A has a GEICO insurance policy with $100,000 in liability coverage.
  • Driver B files a lawsuit for his injuries.
  • Driver B offers to settle his case for the policy limits, but GEICO refuses.
  • Driver B obtains a jury verdict for $150,000.
  • GEICO pays the $100,000 under the policy.
  • Driver A personally owes Driver B the excess $50,000.

Driver A has a bad faith claim against his own insurance company because GEICO failed to negotiate and settle the case within the policy limits of $100,000. GEICO did not have their customer’s best interests at heart when they gambled at trial in an attempt to save money. As a result, Driver A is personally responsible for the excess verdict and may have his wages garnished or assets seized. Driver A can assign the right to pursue the $50,000 bad faith claim back to Driver B in exchange for an agreement to not pursue his personal assets. The assignment procedure is outlined in Medical Mut. Liab. Ins. v. Evans, 330 Md. 1 (1993).

Test for Bad Faith

An excess verdict alone does not establish bad faith. The Maryland Court of Appeals has established the following 6-factor test to help determine whether an insurance company has acted in bad faith towards their insured:

  1. The severity of the plaintiff’s injuries indicates the likelihood of a verdict greatly in excess of the policy limits.
  2. Lack of proper and adequate investigation of the circumstances surrounding the accident.
  3. Lack of skillful evaluation of plaintiff’s disability.
  4. Failure of the insurer to inform the insured of a compromise offer within or near policy limits.
  5. Pressure on the insured to make a contribution to settlement within policy limits, as inducement to settle.
  6. Actions which demonstrate a greater concern for the insurer’s monetary interests than the financial risk to the insured.

State Farm v. White, 248 Md. 324 (1967); Allstate v. Campbell, 334 Md. 381 (1994).

Additionally, the insurance company has a duty to keep their insured fully informed on the progress of the claim. Schlossberg v. Epstein, 73 Md. App. 415 (1988). The insured also has the right to hire their own counsel outside of the insurance company’s lawyers due to the conflict of interest. Finally, the bad faith claim arises in tort and not contract. Kremen v. Maryland Automobile Insurance Fund, 363 Md. 663, 674 (2001).

What’s the value of the bad faith claim?

Once the bad faith claim is established, the measure of damages is the difference between the liability policy limits and the verdict. Medical Mut. Liab. Ins. v. Evans, 330 Md. 1, 25 (1993). So, going back to example #1, the value of that bad faith claim is $50,000. The insured or their assignee cannot collect additional damages for emotional distress or punitive damages unless they can demonstrate “actual malice” on the part of the insurance company. Owens-Illinois v. Zenobia, 325 Md. 420 (1992).

The bad faith claim is subject to the collateral source rule and is NOT reduced by payments from the uninsured or underinsured motorist insurance (UIM) carrier.

Example #2:

  • Driver A strikes Driver B.
  • Driver A has liability coverage of $30,000.
  • Driver B has UIM coverage of $50,000.
  • Driver B obtains a jury verdict for $75,000

The value of this bad faith claim is $45,000 (the difference between the verdict and liability coverage). The liability carrier does not get a credit for payments made under UIM. See Kremen at 675. So here, Driver B may collect a total of $95,000 ($30,000 liability, $20,000 UIM, $45,000 bad faith).

Bad Faith Survives

Bankruptcy does not extinguish a third party bad faith claim. If a negligent driver incurs an excess verdict and files for bankruptcy, his debts are discharged. The defendant may not have to pay the excess verdict, but the bad faith claim against the insurance company survives. Kremen v. Maryland Automobile Insurance Fund, 363 Md. 663 (2001).

As of the time of this article, the Maryland courts have not addressed whether the death of a negligent driver extinguishes the bad faith claim. The issue was raised in Mesmer v. Maryland Automobile Insurance Fund; however, the Court decided the case on other grounds. 353 Md. 241 (1999).

What Actually Happens

In practice, ChasenBoscolo has obtained many verdicts in excess of the negligent driver’s policy limits, and the insurance companies have always paid the excess. In fact, many insurance companies tell their negligent drivers, “Don’t worry. We’ll pay the verdict. No matter what.” State Farm ironically calls this their “good neighbor” policy.

Why does bad faith matter if the carriers pay the excess verdict?

The potential for a bad faith claim creates benefits for the injured person beyond the simple satisfaction of sticking it to the insurance company and their lawyers.

Initially, it is important to understand the motivation. The insurance companies and their adjusters evaluate each claim and set aside money from their other investments to pay the claim. This amount is called The Reserve. The adjuster then moves money from The Reserve back into the investment pool as they learn more about the value of the claim or as the injured person lowers their settlement demand during negotiations. An excess verdict exceeds the amount of policy and The Reserve. This reflects poorly on the adjuster who misevaluated the case, and their lawyer who lost at trial. Ultimately, the insurance company loses money beyond their original budget for the claim, invites additional litigation of the excess verdict, and risks bad publicity.

The injured person benefits because the potential of a bad faith claim puts pressure on the insurance company to offer their maximum policy limits or risk the additional costs of an excess verdict.

Example #3:

  • Driver A runs a red light and crashes into Driver B.
  • Driver A has a GEICO insurance policy with $100,000 in liability coverage.
  • Driver B has a back injury, goes to the hospital, gets physical therapy, receives pain management, misses six weeks of work, and has some residual back pain. His medical expenses and lost wages are $30,000.

We believe that Driver B’s case value exceeds the $100,000 policy limits and demand $100,000 to settle the case. GEICO is motivated to offer the policy limits because they do not want to incur a bad faith claim or exceed The Reserve.

The Bad Faith Letter

The bad faith letter is another tool in the arsenal to apply pressure on the insurance company and force a policy limits offer. Typically, we send a letter to the insurance company during the course of litigation that addresses a number of key issues. The letter emphasizes the strengths of our case including the defendant’s violation of community safety rules, the significant injuries caused by his or her violations, the medical expenses incurred, time lost from work, and the overall impact on the victim.

The letter clearly states that our client’s case value exceeds the insured’s policy limits. Therefore, failing to offer the policy limits and settle the case to protect their insured demonstrates bad faith. Ultimately, this letter will become evidence in the subsequent bad faith claim when evaluating the 6-factor test established by the Maryland Court of Appeals.

Oftentimes, there is an information gap between the insurance company and their insured. The insurance lawyer has told his carrier or his client that he is doing a great job and that everything is going well. The insured does not know that his personal assets and wages are at risk. Therefore, we state that our letter must be shared with the insured and enclose extra copies via certified mail.

Beyond the bad faith letter, there are other opportunities to communicate the risk of an excess verdict to the negligent driver. During depositions, we will mark the bad faith letter as an exhibit and ask the negligent driver to review the contents. At mediation, we may remind the defense attorney and his client what will happen after an excess verdict, which can include notices of wage garnishment to their employer or lien on their nice new home.

Bottom Line: Bad faith can be a weapon for the injured and allows us to obtain maximum policy limits results for our clients.


What is Personal Injury Protection (PIP)?

Jan 22, 2018 | Tom Teodori

What is Personal Injury Protection (PIP)?

Personal Injury Protection (PIP) is an optional coverage under a Maryland automobile insurance policy. PIP is a no-fault benefit guaranteeing some compensation to motor vehicle accident victims. Larimore v. American Ins. Co., 69 Md. App. 631 (1987). Benefits are payable without regard to the fault or non-fault of the individual in causing or contributing to the accident. Pennsylvania Nat’l Mut. Cas. Ins. Co. v. Gartelman, 288 Md. 151 (1980). The purpose of PIP is to provide to an insured and, under certain circumstances, to person injured while occupying the insured’s vehicle, “medical, hospital, and disability benefits.” Maryland Insurance Code Section 19-505(a). PIP coverage enables accident victims to avoid delays in receiving money for medical bills and lost wages after a crash instead of having to wait months or years for the resolution of the claim against the person or company responsible for the accident.

Many people are concerned that making a PIP claim will raise their insurance cost or will result in the insurance company dropping the policy holder. However, Maryland law protects against that. An insurer is not permitted to increase the cost of the insurance or impose a surcharge after a PIP claim is made and/or paid. §19–507(c)(1) and (2).

The First Requirement – A Motor Vehicle

In order to qualify for PIP benefits, there must be involvement of a motor vehicle. Section 19-501(b)(1) defines “Motor vehicle” as a vehicle, including a trailer, that is operated or designed for operation on a public road by any power other than animal or muscular power. However, an important distinction is made in that a “motor vehicle” does not include a bus (as defined in § 11-105 of the Transportation Article) or a taxicab (as defined in § 11-165 of the Transportation Article). Thus, passengers in buses or taxicabs cannot look to the owner of the bus or taxi company for PIP benefits.  However, if the bus or taxi passenger is covered by their own PIP policy or that of another, they may look to that policy for PIP benefits.

What about Motorcycles? Motorcycles are included under the statute as a motor vehicle. Speakman v. State Farm Mut. Auto Ins. Co., 42 Md. App. 666 (1979). However, insurance companies in Maryland may choose to exclude PIP coverage to motorcycle owners. Additionally, insurance companies may exclude PIP benefits under an automobile policy to individuals using a motorcycle. DeJarnette v. Federal Kemper Ins. Co., 299 Md. 708 (1984).

Section 19-505(c)(2) permits an insurer to exclude lost wage benefits for motorcycles, mopeds and motor scooters.

The Second Requirement – A Motor Vehicle Accident

A “motor vehicle accident” is defined as an “occurrence involving a motor vehicle that results in damage to property or injury to a person.” Section 19-501(c)(1). However, if the crash is caused intentionally by the insured, benefits are not applicable.

Who is eligible for PIP?

In order to qualify for PIP, a named insured (the person or persons identified in the insurance contract declarations) must have purchased PIP coverage. Because PIP is an elective insurance option, the insured pays a higher insurance premium for PIP coverage. If you are eligible for PIP, the insurance company must provide benefits for the following individuals:

  1. The insured
  2. Family members of the insured who live with the insured
  3. Permissive users of the vehicle
  4. Guests and or passengers in the vehicle
  5. Pedestrians

What benefits are available?

The minimum medical and lost wage coverage is for a total of $2,500.00 in benefits. This means that an individual eligible for PIP benefits may receive up to a total of $2,500.00 for medical expenses incurred and wages lost. However, Maryland law allows for purchasing additional PIP coverage in the amounts of $5,000.00, $10,000.00 or $20,000.00. Although the additional limits are available at an increased cost, that cost provides excellent value in the event you are involved in a crash and file for PIP. The extra cost is not very much, so it’s a good idea to purchase PIP beyond the $2,500.00 minimum coverage.

Lost Income

Income means wages, salaries, tips, commissions, professional fees, and other earnings from work or employment. When claiming lost income, the insurance company will require reasonable medical proof of your injury and verification from your employer that you missed time from work. Therefore, its best to secure a disability slip from your treating doctor as well as documentation from your employer of the hours, days, weeks and/or months you missed and your rate of pay. Most PIP applications contain a lost wage form that must be completed by your employer, but even with that supporting documentation, it’s not unusual for an insurance company to contact your employer (someone in payroll) to confirm the lost income. The amount of proof required by the insurance company is frequently dependent upon whether you are an hourly employee, salaried employee or paid commissions and bonuses.

19-505(a)(3)(b)(1) defines income as:

    i. wages, salaries, tips, commissions, professional fees, and other earnings from work or employment;
    ii. earnings from a business or farm owned individually, jointly, or in partnership; and
    iii. to the extent earnings are paid or payable in property or services instead of in cash, the reasonable value of the property or services.

Lost income is paid at 85%, so if you miss two weeks of work totaling $1,000.00, the insurance company owes you $850.00.

Medical Benefits

The PIP insurance company need only pay reasonable and necessary medical expenses arising from a motor vehicle accident that are incurred within three (3) years after the accident. This includes hospital, medical, ambulance, dental, physical therapy, injections, funeral, nursing, surgical, chiropractic and other services. Hunt v. State Farm Mut. Auto. Ins. Co., 72 Md. App. 189 (1987).

An insurance company need only reimburse reasonable and necessary expenses incurred within three years after the motor vehicle accident. When the insurance company denies payment of medical expenses—regardless of the reason—the burden of proof is on the insured or plaintiff. Many insurance companies delay payment citing lack of medical records, lack of proper billing codes and other missing documentation. This has nothing to do with the injured person, but is a dispute between the medical provider and the PIP insurance company. Many insurance companies submit the bills to medical auditing services and then argue that the doctor’s charges are not reasonable and necessary and that the insurance company shouldn’t have to pay the bill in full.

Generally, to prove a medical bill is “reasonable” and that treatment is “necessary,” expert medical testimony is required.  Metropolitan Auto Sales Corp. v. Koneski, 252 Md. 145 (1960). This presents a problem as frequently the cost for a doctor to testify in court as to reasonableness and necessity of care may exceed the cost of the disputed bill. However, if suit is needed, you will likely be able to file suit in small claims court where the technical rules of evidence are relaxed.  Additionally, expert testimony is not necessary where the nexus between the accident and the insured’s injury is clearly apparent and the cause of the injury relates to matters of common experience. See Tully vs. Dasher, 250 Md. 424 (1968).

How do I apply for benefits?

The person injured as a result of a motor vehicle accident must notify the insurance company. Typically, this is done by telephone, and the insurance company then sends a PIP application. The PIP application consists of three forms:

  1. The PIP Application.
  2. Wage Loss Form to be completed by the employer.
  3. Medical Form to be completed by the treating doctor.

19–508(a)(2)(i) of the Maryland Insurance Code requires that you submit your PIP application to the insurance company within 12 months of the motor vehicle accident. The courts have interpreted this strictly. The application MUST be filed with the insurer no more than 12 months after the date of the motor vehicle accident. GEICO v. Harvey, 278 Md. 548 (1976). Maryland law requires the insurance company notify the insured of the last date that an application can be filed, but that doesn’t always happen. As a practical matter, there is no reason to delay filing the Maryland PIP Application Form, and the Wage Loss Form and Medical Form can be submitted separately when they have been completed.

Is it necessary to hire a lawyer to file a PIP application? Normally, no. A lawyer may not be needed if you are just making a PIP claim and are not pursuing legal action against the person causing the crash. However, if you are pursuing a claim against the responsible driver, it is to your benefit to seek legal advice for both the negligence claim and the PIP claim. As for the PIP claim, some law firms charge their clients an additional fee for filing and processing PIP claims. ChasenBoscolo does not. When choosing a law firm, be sure to ask about this additional fee.

How long does the insurance company have to pay?

By law, the insurance company has 30 days to pay “after the insurer receives satisfactory proof of claim.” §19–508(a)(1) Maryland Insurance Code. Unfortunately, what constitutes satisfactory proof of claim allows the insurance company to question medical bills, treatment records and time lost for work and otherwise results in frequent delays in the processing of PIP claims. The penalty for failure to pay on time is only 1.5% interest per month.

As a practical matter, when submitting the Wage Form, it is often beneficial to include your pay stubs from before the motor vehicle accident reflecting your weekly income and your pay stubs from after the accident showing lack of income. You should also advise the person in your employer’s payroll department who completes the form on your behalf that he/she will likely receive a call from the PIP insurer to verify the lost wages.

Exclusions From PIP Coverage

The mere fact that you were injured during a motor vehicle collision does not mean automatic entitlement to PIP coverage. §19-505(c)(1) permits insurance companies to exclude certain individuals from PIP coverage:

    i. an individual, otherwise insured under the policy, who:
    1. intentionally causes the motor vehicle accident resulting in the injury for which benefits are claimed;
    2. is a nonresident of the State and is injured as a pedestrian in a motor vehicle accident that occurs outside of the State;

[So a Virginian resident who is walking in the District of Columbia and is hit by a Maryland driver is NOT entitled to use the Maryland driver’s PIP insurance.]

    1. is injured in a motor vehicle accident while operating or voluntarily riding in a motor vehicle that the individual knows is stolen; or
    2. is injured in a motor vehicle accident while committing a felony or while violating § 21–904 of the Transportation Article; or
    ii. the named insured or a family member of the named insured who resides in the named insured’s household for an injury that occurs while the named insured or family member is occupying an uninsured motor vehicle owned by:
    1. the named insured
    2. an immediate family member of the named insured who resides in the named insured’s household.

19-505(c)(2) explains:

In the case of motorcycles, mopeds, or motor scooters, an insurer may:

    i. exclude the economic loss benefits described in this section; or
    ii. offer the economic loss benefits with deductibles, options, or specific exclusions.

PIP Waivers

PIP coverage is optional in Maryland and therefore, not everyone with Maryland automobile insurance elects to purchase PIP. Most of the time, the decision not to purchase PIP is based upon money. You do save yourself a little money from your premium by waiving the PIP coverage; however, in the event of a collision, it will have been a penny-wise, pound foolish decision. ChasenBoscolo recommends purchasing PIP coverage.

In the event you do waive PIP, it must be a on a form approved by the Maryland Insurance Commissioner’s office, and it must be an affirmative waiver. That means that you must actually sign a document stating that you waive coverage. §19–506. If coverage is not specifically waived, the insurer shall provide coverage. Clay v. GEICO, 356 Md. 257 (1999).

If the policy holder waives PIP coverage, he/she cannot collect PIP from any other insurer. Maryland Auto. Ins. Fund v. Perry, 356 Md. 668 (1999). That means if you waive PIP on your own policy (and are not first named insured under another policy) and you are the passenger in your best friend’s car when it’s involved in a collision, you are not permitted to use your best friend’s PIP coverage. Additionally, the PIP waiver is binding on all listed drivers and family of the insured 16 years of age and older residing in the policy holder’s household.

Stacking of Benefits

The primary PIP policy is the insurance coverage on the vehicle in which a person is injured as a driver or passenger or as a pedestrian. Consider these examples for further explanation:

  1. John has a $5,000.00 PIP policy with his insurance company. However, John owns 2 other cars—also insured by the same insurance company—with $5,000.00 PIP policies. John is involved in a bad crash and sustains $15,000.00 worth of medical bills and lost wages. Can John stack his 3 PIP policies for a total of $15,000.00 worth of benefits?   Under Maryland law, no. John is not able to stack (or add) the policies in that circumstance.
  2. John is a passenger in his girlfriend’s car. His girlfriend has $2,500.00 in PIP coverage. A bad crash results in $15,000.00 in medical bills and lost wages for John. In this instance, John first uses his girlfriend’s PIP policy and exhausts the $2,500 with her insurance company. John can then look to his own insurance company for an additional $2,500.00 in PIP payments, bringing the total for PIP to $5,000.00.
  3. John is a passenger in his girlfriend’s car. This time, she has $10,000.00 in PIP coverage. Even though John only has a $5,000.00 PIP policy for his own car, he is able to use the $10,000.00 limits of his girlfriend’s policy. John cannot stack his policy with hers for a total of $15,000.00 in PIP benefits.
  4. John’s girlfriend is driving her own car, but she failed to timely pay her insurance premium. As a result, her insurance policy lapsed. Therefore, her vehicle was uninsured. John was a passenger in the vehicle and still had $5,000.00 PIP coverage on his personal car. His girlfriend crashed the car and John sustained $15,000.00 in medical bills.   Although her vehicle doesn’t have insurance, John is able to use his PIP policy for $5,000.00 worth of benefits.
  5. John has the insurance coverage noted above ($5,000.00 PIP). This time he is married. However, his wife is an excluded driver because she has been convicted of multiple DUIs. Excluded means that John’s motor vehicle insurance policy specifically excludes his wife from operating his cars. Nonetheless, John’s wife needs to run an errand and is involved in a crash while driving to the store. Under Maryland law, she is not entitled to PIP, as she is an excluded driver of John’s car. However, if she was a passenger in John’s car when it crashed, she would be entitled to PIP benefits.
  6. John has the insurance coverage noted above. John is walking across a street in Maryland when a passing car strikes him. Which PIP applies? The PIP coverage on the car that struck John is primary and if it only had $2,500.00 in coverage, John could look to his own personal PIP policy for up to $5,000.00 in benefits.
  7. John has the insurance coverage noted above. John is a passenger in a taxi. The taxi crashes. Under Maryland law, the taxicab is not required to have PIP insurance and therefore, John will use his personal PIP policy.
  8. John has the insurance coverage noted above. John is the passenger in an Uber or Lyft vehicle. The vehicle crashes. John will use the PIP policy of the Uber or Lyft vehicle since Maryland law treats Uber and Lyft vehicles much differently than taxis. Thus, John would use the first $2,500.00 from the Uber or Lyft vehicle and then look to his own personal policy for additional benefits.

Health Insurance and Workers’ Compensation Benefits and PIP

If a driver or passenger is working at the time of the injury, he may be entitled to PIP and workers’ compensation benefits. However, it is very important to coordinate the timing of filing for both benefits. Since Maryland law permits the PIP insurer to reduce benefits payable to the extent workers’ compensation benefits are actually received, if someone injured in a car crash files for workers’ compensation benefits and those benefits are paid in excess of the PIP coverage, that person would not then be able to seek PIP benefits. As noted where an injured worker receives workers’ compensation benefits in excess of the PIP coverage, he/she is entitled to nothing from the PIP carrier. §19-513(e) and Smelser v. Criterion Ins. Co., 293 Md. 384 (1982).

As a practical matter, the opposite is not true. The PIP carrier is generally not entitled to a credit or to be reimbursed by the workers’ compensation insurance company as long as the PIP is exhausted first. An exception to this rule is if the employer is self-insured. When someone is working and is entitled to file both a workers’ compensation claim and a PIP claim, it’s beneficial to file and exhaust the PIP claim first and timely file the worker’s compensation claim thereafter.

Since PIP pays lost income at 85% whereas workers’ compensation only pays at 66%, there is an advantage to filing and exhausting PIP first. Additionally, when you are out of work and receiving medical care after a motor vehicle collision, you and your doctor will want to be paid. Many medical providers will have you sign forms allowing your doctor to submit forms directly to the PIP carrier. In such circumstances, it’s not unusual for the doctor to be paid and or to exhaust the PIP coverage leaving you no money for your lost income. Therefore, it is critically important to be aware of the timing of your PIP claim and presentation of the supporting documentation to ensure you are timely paid your lost income.

If you have health insurance and available PIP coverage, you will likely make use of both coverages after a collision. Once again, you should use your PIP first for lost income and then your medical bills if not exhausted. Health insurance companies do not get a credit for PIP benefits paid to you or to your medical providers. Some medical providers prefer to be paid by PIP insurance rather than health insurance since PIP frequently pays a higher percentage of the bill.

If you have any questions about PIP or MedPay benefits in your car crash claim, please feel free to give us a call. You may call us toll-free at (800) 322-3380.


Concussions and Brain Injuries in Car Wrecks, Falls and Sports Injuries

Jan 15, 2018 | Ben Boscolo

Why do I need a trial lawyer if I have suffered a concussion, head injury or traumatic brain injury in a car wreck, fall or sports injury?

The brain is the world’s greatest computer and the least understood part of our anatomy. Our brain has three parts: the rational, the emotional, and, buried deep beneath those, the instinctive. Injuries to the brain, from catastrophic to minor, change the way we think, feel and act. Many of these changes go unnoticed by the person who suffers the brain injury. In fact, many people who suffer brain injuries may not even consider an injury to the brain as a reason for changes in the way they feel or act. This is because we believe that if we do not get hit in the head or lose consciousness, we cannot have hurt our brains. Brain injuries, such as concussions, in car wrecks and falls are underreported, underdiagnosed and undertreated. Many times, medical professionals tell us that the changes in the way we are feeling or acting are the result of emotional or psychological problems as opposed to an injury to our brains.

Since concussions and brain injuries are so difficult to understand, it is extremely important to hire a trial lawyer who understands the brain and concussions and who has experience representing people who have suffered traumatic brain injuries. Car wrecks, falls and sports injuries are three very common causes of head injuries.

The Brain, Skull and Their Functions

Understanding the reason why you need a trial lawyer to handle a personal injury case involving a head injury begins with a basic understanding of the brain and the skull. The brain is a very fatty organ. Seventy-five percent (75%) of the brain is made of water. It is the consistency of Jello. The brain floats in cerebrospinal fluid. The fluid is contained by a membrane and sits within the skull. Quite simply, the skull is the armor for the brain.

Your lawyer must also understand what the different parts of the brain do. The front part of the brain, comprised of the frontal and temporal lobes, generally controls thinking, voluntary movement, hearing and feeling. The right side of the brain controls the left side of the body, and the left side of the brain controls the right side of the body. The back of the brain, or the cerebellum, controls coordination and balance.

As the image below shows, the brain is divided into four parts, or lobes: the frontal, the temporal, the parietal and the occipital.

brainCHB

Since the causes and frequency of concussions are misunderstood by most people, your lawyer must understand concussions and the wide range of symptoms they produce. The average person believes that a concussion happens when someone is hit in the head or loses consciousness. This is not correct. According to Merriam-Webster’s Online Dictionary, a concussion is “a jarring injury of the brain resulting in disturbance of brain function sometimes marked by permanent damage.” In order to suffer a concussion, one does not need to be struck in the head or lose consciousness. A concussion is simply an injury to your brain.

What are the symptoms of a traumatic brain injury?

Like all other injuries, brain injuries can be mild, moderate or severe. Generally speaking, a moderate brain injury occurs from a loss of consciousness from 20 minutes to 6 hours, and a severe brain injury occurs from a loss of consciousness for more than 6 hours. The focus of this blog is mild traumatic brain injury, which occurs when there is a brain injury with either no loss of consciousness or a loss of consciousness for less than 20 minutes. One of the principal ways to identify a mild traumatic brain injury is based on the symptoms that follow car wrecks, falls or sports injuries. The symptoms of a mild traumatic brain injury include fatigue, headaches, visual disturbances, memory loss, poor attention or concentration, sleep disturbances, dizziness or loss of balance, irritability, emotional disturbances, feelings of depression, seizures, nausea, loss of smell, sensitivity to light and sounds, mood changes, getting lost or confused and/or slowness in thinking.

How do brain injuries happen?

The most common way to suffer a traumatic brain injury is from a direct blow to the head. Head injuries frequently occur in car wrecks when a person’s head hits the windshield or the side of the car. Head injuries also frequently occur when someone trips and falls and hits the back of their head. Head injuries are especially common in sports with head-to-head contact between players.

In each of these types of injuries, the brain strikes the inside of the skull. The head and the brain are moving together, either forward or backward. When the car crash victim’s head hits the windshield, it stops. Unfortunately, their brain, which is floating in fluid, keeps moving. The only thing that stops the brain from moving is the skull. Similarly, when the fall victim or athlete falls and hits the back of their head, the brain slams into the inside of the back of the skull. The same thing happens when someone hits the right or left side of their head. The only thing that stops the brain from moving to the right or the left is when it hits the inside of the skull. Brain damage can occur when the brain slams into the side of the skull. The damage can range from a bruise to bleeding. In addition, axons that are long threadlike nerve tissues that transmit impulses from one cell to another cell can be sheared or torn during the injury. Significant bleeding or axonal shearing can be seen on MRI.

The more difficult to recognize traumatic brain injuries occur when there is not direct injury to the head or loss of consciousness. In any car wreck, fall or sports injury where there is a whiplash type injury, a concussion or traumatic brain injury frequently occurs. The mechanism of injury is exactly the same. The head is snapped forward and the brain moves with it. When nature stops our head from moving forward, the brain keeps moving until it slams into the inside of the skull. Then as the head is snapped in the opposite direction, the brain begins to travel in the opposite direction. When nature stops our head from moving in the opposite direction, the brain keeps moving until it slams into the inside of the skull. Each time the brain smashes into the skull, it is damaged. In cases like this, the bruising or tearing of the axons, or nerve tissues, cannot be seen on an MRI. The resulting brain injury is just as real and can be permanent.

What are some challenges for sufferers of a mild traumatic brain injury?

The brain controls all physical and emotional activity. As a result, the symptoms of a traumatic brain injury overlap the symptoms of other injuries or conditions. When someone is in a car wreck, fall or sports injury, neck problems are a frequent result. Neck injuries frequently cause head pain and headaches. More importantly, severe pain in the neck interferes with concentration and sleep and can cause irritability or depression. These overlapping symptoms frequently prevent the injured person from recognizing that they have suffered a concussion. The overlapping symptoms frequently mask the traumatic brain injury so that medical professionals may not focus on it. Doctors tend to focus on the physical injury first, believing that when the physical injury heals, the symptoms will go away. This leads to a delay in the diagnosis and treatment of a traumatic brain injury.

When someone suffers from a history of anxiety, depression or any other emotional issues, the symptoms of those diseases can include fatigue, headaches, poor attention or concentration, sleep disturbances, irritability and emotional disturbances, feelings of depression, mood changes, confusion and slowness in thinking. When a person with a history of emotional or psychological issues is hurt in a car wreck, fall or sports injury and experiences these symptoms, they understandably believe that this is related to their pre-existing emotional or psychological problems. Medical professionals may also frequently confuse the symptoms of traumatic brain injury with a recurrence of the injured person’s emotional or psychological condition.

Two major problems are caused by the fact that the problems an injured person experiences as a result of a concussion or mild traumatic brain injury mimic the problems caused by neck injuries or emotional problems. First, the confusion about the cause of the problems often results in a delay in diagnosis. The delay in diagnosis causes a delay in treatment. The delay in treatment makes it less likely that the traumatic brain injury will get better. Second, and more significantly, the delay in treatment makes it far less likely that the treating doctor will quickly relate the symptoms to the car wreck, fall or sports injury.

Do you need a trial lawyer if you were hurt in car wreck, fall or sports injury?

Anyone who suffers a traumatic brain injury in a car wreck, fall or sports injury should consider contacting an experienced trial lawyer. The attorney you choose must have experience in handling cases like these. Experience will teach your lawyer:

  1. How to recognize the symptoms of concussion or traumatic brain injury.
  2. How to help you get the medical care and treatment you need in order to recover.

More importantly, you should make sure the lawyer you hire has courtroom experience in representing people with concussions or traumatic brain injury for the following reasons:

  • First, your lawyer should be able to explain, in plain English, what a concussion is. Your lawyer should be able to explain to both you and a judge or jury how your brain injury resulted from the car wreck, fall or sports injury.
  • Second, your lawyer’s experience will provide them with essential knowledge of how insurance companies and their lawyers will defend your case. Insurance companies and their lawyers have a game plan for defending cases in which a person has a concussion or traumatic brain injury as a result of a car wreck, fall or sports injury.
  • Third, most mild traumatic brain injuries cannot be shown with any kind of test. As a result, doctors are forced to rely on their patients’ complaints in order to diagnose a traumatic brain injury. Insurance companies and their lawyers know that most people in American society view those who make claims for personal injuries as a result of a car wreck, fall or sports injury skeptically. This skepticism predisposes judges or juries who are asked to decide whether someone has a traumatic brain injury to think that the injured person is faking the symptoms in order to get money. Further, the skepticism predisposes judges or juries who believe that a person has a brain injury to think that the problem is not the result of the car wreck, fall or sports injury.
  • Fourth, insurance companies and their lawyers also know that the people in our communities believe that it’s bad to award money to people who are hurt in a car wreck, fall or sports injury. The average person believes that awarding money for personal injuries, including concussions or traumatic brain injuries, caused by a car crash will cause our insurance payments to go up. The average person believes that awarding money for personal injuries, including concussions or traumatic brain injuries, caused by slipping and falling will drive businesses out of our state.
  • Fifth, insurance companies and their lawyers know that it is hard for a person with a traumatic brain injury to fight them in Court. Insurance companies and their lawyers use the tactic of deny, defend, delay to discourage injured people to stand up for their rights. Insurance companies and their lawyers know it is expensive for a person with a traumatic brain injury to fight them in court.
  • Finally, insurance companies and their lawyers know that people will not award money to people with traumatic brain injury if they think the person is a liar, faker or fraud. So, insurance companies and their lawyers use the medical records of the person with a traumatic brain injury to make it look like the person is lying. Insurance companies and their lawyers dig into the past of a person with a traumatic brain injury to try to show they are lying. Insurance companies and their lawyer will even hire private investigators to spy on a person with a traumatic brain injury to try to show they are lying. Insurance companies and their lawyers know that if they make a person with a traumatic brain injury seem like they are lying, they will not get compensated–and the insurance company gets to increase their profits.

An experienced trial lawyer will know how to fight insurance companies and their lawyers by knowing how to prove traumatic brain injuries are real with witnesses, documents, pictures and video. Experienced trial lawyers know how to overcome the false belief that awarding money to someone who suffers a traumatic brain injury from a car wreck, fall or sports injury is bad. Your trial lawyer should actually be able to show that making the person who caused the traumatic brain injury pay for what they caused is good for our community. An experienced trial lawyer will have the courage to fight the insurance company in court and the compassion to help the person with the traumatic brain injury deal with the deny, defend, delay strategy. Finally, an experienced trial lawyer will know how use the tactic of trying to turn the person with a traumatic brain injury into a liar against the insurance company.

Concussions and traumatic brain injuries are serious, life-changing injuries. They are hard to understand and treat. It is very hard to prove that a person has a traumatic brain injury, but it’s not impossible. Insurance companies and their lawyers know how to get their clients off the hook when a traumatic brain injury is caused by a car wreck, fall or sports injury. That’s why it is important for anyone suffering from a concussion or traumatic brain injury from a car crash, fall, or sports injury to talk with an experienced trial lawyer.


Safety Tips to Prevent Fires or a Car Accident

Dec 22, 2015 | admin

The Hazards of the Holidays

The holidays are a joyous time for most Americans, but this time of year can also be plagued by increased chances of being involved in incidents that can cause serious bodily harm. The Washington, D.C. personal injury lawyers at CHASENBOSCOLO Injury Lawyers would like to help keep you safe by letting you know what hazards to watch for as the holidays approach.

Car Accidents

Data from the National Highway Traffic Safety Administration shows the number of serious motor vehicle collisions notoriously tend to spike during the days leading up to Christmas. This is because of an increase in traffic on our roads and a rise in the tendency of motorists to get behind the wheel while under the influence of alcohol or drugs.

13 News Now says the Virginia State Police will be out in full force to ensure highway safety during the holidays, but you can do your part to help prevent a car accident by obeying all traffic laws and never drinking and driving.

Fire and Burn Injury

A spark from a decorative light that shorts out to blazes that break out in the kitchen, the number of fires that are ignited around the holidays is astounding. Do your part to steer clear of a fire and burn injury by never leaving cooking food alone and ensuring all lights are functioning properly and Christmas trees are well watered.

Happy and Safe Holidays!

We hope these tips help you to have a wonderful and accident-free holiday season!