The Life-Changing Impacts of Injuries

Jul 16, 2018 | Kyle Shoemaker

Many people may know someone injured in a traumatic event, such as a motor vehicle collision or a fall. However, many people don’t, or the people they know who’ve been hurt have kept this information private. As personal injury lawyers, it is our job to help others, particularly juries, to understand the real and meaningful ways that an injury disrupts the lives of our clients, particularly when that injury is caused by another’s actions and decisions.

As anyone who commutes in the Baltimore-Washington metro area knows, rear end collisions occur every day. Sometimes, the drivers and passengers involved walk away with no problems. Other times, they are not so lucky. To illustrate the unseen effects of injury, consider this relatively simple example for a car crash involving Gary. (To be clear, Gary is not a real person, he exists only for this example). Gary is 32 years old and works as a welder for a utility company. He is driving work on an ordinary Monday morning when, while waiting at a red light, his car is rear ended. The police are called, the parties exchange information and both vehicles are able to drive away. Gary goes on to work. After all, he doesn’t feel too badly immediately following the crash, and he has bills to pay and a family to support. Since Gary works for a utility company, his work is physical. He has to move and lift heavy tools, move large metal objects, and engage in other physical activity. As the day wear on, what began as tightness in his neck and back became worse.

To an outside observer, neck and/or back pain may not seem like something that is terribly serious. Someone who doesn’t have first hand experience with this sort of traumatic injury may think that a bit of neck or back pain is no big deal. And Gary himself may not know how serious the injury is. The true severity of an injury like Gary’s may not always be apparent in the immediate aftermath of the collision.

So let’s take a look at some of the ways in which Gary’s injuries will impact his life. To begin with the broadest view: he will experience physical pain. Back and neck pain can cause even the most mundane of movements to be painful. What will that pain actually mean to Gary in concrete, real life terms? What will that mean for his relationships, his work, his hobbies, his goals? Let’s break that down in more detail.

How Physical Injuries Effect Family Relationships

Gary is relatively young at 32 years old. He has two young children: a 3-year-old boy and a 4-month-old girl. As any parent can attest, caring for young children requires a tremendous amount of work, even on the good days. Now imagine that Gary has arrived home after a long day of physical work. Even without his injury, he is tired and probably a bit sore. Layer on top of that the pain and stiffness from Gary’s injuries, and all of a sudden playing with or caring for his children is a much more difficult task. No parent wants this kind of interaction turn into a physically painful and difficult experience. A three year old may not understand why Daddy doesn’t want to pick him up when he gets home from work. Imagine how that makes Gary feel when he sees the hurt on his child’s face when he tells them no, Daddy can’t carry you.

But that’s not the only relationship that suffers when someone is injured. These days, many two-parent households are ones where both parents have to work to make ends meet. This means that both parents need to find time to take care of ordinary household chores (anything from major home repairs, to everyday tasks like carrying in groceries) in between work, sleep, and taking care of the children. When one of those parents is dealing with some kind of physical injury, that division of labor can be upset. So an injured person like Gary, who is already trying to get better, may be dealing with the feelings that come along with feeling like he is not doing his part to keep the family operating day to day. Effects such as those described above can stress on a relationship, which might already be strained thanks to the daily grind of working and taking care of young children. This isn’t to imply that Gary’s wife (or the partner of any injured person) wouldn’t be understanding in a situation like this. But even “minor” neck or back injuries can have effects which can persist. When you add the psychological stress brought on by some of the other factors discussed, even the healthiest relationships suffer.

When Injuries Prevent You from Working

How do Gary’s injuries affect his work? As I mentioned, Gary is a welder for a utility company. This means he may be working outdoors. Or maybe he works in confined locations inside power plants. He may find himself bending, crouching, or climbing. Welding is a skilled trade that is in demand in many areas. Welders have the potential to make a decent wage, but the work is physical. If Gary is temporarily placed on a limited or off work status, his family will likely face financial hardship. Only 39% of Americans have enough savings to cover a $1,000 emergency. In the D.C. Metro area, there’s no way $1,000 covers rent or a mortgage; never mind utilities, gas, food… the list goes on and on. If Gary’s off work (or “disability period”) lasts a long time, or if he loses his job entirely, that financial hardship goes up tenfold – putting even more pressure on him and his family.

But that’s not all. Gary, like many Americans, takes a certain sense of pride and identity from his work, and from his ability to provide for his family. When an injury threatens Gary’s ability to go to work and provide for his family, more than just his job is threatened. Part of Gary’s very identity is threatened, and that is something that is impossible to put a price on.

When You Can’t Do the Things that Keep You Sane

Depending on what Gary likes to do for fun, his hobbies or recreational activities could be impacted by his injuries. If Gary enjoys physical activities like cycling, or playing basketball, or bowling with friends, he may not be able to do these things at all, or might find himself dealing with even more pain if he tries. But sports aren’t the only hobbies hampered by injury. Imagine that Gary enjoys working on cars as a way to enjoy his free time. If he has a neck or back injury that causes him pain, the last thing he will want to do after a long day of work is to get under the hood of a car. Further, if Gary is unable to spend times taking part in activities with his friends, those friendships may suffer, all because Gary was in a car crash. Even relatively stationary activities like reading a book can be affected if Gary’s neck or back pain make it difficult to sit in one position for an extended period of time.

Now, one may say that it is pessimistic to assume that all of these things will happen to Gary because he got hurt. But ALL of these things don’t necessarily have to happen to one person for that person’s life to be impacted in unexpected ways due to an unexpected injury. Even if just SOME of these things occur, that is enough to change a person’s routine, or make the challenges of daily life more difficult than they were before the injury.

What About Driving Anxiety?

All of these factors can combine with each other to create a profound psychological impact on an injured person, particularly through feelings of anxiety, fear, isolation, anger, or helplessness. Gary, or any other victim of a motor vehicle collision, may experience fear or anxiety related to driving. This can be crippling to a person who has to drive to meet their daily needs, such as going to work, shuttling children around, or running other routine errands. Additionally, a person who curtails their own driving due to fear or anxiety loses the freedom of mobility that comes with driving. This can cause a person to limit their engagement with other people in their lives and potentially grow isolated. Let us assume that Gary had a rich social life before being involved in his collision. If he doesn’t like to drive to different places and if it hurts to take part in physical hobbies, that social life is going to suffer. Through his diminished ability to perform his job, his inability to participate in the lives of his children, and his loss of ability to travel or do the things that he used to do for fun, Gary is left with a much different daily life than the one he enjoyed before. For a relatively young adult in the prime of his life, the feelings of isolation, the lack of control over one’s situation, and the uncertainty about one’s recovery can be overwhelming and debilitating.

Getting Medical Help

It may go without saying, but injuries like Gary’s will probably require some kind of medical treatment in order to resolve. As alluded to above, neck or back injuries from a car crash can be relatively minor, in the case of “soft tissue” whiplash injuries such as sprains. Or the same kind of crash may result in more serious injuries such as a disc herniation or even a fractured vertebrae. More serious injuries like this could even require surgical treatment if more conservative treatment measures turn out not to be successful. Surgery of any kind is risky even under the best of circumstances. Neuro surgery or orthopedic surgery carries with it risk of side effects, potential for failure, or other complications. Some injured people have good health insurance that can help ease the burden of the cost of surgery and follow up care, but other injured people may face the uncertainty of not knowing how such a bill will be paid. Still others may undergo surgery in an emergency setting and then get stuck with a huge medical bill with no way to pay it. Even assuming that a is successful, a person with a serious injury may never fully recover and may be left dealing with the effects of that injury for a life time.

But Why Do Injured People Need Attorneys?

So why do injured people need attorneys? Well, let’s look back at Gary’s case: The insurance company for the vehicle that ran into him wants to close his claim as quickly and as cheaply as possible. Gary is not in a position to truly understand the real value of his claim and the insurance company knows this. That’s why Gary needs an experienced attorney that’s looking out for him. Obtaining representation when you find yourself in Gary’s position is not about taking advantage of anyone or anything. It is about making sure that the insurance company (which makes a profit by finding a way to not pay a fair claim value) does not take advantage of a person who is in a rough spot. That is why it is so important for someone who’s been injured in a car crash, slip and fall, or some other circumstance caused by another’s carelessness, to contact an experienced and knowledgeable personal injury attorney to determine their rights and see if they need an attorney. Make sure you talk to someone who is looking out for you, and willing to go to bat for you when the insurance company tries to play games.

If you are reading this post and you’re lucky enough to have never been injured as the result of someone else’s negligence, I hope this information can give a bit of insight into what it’s like for someone who has had their life disrupted by circumstances outside of their control. If you have been injured in a car crash, a slip and fall, or as the result of another’s carelessness, I hope this has helped you understand why its important to at least consult with an attorney to help understand your rights and what you’re entitled to.

 


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.


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.