CHASENBOSCOLO stacking Archives

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).

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

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

What are wage replacement benefits?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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