Maryland Injury Lawyers Blog

Many of the cases we handle involve an insured having to sue their own insurance company for benefits owed. These claims are technically breach of contract claims, and they can become very complicated. Perhaps the most common type of claim we handle in this area is claims for uninsured motorist benefits. This week the Maryland Court of Special Appeals issued its opinion in Buckley v. The Brethren, and the opinion is favorable to Maryland consumers who purchase car insurance, and make a claim for uninsured motorist benefits.

In this case, the car insurance company, The Brethren Mutual Insurance Company, tried to pull a fast one on its own insured and wiggle out of paying benefits it clearly owed. You see, the handling of an uninsured motorist claim in Maryland is complicated, and generally is based on statutes including Section 19-511 of the Insurance Article of the Maryland Code.

To make a long story short, Ms. Ember Buckley was seriously injured as a passenger in a car crash in March 2007 and she incurred over $100,000.00 in medical bills. The crash was caused by Mr. Harvey Betts who owned and drove the car that Buckley was a passenger in. Mr. Betts vehicle had just $100,000.00 of liability coverage, and was covered by Geico Insurance Company. Ms. Buckley had her own car insurance policy in which she paid a premium for up to $300,000.00 in uninsured motorist benefits (also known as underinsured motorist benefits). Ms. Buckley's $300,000.00 policy was with The Brethren Mutual Insurance Company. Geico made a settlement offer of its insured's $100,000.00 policy limit in exchange for a release. As they are required to do, GEICO sent the policy limits offer in writing, but GEICO asked for a full and general release.

In the State of Maryland, uninsured motorist claims are goverened by Section 19-511 of the Insurance Article of the Maryland Code. The law allows an injured person to accept a policy limits settlement offer from a liability carrier so long as the written offer is sent to the uninsured motorist carrier by certified mail pursuant to the statute. The UM Carrier then has 60 days to consent to the acceptance of the policy limits offer (and allow for the injured person to execute a release), or to refuse to consent to the acceptance of the offer, but then to pay the amount of the offer to the injured person within 30 days of the refusal to consent. If the UM carrier consents to the acceptance of the offer (and presumably to the signing of a Release) then the UM Carrier waives its subrogation rights against the at fault party. If the Uninsured Motorist Insurer refuses to consent to the settlement, then the UM Carrier must pay the injured party the amount of the settlement, but its subrogation rights would be preserved (Because there would be no release).

In this case Ms. Buckley's lawyer sent Brethren Mutual the policy limits settlement offer by certified mail as required by the statute, and Brethren's insurance adjuster sent a letter back stating that they waived subrogation against Mr. Betts. Ms. Buckley then accepted the settlement offer from GEICO but signed a very broad general release that in and of it self, at least arguably, released the UM claim.

When Ms. Betts presented her uninsured motorist claim to The Brethren Insurance Company, Brethren's adjuster denied the claim based on the broad language in the release signed by Ms. Betts. What is disturbing is that Brethren knew that it owed uninsured motorist benefits in this case, and took a ridiculous position in order to save money. The Brethren admitted that it had consented to the settlement, but then argued that it nevertheless could lawfully deny the uninsured motorist claim because of the language in the release. This is a great example of how generally speaking insurance companies look out for their own bottom line and are not looking out for their insureds.

In any event, the Maryland Court of Special Appeals ruled in favor of Ms. Betts and against the insurance company. The Court held that so long as the Circuit Court agrees that The Brethren consented to the settlement, the uninsured motorist benefits were owed and that the only issue for trial was the amount of damages owed to Ms. Buckley. (It should be noted that Judge Eyler filed a dissenting opinion).

Practice Pointer regarding Maryland Uninsured Motorist Claims----Be sure that the letter from the UM Carrier clearly consents to the settlement and signing of a release with the liability carrier. Also, carve out the UM claim in any release signed.

Many of the cases we handle involve an insured having to sue their own insurance company for benefits owed. These claims are technically breach of contract claims, and they can become very complicated. This week the Maryland Court of Special Appeals issued its opinion in Buckley v. The Brethren, and the opinion is favorable to Maryland consumers who purchase car insurance.

In this case, the car insurance company, The Brethren Mutual Insurance Company, tried to pull a fast one on its own insured and wiggle out of paying benefits owed. You see, the handling of an uninsured motorist claim in Maryland is complicated, and generally is based on statutes including Section 19-511 of the Insurance Article of the Maryland Code.

To make a long story short, Ms. Ember Buckley was seriously injured as a passenger in a car crash in March 2007 and she incurred over $100,000.00 in medical bills. The crash was caused by Mr. Harvey Betts who owned and drove the car that Buckley was a passenger in. Mr. Betts vehicle had just $100,000.00 of liability coverage, and was covered by Geico Insurance Company. Ms. Buckley had her own car insurance policy in which she paid a premium for up to $300,000.00 in uninsured motorist benefits (also known as underinsured motorist benefits). Ms. Buckley's $300,000.00 policy was with The Brethren Mutual Insurance Company. Geico made a settlement offer of its insured's $100,000.00 policy limit in exchange for a release. As they are required to do, GEICO sent the policy limits offer in writing, but GEICO asked for a full and general release.

In the State of Maryland, uninsured motorist claims are goverened by Section 19-511 of the Insurance Article of the Maryland Code. The law allows an injured person to accept a policy limits settlement offer from a liability carrier so long as the written offer is sent to the uninsured motorist carrier by certified mail pursuant to the statutue. The UM Carrier then has 60 days to consent to the acceptance of the policy limits offer (and allow for the injured person to execute a release), or to refuse to consent to the acceptance of the offer, but then to pay the amount of the offer to the injured person within 30 days of the refusal to consent. If the UM carrier consents to the acceptance of the offer (and presumably to the signing of a Release) then the UM Carrier waives its subrogation rights against the at fault party. If the Uninsured Motorist Insurer refuses to consent to the settlement, then the UM Carrier must pay the injured party the amount of the settlement, but its subrogation rights would be preserved (Because there would be no release).

In this case Ms. Buckley's lawyer sent Brethren Mutual the policy limits settlement offer by certified mail as required by the statute, and Brethren's insurance adjuster sent a letter back statuign that they waived subrogation against Mr. Betts. Ms. Buckley then accepted the settlement offer from GEICO but signed a very broad general release that in and of it self, at least arguably, released the UM claim.

When Ms. Betts presented her uninsured motorist claim to The Brethren Insurance Company, Brethren's adjuster denied the claim based on the broad language in the release signed by Ms. Betts. What is disturbing is that Brethren knew that it owed uninsured motorist benefits in this case, and took a ridiculous position in order to save money. The Brethren admitted that it had consented to the settlement, but then argued that it nevertheless could lawfully deny the uninsured motorist claim because of the language in the release. This is a great example of how generally speaking insurance companies look out for their own bottom line and are not looking out for their insureds.

In any event, the Maryland Court of Special Appeals ruled in favor of Ms. Betts and against the insurance company. The Court held that so long as the Circuit Court agrees that The Brethren consented to the settlement, the uninsured motorist benefits were owed and that the only issue for trial was the amount of damages owed to Ms. Buckley. (It should be noted that Judge Eyler filed a dissenting opinion).

Friends-

Our thoughts and prayers go out to the family of Elizabeth Colvin Colton who was killed in an accident that occurred last week in Montgomery County as a result of an improper left hand turn. Maryland drivers need to remember to yield the right of way to oncoming cars whenever making a left hand turn.

We are seeing a lot of very serious accidents resulting from improper and illegal left hand turns. It is important to remember that if you are making a left turn you must always yield the right of way to on-coming traffic before making your turn. It is also important to remember to use your turn signal. Way too often a driver will attempt to make a left turn in front of an oncoming vehicle thinking that they have plenty of space. Well, the fact is that not everyone drives the speed limit, and not all drivers are paying attention to what is ahead of them. It may look like the left turning vehicle has plenty of room to make the turn, but if the oncoming vehicle is speeding, and/or if the left turning driver's perception is off at all, a tragic collision can occur.

As a personal injury lawyer, I can tell you that in Maryland the driver of the left turning vehicle in this type of accident will practically always be found to be at fault. Occasionally the vehicle that had the right away may also be found at fault if it can be shown that vehicle was speeding or perhaps on a cell phone and texting and not paying attention, but this would be rare. Police investigating crash scenes will usually ticket the driver of the left turning vehicle. This is true even if the oncoming vehicle is speeding and not paying attention. Bottom line....if you are making a left turn, YIELD THE RIGHT OF WAY TO ONCOMING TRAFFIC.

Just this week there was a terrible crash on Great Seneca Highway near the Kentlands and Lakeland's community resulting from an improper left turn. A lady named Elizabeth Colvin Colton was the passenger in a vehicle driven by Seymour Baden. Apparently Mr. Baden attempted to make a left turn from Great Seneca Highway without yielding the right of way to oncoming traffic into the Lakelands neighborhood when he was struck by a vehicle driving on Great Seneca. Mr. Baden's passenger took the brunt of the impact and died as a result of her injuries.

Outpatient cosmetic and surgical procedures done at unregulated facilities can be dangerous. This is a growing problem in Maryland because there is no state licensure requirement for outpatient surgical centers. By contrast, hospitals where surgical procedures are traditionally done, are subject to State and Federal oversight and often have better safety procedures in place.

An example of this problem has occurred at Monarch Med Spa in Timonium, Maryland. A woman died and two others have acquired infections after having liposuction procedures done at Monarch Med Spa in Timonium, Maryland. State of MD Inspectors shut the surgical center down on Wednesday. According to The Washington Post, State officials have indicated that it is likely that the facility did not have proper infection control practices in place. Our thoughts and prayers are with the family of the lady who died.

STATE OFFICIALS ARE URGING ANYONE WHO HAD PROCEDURES DONE AT MONARCH MED SPA AND WHO ARE CONCERNED ABOUT INFECTION TO CHECK WITH THEIR DOCTORS IMMEDIATELY.

The woman who died apparently acquired a bacterial infection known as invasive streptococcal infection (Group A Strep-tococcus). When bacterial infections like this infect body systems such as the blood, muscle and lungs, it is also known as "invasive GAS disease." GAS Disease has about a 10 to 15 % mortality rate. Perhaps the most severe kind is necrotizing fasciitis (Flesh Eating Bacteria)

Shockingly, cosmetic surgery centers (all outpatient procedure centers for that matter) in Maryland are not subject to State licensing or oversight. Hopefully the Maryland Legislature can address this issue in the 2012 Legislative Session. Peter Provost, a Senior Executive at John's Hopkins Health Care has said that the increasing number of outpatient procedure centers including outpatient surgery centers poses risks to consumers and, according to the Washington Post indicated that "It's a bit of the Wild West out there, ....There's no oversight.....We have closer inspections of restaurants than we have of health care."

The lawyers at Goldberg, Finnegan & Mester are interested in speaking with anyone injured at an outpatient surgery center in the State of Maryland. Our medical/legal team provides a free telephone consultation. Call us at 888-213-8140.

The Food and Drug Administration has warned consumers not to eat mangoes produced by Agricola Daniella because Salmonella has been found in their mangoes. The Center for Disease control has indicated that there has been an outbreak in salmonella cases in the USA with 105 salmonella diagnosis in 16 states.

FOOD POISONING CASES ARE ESSENTIALLY PRODUCT LIABILITY CASES. CALL US AT 888-213-8140 FOR A FREE CONSULTATION.

Salmonella is an illness often associated with food poisoning. Infants, the elderly and children are most at risk for acquiring salmonella. The symptoms include diarrhea, fever and stomach aches about 12-72 hours after the infection sets in. Salmonella can spread from the intestine to other body systems including the blood stream. It is a serious illness that can cause death if not treated properly. If you or your family members have signs or symptoms of salmonella, you should immediately call your doctor.

Legal cases related to food poisoning in fruits and vegetables such as salmonella are, essentially, product liability cases. Ideally, it is important to save/preserve the food that was contaminated and have it tested (a lawyer can help with this process). The causes of action to be considered for most food poisoning cases include: negligence, strict liability failure to warn, breach of warranty of fitness, and violation of consumer protection statutes. If you or someone you care about has suffered an injury as a result of consuming contaminated food (often fruit or meat), call Goldberg, Finnegan & Mester, LLC at 888-213-8140. We provide a free phone consultation regarding your food bourne illness legal claim.

Did you know that many Veterans who served during the Vietnam War are entitled to VA Benefits that they are not currently receiving? The back benefits owed can be substantial and we urge those who served in Vietnam to contact a Veteran's Disability Lawyer to discuss their claim.

This is because there is an expanding list of health conditions and diseases that the Veteran's Administration attaches a presumption of "service connection" to for Vietnam Veterans. The conditions now include some of the most common ailments in the general population including type 2 diabetes, ischemic heart disease and parkinson's disease. What this means, in a nutshell, is that Vietnam Vets who have these illnesses can claim VA disability benefits and health benefits without having to prove that their condition was connected to Agent Orange Exposure. This new 2010 policy applies to those who served in Vietnam from January 9, 2962 until May 7, 2975.

Call Goldberg, Finnegan & Mester today at 888-213-8140 for a free phone consultation on your rights to Veteran's Benefits.

The decision to add parkinsons disease, diabetes and heart disease to the list of presumed service connected disabilities was made based on an independent study done by the Institute of Medicine titled"Veterans and Agent Orange: Update 2008." It should also be noted that the VA recently indicated it was going to "fast track" the claims process for service connected disabilities due to Agent Orange Exposure.

The list of conditions which receive a favorable presumption for service connected disability benefits now includes:

Type II Diabetes
Heart Disease
Parkinsons Disease
Peripheral Neuropathy
Chloracne
Porphyria Cutanea Tarada
Lung Cancer, Bronchus Cancer, Larynx Cancer, Hodgkins Disease,
Multiple Myeloma
Non-Hodgkins Lymphoma
All Chrnnic B-Cell Leukemias
Certain Soft Tissue Sarcomas
AL Amyloidosis
Certain Birth Defects in Children of Female Vets (including Spina Bifida)

The birth defects that are covered include achondroplasia, cleft lip and cleft palate, congenital heart disease, congenital talipes equinovarus (clubfoot), hip dysplasia, Hirschsprungs disease, hypospadias, hydrocephalus due ot aqueductal stenosis. For more information about the conditions covered for Vietnam Veterans review the document titled Agent Orange Review.pdf

Goldberg, Finnegan & Mester, LLC works with a team of lawyers who provide free consultations to Veterans and their families about the additional benefits that they may be entitled to. Generally speaking the types of benefits include service connected disability benefits, Compensation for Injury or death caused by VA Healtcare Malpractice, Pension Benefits For Veterans with Non-Service Connected Disabilities, and VA Benefits for Family Members of Veterans who served in the armed forces.

Our thoughts and prayers are with the family of Michael George Balcom who died in a motorcycle accident in Gaithersburg Maryland. The incident occurred on Great Seneca Highway and Longdraft Road--not far from Shady Grove Hospital where the motorcyclist was taken before he died. It seems that a BMW driven by Toney Williams Moses made a left turn in front of the motorcycle without yielding the right of way to the motorcycle. Assuming the accuracy of these facts, the crash was not Mr. Balcom's faullt, and his estate and next of kin could bring a negligence claim against the driver of the vehicle that made the illegal left turn.

Those injured in motorcycle accidents often need legal representation because insurance companies and the police often have an unfair bias against motorcycle drivers. Our law firm has experience representing motorcyclits and the families of motorcyclists injured/killed in accidents on Maryland highways. A few things to keep in mind:

1. This crash was not Mr. Balcom's fault. In Maryland a vehicle turning left must yield the right of way to on-coming traffic. That said, it is quite possible that an insurance company will deny this claim and somehow argue "Contributory Negligence" on the part of Mr. Balcom. Therefore, it is crucial that Mr. Balcom's family conduct an independent investigation of the crash. Too often, especially in cases where a driver is killed, the police only get one side of the story and they do not do a thourough and complete investigation.

2. Motorcycles are not required to carry PIP insurance in Maryland. Therefore, it is unlikely that motorcyclists can make a PIP claim for accidents in Maryland.

3. Evidence from the crash scene should be preserved. Photos should be taken of any skid marks.

4. The Maryland Motor Vehicle Administration offers motorcycle training classes to Maryland motor cycle riders. Statistics show that 90 percent of riders involved in crashes did not have formal training. Participation in such classes is not required by law for adults. The MVA also has a Motorcycle Operator Manual available, and it can be accessed by clicking the highlighted link. Motorcycle Operator Manual.pdf

Goldberg, Finnegan & Mester, LLC is happy to give a free telephone consultation to anyone involved in a motorcycle crash and to the family members of anyone killed in a motorcycle crash. If we take the case, there will be no attorney fees owed if there is no recovery. Call us at 301-589-2999 x102

Many of our clients are shocked when we tell them that the law in Maryland negligence cases is that if a person is even 1% at fault in an accident then they are barred from recovery. This is because Maryland is one of only four states in the entire country that has retained the common law pure contributory negligence standard. The other 3 states are Virginia, Washington, D.C., North Carolina and Alabama. Contributory negligence can lead to extremely harsh and unfair results, especially when it comes to children and the mentally ill. I feel strongly that contributory negligence is a harsh and antiquated doctrine that needs to be changed in Maryland. By contrast, in comparative negligence jurisdictions if a person is say 5 % at fault, then the jury verdict would simply be reduced by 5%. This seems to be a much more fair way of addressing negligence claims.

On Monday September 10, 2012 the Md. Court of Appeals will hear oral argument in a case that urges the court to adopt comparative negligence. The case is Coleman v. Soccer Association of Columbia, and involves a person who was injured by a soccer goal that collapsed on him when he grabbed onto the crossbar. The case was tried by my friend and colleague Bruce Plaxen. The jury found that the defendant Soccer Association was negligent for failing to maintain the goal, but that Mr. Coleman was also contributorily negligent. Therefore, although Mr. Coleman was seriously injured, no damages were awarded to Mr. Coleman.

I have seen particularly harsh results in negligence cases based on premises liability such as slip and fall accidents. This is because in these cases, the defendant will always argue that our client was at least 1% at fault for failing to watch where they are going. If Maryland adopts comparative negligence it will encourage landlords and businesses to be more careful and avoid dangerous conditions that cause injuries.

The specific issue that the Court of Appeals will address is "Should this Court ameliorate or repudiate the doctrine of contributory negligence & replace it with a comparative negligence regime?" You can watch a webcast of the oral arguments at 10:00 am on Monday (there are 3 cases scheduled so it may not be starting right at 10 am).

Energy Drinks such as Monster Energy, Rockstar, and Redbull can be extremely dangerous to individuals who have any sort of underlying heart condition. If you or someone you love suffered a heart attack after consuming an energy drink, call us at 888-213-8140 for a free telephone consultation. We believe that energy drink manufacturers may be responsible for injuries and deaths caused by their products because they do not properly warn consumers of the possible dangerous effects, and many companies seem to market directly to children.

There is no doubt that the combination of caffeine, guarana and other herbals supplements in these energy drinks can cause the heart to beat faster. There are documented cases of children having cardiac arrhythmias and/or heart attacks as a result of consuming energy drinks. The Official Journal Of The American Academy of Pediatrics published an article titled "Health Effects of Energy Drinks on Children, Adolescents and Young Adults in 2011. The article concludes that

Energy Drinks have no therapeutic benefit and consuption of the drinks may put some children at risk for serious adverse health effects; (2) energy drinks typically have high levels of caffeine, taurine, and guarana, which have stimulant properties and cardiac and hematologic activity, but manufacturers claim that energy drinks are nutritional supplements which shields them from the caffeine limits imposed on sodas and the safety and testing labeling required of pharmaceuticlas, (3) energy drinks contain other ingredients which are understudied and are not regulated, (4) youth aimed marketing and risk taking adolescent developmental tendencies combine to increase overdose potential (5) high consumption is suggested by self report surveys but is underdocumented in children and (6) interactions between compounds, additive and dose depenedent effects, long term consequences, and dangers assocaited with risky behavior in children remain to be determined.

In my opinion, The theories of liability for holding energy drink companies legally responsible for the injuries they cause may include product liability claims, negligence claims, consumer protection violation claims, failing to warn consumers of dangers, and negligent marketing of their product.

Our lawyers are evaluating claims related to injuries caused by energy drink consumption. Call us at 888-213-8140 for a free telephone consultation.

Ever wonder if those releases that places like Maryland amusement parks, ski facilities (Wisp, Whitetail), and Bounce U make us sign before our kids can participate in activities are valid? Well, I have. In fact until last week, this was an unsettled issue in Maryland because there was no case law directly on point. We now know that a release signed by a parent is invalid as to claims relating to a child's injuries against a commercial for profit facility.

On August 30, 2012 the Maryland Court of Special Appeals issued its opinion in Rosen v. BJ's Wholesalers. This court opinion, written by Judge Krauser, held that a release signed by a parent was invalid as to the child's injury claim against BJ's Wholesalers. In this case a 5 year old child was seriously injured while the kid was playing in the kids play area at BJ's Wholesalers. The agreement signed by the parent, in addition to setting forth rules for the use of the kids play club,

releases BJ's Wholesale from "any and all claims and causes of action" arising from the use of the play center by a member's child and requires a member to "indemnify, defend and hold harmless" BJ's Wholesale from any such claims or causes of action."

In a nutshell, the release agreement purportedly required that the parent and child give up the right to sue if the child was injured and it also had an indemnification clause in it which the Court also held invalid on public policy grounds. The child's parent sued BJ's on behalf of the minor child in Baltimore County Circuit Court, and the trial Court granted BJ's Motion for Summary Judgment based on the release that the parent had signed. The parent appealed this decision to the Court of Special Appeals. The Court of Special Appeals noted that there was no prior case law on this exact issue in Maryland. The Court determined that BJ's, as a commercial for profit establishment, could not alleviate its responsibility for the child's injuries by having the parent sign a release. The Court noted that it was not deciding whether a negligence claim against the State of Maryland or a non-profit would turn out the same way. Instead, its holding is limited to the facts of this case where a child is injured at a commercial for profit facility.

I think that this is a great decision because it will encourage any facility for children to adopt careful safety measures and also to obtain liability insurance. It will also encourage these places to have adequate supervision when children are playing.

To see the entire opinion: Russel Rosen v. BJ's Wholesalers