On Friday there an accident involving a Bladensburg Fire Truck (Truck 809) and a Jeep in Bladensburg, MD which is in PG COunty, MD. Six people went to the hospital as a result of this crash. The accident occurred nearl Kenilworth Avenue and Decatur Street in Bladensburg, MD. Anyone injured in this crash should know that there is a very strict notice requirement that is actually quite complicated. Proper notice needs to be given to the Bladensburg Fire Department (well, actually to the City of Bladensburg), which is, in all likelihood, defined as a "Local Government" under the Local Government Tort Claims Act of the Maryland Code. To be safe, notice should probably also be given to Prince George's County and the State of Maryland. This is a very complicated area of the law and I would strongly recommend that anyone involved in this blandensburg accident with the fire department vehicle hire an attorney to make sure that the Maryland "notice" requirements are properly addressed (180 days under the local government tort claims act).
Don't let State Farm fool you with their new partnership with the Maryland State Highway Administration whereby they are apparently paying over a million dollars to the State of Maryland in exchange for putting State Farm's logo (and likely its good neighbor slogan) on the State Highway Emergency Vehicles and billboards throughout the State
As Maryland personal injury lawyers representing individuals who are seriously injured or killed in Maryland car accidents,the Maryland car accident lawyers at Goldberg, Finnegan & Mester have seen too many occasions where State Farm has treated our clients and even their own insureds just terribly. In fact, because of State Farm's unreasonableness in car accident settlement negotiations, our lawyers have obtained several jury verdicts in Maryland in excess of State Farm insureds policy limits. The car accident lawyers at Goldberg, Finnegan & Mester have obtained at least two jury verdicts in the last several months against State Farm insured drivers in which the verdict was well in excess of the insured's policy limits--both in Prince George's County Maryland. Our lawyers have also represented many individuals insured by State Farm with uninsured motorist coverage. When State Farm Insurance Company insureds are seriously injured and need the benefits of their uninsured motorist coverage, State Farm often will make a very lowball settlement offer thus forcing the insured into litigation or binding arbitration with State Farm. This is unfortunate.
The point is really a simple one. When the State of Maryland Emergency Roadside Assistance Vehicle comes up to your car after a crash and you see the State Farm logo and/or good neighbor message on the maryland highways, don't think that they are just philanthropic do gooders. State Farm made a business decision that this advertising campaign will save them money. If you are injured by a driver insured by State Farm Insurance Company, or if you are injured and have uninsured motorist benefits with State Farm, call the lawyers at Goldberg, Finnegan & Mester at 888-213-8140 for a free telephone consultation. For more information about uninsured motorist benefits in Maryland click here.
Yesterday our good friends David Kopstein and Barry Leibowitz obtained a verdict in a shoulder dystocia case in Manassas Virginia (Prince William County, VA). The Virginia jury verdict in this shoulder dystocia case was in the amount of $2.55 million. The case involved a 5 year old hispanic boy with a 5-level injury. We congratulate the family for having the courage to pursue the lawsuit and for the lawyers in obtaining a fantastic verdict. The challenges that a family with a severely disabled child with cerebral palsy or Erb's Palsy from shoulder dystocia face are long-term and, quite frankly, unimaginable to those who have not ever had to face these challenges. The best part about a shoulder dystocia/Erb's Palsy verdict in a case like this is that the child will have the money needed to obtain medical care to maximize his chance to live a more productive life. The lawyers at Goldberg, Finnegan & Mester are available to review birth injury cases including shoulder dystocia cases and cerebral palsy cases. We have two attorneys who are also registered nurses. This allows us to review birth injury cases for merit relatively quickly. There is no charge to have your case reviewed by our medical-legal team. While we hope that your family or friends are never impacted by serious medical negligence, we are always here should you need to talk with us.
Yesterday was Justice Day in Annapolis, Maryland and it was truly awesome. About 30 trial lawyers from the Maryland Association for Justice went to Annapolis and we visited our respective State Delegates and State Senators. I attended as a member of the MAJ Executive Committee and as the Immediate Past President of the Maryland Association for Justice. Not only was it an opportunity for Maryland personal injury lawyers to get to know their legislators, but it was also very informative. I met with my new Montgomery County Maryland State Delegate Aruna Miller (a transportation engineer) and with Delegate Luis Simmons (who, by the way is a great trial lawyer). I tried to meet several other Legislators but they were in committee meetings. The Maryland proposed Legislation that I hope passes this year includes House Bill 574 which would allow a jury to award punitive damages against certain high risk drunk drivers who cause injuries to people in Maryland car crashes. Right now punitive damages are not available against drunk drivers and the reality is that drunks just have their insurance companines pay for the damages they cause. This proposed bill would allow the jury to award punitive damages if the driver has a blood alcohol content of 0.15 or higher or if a BAC of .08 and the driver was driving on a revoked license. Clear and convincing evidence would be required and also insurance companies could exclude coverage for punitive damages awarded. To see a copy of this bill click here.. If you or someone you love is injured or killed as a result of a drunk driver in Maryland call us at 888-213-8140. We will fight hard to protect your rights.
Today there was a status conference with Judge Barbier regarding the status of this litigation. No major rulings were issued. However lots of information was presented which people may want to know about.
1. The first trial is set for February 27, 2012. This is the Transocean Limitations Trial. Judge Barbier is quite firm that this trial will go forward as scheduled and is pushing the parties to comply with the discovery deadlines so that this can happen. I think it is great news that Judge Barbier is adamant about moving this litigation along quickly.
2. The deadline for filing a claim in this case (Limitations Action) is April 20, 2011. Kudos to the Court and the PSC for making this easy to do with a simple form, and there is no filing fee. The plaintiff sterring committee indicated that they would like to use the services of an expert in giving official notice to claimants of this deadline. The forms necessary to join the MDL and to preserve your claim in the limitations action can be assessed at the Gulf Oil Spill MDL Website
3. There are currently about 349 cases in the MDL and about 40,000.00 claimants in the MDL.
4. GCCF Update: the Judge did not rule on the Motion to Supervise Ex Parte Contacts, but indicated that he will likely rule perhaps next week. In terms of GCCF statistics, about 479,000 claims have been filed, 395,000 of which are GCCF Claims on behalf of individuals and about 86,000 of which are claims on behalf of businesses. The GCCF claims to have paid out $3.3 Billion Dollars.
5. The deadline for fact depositions in the Gulf Oil Spill MDL is July 31, 2011. Expert discovery deadines will be after that date.
6. the next status conference for MDL 2179 regarding the BP Oil Spill is on February 25, 2011 at 9:30 am central time.
THIS IS NOT LEGAL ADVICE. JUST GENERAL INFORMATION. IF YOU HAVE A CLAIM RELATING TO THE GULF OIL SPILL DISASTER YOU SHOULD CONSULT WITH YOUR ATTORNEY ABOUT SPECIFIC DEADLINES RELATING TO YOUR PARTICULAR CASE. ALL CASES ARE DIFFERENT.
Set forth below is a white paper containng things for victims of the Gulf Oil Spill to consider before signing a final relase. Everyone's situation is different, but the legal claims arising from the Gulf Oil Spill are indeed complicated and I think it is a good idea for anyone considering a final settlement to at least consult with a Gulf Oil Spill lawyer. Read below for some additional thoughts and cautionary notes to consider before signing a final release with the Gulf Coast Claims Facility (GCCF).
Reasons Not to Sign a GCCF Final Release
The GCCF and Ken Feinberg have moved into the next phase of their efforts to settle the claims of as many Gulf Oil Spill victims as possible. Feinberg, is capitalizing on the victims' growing desperation in an attempt to settle claims as cheaply as he can, all while telling claimants that he is "more generous than any court." This paper explains why claimants must question the statements and actions of Feinberg and the GCCF regarding the settlement and final release of claims, and explain why any final settlement through the claims process helps BP and diminishes the rights of those affected by the spill.
• Feinberg's efforts are designed to save BP money. He is now stating publicly that he thinks that he can resolve all claims for only $10 Billion, half of the $20 Billion fund created by the White House and BP.
• While Feinberg has consistently stated that he will be more generous than any court, this statement has no basis in fact. His goal is to get claimants to settle for as little as possible, and his statements ignore the possibility of plaintiffs recovering punitive damages through litigation, and the fact that recovery could be made against a multitude of defendants.
• A person executing a final release of claims not only gives up any rights to recovery against BP, but also against ANY other possible defendant in the litigation. It is notable that the Final Release of Claims lists 120 potential defendants and responsible parties as being released from liability even though none are contributing to the settlement. Further, by executing the final release of claims, an individual gives BP the right to turn around and attempt to recover on his or her behalf for all the damages that person could have recovered in litigation from all of these responsible parties.
• By signing a final release of claims, a person not only releases his or her own claims, but also those of his family.
• Feinberg has used the fear of decades-long litigation to scare people away from filing suit. His comparisons to the Exxon-Valdez litigation are not accurate, and there is a significant possibility that the litigation will resolve before Feinberg's GCCF completes its claims process.
• The payment of interim claims is mandated under the Oil Pollution Act of 1990 (OPA); it is not a magnanimous gift or favor from Feinberg on BP's behalf. Further, OPA mandates that payment of these interim claims in no way affects or releases claimants' right to sue the responsible parties - but the GCCF is nevertheless urging claimants to accept a final payment and insisting on a final release of claims to terminate future rights.
• Feinberg is making the interim payment process as unappealing and frustrating as possible to push people towards final settlements.
• Feinberg's statements claiming an ability to calculate the long-term impact of the spill is not based upon any sound scientific understanding, but is another misleading statement designed to push people towards final settlement and release of claims.
• Feinberg simply cannot be trusted. Despite statements promising transparency in the settlement process, Feinberg's GCCF has been anything but. In fact, Feinberg has ignored repeated requests for information relating to his compensation from and agreement with BP, his internal GCCF claims handling and calculation procedures, and the GCCF's or BP's relationship with the designated "pro bono" firms, amongst other things.
• His efforts have been the equivalent of smoke and mirrors, and his language relating to the having the best interests of the claimants at heart, is just another ploy to get people to settle quickly and cheaply.
Ken Feinberg's efforts to push people towards a final release of claims are designed to benefit BP at the expense of the claimants. While Feinberg has repeatedly made statements and representations to the public that the claims process and final release of claims are in the best interest of those impacted by the Gulf Oil Spill, these are little more than a sales pitch to convince people to settle quickly and cheaply, and are not in fact calculated to fully compensate anyone for their losses. This paper is intended to provide arguments against executing a full and final release of claims and to counter the statements made by Ken Feinberg.
II. Ken Feinberg will NOT be "more generous than any court"
From the beginning of his involvement in the claims process, Feinberg's message has been consistent: utilize the claims process rather than litigation, because he would be more generous than any court. Unfortunately for those claimants who have already accepted a final payment and executed a final release, this statement has no grounding in fact. If the past is any indicator, filing suit is likely to prove much more lucrative than pursuing a claim with the GCCF. In the litigation following the 9/11 disaster, many litigants received more than double what 9/11 Victims Fund participants received for compensation from Feinberg. In addition, Feinberg's statements about generosity come without any clearly articulated scientific foundation or support for his ability to make a final determination as to what the long-term impact of this spill will be. He also neglects to address the fact that in litigation, plaintiffs will have the potential to recover punitive damages, not only against BP, but against a potentially large number of additional defendants. Further, if Feinberg truly intended to award claimants more than they would receive in a lawsuit, he would not be claiming an ability to settle all of the claims for $10 Billion (half of the $20 Billion fund), particularly since BP itself has been working to raise $50 Billion to cover its potential liabilities relating to the spill. Feinberg's goal is also BP's goal - to settle with claimants for the smallest amount of money they will accept.
Feinberg has proven that he is not above capitalizing on the growing desperation of those who have turned to his claims process for help. Feinberg created an arbitrary cut-off date for emergency payment applications of November 23, 2010. However, when the deadline drew near, Feinberg's GCCF simply denied everyone that submitted payments within the final days of the emergency claims period. There are numerous anecdotal stories of individuals who submitted well-documented claims at the end of this arbitrary emergency advance payment period being denied for lack of documentation. After denying 173,000+ claims, Feinberg then turned around and offered the increasingly desperate claimants a "quick-pay" no questions asked, final settlement offer of $5,000 for individuals, and $25,000 for businesses, right in time for the holiday season. At the same time, Feinberg announced other options available to claimants: they could submit paperwork in support of (1) a final lump-sum settlement payment, in exchange for a full and final release of all claims, or (2) quarterly interim payment requests that will not waive a claimant's right to sue BP or the other parties. These will be discussed each in their own section below. According to the GCCF's own website statistics, Feinberg only paid on 35% of claims applications. As of January 3, 2010, of the 469,226 GCCF claimants, Feinberg had only paid 167,923. All this while Feinberg has been getting paid $850,000 per month, which, according to Feinberg, is "totally unrelated to whether [he] process[es] 1,000 claims or one claim." These are hardly numbers that evoke an image of generosity.
III. The interim claims process is mandatory, and is not an accommodation by Feinberg
Feinberg has made a big deal about his decision to allow for an interim claims process wherein those claimants who submit periodic claims for interim relief will not waive their right to pursue litigation down the road. In an October 28, 2010, article in the Florida Tribune the following was reported:
Ken Feinberg, the independent administrator of the fund, had initially planned only to take so-called "final claims" after Nov. 23 which would require victims to waive liability in exchange for receiving a final compensation award. But Feinberg told Florida officials on Thursday that he was persuaded to change the policy after hearing from state officials who asked for a continuation of interim payments. He will allow interim payments for three more years.
This statement embodies much of what is wrong with Feinberg and the GCCF. Interim payments are not discretionary under the Oil Pollution Act of 1990 (OPA). They are mandatory, in fact, as Sec. 2705(a) clearly states:
The responsible party shall establish a procedure for the payment or settlement of claims for interim, short-term damages representing less than the full amount of damages. Payment or settlement of a claim for interim, short-term damages representing less than the full amount of damages to which the claimant ultimately may be entitled shall not preclude recovery by the claimant for damages not reflected in the paid or settled partial claim.
While an interim claims process is mandated by the OPA, and despite Feinberg's statements that he will "allow" for an interim claims process moving forward, it is apparent that the interim claims process will be needlessly frustrating and is set up for failure. This is because Feinberg and the GCCF have set up an interim system that they hope will push people into accepting final settlements. There are two points discussed in the GCCF website's Frequently Asked Questions section that underscore this troubling point. The first is that the GCCF will not provide any notice of deficiency for lack of documentation on interim claims; rather, losses will be determined solely by what is submitted. Compare this with the final lump-sum claims submission process, wherein the GCCF will notify the claimants of deficiencies in their submissions. This is extremely problematic, as it is an acknowledgment that Feinberg and the GCCF will potentially under-compensate large numbers of interim claimants. The second point is that interim claims, which can be submitted once quarterly for each claimant, may take as long as 90 days for the GCCF to process. This means that a claimant could be well into the next quarter before they see any relief. Compare this to the final quick-pay option, which will be handled, processed and paid within 14 days. Further, because of the GCCF is not providing notification of any deficient documentation, and there is likely to be substantial overlap of claims submission before payment, there is a danger of under-compensation for a period of six months or more. All of this is designed to push claimants towards a final settlement and release of claims.
IV. The dangers and pitfalls of the full and final release of claims
Feinberg has designed the GCCF claims process in such a manner as to encourage claimants to accept final settlement offers and execute the accompanying releases. His goal in doing so is to avoid litigation and settle claims against BP as quickly and cheaply as possible. However, claimants electing to pursue only interim claims need not waive their rights to pursue litigation, and it is important to communicate that there are numerous dangers in accepting a final lump-sum settlement in exchange for a full release of claims.
The acceptance of a final payment from the GCCF requires that the claimants sign a Release and Covenant Not to Sue. By signing this release, the claimant is not only giving up the right to seek legal remedy against BP, but against any and all parties connected in any way with the gulf oil spill. In fact, the release has an attached list of over 120 possible defendants, against all of whom a litigant could potentially recover. Not only does the claimant accepting final payment waive the right to pursue further legal action against any of these parties, but he waives the rights of his spouse, heirs, beneficiaries, and anybody else affiliated with him. The full and final release also precludes any future recovery for damages which are not now known, or which may only become knowable in the future. Additionally, the release subrogates the claimant's rights of recovery to BP, allowing BP to turn around and sue the other defendants, not only for the amount of the final settlement, but for the total recovery the claimant was entitled to. There is clearly incentive for the GCCF and Feinberg to settle with claimants as cheaply as possible.
It is also important for the claimant to understand that litigation provides more vehicles for recovery than a final settlement with the GCCF would. Those choosing to litigate their claims may be entitled to an award of punitive damages, which could significantly increase recovery over anything that Feinberg will offer. Further, taking the litigation route allows a plaintiff to bring claims against a number of defendants, not just BP. Instead of submitting to an arbitrary, secret claims handling process, plaintiffs are able to articulate their damages claims in front of the court, and have the opportunity to provide testimony on the same. Finally, rather than an appeal process only available to those claimants in the GCCF with claims valued at over $250,000, all plaintiffs in the litigation track have the right of appeal, if necessary. Feinberg is attempting to dissuade claimants from pursuing litigation against BP and the other defendants. However, there is no need for claimants to give up the right to sue by accepting a final settlement offer, and they should remember that litigation provides the opportunity for more appropriate compensation and protection of their rights.
V. Feinberg's fear tactics about litigation taking too long are untrue
Realizing that BP has much to lose in litigation, Feinberg has resorted to fear tactics concerning the length of time such litigation will take. On August 22, 2010, as he was set to take over the GCCF, Feinberg stated: "It's not in your interest to tie up you and the courts in years of uncertain protracted litigation when there is an alternative that has been created...I take the position, if I don't find you eligible, no court will find you eligible." On November 22, 2010, as he was preparing to begin the final lump-sum settlement period, Feinberg drew comparisons with the Exxon Valdez litigation as an example of what could happen should claimants choose to pursue litigation instead of settlement through the GCCF. Feinberg has implied that litigation will take many years, or even decades, unlike the claims process, which can offer final settlements (in exchange for a full release and subrogation rights for BP) quickly. This is not completely true, as there is a real possibility that the litigation will resolve before the three year window of the claims facility closes. There is a trial already scheduled for February 2012, with more to quickly follow. These early trials will provide significant guideposts for movement and resolution of the litigation in an efficient and expeditious manner.
It is misleading to compare the Exxon Valdez litigation to the gulf oil spill, despite the obvious fact that they both involve oil spilled by the wanton, reckless, and grossly negligent acts of large corporations in vulnerable coastal waters. There are several important points which must be made in cautioning against any comparison between the 20+ years of the Exxon Valdez litigation, on the one hand, and the Deepwater Horizon oil spill litigation on the other. First and foremost, OPA was enacted as a direct result of the 1989 Exxon Valdez spill, because congress recognized the need for improved legal recourse for victims of oil spills. The litigants in the Exxon Valdez litigation were limited to pursuing causes of action stemming from draconian and antiquated maritime law. The OPA was designed to make the process more equitable and provide an adequate recovery vehicle for victims of future oil spills. Second, a number of litigants in the Exxon Valdez litigation were able to quickly resolve their claims for a meaningful recovery. Finally, most of the litigation that lasted beyond the first few years was solely related to determining the amount of punitive damages for which Exxon was liable, the compensatory damages issues having already been decided.
Comparisons between the Exxon Valdez litigation and this litigation are not appropriate, other than to point out how much has changed since 1989. However, because of the overt factual and logical relationship between the two disasters, it is important to educate claimants as to why they do not need to fear a decades-long court battle, as was the case for some in Exxon Valdez. Further, Feinberg's claims that this litigation will take years can be countered by utilizing the interim claims process, which allows for payments of interim relief without waiving any rights of recovery in litigation. It is also possible that the litigation will resolve before the 3-year claims window closes at the GCCF.
VI. There can be no trust in Feinberg's representations where there is no transparency
Feinberg's repeated representations relating to his generosity, the superiority of the claims process over litigation, the rights of the claimants, the access of claimants to "pro bono" legal representation, and more are only effective if Feinberg has the trust of the public. To accomplish this, Feinberg has simply employed a strategy of repeating statements until they are accepted as true. Feinberg has provided little if any documentation to support the representations he has made regarding the claims process, his generosity, his relationship with BP, and a number of other issues that directly affect claimants' compensation through the fund. Despite repeated requests for transparency, and initial representations that the GCCF would be transparent, Feinberg has refused to produce this important information. Further, Feinberg has now identified a number of law firms in the Gulf States affected by the spill who will provide "pro bono" and "independent" legal services to claimants so requesting their help. It is believed that these firms are being paid either directly by BP or through the GCCF. Regardless, there is an inherent conflict of interest, and, by definition, these firms are not "pro bono" as they are being paid for their services. This is obviously problematic when viewed by trained legal eyes, as there is real possibility these firms of taking advantage of the less sophisticated and desperate claimants who are requesting free legal help in their dealings with the GCCF. Further, a simple look at the numbers does not lie. A rejection or denial of 65% of claims submitted to the GCCF, without any explanation as to the methodology employed in reaching these decisions, speaks volumes in and of itself. It must be stressed, repeatedly, that Feinberg is not telling claimants the truth -- not about how their claims are processed or handled, not about his relationship and agreements with BP, not about the lack of certainty as to the long-term impacts of the spill, not about what a full release of claims really means, and certainly not about what is in the best interests of the claimants themselves. Simply saying something is true doesn't make it so, and until Feinberg shows significantly more transparency in the inner working of the GCCF and all that entails, every statement he makes must be called into question.
Congratulations to John Kudel who is the President-Elect Nominee for the Maryland State Bar Association. Mr. Kudel is a top notch criminal defense lawyer in Montgomery County Maryland and he will do a fantastic job as the MSBA President. A few years back he was the President of the Montgomery County Bar Association. There is a really good article about Mr. Kudel's background in the Bar Bulletin Magazine which is the newspaper for the MSBA.
3 children have been seriously injured as a result of a house fire in Hyattsville, Maryland, and a 9 year old girl, Kimberly Hernandez, has been tragically killed. The incident occurred in the 4700 block of 40th Avenue which is in Prince Georges County Maryland. The fire broke out at about 4 in the morning. Our thoughts and prayers go out to Marcos Hernandez and his family. The fire is currently under investigation, but the initial reports from the Fire Marshall seem to be saying the fire was accidental. I would strongly suggest that the parents of the children injured in this fire consider hiring their own private investigators to look into the cause of this fire; and whether perhaps the landlord is responsible. Sometimes the fire departments in under funded Maryland Counties cut corners in their fire investigations and the evidence obtained is not complete enough to pursue a legal claim for personal injury as a result of the fire. Whenever there is a house fire like this, there are many questions that need to be answered. Did the Maryland house have working smoke detectors and batteries? Was there a sprinkler system in place? Did the house meet the requirements of the applicable building code and the Prince GEorge's County Fire Code and Building Code? Was the wood base of hte house made of an appropriate building material that could withstand fire? The House where this fire and these terrible injuries occurred is apparenlty a Sears Roebuck house which means that is probably a very old house that was flammable and made of wood. One must wonder whether the landlord properly maintained the house; and did the proper maintenance on such an old wood based home. Such Sears houses were built usually in the early 20th century (1908-1940 or so). It is important that the children of those injured in this PG County Fire do what needs to be done to preserve and document the evidence that will be needed to prove a negligence case down the road. A Maryland personal injury lawyer can be helpful with this.
My friend Wayne Willoughby wrote this excellent response to the tort reformers regarding the doctrine of contributory negligence in Maryland:
by Wayne M. Willoughby, Public Information & Legislative Chair of Maryland Association for Justice
As a new legislative session begins it is not unusual to find misleading op/ed pieces advocating positions that protect corporations from accountability for wrongful conduct. Nevertheless, "A Sneak Attack On Contributory Negligence?" (January 13, 2011) was unique in its audacity.
The authors, registered lobbyists speaking for Maryland Citizens Against Lawsuit Abuse (MDCALA) and the National Federation of Independent Business (NFIB), respectively, insinuated that "personal injury lawyers" are manipulating the Maryland Court of Appeals to abrogate the contributory negligence defense through a rule change.
This absurd charge is an insult to the seven Judges of Maryland's highest court, whose reputations for integrity and competence are unsullied, as well as the citizens and plaintiffs' bar of this State.
There is nothing nefarious about the Court's examination of contributory negligence, a legal doctrine that was created by judicial activism, not the legislature. Indeed, the highest courts in 12 states (Florida, California, Alaska, Michigan, West Virginia, New Mexico, Illinois, Iowa, Missouri, Kentucky, South Carolina and Tennessee) have already eliminated this judicially drawn-from-whole-cloth corporate defense tool.
The screed from MD's CALA and NFIB should come as no surprise, however, being lifted from the usual CALA playbook that relies on misinformation and over-the-top rhetoric. But when you're so busy carrying the water for special interests and corporate wrongdoers, it's more convenient to rely on scare tactics and junk science than actual facts.
Despite their claims, eliminating the contributory negligence defense would not undermine personal responsibility; it would advance personal responsibility. For example, under current law a corporation whose carelessness is 99 9/10 % responsible for injuring a person is not held accountable to anyone for its wrongful conduct if the injured person contributed in any degree (here 1/10th of 1%) to causing the injury.
If the contributory negligence defense is abrogated, then everyone would be accountable for their own bad conduct, including the injured, who would receive compensation proportionately reduced to the extent he or she was at fault for the injury. Eliminating the contributory negligence defense thereby promotes both justice and personal responsibility.
Moreover, the Henny-penny assertion the sky will fall on business absent the contributory negligence defense is nonsensical given that all but 5 jurisdictions have already jettisoned contributory negligence, including such business friendly/anti-litigation states as Utah, Wyoming, South Carolina, Nebraska, Kansas, South Dakota, Missouri, Texas, Oklahoma, and Delaware.
The MCALA and NFIB lobbyists were also less than forthcoming in their "open season" story about a woman who allegedly was attempting to commit suicide at the time she was injured. Obviously intending to frighten or shock readers, the authors failed to reveal that the $14.1 million New York City verdict about which they complained was thrown out on appeal and the case ordered dismissed with prejudice. In other words, the legal system worked even without the contributory negligence defense.
The contributory negligence defense is an unjust and antiquated doctrine that undermines personal responsibility. The Court of Appeals should be commended for undertaking a judicial review of this judicially created doctrine.
About two years ago the Maryland Court of Special Appeals issued a ruling holding that a hotel guests's negligence claim was barred as a matter of law because the guest assumed the risk of his injuries as a matter of law (the case was thrown out on summary judgment without a trial). In this case the plaintiff (the person who was injured and filed the lawsuit) slipped on black ice that he did not see as he stepped from the hotel curb onto an area of black ice and fell and was hurt. This accident occurred at the Residence Inn Hotel (owned by Marriott) in Ellicott City, Maryland. Should the Maryland hotel have been responsible for treating the walkway and curb? Absolutely! Was the Maryland hotel negligent? Absoulutely! However, as a result of this Court Opinion the hotel gets a free pass and is not accountable for its negligence. As a result of this opinion it is practically impossible to win a slip and fall on ice case in Maryland. Proprietors and businesses know this, and now they have less incentive to spend the money to properly treat and salt walkways and driveways at local businesses. I think that if someone slips and falls on ice a jury should consider all of the facts and circumstances and decide whether the injured person deserves compensation or not. Unfortunately, as a result of this Court Opinion, at least in Maryland just about all slip and falls on ice will be thrown out on summary judgment without a trial. Most plaintiff attorneys will not even take the cases. Do you agree or disagree with the holding in the Maryland premises liability case of Allen v. Marriott? If you want a copy of the opinion, email me at email@example.com and I will send it to you. In the State of Maryland, and in the Allen case, the judge took the issue of assumption of risk away from the jury and threw the case out on "summary judgment" in the Circuit Court for Montgomery County. The Court relied on a statement from Judge Bell when he explained that the test for whether a plaintiff has assumed the risk of injury is an objective standard that ordinarily should be decided by a jury but when the risk is fully known and understood, it may be decided by the court as a matter of law.
Congratulations to my friends lawyers Keith Mitnik and Alexander Clem who on Friday January 14, 2011 obtained a huge verdict of just under $19 Million dollars on behalf of an individual who was paralyzed in a motorcycle crash. Motorcycle accident cases are often tough beacuse many people have pre-conceived notions and biases against motorcycle riders. The truth is, though, that most motorcycle crashes are not just the fault of the motorcycle operator. In order to win a motorcycle negligence case in Maryland it is important to conduct an early investigation of the crash scene, and if possible to use a private accident reconstructionist. Don't just rely on the police accident reconstruction in a motorcycle crash case. Many police accident reconstructions are wrong. The lawyers at Goldberg, Finnegan & Mester have experience handling motorcycle crash accident cases.
On Friday January 14, 2010 there was a terrible fatal car crash on Canal Road in Washington, D.C. on Canal Road. The two people killed in the crash were Milos Milicevic and Radovan Volikic were driving a Jaguar near Reservoir Road. Their vehicle slid across the road and crashed into a pickup truck. This Washington, D.C. car crash is still being investigated. We all need to remember that in the winter the roads in Washington, D.C are going to be slick. This is due not only to the ice, rain, snow and precipitation, but also because there are quite often water main breaks due to lack of maintenance and the water on the roadway tends to freeze and create very dangerous conditions.
While I do not know for certain that this particular crash was caused by the negligence of the D.C. Government or the DC WASA, it is indeed a possibility. In order to make a legal claim for damages against the D.C. Government, a plaintiff must put the D.C. Government on "notice" of the claim within 180 days of the incident. Otherwise the claim will be barred forever by the doctrine of sovereign immunity. The notice given must compy with Section 12-309 of the D.C. Code. The statute provides that D.C. Code § 12-309 provides:
"An action may not be maintained against the District of Columbia for unliquidated damages to person or property unless, within six months after the injury or damage was sustained, the claimant, his agent, or attorney has given notice in writing to the Mayor of the District of Columbia of the approximate time, place, cause, and circumstances of the injury or damage."
The case law is very specific about what constitutes proper notice to the D.C. Government of a tort claim and what does not. The bottom line is that if you are contemplating filing a lawsuit against hte D.C. Government it is a good idea to hire a lawyer to help make sure that proper notice of the neglgience claim is given.
Today it was revealed that the pro bono lawyers Ken Feinberg and the GCCF are giving to victims of the Gulf Oil Spill are actually lawyers that represent BP. This is a shocking revelation about the GCCF and Ken Feinberg's true motivations.
When Ken Feinberg was first appointed to be in charge of the GCCF I thought it was a great choice. He had a track record for being fair with those injured in the 911 terrorist attacks and I had high hopes that he would be a fair administrator of the GCCF, and that he would give those most significantly impacted---fishermen, oystermen and small businesses located in the Gulf of Mexico, a fair shake. Unfortunately, he has been a complete disappointment. The problem is that he is not independent. BP is paying him at least $850,000 per month to administer the fund. The claims process is indeed complicated and those making any kind of significant claim would be well advised to get a lawyer who does not have any ties to Ken Feinberg, the GCCF, BP or the other Defendants. Another significant concern is that for those making a Final Payment Claim, a full release of economic damage claims must be signed. The problem is that the long term consequences of the Gulf Oil Spill are still unknown. Another concern is that in order to proceed with a court case under the Oil Pollution Act, the claim must be properly "presented" aka (Presentment) to BP which is the responsible party under OPA. Many unrepresnted individuals will present a claim to GCCF, but they may not meet the "presentment" requirements under OPA. Therefore, a private lawyer can be helpful in this regard. The claims process with GCCF is so convoluted at this point that I think that most people with any sort of significant claim due to the Gulf of Mexico Oil Spill should get a lawyer. There were first Emergency Payment Claims, now Interim Payment Claims and Final Payment Claims. THere are also quick pay options but only for those who already received an Emergency Payment claim. The documentation requirements for all of these claims is different. Our lawyers can help navigate this process.
Unfortunately a large poriton of the scientific community investigating the spill has been tied up with conflicts of interest and confidentiality clauses with BP. In fact, the same law firm that Mr. Feinberg appointed to provide claimants with pro bono representation advised BP on how to word their contracts with their scientists. For more information about the confidentiality agreements and how BP is paying off the scientific community for their silence, see this blog entry.
Our law firm represents individuals and businesses who have suffered losses as a result of the oil spill in the Gulf of Mexico. We will fight hard for you and your business and make sure that your claim is properly presented to the GCCF and that your damages are fully accounted for.
On Saturday January 1, 2010 a hospital worker was killed at Suburban Hospital which is located in Bethesda, Maryland. The man was identified as Roosevelt Brockington, Jr. and he worked at Suburban Hospital's facility plant operations as a a lead engineer. The cause of death has not been confirmed but there are unconfirmed reports that he may have been killed in the boiler room. Our thoughts and prayers go out to the family of Mr. Brockington.
The person who killed Mr. Brockington still has not been apprehended by the Montgomery County Police. the investigation is on-going and if you have information you can call 1-866-411-TIPS which is the Montgomery County Crimesolvers hotline (they allow you to leave anonymous tips).
When an individual dies while working in Maryland, even if it is the result of a criminal assault, the dependents of the individual are entitled to workman's compensation death benefits. Also it is possible that the next of kin and estate of the person wrongfully killed could bring a wrongful death claim against the person who was responsible for the attack. However, it is usually not possible to sue your employer for negligence. You can typically only recover workman's compensation benefits in Maryland. For more information about workman's compensation benefits in Maryland click here.
For more information about compensation for wrongful death claims in Maryland click here: wrongful death claims in Maryland
On January 1, 2011 a new law goes into effect that will affect those who want to fight moving traffic violations in the State of Maryland. Under this new law Maryland drivers who receive a traffic violation will have 30 days to request a court date if they are going to fight the ticket. This changes the previous law whereby the offender would automatically recieve a court date in the mail if the maryland traffic citation was not paid. Under the old law there was obviously a large number of Maryland drivers who would not show for their court date and many cases would have to be postponed. The Maryland State Policy (which only writes a fraction of the Maryland tickets) estimates that this change in the law could save as much as $500,000.00 per year. The Washington Post notes that in 2009 over $3.5 Million was spent for overtime pay to offficers for just sitting around in court.
The change in the law impacts citations such as speeding, failure to obey a traffic ticket and other minor moving violations. It does not change laws relating to "must appea violations" such as drunk driving or driving under the influence of drugs.
The new law's text is here