Maryland Injury Lawyers Blog

Although nothing in this post creates an attorney client relationship, here is some free advice to anyone injured in the Ride-On Bus Crash on Rockville Pike and Nicholson Avenue in Rockville, Maryland on April 22, 2013: Make sure you consult with an attorney and put Montgomery County on "Notice" of your claim as soon as possible. A personal injury lawyer can be helpful in making sure this is done correctly. Our law firm is handling claims arising from this bus accident and our preliminary opinion is that the crash was the result of the negligence of the bus operator and/or other employees of Ride-On (possible brake failure/negligent maintenance claims).

Call us at 301-589-2999 for a free personal injury consultation.

Ride-On is owned by Montgomery County Maryland. Therefore, injury claims against Ride On (or the bus operator) will fall under the Maryland Local Government Tort Claims Act which requires that proper notice be sent to the Montgomery County Executive by certified mail within 180 days of the bus crash.

Those injured in the crash should also notify their own automobile insurance company of the incident as there is a cap on claims under the Local Government Tort Claims Act of $500,000.00 per incident (for all claims) See Section 5-304 of the Maryland Local Government Tort Claims Act. . Since there were apparently about 12 vehicles involved in the collision, and likely numerous bus passengers injured as well, it is quite possible that the total value of all of the personal injury claims from the collision could exceed $500,000.00. In that case, those injured can make a claim with their own uninsured motorist carrier. Those injured in the crash should also make a claim for personal injury protection benefits (usually $2,500.00 but up to $10,000.00 in Maryland). A claim for Personal Injury Protection Benefits, also known as PIP benefits, requires that an application be filed with your own insurance company within a year of the incident. Our website has detailed information about Maryland Personal Injury Benefits and Maryland Uninsured Motorist Benefits.

Our law firm is handling claims arising from this Ride ON Bus Crash and we are happy to discuss your potential claim with you. We provide a free phone consultation, and if you hire us, there is no attorney fee or costs owed if there is no recovery in the case. You will never receive a bill from us. We only get paid if there is a recovery in the case. For more information call us at 301-589-2999 x102.

Nothing in this blog post creates an attorney client relationship. Our firm cannot and does not represent you in your particular claim unless and until a retainer agreement is signed with our law firm.

At Goldberg, Finnegan & Mester, LLC we know that after you have been in a car accident it is a very stressful time. In addition to having to recover from physical injuries, back pain, neck pain and whiplash, car crash victims have often lost their only means of transportation. Our personal injury law firm will do what we can to help you and your family through this difficult time. As a courtesy to our clients we are available to help resolve property damage issues, and in most cases there is no attorney fee at all for this.

Car accidents also often cause people to miss time from work. We will fight hard to recover your lost wages. Many people think that if they were paid for the time that they miss, then they do not have a lost wage claim. Generally speaking, if you miss time from work---even if you are paid for the time missed--you can make a claim for "lost wages" because in fact you are either losing wages or losing leave time. This legal concept is based on the "collateral source rule" which basically means that the person whose negligence caused the accident cannot benefit from the fact that one's employer gave them an employee benefit such as paid time off, paid leave or vacation time.

We recently received favorable feedback from one of our clients and we wanted to share this.

Attention to our friends in Maryland, Washington, D.C. and Virginia---- There have been 6 crashes in the last 72 hours at the entrance to northbound 495 between the Springfield Interchange and Braddock Road. The Washington Beltway (I-495) recently added several new express lane entrances to northbound 495, and as a result of this new roadway condition drivers are confused and making mistakes. You must have an EZ Pass to use the new express lanes. Apparently drivers are realizing that they need an EZ Pass, and then making abrupt lane changes and this is causing the accidents (Frankly, the roadway is not marked very well). PLEASE BE CAREFUL!

To address this problem the lane markings have been extended and crews are planning to add roadway markings as far out as a mile before the express lanes warning of the need for an EZ Pass in the left lanes.

The 6 crashes all occurred adjacent to the northbound express lanes near the Springfield Interchange and Braddock Road.

Anyone injured as a result of these new roadway markings should consider contacting a lawyer. We provide free telephone consultations to accident victims and there is no attorney fee unless we make a recovery for you.

This roadway project was undertaken by Virginia Transportation Department and two private companies named Transurban and Fluor. They say that the new design is to decrease congestion, but in my opinion it was done just to make more money off of the toll roads.

Call us at 301-589-2999 if you are involved in a car crash want a free phone consultation about your rights and what you should and should not do.

Do you have any idea how many fatal car accidents there are in the State of Maryland?

In 2010 there were just 493 fatalities in Maryland and this was 56 fewer than in 2009.

According to the MVA Website, between 2003 - 2007 there were 575-600 fatal crashes per year. In 2010 32,885 people died in car crashes throughout the USA. It is interesting to note that the number of fatal car accidents is actually going down in Maryland and throughout the USA. This is most likely because of enhanced safety features on vehicles, and less people are driving. It may also be due to the fact that fewer people are driving drunk. According to the federal government, drunk driving fatalities declined by about 4.9% in 2010.

If you or someone you love is involved in a fatal car crash in Maryland, there are things that you should do to protect your rights. Hiring a lawyer immediately after a fatal crash is a great idea, but many families do not do this because they are overwhelmed by grief and other stressors including planning the funeral. A lawyer can be helpful in making sure that a proper investigation of a fatal car crash is done. A lawyer can also evaluate whether the vehicle needs to be preserved to investigate a product liability case.

IF YOU ARE INVOLVED IN A MARYLAND CAR ACCIDENT ACCIDENT CALL US AT 301-589-2999 FOR A FREE PHONE CONSULTATION.

Families who lose loved ones in car crashes in Maryland should also know that there will almost always be $2,500.00-$10,0000 in Personal Injury Protection Benefits available, and this will be paid out as soon as the estate is set up. A lawyer can be helfpul in expediting this process, and many lawyers do not charge an attorney fee for helping with the PIP Claim.

In many car accident cases, we see severe injuries or even death, yet unfortunately the amount of insurance coverage available is insufficient to cover all of the damages. THe minimum amount of insurance coverage in Maryland is $30,000.00 per injured person and $60,000.00 per incident total. Therefore, there are many car wrecks where the victim has damages well in excess of the amount of insurance coverage available.

Just this week, a colleague of mine named Irwin Weiss published an article in Trial Reporter Magazine titled "Third Party Bad Faith: Getting More Than The Policy Limit." The article is well written and provides an excellent summary of the law governing third party bad faith insurance claims in Maryland. A few key points from the article are set forth below:

1. Maryland recognizes third party bad faith claims, and insurance companies owe a duty to their insured to use reasonable care in evaluating claims and settling cases within the available policy limits so as not to jeopardize the insured's assets. Sweeten v. National Mutual Insurance Co., 233 Md. 52 (1963); State Farm v. White, 248 Md. 324 (1967); Allstate v. Campbell, 334 Md. 381 (1994).

2. If an injured party obtains a judgment in excess of the policy limits of an insured, the cause of action for bad faith failure to settle the claim belongs to the insured and not to the injured party. Therefore, the injured party needs to obtain an assignment of the insured's bad faith claim in exchange for an agreement not to pursue the assets of the insured. The assignment procedure has been specifically approved by the Maryland Court's in Medical Mutual Liability Ins., Inc. v. Evans, 330 Md. 1 (1993). A lawyer can be helpful in properly obtaining the assignment of this bad faith claim, and our lawyers at Goldberg, Finnegan & Mester can be reached at 301-589-2999.

3. The damages in a third party bad faith claim in Maryland is the amount by which the judgment rendered exceeds the amount of insurance coverage. It is not clear whether an insured is entitled to emotional distress damages. Punitive damages are not available in Maryland unless it can be shown that the insurer acted with specific malice against its insured. Owens Illinios v. Zenobia, 325 Md. 420 (1992).

4. The factors considered in evaluating an insurance company's refusal to settle within policy limits are as follows: (i) severity of injuries/likelihood of verdict greatly in excess of policy limits, (ii) lack of proper investigation of accident, (iii) lack of skillful evaluation of plaintiff disability, (iv) failure of insurer to inform insured of a compromise offer within or near policy limits, (v) pressure on insured to make a contribution to settlement within policy limits as an inducement to settle, and (vi) actions demonstrating a greater concern for the insurer monetarty interest than for financial risk to insured. ( See State Farm. v. White).

5. It is important to hire a lawyer skilled and knowledgeable about how to proceed with obtaining compensation in excess of the policy limits. This includes hiring a lawyer who understands the importance and signficance of writing a "Bad Faith Letter" to the insurance company urging settlement within the policy.

Our team of lawyers has experience in handling bad faith claims in Maryland; and we will explore all options for locating additional insurance coverage and/or establishing bad faith so that compensation in excess of the coverage can be obtained. Of course it is not possible to obtain compensation in excess of the amount of coverage in every case. The important thing for those seriously injured to know is that they need to hire a lawyer who understands insurance coverage, bad faith, and knows how to increase the likelihood that full compensation for the injured party can be obtained.

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).

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.

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.

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

The Maryland Automobile Insurance Fund (MAIF) has two roles--the first is to provide insurance to people who are turned down by other insurance companies. The second, more important function is to provide basic insurance coverage when there is no other coverage available. This is known as Unsatisfied Claim and Judgment (UCJ). Here are two common scenarios:
Scenario 1: An uninsured driver runs a red light and hits a pedestrian lawfully in the crosswalk. Because the driver didn't have insurance, the pedestrian may be able to make a claim through MAIF.
Scenario 2: An unknown driver cuts off an MTA bus, causing the bus to swerve into another vehicle. The negligent driver is never found. People injured on the bus may be eligible to make a claim through MAIF.
As you can see, a MAIF-UCJ claim can be made when the negligent driver's insurance cannot be found or does not exist. It may also apply where the other driver is from out-of-state, and has lower coverage than MAIF. Importantly, MAIF will not provide coverage where the injured person has available insurance, usually in the form of uninsured/underinsured motorist coverage http://www.marylandinjurylawyersblog.com/2012/01/protect-your-family-before-a-m.html (which we recommend--MAIF has very low limits, and we see many people who have medical bills that far exceed the $20,000 minimum).
Amount of Coverage
MAIF provides a maximum of $20,000 per person, and $40,000 per accident for UCJ claims. There is currently a bill before the Maryland legislature to increase these minimums to $30,000/$60,000, which would put it in line with the minimum insurance coverage for Maryland drivers.
Preserving your Rights
UCJ claims are one situation (the other is a claim against a local, state or federal governmental entity) where the victim absolutely should not delay in seeking a Maryland auto accident lawyer. http://www.gfmlawllc.com/lawyer-attorney-1666190.html The reason is that there are strict deadlines governing notice to MAIF. A person who intends to make a MAIF claim usually must present very specific information to MAIF within 180 days (roughly six months) of the accident.
The MAIF-UCJ rules are located in MD. CODE ANN. INS. § 20-601, et seq. Here are some things that are typically required (specific requirements may vary from case to case):
• Proof that the claimant is not eligible for uninsured motorist benefits through his own policy or a policy issued to a family member in the claimant's household
• Certification by the claimant's employer of all lost wages up to the date of the notice
• Evidence of all medical expenses and medical reports up to the date of the notice
• All police or accident reports
Additionally, Maryland Rule 15-804 http://www.lexisnexis.com/hottopics/mdcode/ requires the claimant to request a stipulation from MAIF that the claimant fulfilled all of the procedural requirements before being allowed to file a lawsuit. If the claim is against an unknown ("phantom") driver, the claimant may file a lawsuit against MAIF directly. If the driver is known, the lawsuit must be filed against that driver only, and MAIF will then intervene in the lawsuit.
Contact Us
If you have been involved in a hit-and-run accident, or if you have been in an accident with an uninsured driver, contact our lawyers at 1.888.213.8140, or online http://www.gfmlawllc.com/lawyer-attorney-1662537.html. Remember--there are strict deadlines about MAIF UCJ claims. If those deadlines are not met, you can be forever barred from making a claim for your injuries.
For More Information
• More on Maryland Hit-and-Run Auto Accidents http://www.gfmlawllc.com/lawyer-attorney-1666645.html --steps you need to take immediately after the accident
• More on Uninsured/Underinsured Motorist Coverage http://www.gfmlawllc.com/lawyer-attorney-1666695.html--how it can help to protect you and your family
• Maryland Automobile Insurance Fund website https://www.maif.net/emaif/home.html

It looks like Michigan may become the 31st state in the Union without a mandatory motorcycle helmet law for all riders. Michigan passed one of the first laws requiring helmets back in the 1967, repealed it in 1968, and reenacted it in 1969. A recent bill overturning that law just passed the state legislature, and is awaiting signature by the Governor.

The Michigan bill, if enacted, would require helmets only by riders over 21-years-old, and requires motorcycle riders to have $20,000 in no-fault PIP insurance (which would pay for up to $20,000 of the driver's medical bills following an accident).

There are competing concerns: One the one hand, some motorcyclists want the freedom "to ride with the wind in one's hair." On the other hand, proponents of mandatory helmets want to protect people who aren't going to protect themselves, and don't want to have to pay for people who are injured in motorcycle accidents and become burdens on taxpayers.

Some people believe that this is just another example of the government getting its mitts into things that it should leave alone. On the whole, those people believe that if a motorcyclist chooses to ride without a helmet, the only person who could be hurt is the rider.

The reality is, like mandatory seatbelts, motorcycle helmets save lives and often prevent devastating injuries. Before long, guess who is paying the bill for motorcycle riders who are injured without helmets? You and me. What about the family members who depended on the motorcyclists job? If they have to receive public benefits, who has to pay that bill? You and me. Not to mention that a needless death or injury is, quite frankly, needless and often preventable.

The Michigan Office of Highway Safety Planning anticipates that repealing the mandatory helmet law will result in 30 more deaths and 127 more incapacitating injuries every year.

In Tennessee, where the legislature also considered a repeal of the mandatory motorcycle helmet law this year, Vanderbilt University Medical Center's doctors had something to say: don't do it. They expect that a repeal would result in an additional $1.3 million per year for health care in trauma centers alone. That doesn't include the additional medical care required--sometimes the lifetime of medical care required.

So, you can see which end of the debate we are on. We don't like excessive government, either. But this is legislation of common sense, and it protects more that it hurts. We support these rules, and we're glad that our states have them.

All motorcycle riders in Maryland, the District of Columbia, and Virginia are required to wear helmets. This could change--there is momentum in other states to remove that common-sense restriction. If these bills ever come to our state legislatures, we will be at the front of the line to stand up for safety.

For More Information

• Michigan Radio: Michigan helmet law repeal, bad idea?
• Summary of helmet laws in the United States
• American Journal of Public Health: Paternalism & Its Discontents: Motorcycle Helmet Laws, Libertarian Values, and Public Health
• Maryland Motorcycle Accident Lawyers
• Virginia Motorcycle Accident Lawyers
• District of Columbia Motorcycle Accident Lawyers

The big push on distracted driving right now is obviously cell phones and text messages. There probably hasn't been a bigger distracted driving danger to motorists since the advent of the drive-thru.

Whether you are a worker who missed lunch is and is rushing to his next meeting with a hamburger in your lap; a parent of two toddlers trying to keep them in control while steering your car, or a teen or professional trying to send a quick text while driving at 55 mph, we have all been distracted drivers. Hopefully we've been lucky until today. But after today, we should count on more than luck.

Sign A Pledge
April is Distracted Driving Awareness Month. This is the time to make a promise to ourselves and our families. We will not drive distracted. We will stop text messaging while in the car. We will only use a hands-free phone device while driving (and, if you want to promise to not use the phone at all while driving, so much the better!). At a minimum, we will comply with our state's laws on cell phone use (click here to find out what Maryland's laws are). If you want a little boost, sign a petition. There are a million of them online, including one by Oprah (over 423,300 signatures!).

Don't stop at the pledge. The next time you are at a red light, watch the drivers next to you, and the drivers passing in front of you. When I count, there is an average of 22% who are illegally using their cell phones. Clearly, a law prohibiting specific types of cell phone use is not enough. We must make change by social pressure. As kids, informed by our teachers of the dangers of driving without seatbelts, we pestered our parents. Our parents now wear seatbelts. If it's true that most automobile accidents happen within a few miles of home, the lives we save could be our own.

Distracted Driving Statistics (courtesy EndDDD.org)

• 80% of collisions are caused at least in part by distracted driving
• Cell phone use is the cause of 18% of distracted driving deaths
• Drivers who talk on a cell phone are four times as likely to be involved in a crash
• Drivers who text are 23 times more likely to be involved in a crash
• The Department of Transportation estimates that, in 2009, there were at least 5,474 deaths and 448,000 injuries involving distracted driving

For More Information

• AutoWeek.com: List of good links to websites about distracted driving. See their phenomenal advertisements, too.
• Are car voice controls dangerous?
• Maryland Laws on Distracted Driving
• Virginia Distracted Drivers Will Likely Be Required to Give Up Texting
• Poll on types of distracted driving

Most private health insurance companies (as well as state and federal benefits, like medical assistance and Medicare) have an agreement with their insureds: We'll pay medical costs related to your Maryland auto accident, but if you get paid in a lawsuit or settlement, then you have to pay us back. This is called subrogation.

It makes sense, and here's why. Maryland has what's known as the collateral source rule. This is a rule about evidence. It says that if I receive the value of services or goods to compensate me for an accident, I can still recoup the value of the services or goods from the negligent driver.

The Maryland Civil Pattern Jury Instructions state the collateral source rule as it is usually read at trial:

In arriving at the amount of damages to be awarded for past and future medical expenses and past loss of earnings, you may not reduce the amount of your award because you believe or infer that the plaintiff has received or will receive reimbursement for or payment of proven medical expenses or lost earnings from persons or entities other than the defendant, such as, for example, sick leave paid by the plaintiff's employer or medical expenses paid by plaintiff's health insurer.

Here are some examples:

• Example One: Maryland car accident. I go to the hospital, and incur $2,500 in medical bills. My health insurance company, pursuant to their agreement with the hospital, pays $2,000, and the hospital writes of the remainder pursuant to their agreement with my health insurance company. I file a lawsuit against the negligent driver, I am allowed to claim the full $2,500 in medical expenses. The negligent driver cannot tell the jury that I did not actually spend $2,500 in medical expenses.
• Example Two: Maryland car accident. I go to the hospital, and incur $2,500 in medical bills. Because I timely paid my premiums, my automobile insurance policy pays the hospital $2,500 through my Personal Injury Protection (PIP) insurance. That brings my medical expenses down to zero. At trial, I can still ask for the full value of those medical expenses, and the jury may award me $2,500 for my medical expenses, even though I did not make any out-of-pocket payments.
• Example Three: Maryland car accident. I need a leg surgery, valued at $15,000. My brother happens to be orthopedic doctor. He does the surgery for free. At trial, I can still ask for the full value of the medical expenses, and the jury may award me $15,000 for the surgery, even though it did not cost me a penny.

Not all states have the collateral source rule, but it is a good idea for the following reasons:

• Windfall: The negligent driver should not "win the lottery" and avoid paying for the results of his negligent simply because my medical treatment is somehow taken care of. As between the negligent driver and me, the negligent driver should bear the burden of paying for medical expenses caused by the accident.
• Insurance Premiums: If my medical care is paid for by PIP or by my health insurance, it is not really free to me. I pay a premium to carry that insurance, and the negligent driver should have to pay for the medical care.
• Attorneys' Fees: In the American style of lawsuits, each party usually pays his or her own attorneys' fees. This means that in most civil cases like auto accidents, if the injured person gets paid back 100% the value of his claim (medical bills that he had to pay, lost wages, etc...), he is not really "made whole." That is because he probably had to pay a lawyer to recover what was owed to him. He probably paid his lawyer between one-third and 40% of the settlement or verdict. Because of the collateral source, the victim is a little closer to being made whole--the victim gets paid for some amounts that he may not have actually made payments for.

Many automobile insurance companies take advantage of victims who have not hired an attorney--they won't tell victims about the collateral source rule (truthfully, some insurance adjusters don't even know about the rule), and will try to convince victims that they can only recover for their out-of-pocket medical expenses, like co-pays and maybe deductibles. Victims who settle for those amounts are not getting the full value of their claims.

Back to health insurance: because most health insurance companies require victims (who get money in a settlement or verdict) to pay them back for medical expenses, it is fair for the victims to be able to recover the value of those medical expenses from the negligent driver.

One good reason to hire an attorney for an auto accident case is that the attorney will usually be able to negotiate with your health insurance company. The goal is to twofold: (1) to make sure that the insurance company's lien doesn't include medical treatment that was unrelated to the accident; and (2) to reduce the insurance company's lien by at least one-third. The reduction in the lien also makes sense--the victim had to pay an attorney to get his money; it doesn't make sense for the health insurance company to get his money without the same "cost."

Contact Us
If you have questions about how much you must pay your health insurance company after a Maryland, Virginia or D.C. automobile accident, call our attorneys at Goldberg, Finnegan and Mester at 1.888.213.8140, or contact us online for a free consultation.

For More Information

• More on PIP and other Maryland car insurance
• PIP in Bicycle Injury Accidents
• Medical Treatment after a Maryland Automobile Accident

Maryland has made regular and substantial changes in the law on cell phone use by drivers. Cell phone use is getting the same attention that drunk driving historically has, and rightfully so--it is a major cause of injury-producing and sometimes fatal Maryland automobile accidents. The rule right now for most drivers in Maryland (there are different rules for commercial interstate truck drivers; and drivers under 18 are not allowed to use cell phones for any purpose while driving) is that phone calls must use a hands-free device, and writing or reading e-mails or text messages is prohibited.

National Statistics

• Cell phone use is responsible for 1.6 million crashes per year (28% of all crashes) (National Safety Council)
• More than one-third of drivers admit texting or e-mailing while driving in the previous month (AAA Foundation for Traffic Safety)
• Using a cell phone while driving quadruples your risk of crashing (AAA Foundation for Traffic Safety)

Maryland Statistics (between October 2009 and September 2011)

• 587 warnings/379 citations for driving while texting
• 4,021 warnings/5,227 citations for failure to use hands-free phone while driving
• 2010: 496 traffic fatalities

History of the Current Laws

• October 2009: Maryland Legislature prohibits the writing or sending of text messages while operating a motor vehicle in motion or in the travel portion of a roadway. Violations are misdemeanor crimes punishable by a fine of up to $500.
• October 2010: Maryland Legislature prohibits drivers from talking on cell phones without a hands-free device. Violation was a secondary offense, meaning that lawbreakers could only be pulled over if they were violating some other law at the same time (for example, speeding). First offenses are punishable by $40 fine, and subsequent offenses are punishable by $100 fine. There are no points for a first offense (unless the violation contributed to an automobile accident, in which three points are assessed); and one point for subsequent offenses.
• October 2011: Maryland Legislature makes the writing, reading or sending of text messages or e-mails a primary offense. First offenses are punishable by $70 fine, and second offenses are punishable by $110 fine.

Your Choice
Our Maryland auto accident lawyers have seen first-hand the destruction and devastation that can be caused by distracted driving. We encourage all drivers to put the phone down while driving, and to follow Maryland law. If you believe that you have been the victim of a distracted driving accident, contact us at 1.888.213.8140, or online for a free consultation.

For More Information

• Virginia Distracted Drivers Will Likely Be Required to Give Up Texting
• National Safety Council

Last week the Maryland Court of Appeals examined a school bus versus tree accident in District of Columbia v. Singleton. Here's the setup:

The plaintiff and his son were riding on a school bus for a field trip to Six Flags. The Plaintiff fell asleep and awoke when the bus was airborne, right before it crashed into a tree. The plaintiff's son didn't know what happened. The plaintiff didn't know why the bus left the road.

The case proceeded to trial--the plaintiff wanted to prove his case using a legal doctrine known as res ipsa loquitur, which all law school students know is Latin for "the thing speaks for itself" (sidenote: the classic res ipsa case that all law students learn about is from 1863 where a barrel of flour rolls out of a building and hits a pedestrian; picture courtesy of www.realmagick.com). What that means is that the plaintiff believed the very fact that the bus was involved in a single-vehicle accident means that it is most likely true that the bus driver was negligent and caused the collision. The plaintiff's case was short--he testified that he didn't know how the accident happened, and he put on some witnesses to talk about the extent of his injuries.

The trial court dismissed the case, holding that the plaintiff's case could not rely on res ipsa. The case was appealed to the Court of Special Appeals, which reversed the trial judge's decision. The Court of Special Appeals ruled that "the failure to maintain control of the vehicle presents a prima facie case of negligence." The Court of Special Appeals agreed with the Plaintiff--if the bus left the road, the automatic assumption is that the bus driver was negligent. If something else caused the collision, it was up to the bus driver to raise it as a defense.

The case was again appealed, this time to Maryland's highest court, the Court of Appeals. The Court of Appeals reversed again, agreeing with the trial judge. The rhetoric of the opinion casts aspersions on the plaintiff for failing to come up with more information--it is difficult to know if the Court would have come out the same way if the plaintiff presented other inconclusive evidence. The Court seemed to want the plaintiff to present testimony from some of the eyewitnesses, the other bus passengers, the emergency responders, or even the police report. The reason none of that was presented, presumably, is because none of it shed any light on the situation. My bet is that the other passengers weren't paying attention; the eyewitnesses probably only saw the crash, and didn't know if there was any other reason for it; the police report may not have had any admissible evidence (police reports are not usually admissible, except for very limited purposes).

I suspect that, even if the plaintiff presented a whole host of inconclusive evidence, the Court would have ruled against him. It cited a Connecticut case where a passenger sued the estate of the driver (who probably died in the collision). There, the court ruled that, because of a lack of evidence, res ipsa did not apply. This is counterintuitive, because res ipsa is supposed to apply precisely when there is no other evidence of cause or fault.

Here is what is required to use res ipsa in a Maryland car accident:

• The accident is of a kind that does not ordinarily occur absent negligence;
• The accident was caused by an instrumentality exclusively in the defendant's control; and
• The accident was not caused by the plaintiff.

So, this case "clarifies" the state of law--if a plaintiff wants to prove a single-car collision using res ipsa, here is a checklist of things that might make the Court more likely to believe the plaintiff:

• Call other witnesses, even if they have nothing to add. The very fact that a witness did not see any reason for the collision, by itself, may help the judge or jury to understand that there is unlikely to be any other cause of accident. In particular, the plaintiff should get testimony from any witnesses who can comment about whether they say other cars on the road near the crashed vehicle.
• Get the police report into evidence, or at least try to get it in. At a minimum, the report may clarify that there were no witnesses, or that the police officer saw no other reason for the collision.
• Call the investigating police officer to talk about whether there was any information (statements from the defendant or other witnesses) about how the accident happened. The police officer should also testify about the weather conditions, the skid marks (evidence that the driver was going too fast, perhaps?), the nature of the road, the condition of the vehicle after the accident (was there a pre-collision tire blow-out?) and the speed limit.
• Present information about the condition of the vehicle: show that the vehicle had been well-maintained, and some defect was not likely the cause of the collision.
• Call the driver: The plaintiff should consider calling the driver to testify in the plaintiff's case-in-chief, even if he does not know why the accident happened. Care should be given, though, if the driver is blaming the collision on something other than negligence.
• Get the driver's medical records to prevent the driver from claiming that a sudden medical emergency was the cause of the collision.

My sense from the opinion is that the Court would have felt better about plaintiff's claim if he had explained the lack of other evidence about the crash. It's not clear if that would have been enough to get the case to a jury, but it would have given the plaintiff a better chance.