Maryland Injury Lawyers Blog

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.

Families of those who lose a loved one often want to know what the value is of the legal claims that can be brought against those responsible for the death. How in the world can anyone put a value on someone's life? Therefore, at the outset, I am reminded of some words of wisdom that one of Maryland's top mediators has occasionally bestowed upon my clients at mediations involving the death of a loved one:

"We are not putting a value of your son's life, we are discussing the value of this particular lawsuit. There is a big difference."

In my opinion, the value of most wrongful death claims in Maryland is at least the applicable cap on damages plus any proven economic losses. Of course this value can change if liability is in dispute, if there is limited insurance coverage, or, in extremely rare circumstances if punitive damages can be established and collected.

A few things additional things to consider:

1. The value of wrongful death claims in Maryland is limited by tort reform. Maryland has a cap on non-economic damages. For personal injury cases such as car accidents and slip and falls, the cap is approximately $755,000.00 for any single claim, and the cap is about $1,132,500.0 for all wrongful death claims with 2 or more beneficiaries. Therefore, the amount that can be recovered in any wrongful death case is limited to economic losses sustained plus the cap.

In 2005 there was a special legislative session held, and additional tort reform was passed further limiting non-economic damages in medical malpractice cases that result in death. For medical malpractice cases in Maryland, the cap on non-economic damages for claims arising after 1/1/12 is $710,000.00 for an individual claim, and $887,500.00 for all wrongful death claims.

2. Insurance Coverage. Often times, the value of a wrongful death claim is limited by the amount of insurance coverage the "at fault" party has. Hiring an experienced wrongful death lawyer is important because we are trained to try to identify additional theories of liability and additional defendants which can trigger additional insurance coverage. For more information about this, see an Article I wrote for other attorneys titled Not so Fast...Don't Accept A Low Policy Limits Settlement Offer For Your Catastrophically Injured Client. DOCKG Summer 08trialreparticle.pdf

3. When a person dies in Maryland, multiple claims arise. The estate of the person who dies can bring a survival action on behalf of the individual for funeral expenses, economic losses and pain and suffering that the decedent suffered between injury and death. This survival claim is brought by the Personal Representative of the Estate of the person who died. In addition to the survival claim, the spouse, children and parents of the deceased person each have an individual "wrongful death claim." These "Maryland Wrongful Death Claims" are statutory claims governed by Section 3-904 of the Courts and Judicial Proceedings Article of the Maryland Code.

4. The statute of limitations for wrongful death cases in Maryland is 3 years from the date of death. There is a statutory exception to this rule is for "occupational disease" contracted in the workplace (e.g. asbestos cases). In those cases the statute of limitations can be extended to the shorter of 10 years from the date of death or within 3 years of the date when the cause of death was discovered. TO BE SAFE, ASSUME THAT THE STATUTE OF LIMITATIONS FOR ANY MARYLAND WRONGFUL DEATH CLAIM IN 3 YEARS FROM THE DATE OF DEATH.

5. Choice of Law Can Have A Huge Impact On Case Value. If a Maryland resident dies as a result of a wrongful act that occurs in another State, the Maryland Court will apply the law of that State. This is important because Maryland's neighboring States-Washington, D.C. and Virginia-do not have a cap on non-economic damages in personal injury cases (note: Virginia does have a cap on damages in Medical Malpractice cases). A good wrongful death attorney can help determine whether there are any ways to get around Maryland's cap on non-economic damages by either filing in another state or getting the Maryland Courts to apply another state's substantive law.

6. Punitive Damages: It is nearly impossible to get punitive damages in a wrongful death case based on negligence in Maryland. Generally speaking, the only way to get punitive damages in Maryland is to prove that the act that caused the death was intentional. A problem can arise because once a lawyer establishes that the negligent act was intentional, the liability carrier may take the position that there is no insurance coverage. Unlike many other states, punitive damages are extremely rare in Maryland.

Conclusion: When a loved one dies as a result of someone else's negligence in Maryland, it is important to discuss the legal actions with a personal injury lawyer familiar with Maryland's wrongful death law. The value of wrongful death cases in Maryland is often limited by Maryland's cap on non-economic damages, and by limited insurance coverage. Our job, as Maryland personal injury lawyers, is to help the families of those who lose a loved one to maximize the damages that they recover.

a tractor trailer carrying a large load of lumber overtured on the road in Suitland Maryland near Camp Springs. The road has been closed as a result of this truck accident. Fortunately, it does not seem that there were any serious injuries as a result of this incident. Tractor Trailer accidents in Maryland typically cause very serious and life threatening injuries. Anyone injured as a result of a truck accident should be sure to hire an attorney right away. Truck companies and their insurance companies are well known to play games with the investigation after a serious truck accident. Plus, there are federal regulations that only require truck drivers to keep their driver logs showing hours on the road and hours of rest for a very short time unless a proper preservation of evidence request is sent. These driver logs can contain key evidence that can establish a basis for punitive damages in truck crash cases. After a serious truck accident in which people are injured, truck companies and their insurance companies almost always retain a law firm immediately and will try to get to witnesses first to get statements that help their interests. Truck companies will almost always hire a private accident reconstructionist to gather evidence if it helps the truck companies case, but to be sure evidence is not preserved if it does not help the truck company's case. That is why it is so important that victims of tractor trailer negligence hire a law firm experienced in handling truck crash cases right away----so that your case can be investigated on even footing with the tractor trailer company.

There was a very serious carbon monoxide leak at Second Genesis which is a drug treatment facility located in the Columbia Heights area of Washington, D.C. Over 40 individuals were taken to the hospital. It has been reported that the CO levels in the building were as high as 600 ppm (parts per million). This is a very high level of Carbon Monoxide, and anyone who was in the building should be evaluated by a medical professional. Executives from Second Genesis were interviewed by Fox News and indcated that there were not carbon monoxide detectors in the building. This is outrageous and inexcusable, and will likely lead to exposure for punitive damages. Apparently the leak started in the boiler room and possibly involved the furnace and/or a clogged water heater.

Individuals exposed to Carbon Monoxide often develop permanent brain damage and other very serious injuries. Those exposed should contact a doctor immediately as Oxygen therapy and other medical treatments can reduce the long-term damages to the body. Individuals exposed (second genesis workers and patients) shoudl also contact an attorney to discuss their legal rights. Patients have claims against the facility for medical malpractice and common law negligence. Second Genesis employees also should seek legal counsel because they have viable workman's compensation claims in addition to third party negligence claims. Symptoms of Carbon Monoxide poisoning include headaches, dizzyness, nausea, fatigue, agitation, visual changes, fainting and flu like symptoms. Those who were at Second Genesis should make sure that they get a blood test TODAY OR AS SOON AS POSSIBLE to deterimne the level of CO in their blood. Our lawyers are available to discuss potential legal claims for those exposed to Carbon Monoxide at Second Genesis on Harvard Street in Washington, D.C. We can be reached at 888-213-8140.

Just yesterday Judge Barbier, the Federal Judge overseeing the Gulf Oil Spill Litigation MDL, denied most of the Defendants motion to dismiss. The order applies to all private party plaintiffs (not to governments) who are claiming economic losses because of the spill. I believe that this will be seen as a victory for the plaintiffs in this litigation. A copy of the Memorandum Opinion is attached hereto for those interested in reading it.Order Motion Dismiss B1.pdf

First of all it is important to understand that a Motion to Dismiss tests the legal sufficiency of the Lawsuit. The Court will accept all factual allegations made in the Complaint as true and must also draw all reasonable inferences in the plaintiff's favor at the Motion to Dismiss stage.

For More information about the Gulf Oil Spill Case contact attorney Kevin I. Goldberg at 888-213-8140. Mr. Goldberg is representing claimants in conjunction with the law firm of Finckbeiner & Robin in Louisiana.

First the Judge Ruled that Maritime Law applies to this case because the explosion and oil leak occurred in the outer continental shelf on hte high seas. The Court ruled that the Deep Water Horizon and the Blow Out Preventer extending to the ocean floor was, in its entirety, a "Vessel" It should be noted that the only Defendant that argued it was not a "vessel" was Cameron. The Court simply did not buy into Cameron's argument.

The only portion of the opinion that went against hte plaintiffs is the fact that plaintiffs state law claims for negligence, trespass and fraudulent concealment were dismissed (see p.8 of hte opinion). The Court ruled that since maritime law applied, state law claims were preempted. The Plaintiffs argued that the state law claims could supplement maritime law claims. Simply stated, the Court rejected the plaintiff's argument.

The Defendants including BP, Transocean, Haliburton and others asked the COurt to dismiss all of the plaintiff's non-Oil Pollution Act Maritime law claims. The Court basically took a middle of the road approach and applied a well known and broadly applied rule known as Robins Dry Dock from a 1927 U.S. Supreme Court Case and dismissed all general maritime law claims except for those alleging a physical injury to propery/proprietary interest. The Robins Dry Dock Rule basically says that you cannot claim damages for purely economic losses unless you allege a physical injury to your property or proprietary interest (There is an exception for commerical fishermen that applies to the BP Litigation). The claims of Commercial FIshermen were not dismissed because Commercial FIshermen have always been an exception to the Robins Dry Dock Rule. A SIGNIGICAN WIN FOR THE PLAINTIFFS IS THAT THE COURT IS ALLOWING GENERAL MARITIME LAW CLAIMS OUTSIDE OF THE OIL POLLUTION ACT AGAINST NON RESPONSIBLE PARTIES FOR COMMERCIAL FISHERMEN AND OTHERS WITH A PHYSICAL IMPACT TO THEIR PROPERTY. General Maritime Law Claims against BP (The "Responsible Party Under the Oil Pollution Act) were dismissed however. The Court said " General Maritime Law Claims that existed before OPA may be brought directly against non-Responsible parties." (p.26).

Judge Barbier also specifically recognized that punitive damages under general maritime law will be permitted. This is another huge victory to the plaintiffs and will likely be a huge concern to the defendants who now have more exposure than they would have had if punitive damages were not permitted. THis is especially true because many insuance policies exclude punitive damages and these verdicts will have to be paid out of corporate bank accounts directly. The Court said "OPA does not displace general maritime law claims for those Plaintiffs who would have been able to bring such claims prior to OPA's enactment." Claims for Puntiive Damages, the Court went on to explain, can be made against responsible parties under OPA and non-responsible parties.

As expected the Court ruled that plaintiffs must make "Presentment" under the oil pollution act, but the Court did not dismiss those claims that had not yet made presentment. THe Court explained "The Court finds that Plaintiffs have sufficiently alleged presentment in their B1 Master Complaint, at least with respect to some Claimants." The Court chose not to engage in the process of sorting through thousands of individual claims to determine who has properly made presentment and who has not at this time. (Stay tuned though---this will be a significant issue down the road).

Another area considered a big win for hte plaintiffs is that the Oil Pollution Act claims for Vessel of Opportunity partificpants and those who lost their jobs due to the Moratorium were not dismissed. The Court recognized that the standard for causation is not "proximate cause" but rather a significantly lowered standard.

Judge Barbier also mentioned in the opinion that the February 2012 trial will indeed go forward in February 2012 (p. 31).

All in all, this opinion will bring clarification to all parties as to what claims relating to the Gulf Oil Spill are viable. It also shows that the MDL Court, run by Judge Barbier, is adamant and conscientious about moving this case forward, making rulings in a timely, fair manner, and most importantly, that the February 2012 trial date is pretty much set in stone.

Get ready for a huge verdict coming out of Baltimore County this week. A Baltimore County jury will be awarding punitive damages in an environmental law gas leak case that is in Baltimore County Circuit Court before Judge Robert N. Dugan. The Maryland environmental law case involves Exxon Mobil leaking gas that damages the properties of 154 households, 7 commercial property owners and two business owners. More than 25,000 gallons of fuel leaked from the Exxon gas station over the course of 5 weeks before it was discovered in 2006. The plaintiffs asked for damages for diminution of their real properties value, emotional trauma, medical monitoring, and fraud. The case was tried to a jury of all women. Yesterday the jury reported that they have decided to award punitive damages. Therefore, the attorneys gave argument about that specific issue yesterday afternoon and the jury will continue to deliberate today. The final jury verdict of both compensatory damages and punitive damages will be announced at the same time. Most likely later today or tomorrow. The fact that the jury will be awarding punitive damages basically tells us that they found Exxon Mobil guilty of "fraud" as that is an intentional tort which would allow for punitive damages under Maryland law.

Punitive damages are very rare in Maryland because in 1992 the Maryland Court of Appeals held in Owens-Illinois v. Zenobia that punitive damages can only be awarded when there is actual malice and in intentional tort cases. What this means is that even for egregious conduct in Maryland punitive damages are not available. For example if you are injured by a drunk driver in Maryland, you are not entitled to punitive damages (the jury will not even be allowed to consider it). But if the driver of a car intentionally strikes a person, then punitive damages could be awarded (but there probably would not be any insurance coverage becaue of exclusions for intentional acts). It should be noted that the U.S. Supreme Court has put further restrictions on awards of punitive damages by basically limiting such damages to a multiplies of about 8 times the amount of compensatory damages.

Punitive damages are especially appropriate in Maryland Environmental law cases because they deter future misconduct by corporations. It is important that Maryland lawyers keep in mind that by pleading and proving fraud you preserve your client's right to punitive damages. However, at the same time, you may lose applicable insurance coverage if the insurance policies have an exclusion for intentional misconduct. Therefore, Maryland trial lawyers need to determine whether the defendants have the ability to pay for punitive damages at the pleading stage. One thing is for sure---Exxon Mobil and other large corporations that cause environmental damage in Maryland can afford to pay punitive damage awards.

There was a terrible car accident in Wheaton, Maryland on Monday May 23, 2011. A married couple was crossing the street when they were struck by a BMW believed to have been driven by Pierre Michel who lives in Silver Spring. Our thoughts and prayers go to the families of those involved.

The families of the persons involved in this Maryland car crash should know that they are likely entitled to personal injury protection benefits (PIP Benefits) from the insurance policy that covered the BMW that struck the people, and that this benefit covers at least up to $2,500.00 in funeral expenses (PIP benefits also cover medical expenses and lost wages). For more information about Maryland PIP benefits see the PIP page of our website. PIP benefits are generally available immediately and are obviously in addition to compensation the families may be entitied to as a result of the driver's negligence.

Christopher Forker was apparently also in the striking vehicle. As a result of the car striking the pedestrians, the wife was killed and the husband has terrible injuries for which he his being treated at Suburban Hospital (which-by the way-has an excellent trauma team). The driver of the BMW is said to have left the scene of the crash without stopping and will likely be arrested. When a crash like this happens, the families of those involved should consider taking immediate steps to have the accident investigated by an accident reconstructionist, and gathering evidence (such as photos of skid marks at the scene etc?). Skid marks fade and evidence can disappear. While it is true that the State of Maryland does its own accident reconstruction in most fatal car accident incidents, the quality and focus of their reconstruction often leaves a lot to be desired (some of the accident reconstructionists are very experienced but some are relative rookies and have not had adequate training to do a serious reconstruction in a wrongful death car accident case in Maryland). The bottom line is that the accident reconstruction efforts by the Maryland State Police are not focused on gathering evidence and preserving evidence that will be necessary to win a civil lawsuit if that becomes necessary.

It is disgraceful that the driver of the BMW left the scene of the crash without stopping. Of course it is possible that the driver was either intoxicated or under the influence of drugs and by not stopping, the police will never be able to prove that. Unfortunately, in Maryland, even if someone is intoxicated and totally drunk, they cannot be sued for punitive damages (unless they literally intentionally struck the pedestrian). This law needs to be changed. If someone leaves the scene of a serious car crash in Maryland without even stopping to see if the victims are ok then that person should indeed be exposed to punitive damages in a civil lawsuit.

Did you know that the use of the antidepressant Paxil during the first trimester of pregnancy has been associated with birth injuries including heart malformations in infants?

The anti-depressant Paxil was first put on the market in 1992 and the public was basically told that the anti depressant did not have any known links to birth defects. About 13 years later Glaxo Smith Kline--the manufacturer of Paxil--notified doctors that in fact there was a potential link between the use of Paxil during pregnancy and certain birth defects--heart defects in particular. Glaxo's study showed an increased chance of congenital malformations associated with first trimester Paxil use. In September 2005 the FDA issued a stronger statement that Paxil may be associated with birth defects and the FDA again strengthened its warning in December 2005 with a Public Health Advisory. On December 8, 2005 the FDA advised the public that exposure to paroxetine (active ingredient in Paxil) in the first 3 months of pregnancy could inrease the risk for congenital malformations, birth defects and particularly heart malformations and cardiac malformations. Parents of children with heart irregulaities and malformations appreciated this new information and warning because this new information finally provided a possible explanation for their children's condition.

The first Paxil birth defect trial was the case of Lyam Kilker whose mom used Paxil during her pregnancy. He was born in October 2005 with an atrial septal defect, a ventricular septal defect, and an interrupted aortic arch just 1 month after the FDA cautioned consumers about the risk of using pregnancy and that Paxil can cause birth defects. The case resulted in a plaintiff's verdict of $2.9 Million dollars in October 2009. In my opinion Glaxo Smith Kline got off easy on this case since the jury somehow found that no punitive damages should be awarded. Although not the biggest verdict---this verdict sent a clear message to the drug company that juries around the USA could find against them in these cases.

Some sources have indicated that the average settlement value of a Paxil Birth Injury case is $1.2 Million dollars, and have also indicated that about 800 cases have settled to date for a total of over $1 Billion Dollars paid out for birth injuries caused by Paxil. More recently though, it seems Glaxo Smith Kline's strategy may be shifting away from settling these cases and instead taking them to trial (perhaps because there was a November 2010 trial that resulted in a defense verdict---actually summary judgment for the defendant).

There is other litigation surrounding Paxil. For example, there are lawsuits alleging that the withdrawal symptoms were not properly disclosed, there are lawsuits alleging that Paxil causes an increased risk of suicide and there is also antitrust and fraud litigation regarding Paxil.

If you or someone you care about has a child with a birth injury, you should speak to an attorney about whether a prescription drug taken by the mother during pregnancy such as Paxil or other antidepressants--could have caused the birth injury. The medical malpractice lawyers at Goldberg, Finnegan & Mester are available for a free telephone consultation about Paxil Birth Injuries and Paxil heart defect cases. Our phone number is 888-213-8140.

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.