When Simple Becomes Complicated

Currently, car accident cases center on determining human error – which driver was responsible for the accident.  The evolving world of car technology is going to change the future of how some car accident cases are litigated.

Self-driving cars, such as Tesla, are being touted as the future of cars.  However, there have been accidents involving these cars.  As recently as March 23, 2018, a Tesla Model  X SUV, with the Autopilot feature engaged, slammed into a concrete highway divider and caught fire, killing the driver.

When a car accident cases goes to court now, generally the judge or jury listens to testimony from each driver and based upon whose testimony they found to be more credible, they make a determination of who is at fault.  Occasionally, experts such as accident reconstructionists will offer testimony to aid the judge or jury, but usually just the drivers and/or witnesses who saw the accident will testify.

With more and more self-driving cars and cars with technology such as auto-braking, we may see some cases move from the a determination of driver error to a product liability case where the manufacturer of the vehicle will be a defendant as well.  This will also require expert testimony if these cases go to trial.  A judge or jury will have to review the evidence of competing experts in order to make their determination on liability.  This change will possibly create an economic “trickle down” affect wherein the increased cost to vehicle manufacturers for insurance and the cost of litigation may be passed on to the consumer with higher vehicle prices.

Additionally, on average, most car accident cases settle without going to court because insurance companies, through their own investigations may determine that its own driver(s) were at fault, and a settlement will occur, which allows the injured party to be compensated fairly quickly.  However, with a product liability case, you could be talking about years before the case is resolved or adjudicated.

Technology generally makes our lives more convenient, but you always have to consider the law of unintended consequences.

Advertisements

How Much Car Insurance Coverage is Enough?

In December of 2016, we wrote about the various types of car insurance.  Today, we are focusing on why it’s important to make sure you have enough insurance.

The amount of your policy limits under your liability insurance is the maximum amount of money your insurance company will pay on your behalf if someone files a claim against you for personal injury.  This can be a claim that never goes to suit or it can be a lawsuit that has been filed.

Maryland requires you to carry liability insurance of at least $30,000.00 per person and $60,000.00 per incident ($30,000/$60,000).  Your options for liability insurance can range from the minimum, up to $250,000/500,000.  These limits can vary depending on the insurance carrier.  The per person limits are the most that any single person can recover from the accident and the per incident amount is the most your policy will pay out in total.  So, if an accident injures 4 people and you have policy limits of $250,000/$500,000, the total amount of money that can be paid out is $500,000.00, but no matter how serious any single person’s injuries are, they cannot recover more than $250,000.00 from your policy.

So, how much is enough?  Even relatively minor accidents where the injured party only receives conservative treatment can involve thousands of dollars in medical bills. The law allows an injured party to recover all of their economic damages, (usually medical bills and lost wages).  Additionally, they can recover non-economic damages too (pain and suffering).  A policy with limits of $30,000/$60,000 can be exhausted very quickly.

What happens if you find out after a claim has been filed against you, that you don’t have enough insurance?  You will not be able to purchase a policy that will retroactively apply.  Assume you have a policy with limits of $30,000/$60,000, the case goes to trial and a verdict is returned in favor of the injured party for $50,000.00.  How is the extra $20,000.00 paid?  There are a couple of possibilities.  If the injured party has enough underinsured motorist coverage, their policy will pay it.  However, their insurance company has the right to sue you to recover any money they pay to their insured.  Another possibility is that the injured party can enforce the excess verdict against you personally.  They can garnish your wages, attach a lien on your property and utilize any number of procedural tools to enforce the judgment.  This may also force you into filing for bankruptcy.

Your policy limits can also impact the amount of coverage available to you and your family if you are injured by someone who is uninsured or underinsured.  We’ll discuss this in more detail in our next blog post.

In addition to increasing your policy limits, it may also be worthwhile to purchase an umbrella policy as well.  This is a policy that kicks in additional coverage when your primary coverage is exhausted.  Call your insurance company or agent to discuss what policy limits are appropriate for you.

 

Dram Shop Laws in Maryland

Dram Shop laws make an establishment or person that continues to serve alcohol to a visibly intoxicated person legally liable if that intoxicated person injures or kills someone.  This is different from social host liability, which holds that adults who provide alcohol to underage drinkers can be held civilly liable if the underage drinkers later harm someone else while intoxicated.

Currently, 43 states and DC have some form of a dram shop law.  The states without any such law are Delaware, Kansas, Louisiana, Maryland, Nebraska, Nevada, South Dakota and Virginia.  Note that Maryland does have a social host law that was created in 2016.

In recent years, the Maryland legislature tried to create a dram shop law.  This was in response to the August 2008 death of 10-year-old Jazimen Warr.  Michael Eaton, who had been drinking at the Dogfish Head Alehouse in Gaithersburg, Maryland, slammed into the vehicle in which Jazimen was a passenger.  It’s estimated that Eaton was driving between 88 to 98 mph when he struck the Warr vehicle.  Jazimen, who was a passenger in the back seat, was killed.

Jazimen’s family filed suit against a number of defendants, including Dogfish Head Alehouse.  Dogfish Head Alehouse was eventually let out of the lawsuit when its motion for summary judgment was granted.  The trial court was bound by the case law in Maryland, which held that dram shop liability was not a recognized cause of action in Maryland.  The case went on appeal all the way to Maryland’s highest court.  In 2013 the Court of Appeals held in a 4-3 decision, that it would not overturn established case law in Maryland and would not create a dram shop law.

In 2011, Maryland legislator, Kathleen Dumais introduced a bill to create a statutory dram shop law, but the bill did not pass.  There was discussion by Dumais in 2016 that she would re-introduce this same bill, but it’s not clear if she ever did or not.

Proponents of dram shop laws say that these types of laws can limit the number of drunk drivers by creating an incentive for bars and restaurants to cut off patrons that they feel are intoxicated and increase publicity surrounding the over-serving of patrons. Additionally, it allows injured parties and their families to have another source of possible financial recovery by creating possible exposure to the insurance carriers of restaurants and bars that have been sued.

Opponents of these types of laws argue that by removing the personal responsibility component, the financial burden is shifted to bars and restaurants, including the possibility of higher insurance premiums.

Judge Adkins, who wrote a very strong dissent in the opinion in Warr case was the author of the majority opinion that created social host liability.  In many ways, the progression from social host liability to dram shop laws seems to be the next natural step and it unlikely that this issue won’t come up again in Maryland.

Can an Attorney Help Me Get More Money for My Injuries?

If you’ve ever been home sick on a Wednesday morning and spent some time watching the TV, you’ve seen the commercials – “Have you or someone you love been hurt in a car accident?” and the tag line is that “If you don’t get paid, we don’t get paid.”

Remove the cheesy and sometimes slimy nature of some of these commercials and you’ll see the message is that if you have been injured through no fault of your own, you should get a lawyer.  It’s also true that for the vast majority of personal injury cases, attorneys work on a contingency basis, which means they get paid a percentage of what they recover on your behalf.

Retaining an attorney will usually lead to a higher recovery on your personal injury case. There are several reasons for this, but here are a few primary ones:

1.  An attorney can assess the strength of your case and potential value.

2.  Hiring an attorney lets the insurance company know you’re not afraid to take your case to trial.  If you negotiate the claim yourself, the insurance adjuster knows you likely don’t want to go to trial.

3.  Hiring an attorney allows the attorney to become involved in communicating with the insurance adjuster earlier on in the process.  This can help you avoid any potential missteps in what you say to the insurance company or what personal information you authorize the insurance company to obtain about you.

4.  An attorney can advise you on ensuring that your medical records and treatment notes are properly documented to assist you in maximizing your recovery.

Consulting with an attorney for a personal injury case is almost always free with no risk to you. Trust your gut – if you feel uncomfortable with the attorney you’ve consulted with, speak to another attorney or firm.  Do your research and find attorneys that get consistently good reviews online (i.e., Yelp, Google and Facebook).

What The First Amendment May Not Protect

First Amendment Rights are a hot topic right now.  Discussion ranges from the right of NFL players to kneel during the National Anthem to what a person says or does on their personal social media accounts.

The First Amendment is actually fairly narrow in scope.  It states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”  It limits what the government can do to your freedom of speech, expression, etc.  What it doesn’t do is provide a lot of protection in the private sector.

Recently, Hayley Geftman-Gold a CBS vice president and senior counsel, was fired for posting comments on social media stating that the victims of the Las Vegas shooting didn’t deserve her sympathy because they were probably Republicans.  Just yesterday, ESPN announced the suspension of ESPN anchor Jemele Hill for her second violation of the company’s social media policy.  Jemele Hill took exception to Dallas Cowboys owner Jerry Jones stating that he would bench any player who disrespected the American flag and voiced her displeasure on Twitter.  She previously posted tweets referring to President Trump as a white supremacist and prompted the White House to call for her to be fired.

So, the question is can an employer discipline and even fire an employee for what he or says or posts online after work hours or on their private social media account?  The answer of course is that it depends. Some states (a minority of states) prohibit employers from disciplining an employees for what he or she does on their personal time, as long as they are not engaging in illegal activities.  So, in these states, an employee is likely be protected from discipline for what they post online.

It may also depend on the device you use to access social media.  Often times, anything you view or post through a company-owned device is available to the employer. That includes smartphones, tablets, computers, etc.

One reality to bear in mind though is that the majority of employment is at-will.  This means that an employee can be fired for just about any reason.  The Employer does not have to show just cause.  So, if you get online and start posting comments that your employer takes exception to, you can likely be disciplined.  Your political beliefs are not protected in the workplace.

 

Judge Reduces Jury Award for Dog Shot by Police

Michael Reeves was awarded $1,260,000.00 by a jury in Anne Arundel County after his dog was shot by a police officer.  The jury awarded Reeves $1,250,000.00 in economic and non-economic damages (click here for the difference between the two types of damages) for gross negligence on the part of the police and $10,000.00 in economic damages for the death of the dog.

Judge Mark Crooks in Anne Arundel County reduced the judgment to $207,500.00.  Under the Local Government Tort Claims Act, the maximum recovery for negligence is $200,000.00. Furthermore, under Maryland law, the maximum economic damages you can recover for the injury of a pet is $7,500.00.

Reeves testified that he paid $3,000.00 for his Chesapeake Bay Retriever and Anne Arundel County argued that a verdict of $1,260,000.00 for the death of a $3,000.00 dog was “unconscionable.”

This case is one of the first in Maryland to make headlines since the 2010 case involving Roger and Sandra Jenkins.  In the Jenkins case, police officers shot a chocolate lab owned by the Jenkins family.  They were awarded more than $200,000.00 for the shooting of their dog and the police department appealed, citing to Maryland’s law that damages to a pet are capped at $7,500.00.   Interestingly, the Court of Special Appeals (Maryland’s second highest appeals court) held in Jenkins that the $7,500.00 limitation only applied to the economic damages (out of pocket expenses) that a plaintiff could receive for the value of their pet, but did not limit other types of compensation they could receive, like non-economic damages for their emotional distress.

I’ve Been in a Car Accident – Now What?

Getting into a car accident can be very stressful, especially if it wasn’t your fault.  One of the things we get asked the most is what to do after you’ve been in a car accident.  Here is a quick list of some of the things to do and remember.  This list contains some pointers, but by no means should be considered an exhaustive list that covers all situations and scenarios that can surround a car accident:

  1. CALL 911:  If anyone is injured, immediately called 911 and ask for an ambulance, as well as the police.
  2.  EXCHANGE INFORMATION: Make sure you exchange information with the other driver, including your names, phone numbers, addresses, make and model of the vehicles, including license plate numbers, and insurance information from any drivers involved.  An easy way to store some of this information is to take pictures of driver’s licenses, license plates and insurance cards.  If there are passengers in any vehicles or witnesses that identify themselves, try to obtain their information as well.
  3. TAKE PICTURES:  Take pictures of any damage to vehicles involved in the accident, the accident scene, or anything that may have contributed to the accident (i.e., road construction, objects in the road, icy patches, etc.).
  4. BE CAREFUL WHAT YOU SAY:  It’s completely appropriate to check on drivers and passengers in the other car(s) and see if they need medical attention or help. However, never admit fault for the accident, not even to the police.  Even if you think you were at fault, it may not be immediately clear who was actually at fault or contributed to the accident.  DO NOT allow the other driver’s insurance company to take a recorded statement from you.  If you have any suspicions that the other driver(s) may try to blame you for the accident, you do not have to speak with their insurance company at all.
  5. CALL YOUR INSURANCE COMPANY: Contact your insurance company as soon as it’s practical.  While you should answer any questions about the accident truthfully, be mindful of what you say, especially if the insurance company is taking a recorded statement.
  6. IF YOU’RE INJURED, SEE YOUR DOCTOR:  Delaying your medical treatment can impact your medical diagnosis and recovery time as well as have an effect on how your case is evaluated for settlement by the other driver’s insurance company.
  7. DON’T SETTLE TOO QUICKLY:  Some insurance companies will offer you a quick payment in exchange for a settlement of your case and a release of all claims.  In the state of Maryland, as a general rule, you have 3 years from the date of the car accident to file a lawsuit, so before settling your case, it’s important to make sure all of your injuries have been diagnosed and if possible, treated.  Once you settle your case, you cannot come back for more money.
  8. IF IN DOUBT, CONTACT A LAWYER: If you’re unsure of your options, including what costs and expenses you can recover and what your case is worth, contact an attorney.  Consultations for these types of cases are almost always free.

Salary History is Becoming History

Some states and cities are banning questions about salary history as part of an effort to ensure pay equity for women.  However, some companies argue that this is another example of government meddling with private businesses.

The primary argument in favor of finding out a candidate’s salary history is to help determine if a candidate’s salary needs are above the employer’s range.  This  helps to avoid wasting the candidate’s time and as well as the employer’s  time.   However, the response to that argument is that this issue can be avoided by simply including a salary range in a job posting or telling a job candidate early in the process what the salary range is.

Currently, Philadelphia, New York City and Massachusetts, have passed legislation barring employers from asking candidates about their salary history.  These laws are scheduled to take effect in New York later this year and in Massachusetts in July 2018.  However, Philadelphia is holding off on enforcing the new law pending a ruling by a federal judge on a petition filed by the Chamber of Commerce for Greater Philadelphia to block the new law.  A federal court already issued a temporary stay on the law, which was supposed to become effective on May 23, 2017.

There are at least eight other states that are considering similar legislation:  Illinois, Maine, Maryland, New Jersey, New York, Pennsylvania, Rhode Island and Vermont.

 

Maryland Can Now Suspend Your License Even if You Weren’t Driving

Maryland’s highest court has held that the MVA can suspend your license for refusing a breath test, even if you weren’t driving OR even attempting to drive your vehicle.

The Court’s opinion stated that your driver’s license may be suspended if you refuse a breath test if the police “reasonably” believed that you were driving or attempting to drive.  The high court overturned lower court rulings that held it had to be proven that you were driving or attempting to drive.  Now, an officer just has to “reasonably believe.”  It will be interesting to see how this interpretation of the statute manifests.

Our advice, if you’ve been drinking, don’t get behind the wheel of your car.  Even if it’s to warm up while waiting for a cab or Uber, or if it’s to sleep it off.  If you have to get in your car to wait or sleep it off, get in the back seat.

 

 

Defamation cases against Marilyn Mosby set to proceed

The drama surrounding Marilyn Mosby continues.  A federal judge in Baltimore has ruled that Mosby is not immune from suit by five of the Baltimore Police Department officers who were charged in connection with Freddie Gray’s death.  He has further denied Mosby’s request to stay the case while she appeals his rulings on her immunity.

In fact, Judge Marvin J. Garbis left no doubt as to what he thought about Mosby’s appeal.  He wrote, “the Court does not, by any mean, consider Mosby’s appeal to be meritorious.”  Judge Garbis declined to extend immunity to Mosby after a hearing in October.  He did dismiss claims of false arrest, false imprisonment, abuse of process, conspiracy and constitutional violations.