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.

Is Saying “No” Enough in Maryland?

The Maryland legislature is debating a bill that removes the requirement that rape victims show they tried to physically resist their assailants.

Maryland’s Court of Appeals (the highest court in Maryland) has ruled that evidence of physical resistance is necessary to show a victim’s lack of consent in rape cases. The appellate decisions have been relied upon in jury instructions given in rape cases. According to Baltimore County State’s Attorney Scott Shellenberger, these rulings and the jury instructions that have spun off from them, essentially make physical resistance an element of rape.

Shellenberger told the Maryland Senate’s Judicial Proceedings Committee (“Committee”) that while physical resistance can be very strong evidence of lack of consent, it is not the only reliable evidence of rape.  He pointed out that a victim might choose to not resist their attacker, and that the lack of resistance was not consent.

Senator Robert A. “Bobby” Zirkin, (D-Baltimore County) and the chair of the Committee, asked whether there was really a need for the statute.  He cited rulings by courts in Maryland that indicated physical resistance is not needed to show lack of consent.

Senator Delores G. Kelley (D-Baltimore County) the bill’s chief sponsor, stated that this statute would place the focus on the alleged rapist’s actions rather than on the victim’s.

The text of SB 217 can be found here.

How to Ensure You Have the Right Insurance Coverage on Your Car

car-auto-insurance

We’ve all seen the commercials.  Allstate has Mayhem, State Farm has Jake, GEICO has the gecko, and the list goes on.  We all pay for car insurance because the law requires that we do.  We all know our car insurance can go up if we get a speeding ticket or are at fault for an accident.  But, do you know what the various types of coverage mean?

Liability Insurance – The State of Maryland requires that all passenger vehicles carry liability insurance.  Maryland has minimum coverage amounts that each vehicle must carry.  What does liability insurance cover?

Liability insurance covers damage you cause with your vehicle to another person.  This includes property damage and bodily injury.  Property damage is pretty self-explanatory.  If you hit another car with your car, this part of your coverage covers the cost to repair the damaged vehicle, up to your policy limits.  So, if you rear end a Honda Accord, you’re probably fully covered.  If you rear end a vintage Ferrari, your limits may not be adequate.

Bodily injury covers payment of medical bills, lost wages, pain and suffering, and a host of other potential areas related to injuries sustained by a person in a car accident, up to your policy limits.

Another area of coverage that ties into liability insurance is your uninsured/underinsured motorist coverage.

Collision Insurance – If your car is damaged or destroyed in an accident, collision insurance coverage will typically pay to fix or replace it, up to certain limits (e.g., the value of your vehicle).  This coverage generally comes into play if you’re at fault for an accident and damage your own vehicle.  If you have a lien on your vehicle, you’re usually required to have collision coverage.  However, if you don’t have a lien on your vehicle, Maryland does allow you to opt of this coverage.

Collision coverage comes with a deductible. This means you have to pay a certain amount of the damage out of your pocket.  Any amount after that is typically covered up to the actual cash value of your car.  For example, if you have a $250.00 deductible, and the cost to repair your vehicle is $1,000.00, you will pay the first $250.00 and your insurance company will pay the remaining $750.00.  Generally, the higher your deductible, the lower your premium.    When making the decision to carry collision coverage, you should evaluate how much your car is worth.  If your car is worth a couple of thousand dollars, maybe it’s worth the gamble of not carrying it.  If your car is worth several thousand dollars, you may want to think about carrying collision coverage.

Comprehensive Insurance – This coverage pays for damage to your car caused by an event other than a collision, such as fire, theft, vandalism, if you hit an animal, or if you sustain flood damage.  Like collision, if there is a lien on the vehicle, you likely have to have this coverage.  The decision to carry this coverage, similar to collision, should be based on the value of your vehicle.

Your insurance agent can discuss these types of coverage with you in more detail and help you make a decision regarding the right types of coverage for you.

Having the right amount of coverage is very important if you’re involved in a car accident and you’re at fault.  It can mean the difference in seeing your insurance rates go up a little bit or having to liquidate assets in order to pay a settlement or judgment.  We’ll discuss policy limits and uninsured/underinsured motorist coverage in more detail in our next blog entry.

She Gave an Interview and Now Mel Gibson is $500,000.00 Richer

Many of you have likely heard of civil settlements that involve confidentiality provisions. The terms will vary depending on the agreement, but generally they say that no party can discuss the settlement amount (usually applicable to the party receiving the settlement) or comment about the underlying facts that gave rise to the litigation or potential litigation.

This is not an uncommon thing in cases that involve large sums of money, public figures (i.e., athletes, celebrities, etc.) or cases where the defendant may have additional exposure in other pending cases (e.g., GM with the ignition switch litigation).  I once had a judge in Baltimore City get very irritated with me because I wouldn’t disclose the amount my client was paying to the plaintiffs to settle their cases.  I calmly explained that it was a confidential settlement.  After voicing his displeasure at me, he eventually conceded that it was within my client’s rights for me to not disclose the amount.

Do provisions like this have any teeth?  What can be done if a party violates the confidentiality provision?

Oksana Grigorieva, Mel Gibson’s ex-girlfriend, found out the hard way.  A California appeals court just affirmed a judgment that absolved Gibson of his obligation to make settlement payments to Grigorieva.  Gibson and Grigorieva both sued each other in 2010.  He sued to establish paternity of the couple’s daughter.  She sued him for defamation and battery.  They eventually reached a settlement agreement in which Gibson would pay $20,000 per month for child support and in exchange he was declared the father of the child. Additionally, to resolve the battery and defamation claims, Gibson agreed to pay Grigorieva $750,000.00 in three installments.

Sometime after receiving the first $250,000.00 payment, Grigorieva appeared on the Howard Stern Show and made comments that Gibson argued violated the settlement agreement.  The California appellate court agreed and Grigorieva is not going to receive any of the remaining $500,000.00 from the settlement.

Another person had his $80,000.00 settlement voided when his daughter decided to post something on Facebook.

If you sign something that contains a confidentiality provision, it’s best to comply, or it could end up costing you.  Just ask Oksana Grigorieva.

 

0-4. Now what?

Marilyn Mosby’s office is 0-4 in the prosecution of officers charged in connection with the death of Freddie Gray.  In December, the jury trial of Officer William Porter ended in a hung jury and mistrial.  Mosby’s office has said they will try him again.  Officers Edward Nero and Caesar Goodson were both acquitted after bench (judge) trials in May and June.  Just today, Judge Williams announced his verdict and found Lt. Brian Rice not guilty on all charges.

In a jury trial, the jury makes all findings of fact and the judge makes rulings on the law.  In a criminal jury trial, the jury would make the determination of guilt or innocence.  In a bench trial, the judge makes this determination.

Maryland is one of the limited number of jurisdictions that allow a criminal defendant to opt out of a jury trial without the consent of the prosecution.  Looking back on the trial of Officer Nero, his defense attorneys essentially created a playbook for each subsequent trial.  The most important strategy has been to opt for a bench trial.

It seems that after four trials, Mosby’s office has presented very little new evidence or shown any new strategy or approach.  Judge Williams pulled no punches in his ruling today.  During his ruling from the bench, he made it very clear that Mosby’s office failed to prove that Rice was aware he had a duty to buckle Gray into a seat belt and furthermore, and most importantly, they failed to prove that Rice deliberately breached his duty in an effort to endanger Gray.

“There are a number of possibilities this court could entertain, some that are innocent and some that are not,” Williams said. “However, the burden of proof rests with the state, and the court’s imaginings do not serve as a substitute for evidence.”

With this acquittal there have been renewed demands for justice for Freddie Gray and renewed demands for Mosby’s office to drop the charges against the remaining officer.

It’s logical to think that Mosby would drop charges against the remaining officers after four failed attempts to secure a conviction.  However, multiple sources believe Mosby’s office will continue to prosecute each remaining officer.  She made a promise to the citizens of Baltimore to get justice for Freddie Gray’s death, and despite what’s being said about her in the national media, she arguably remains quite popular in Baltimore City.  Even if her office fails to secure a single conviction, she can always state that she kept good on her promise, but the courts failed to give Freddie Gray his justice.

Will Mosby go 0-5 or will her office get on the board with a conviction?  Popular opinion amongst the legal community seems to indicate another acquittal is likely, but perhaps her office will learn from its four failed attempts and devise a new strategy.  Stay tuned -Officer Garrett Miller is scheduled to begin his trial on July 27.

News Signs = Admission of Liability?

Three days after an alligator dragged Lane Graves to his death on a Disney property, signs were installed warning guests about alligators.  Additionally, barriers are being installed.

So, since Disney has started posting these signs, this is essentially tantamount to an admission that the warnings should have been in place earlier, right?  The law says, no, it is NOT an admission of liability.

The signs Disney has posted are what the law refers to as “subsequent remedial measures.” This means essentially repairing/remediating something AFTER someone gets hurt.  This is not admissible in Florida (and pretty much every other jurisdiction) to prove that someone is civilly liable.  Florida’s law states “Evidence of measures taken after an injury or harm caused by an event, which measures if taken before the event would have made injury or harm less likely to occur, is not admissible to prove negligence.”

The primary reason behind this law is the practical rule that society wants to encourage individuals, companies, and other entities to take steps to prevent further injuries. Allowing such evidence to be admitted in court will likely serve as a deterrent to parties from making the improvements in the first place if those changes will later be used against them in court.  There are additional legal theories that tie into the rules of evidence, but the public policy argument is the most crucial one.

So the question of whether or not Disney should have had these types of signs up BEFORE a 2-year-old was killed on its property is one that a judge or jury may end up deciding, although as our last blog post indicated, a huge settlement is the likeliest resolution.

Is Disney Legally Liable for the Alligator Attack

By now, most of you have read the tragic, heartbreaking story about the 2-year-old boy who was grabbed by an alligator and pulled into the water at Walt Disney’s Grand Floridian resort in Orlando.

One of the secondary questions that has likely been thought or discussed is, what liability, if any, does Disney have as result of this tragedy.

The law generally states that the “duty” (responsibility) owed by a landowner to a person, depends on that person’s legal status on the land.  For example, if someone is trespassing on your land, the duty you owe to them is much different from what you owe someone you’ve invited onto your property.

The Graves family (the boy’s family) would be considered an “invitee” on Disney’s property.  They were invited to be on the property and they paid to stay there.

Florida law says that the owner or operator of the property has to maintain it in a reasonably safe condition and correct or warn of the dangers that the invitee knew or should have known about and which the property owner did not or should not have known had they exercised reasonable care and diligence.   

Danny Cevallos, a legal analyst for CNN wrote an article discussing this issue.  He points out that “whether or not Disney fulfilled its duty to the child and his family doesn’t just depend on their status as “invitees.” It’s also determined by the legal status of the “hidden danger” — in this case, the alligator.” He goes on to explain an area of law that is not commonly discussed, known as “ferae naturae.”  He states that under this legal doctrine, Florida law does not require a landowner to anticipate the presence of harm from wild animals.   As with most rules, there are exceptions.  Cevallos gives the following example, “if a resort had an alligator on a leash tied to a pole in a petting zoo, that’s going to impose liability in a way that an alligator born free in a swamp adjacent to a hotel would not.”

The ferae naturae doctrine does not provide complete immunity to a property owner in a situation like this. Florida courts have held that landowners may still be liable if they “know or should know of an unreasonable risk of harm posed by an animal on their premises, and cannot expect patrons to realize the danger or guard against it.”

The liability for Disney in this tragic situation will depend on a lot of factors, including what, if anything, did Disney know about the presence of alligators in the lagoon and what warning, if any did they give their invitees?  Numerous articles have stated that there were no signs posted specifically regarding the presence of alligators.  These are all things the trier of fact (usually a jury, but sometimes a judge) would have to determine in a trial. However, the likely reality is that Disney will quietly pay a settlement to the family (likely a confidential amount) and this will never go to trial.