Articles Posted in Wrongful Death Claims

There is a bill in the Maryland General Assembly that would allow punitive damages against drunk drivers who caused “injury or wrongful death while operating a motor vehicle.” Punitive damages would be available against drunk drivers: (1) With a blood alcohol concentration of over .15; or (2) With a blood alcohol concentration of over .08, and was driving on a suspended or revoked license or had entered a plea of nolo contendere or received probation before judgment within the last 5 years.

The Maryland Chamber of Commerce opposes this bill. Why? I really think it is because the Maryland Chamber is run by the true believers who care about some issue far more strongly than furthering the interests of Maryland businesses. That mission includes a vehement opposition to anything their gut tells them that Maryland personal injury lawyers might support. Seriously. If Maryland Association for Justice put out a statement that Jeremy Lin should be the focal point of the Knicks’ office even when Carmelo Anthony returns, the Maryland Chamber of Commerce would immediately put out a statement renouncing drunk drivers punitive damagesLin (citing the fact that Carmelo is from Baltimore or something). It is just silly.

(Minority Report: their opposition makes perfect sense. They are worried about the slippery slope of punitive damages affecting Maryland businesses and they are two steps ahead in the chess match. Personally, I don’t give them that much credit.)

So let me set the Chamber’s mind at ease. Economically, plaintiffs’ attorneys would get no real benefit from punitive damages in drunk driving injury and death cases. Why? Because punitive damages are not covered by insurance. Which means the drunks have to come up with the cash themselves. My firm has collected $0.00 from people individually over the last ten years. Collecting money from people individually is just very difficult. In almost every case, the juice is not worth the squeeze unless the defendant goes by the name John Rockefeller. Lawyers handling traffic collision cases will not see their revenues rise half of a percent by getting drunks to pony up punitive damages. Continue reading

wrongful death value

Getting every last dollar the victims deserve

Caps on non-economic damages make it impossible to receive true fair value in death claims in Maryland (and in most states). Accordingly, personal injury lawyers need to turn over every stone to maximize the economic damages in wrongful death cases. The future lost wages claim is obvious. But often overlooked, even by the best attorneys – at least until they get the case to an economist – is the decedent’s employer-funded benefits and household services.

Employer Unfunded Benefits

The problem is, in many fatal cases an economist is not used because the plaintiffs’ lawyer thinks he does not need one, or because the case settles long before an economist is engaged. As a result, employee-funded benefits are not always included in the calculus.

Fifteen years ago, if you left out these benefits, the overall value of your case suffered a little. In 2014, with health insurance and other employee benefits skyrocketing, if you don’t include these in your damages in a wrongful death case, you are leaving as much as 25% of the value of the claim on the table. Continue reading

Pat Malone writes a guest blog on Don Keenan’s Trial Blog arguing that confidential settlements undermine public safety and justice. 2013 Update: the link is now broken, but this post is still worth reading.

His point is that confidential settlements make it harder for future plaintiffs to get evidence and information they need to bring out all the facts about the defendant’s conduct.

Specifically, Malone suggests:

Here’s one tip for avoiding last-minute pressure from the defense to cave into a secrecy agreement: Be proactive. Tell the defense counsel at some appropriate point – such as with any settlement demand letter or in a pre-mediation communication – that you will not agree to secrecy because of the ethical issues. This can be one item on a list of settlement conditions.

Pat Malone is an extremely well-respected lawyer who not only gets great results for his client but also graciously spends a lot of time helping other persoconfidential settlementsnal injury lawyers. I also agree with his premise: there is doubt that confidential settlements make it harder for the next plaintiff. This also makes the company less accountable, too, in the big picture.

But here’s the problem: people who have been badly injured, even the best of people, have a hard time focusing on the global interests of plaintiffs everywhere when they are fighting and scrapping to be compensated for their injuries. And I have a hard time telling them they should.

Let me give you a case in point. We recently settled a case with a Fortune 500 company. No discussion of confidentiality in the settlement discussions. You know what comes next. They send a release with a confidentiality clause. We balk. They say, “Okay, let’s try the case.”

Boy, I hate being bullied by big companies. I try hard not to take these things personally. But they were so arrogant in the way they delivered their ultimatum. They never would have had the guts to play it through and I knew it. So we plotted a “file a motion to enforce the settlement and, in the off chance we lose, we try it” strategy. In angry detail. With our feathers up and blood boiling, we forgot, ah, that we have a client. So we call the client. She could not care less about confidentiality. She wants to execute the settlement and get her money.

So what do you do? I know what we did: we put our hurt pride on a shelf and sent the client the release. Continue reading

This post was supposed to be about Medicare set-asides but I started with such a long intro about the psychology of claims adjusters that I’ll just hit the Medicare issue in a later post. (Or I’ll completely forget about it.)

To understand claims adjusters, get inside the labyrinth that is the claims adjuster’s mind. (Why labyrinth? I’m just trying to use mildly inflammatory language. I’ll stop.) Insurance claims adjusters are more Pete Rose than Barry Bonds: they get paid for singles, not home runs. The great things a claims adjuster does vanish into thin air; the mistakes live on. Ironically, plaintiffs’ lawyers operate in the exact opposite world: hit a few million-dollar verdicts in a row and everyone forgets your losses. Reason #42,353 why plaintiffs’ attorneys and insurance adjusters are the Montagues and claims adjuster

Accident lawyers have a misconception about this, thinking adjusters get hugs from the higher-ups for ripping off a plaintiffs’ lawyer in a settlement negotiation. Actually, hugs is the wrong word – they do get hugs. But mostly, that’s it. The way to make a name for yourself is not by screwing plaintiffs’ lawyers but by not screwing up yourself. Make sure everyone likes you and don’t make any mistakes. Overpaying on an accident case is not that big of a screw up: but failure to have a death certificate in the file before paying a wrongful death case? That is a federal crime in the insurance world. Under-reserving a case? That’s an aggravated felony.
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The Maryland Court of Appeals decided another case in the ongoing saga that continues to burn forests that is the Maryland Local Government Tort Claims Act.

First, it is worth noting: the LGTCA is stupid. Really stupid. There is just no reason in 2015 why we put unreasonable burdens on people that are hurt by the local government. Personal injury lawyers blow or miss the LGTCA de facto “state of limitations” to give notice of a claim all the time. Most of those lawyers should know better. But in this case, there is just no reason the Plaintiff (actually, the estate of the decedent in this case) should have to know about complying with the Local Government Tort Claims Act.

Maryland local government tort claims act

President Obama was asked a tough question at one of the debt ceiling press conferences this week: why do – in massive numbers – the American people shrug off the debt ceiling? The President said – in so many words – the American people know nothing about the subject. Sounds condescending, but then he adds the caveat that is germane here: they shouldn’t. People are too busy with their lives – their jobs, their kids, American Idol, and whatnot – that they don’t have time to focus on the nuances of the debt ceiling.

The same goes with the Local Government Tort Claims Act. You have to realize: most lawyers handling car accident cases don’t understand the Local Government Tort Claims Act. Why do we expect people on the street to understand and follow these rules?

(Brief Post Interruption: Ultimately, if you read the case, you know I’m retrofitting the facts to fit my narrative. There was a lawyer involved in the case early on who – putting it politely – could have set this case up a little better. And plaintiff – who filed a tort claim but was not injured in an accident – didn’t really lose the case for failure to provide sufficient notice under the LGTCA but for failure to allege compliance with the LGTCA in the Complaint. I think this is the wrong call, too. I’ll get to that point, I promise. But the court makes clear they would have hammered him on the notice if it had been alleged in the Complaint. )

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Almost two years ago now, Medicaid/Medicare liens became even more difficult to deal with as the law pushed to the lawyers and insurance companies the obligation of confirmation and resolution of Medicare/Medicaid liens. I’m sure betting an insurance company has yet to receive a fine for not verifying a lien before paying a personal injury settlement. But nobody wants to be the first.medicare lien law

Medicare, Medicaid and State Children’s Health Insurance Program Extension Act of 2007 created so many headaches people starting fighting back. In Haro v. Sebelius, an Arizona case in U.S. District Court, Medicare beneficiaries (and, interestingly, a personal injury lawyer in his own capacity) challenged – as a class – two things: (1) Can Medicare/Medicaid (hereinafter “Medicare because I’m sick of the slash) “require prepayment of a reimbursement claim before the correct amount is administratively determined where the beneficiary either appeals or seeks a waiver of the MSP reimbursement claim?, and (2) Are personal injury lawyers financially responsible for reimbursement if they do not hold or immediately turn over to Medicare their clients’ personal injury settlement awards.

Personal injury lawyers are completely in a pickle on these liens. Our clients want their money; we want to get them the money they are entitled to get. The question is whether personal injury attorneys are precluded from giving the clients their settlement money until after Medicare’s claim has been satisfied, and, let’s be honest, whether Medicare can recover the reimbursement claim directly from the attorney if the client cannot pay the reimbursement claim after the settlement money has been turned over to the client.

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The Insurance Journal reports a rise in legal malpractice claims. Incredibly, there has been no hand wringing about increased malpractice rates for lawyers or fears that lawyers can no longer keep their practices open as their insurance rates rise. We have never had a legal malpractice claim yet our rates continue to increase. No one cries for us.

A part of the rise in the number of legal malpractice claims is countersuits against lawyers who are suing their clients to pay their bills. But I think the larger problem is what the article calls “door law,” a phrase I have never heard before but I like. Door law is when lawyers take any client who walks through the door who might generate a fee. When law firms step outside their areas of expertise, bad things will happen. Continue reading

Rarely, but at least a few times a year, our law firm gets a wrongful death case in Maryland where, regardless of the facts, there is no claim. Here, the victim who may be loved by family and friends has no wrongful death claim because the victim has no spouse, children, or living parents.

Noneconomic and economic measures in Maryland do not provide money damages for loss of life of the victim on their own behalf. The lack of joy that comes with being alive and missing out on life goes uncompensated. So if you have no spouse, dependents, or children and are negligently killed by another person and you die instantly, there is no recourse in Maryland law for a wrongful death claim or any other meaningful claim outside of your funeral expenses.maryland wrongful death statute

A doctor can see that a patient has no primary or secondary wrongful death beneficiaries and knows that there is no possibility of a wrongful death medical malpractice claim.

Do I think this happens where doctors take a risk with a patient because the patient’s death by definition could not bring about a wrongful death claim? No, I really don’t. But that you could recklessly kill someone with no consequences of any kind is a bad thing.

The answer? Change the law to have an entirely new damage claim in Maryland for loss of the enjoyment of life for the victim? Whatever you may think of the idea, there is absolutely no inertia to change the current state of the law.

So what could we do that is more practical to solve the problem? I think the answer is simple. Allow siblings, grandchildren, and other defined relatives into a third contingency tier of wrongful death beneficiaries. It would open up only a few recent claims, but we could all know that there will be accountability when someone is killed by someone else negligence. I think this would be justice. Continue reading

Paul Luvera discusses a tough issue for Plaintiff’s lawyers: do you clue the jury in during your opening statement how much you will ask for in closing? I struggle with this and often opt for a middle ground. I lay out the foundation of what I will ask for: medical bills, wages, and the formula I think is appropriate (x per day for the rest of her life). This way, I’m getting them used to the idea without having to spit out a number with no evidence.amount opening statement

As Paul points out, a one size fits all rule is difficult because each case depends on different facts. One critical question has to be considered: is the cap an issue? If what you have is a cap case and minimal or no economic damages, you can dial back on the damages argument which might help you avoid the risk of losing credibility. Because every time you ask for money – which is what a plaintiffs’ lawyer does by definition – you do lose some measure of credibility with a jury.

One issue in this post – raising the damage amount in voir dire – is not of much interest to Maryland personal injury lawyers because our voir dire is so ridiculously limited.

Yesterday, the Maryland Daily Record published the first of a three-part series I wrote with retired Judge Clifton J. Gordy (now a mediator and arbitrator) on mediation in serious personal injury and wrongful death claims. The article is for both plaintiff and defense lawyers looking to make mediations as productive as possible. Look at yesterday’s article, and look in coming editions for the final two parts.

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