Articles Posted in Maryland Accident Law

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What can a client say to make a Maryland accident lawyer’s shoulders’ droop? Lots of things, of course. One of those things is certainly “I have Medicare.”

A Medicare lien is more than a lien, actually. It is a superlien. That word sounds made up, but that is exactly what a Medicare lien is. More than just a right of subrogation, the superlien allows Medicare to seek reimbursement directly from the provider. (Medicare rarely choses that route.)

A superlien is also paramount in another way that is important to accident lawyers: Medicare can get the money if it is stiffed from the accident lawyer personally. So lawyers who ignore Medicare liens literally do so at their own peril. Moreover, there is a clear obligation to notify Medicare if they don’t know of the potential recovery from a third party.

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There is a popular conception that lawsuits in car accident cases are filed directly against the insurance companies. It is easy to understand the source of the confusion. The insurance company that insured the driver of the vehicle will stand behind their insured and pay any claim up to the policy limit of the policy. The insurance company will also decide how much to offer as a settlement, not the actual defendant, who is usually kept in the dark on the entire process from initial settlement offer through the tactics the insurance company will take at trial.

Technically, in Maryland car accident lawsuits are generally filed against the defendant themselves. This technical distinction makes a difference at trial because the jury is not told there is insurance behind the case under Maryland’s collateral source rule. I remember trying a case against a defendant once where we got a good verdict ($298,000 award after a $25,000 offer before trial). When we met with the jurors after the trial, their big concern was whether there was insurance because they were concerned that the defendant—who was a pretty good guy—would have to pay the verdict themselves.

The exception to this is underinsured/uninsured motorist cases. In Maryland, claims are brought directly against the insurance company. To serve an insurance company defendant with a lawsuit in Maryland, you can serve the Maryland Insurance Administration. It looks like this:

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We get a lot of questions about suing someone who has passed. It is not fun to sue a dead person, but you have to do what you have to do to ensure a recovery for your client. Thankfully, you are suing the estate almost invariably in name only and there is an insurance company standing behind the lawsuit.

If the decedent had an estate, it is pretty easy: you sue the estate and serve the personal representative.

Put the Estate on Notice

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We have heard some version of this story hundreds of times: client gets into an accident and hires a lawyer they either found in the yellow pages, on television, or from a “friend of a friend.” After some time passes, they realize that while their lawyer may be a nice person, the lawyer is not a seasoned accident lawyer who focuses their career on maximizing the amount of money the client recovers in an injury claim. The accident victim gets on the Internet, researches carefully who the best accident lawyers in Maryland are, and calls our law firm.

First, if you are unhappy with your accident lawyers, you can switch law firms at any time you want. Still, you need to consider whether on not you are better served staying with the lawyer you currently have. It may be that you are expecting too much and that your current accident lawyer is doing everything possible to further your case. We always suggest if you are thinking of firing your accident lawyer, but you are not sure whether you should, sit down with your current lawyer and see if they can resolve your questions to your satisfaction.

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Many of our Maryland accident lawyers’ clients were injured in a car accident while on the job. This means the plaintiff has three accident claims under Maryland law: PIP, third party liability, and workers’ compensation.

Generally, a Maryland accident lawyer wants to present the PIP claim before the workers’ compensation claim in Maryland. Other states differ on the right of subrogation of PIP insurance. But Maryland law is clear that the PIP carrier has no right of subrogation against any third-party recovery, according to Maryland Code, Insurance Article §19-507(d). In other words, if the PIP claim is made first, the injury victim does not have to pay back the PIP benefits the victim receives (most attorneys don’t charge for PIP claims). In contrast, the workers’ compensation carrier has subrogation rights (after attorneys’ fees) out of the third-party recovery for the workers’ compensation benefits that it paid to the victim under Maryland Code, Labor and Employment Article §9-902(e) and §9-902 (f).

If a Maryland accident lawyer decides—either out of laziness or just getting it wrong—to put the workers’ compensation claim first, the lawyer might be barred from making a PIP claim. Under Maryland accident law, the PIP carrier receives a setoff for workers’ compensation benefits that the accident victim has received under Maryland Code Insurance Article §19-513(e).

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The New York Times has an article on how the National Highway Traffic Safety Administration chose not to make public hundreds of pages of research and warnings about the relationship between cell phones and car accidents. Why? Higher-ups at the NHTSA claim that the motivating force was concerns about angering Congress. I’m sure this may be what the NHTSA officials were told, but the reason for the information being withheld is that the agency was sticking to its mission of gathering safety data, not lobbying states. Doesn’t this sound more like the Bush administration to you than it does Congress?

Apparently, the data showed that hands-free headsets did not eliminate car accidents, because cell phone conversation was what causes the distraction, not just the holding of the cell phone. To date, no state has banned entirely the use of cell phones while driving.

I’ve never seen data estimating how many Maryland car accidents are caused by cell phone usage. But I think the Maryland legislature should look at this study and consider what our law should be in Maryland on cell phone usage while driving a car. Cell phone use is still on the rise and Maryland accident lawyers already have enough business.

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In MAIF v. Baxter, the Maryland Court of Special Appeals ruled that Maryland law does not require a car insurer to provide uninsured motorist coverage to an uninsured stranger/pedestrian who is struck by a car driven by a person excluded under the insurer’s policy. Basically, the court found that the Maryland Legislature only required that UM coverage be extended to an “insured.”

The case of MAIF v. Baxter is a legal dispute that involved the Maryland Automobile Insurance Fund (MAIF or Maryland Auto Insurance, as it is called in 2023) and a former employee named Baxter. The case centered around the issue of workers’ compensation and the extent to which employees are entitled to benefits when they are injured on the job.

Facts of the MAIF v. Baxter

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Howard County is trying to do its part to prevent auto accidents in Maryland: an executive order has been issued that prohibits Howard County employees from sending or reading texts or e-mails while driving.

“The research and statistics are there: distracted driving causes accidents,” County Executive Ken Ulman said in a statement. His order cites the statistic that driver inattention causes approximately 80% of car accidents in Maryland. Ulman announced the order Thursday while attending a meeting of the Maryland Highway Safety Foundation.

Maryland does not have a ban against text messaging or emailing while driving. Why? Opponents of such a bill argue that it would lead to a ban on all distractions – not only car radios and GPS devices, but speedometers, dashboard lights, anything and everything that can divert attention and cause car accidents. Opponents of the text messaging ban also argue that there is no telling how many accidents are actually caused by texting while driving and the law is impossible to enforce.

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Sandy Waterman’s Virginia Injury Attorney Blog points out that under Virginia law, Virginia injury lawyers can mention the ad damnum amount – the amount sought by Plaintiff’s lawyer in the complaint.

The problem with this rule is that it uses accident lawyers’ form requests which usually seek as much as the law would allow to be used to create the appearance of a greedy plaintiff.   When juries see a large ad damnum clause, studies show it lower awards, reversing the anchoring effect of a large number.  The reason for this is obvious.  Jurors want reasonable parties and reasonable lawyers.  If you got out on a $50 million ledge in your Complaint, you can bet the jury will it against you if they find out about it.

Maryland accident lawyers who play it smart do not face this problem. Maryland courts have routinely granted our accident lawyers’ motion in limine to exclude the amount sought in the ad damnum clause by citing Merzbacher v. State, 346 Md. 391, 396 (Md. 1997):

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