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Apr 29

Stress

Court Affirms that Emotional Distress Claims Cannot Arise from Post-Accident Conduct

Traditionally, personal injury claims have generally consisted of a plaintiff seeking damages for expenses and “pain and suffering” relating to physical injuries sustained as a result of an accident. Emotional distress is an element of a plaintiff’s pain and suffering, but is not, in and of itself, a separate and distinct claim. There seems to be a recent rise in the number of claims that are alleging specific emotional or psychological damages in personal injury claims, which if backed up by expert testimony could add substantial value to a plaintiff’s claim. Diagnoses of Post-Traumatic Stress Disorder or generalized anxiety resulting from an accident can be difficult to definitively contest from a defense perspective and, at the very least, will require a defendant and insurer to retain a competing expert to assess the validity of such a diagnosis. Therefore, it is essential that insurers and defense attorneys be aware of the limitations that a plaintiff faces in trying to introduce such claims, the evidence that can be used to support them, and the potentially difficult trial strategy decisions that a defendant may fact in light of such claims. Historically, such emotional injury claims could be made only if caused by the physical impact of the accident, but that has not stopped plaintiffs from pursuing such damages that may resulted from actions unrelated to the accidents themselves, particularly the conduct and behavior of the defendant. Evidence of potentially heinous conduct by a defendant that has no bearing on the cause of an accident could still have a very negative effect on a jury’s decision. The potential prejudice to a defendant has not gone unnoticed by the Maryland courts, and recent a recent Court of Special Appeals decision has confirmed that Maryland does not allow emotional distress claims that arise apart from the underlying accident itself.

In Alban v. Fiels, 61 A.3d 867 (Md. App. 2013), Michael Fiels caused an auto accident when he veered across the center line of traffic and collided with a pickup truck being occupied by Mr. and Mrs. Alban. At trial, witnesses were prepared to testify that Mr. Fiels left the scene of the accident and proceeded down the road. However, he encountered a dead end and, therefore, had to turn around and drive past the Albans’ vehicle in order to continue fleeing the scene. The witnesses would have further testified that Mr. Fiels laughed at the Albans as he drove past them the second time. The court opinion indicated that the Albans were taken to University of Maryland Shock Trauma and released. Their physical injuries were apparently minor. Notwithstanding the lack of significant physical injury, the Albans filed a lawsuit against Fiels alleging psychological injuries and emotional distress, including crying, anxiety, and sleeplessness. Their Complaint contained a count labeled “Intentional Acts of Outrage,” which asserted that Fiels fleeing and apparent laughter caused them to sustain severe emotional trauma, and sought $1,000,000 in damages resulting from his intentional conduct. Read more

Feb 18

deed

Court of Appeals Rules that Title Companies Owe Duty of Care in Tort when Conducting Title Searches

In the case of 100 Investment Limited Partnership v. Columbia Town Center Title Co., the Maryland Court of Appeals was asked to determine whether a title company owed a tort duty of reasonable care to its customer, the purchaser of real property, when conducting a title search, notwithstanding any contractual obligation that may also exist. The Court ruled that, despite the fact that the title company – customer relationship derives from contract, an “intimate nexus” exists between the parties because of the foreseeability that the customer’s purpose for retaining the title company is to rely on its professional judgment. This intimate nexus justifies the imposition of a tort duty to exercise reasonable care in carrying out one’s professional services. In this regard, the Court of Appeals has decided that title companies should be treated similarly to lawyers, accountants, architects, and other professionals that have been found to owe their customers tort duties, in addition to those assumed by contract.
Read more

Oct 19

images

Ethics Opinions Underscore Problems That Medicare Liens Create when Negotiating Settlements

In serious personal injury cases, a common issue arises in settlement talks that affect the course of negotiations – Liens; Specifically, health insurer liens and liens asserted by Medicare.  The problem is simple: a plaintiff with medical expenses often has those expenses paid for by his or her health insurer or through Medicare/Medicaid.  Medicare is entitled under the Medicare Secondary Payor Act to be reimbursed for any payments it has made for causally related medical care, and the health insurer has a subrogation interest in the proceeds it has paid.  The existence of these liens creates difficulty negotiating settlements.  Settlements are often much less than what could be a reasonably expected verdict if the plaintiff prevails, but going to trial involves risk, whereas a settlement eliminates risk.  In addition to the risk of a low plaintiff’s verdict or defense verdict, there are other factors involved in determining a reasonable settlement value, including limitations on the amount of insurance coverage available and the prospects of otherwise recovering a judgment from a defendant.  Because of these factors, the plaintiffs often have to engage in negotiations with the lien holders in order to settle the case because having to pay the full lien amount could negate any potential benefit of accepting a settlement or even continuing with the litigation.  For example, if the reasonable settlement value of a case is $100,000.00, but the plaintiff has liens in the amount of $80,000.00, the plaintiff is in a position where he or she cannot accept the settlement unless the lien holder takes less because the full settlement would otherwise go to the lien holder and the plaintiff’s attorney, leaving plaintiff with no recovery at all.  Given this reality, the plaintiff must often participate in a second negotiation with the lien holder to negotiate the lien down to a level where the lien holder will receive something, but the plaintiff will as well.  In effect, there are two separate negotiations: one between the plaintiff and defendant, and another between the plaintiff and the lien holder. Read more

Sep 17

murder

October 1 Brings New Wrongful Death Limitations Accrual for Acts of Criminal Homicide

          In a closed society where everybody’s guilty, the only crime is getting caught. In a world of thieves, the only final sin is stupidity.
                                              – Hunter S. Thompson
 

October 1 is around the corner, which in Maryland means that several new laws from the spring legislative session will take effect.  One such law will change (or perhaps clarify) when the 3-year statute of limitations period begins to accrue in wrongful death and survival actions where the underlying tort is the result of an act of criminal homicide.   In effect, the statute attempts to remove the shield of limitations from not just the murderers who get caught quickly, but also from those who those who avoid detection for many years.

Under the previous laws, the limitations period began to accrue at the time that the cause of action arose, i.e. the death.  The only defined exception was under MD Code, Courts & Judicial Proceedings 5-203,  which states that if knowledge of the accrual of a cause of action is kept from a party due to the fraud of an adverse party, the cause of action would not begin to accrue until the moment that the party discovered, or by the exercise of ordinary diligence should have discovered the fraud.  In rare instances when a wrongful death action was premised upon a criminal act, such as murder, section 5-203, by its terms, did little to help the victim’s estate or surviving relatives.  For example, if a person was murdered, but the identity of the killer was not known, it would generally not be the result of fraud by the perpetrator that prevented the injured party from discovering the cause of action.  After all, not admitting to committing a crime is different from committing a fraud to prevent one from discovering the crime’s existence.  Many jurisdictions have similar laws to Maryland regarding limitations accrual, either by statute or common law, and have had occasion to face the same problem, such as when the police arrest a suspect 10 years after a murder.  There has generally been no firm legal position to protect the injured estate or dependent from the limitations period expiring in these situations before they could ever discover the perpetrator of the crime.  Having dealt with this issue before the trial courts and research appellate cases from across the country that have dealt with this issue, I can tell you that the solutions found by courts has largely been to completely ignore the laws as written and create whatever new rule was required under the circumstances to allow the plaintiff to defeat a defendant’s limitations argument.  Often, these rulings have been flatly inconsistent with clear and established laws of the jurisdiction.  The Maryland legislature has now passed a law that will directly deal with the accrual problem in the cases of criminal homicides, which should prevent the courts from having to choose between butchering the law or allowing an alleged murderer to avoid the prospect of civil liability simply because he/she was good at covering their tracks. Read more

Aug 22

pit bill puppy

Court of Appeals Takes Another Bite at Tracey v. Solesky

     “It’s a mystery! It’s a mystery wrapped in a riddle inside an enigma! The *@*%#&^ shooters don’t even know! Don’t you get it?”     – David Ferrie (Joe Pesci) to Jim Garrison (Kevin Costner) in the movie “JFK”

On the heels of the legislature’s failure to address the quagmire created by the Court of Appeals’ April ruling in Tracey v. Solesky, where the Court decreed that all pit bulls and cross-breed pit bulls were inherently dangerous and imposed a strict liability standard against owners and anyone harboring such dogs, the Court issued a revised ruling yesterday after a motion to reconsider was filed by Tracey’s attorneys.   In the initial decision, the Court of Appeals ruled that if a person is attacked by a dog that is a pit bull or a pit bull mix (a cross-breed pit bull), then the owner, or any other person (which in this case included a landlord) who has the right to control the pit bull’s presence on the subject premises who knows or should know that the dog is a pit bull or cross-breed pit bull, is strictly liable for the plaintiff’s damages.  This ruling, with respect to pit bulls and cross-breed pit bulls, abrogated the former common law negligence standard applicable to dog owners that required evidence that the owner knew or should have known that the specific dog had dangerous propensities.  This decision received harsh public criticism for its breed-specific stance, its harsh application of strict liability to landlords and other potential third persons who do not own the dog, and the overwhelming confusion that would be caused by determining what constituted a “pit bull or cross-breed pit bull” or what standard should be applied for determining whether a person should know that the dog is a “pit bull or cross-breed pit bull.”

In its revised ruling, Read more

Aug 21

Twitter

In the Social Media Era, Any Publicity is not Good Publicity for Insurance Companies

A Maryland insurance company has recently been placed squarely on the defensive in the press due to it recent defense of an uninsured/underinsured motorist (UM) insurance claim in court.  Actually, that is not entirely accurate.  The insurance company does not find itself this position because of the outcome in the court case.  Rather, the public scrutiny it now faces results directly from the evils of social media – the dreaded blog post.  Although to be fair to blogs (as I kind of have to be), the situation could have come from one of the many relatives of the blog, be it the Tweet, the Facebook post, the YouTube rant, MySpace, the message board comment, etc.  Despite having done nothing wrong, the insurer finds itself in a public relations nightmare, which in the internet age, maybe should not be all that surprising.

I will not identify the insurance company here or the specific case because (1) the company’s actions were completely appropriate; and (2) it does not matter which insurer it was – other insurers handle UM claims the same way, and any one of them could have found themselves in the same position. Read more

Aug 17

Gracie

Maryland Legislature Rolls Over and Plays Dead on Pit Bull Legislation

               “Woof!”  – Gracie the Dog (trusted friend, avid squirrel chaser, and Pit Bull…or was she?)

               “Succumbing to the allure of bad facts leads inevitably to the development of bad law.” – Judge Clayton Greene, in his dissent in Tracey v. Solesky

In April, the Court of Appeals, by a 4-3 margin, issued a decision in the case of Tracey v. Solesky that effectively designated all “pit bulls” and “cross-bred pit bulls” as inherently dangerous animals, and the Court determined that the owning, harboring or controlling of these dogs was an inherently dangerous activity.  This resulted in the Court applying a strict liability standard against any person owning, harboring, or controlling pit bulls for any injuries stemming from a pit bull attack.  This was the first instance where a Maryland Court established a breed-specific standard of liability for dog attacks.  Liability stemming from owning, harboring, or controlling any non-pit bull dog remains subject to the old common law standard of whether the owner knew or should have known about the dog’s dangerous propensities.  In addition to the breed-specific nature of the ruling, the significant consequence of the Court’s opinion was that it applied this strict liability standard, not to the owner of the dog,  but to the owner’s landlord when the landlord knows or should know of the existence of a pit bull on the premises. Read more

Aug 7

Autoaccidentblog

Trying to Make a Picture Worth a Thousand Words in Auto Cases

It is widely accepted that demonstrative evidence, such as photographs can make a larger impression on a jury than testimony.  In essence, people respond to evidence that they can visualize.  In litigation, it is the attorney’s task to provide context to the jury about what they are seeing and why it is important.  In no type of case can photographs be more beneficial than in automobile accident cases.  Plaintiff’s attorneys often offer photographs showing extensive property damage to vehicles involved in an accident.  Alternatively, when the damage involved in an automobile accident is relatively minimal, defense attorneys routinely use vehicle photos to suggest to the jury that serious injuries could not have been caused by an accident involving such minimal property damage.   As much as it is common practice in auto tort cases to offer photographs of vehicle damage, it is equally common that the movant will face an objection by the opposing party, who will argue that the photographs are prejudicial to their client.  When an objection is made, it is then up to the trial judge to determine whether the photographs can be admitted.

While there is little doubt that photographs of vehicles are relevant in auto tort case, if for no other reason to assist the jury in visualizing the nature of the accident itself, there may be instances where the trial judge will determine that the photographs cause more prejudice to the opposing party than they offer in probative value.  Several years ago, the Maryland Court of Appeals reaffirmed that whether photographs of vehicle damage should be admitted is left to the sound discretion of the trial judge. Mason v. Lynch, 388 Md. 37 (2005).  In Mason, the Court upheld a trial court’s admission of vehicle photographs tending to show minimal damage, which the Plaintiff argued caused the jury to return a verdict of $0.   In doing so, the Court of Appeals reiterated that such photographs have relevance and specifically rejected the notion that expert testimony proffering a correlation between the photographs and an injury (or lack thereof) was necessary.  It concluded: “That there may be some automobile accidents, in which very minor impacts lead to serious personal injuries, and vice versa, does not mean that evidence concerning the impact is irrelevant to the extent of the injuries.  Relevancy under [MD Rule 5-401] involves probabilities; complete certainty is not ordinarily required.”

Because the Court of Appeals in Mason specifically reaffirmed that vehicle damage photos are relevant and it upheld their admission, it is often forgotten that the Court’s ultimate holding was that the admission of photographs was within the sound discretion of the trial court, and will not be overturned unless there was an abuse of discretion.  In fact, the Court made it a point to state that it will not only be very rare for an appellate court to reverse a trial court’s admission of photographs, but that it would also be rare to reverse a trial court’s refusal to admit photographs.  Attorneys, then, should not take for granted that their photographs will be admitted by a trial court.  In particular, in most State Court cases, the attorney will not know their trial judge until only days before the trial.  Accordingly, if the attorney intends to make ”no damage” photos an essential element of his/her argument, then it may benefit the attorney to utilize expert testimony.  Read more

Apr 27

Virginia Lacrosse Slaying

Wrongful Death Suit Filed in Huguely Case

The mother of slain University of Virginia student Yeardley Love has filed a Wrongful Death lawsuit against her murderer, George Huguely, in the Circuit Court for Charlottesville, VA, according to multiple news outlets.  I could not find a copy of the Complaint online, but it is likely that the Complaint will alternately allege that Huguely’s actions were intentional, done with willful indifference or concern for Love’s well-being, and/or failed to meet the standard of reasonable or ordinary care.   The suit seeks $29.5 million in compensatory damages and $1 million in punitive damages.

In May 2010, the murder of University of Virginia student and Lacrosse player Yeardley Love became a national story. Read more

Apr 16

Court of Special Appeals Tackles Evidentiary Issues Associated with “Road Rage”

“All of Civility depends on being able to contain the rage of individuals.”

               Joshua Lederberg, Scientist (1958 Nobel Prize in Physiology)

The term “road rage” has become such a part of the American lexicon that it has sparked spinoff words, such as “air rage.”  The extent to which such a phenomenon exists as a psychological or sociological concept is open for debate, but regardless, when someone behind the wheel of a car loses his or her cool in a very profound way, bad things can happen.

In 2005, Marjorie Hendrix and Charles Burns were involved in what, at first glance, was a fairly common type of automobile accidnt:  Ms. Hendrix, proceeding through an intersection with a green light, was struck by a vehicle driven by Mr. Burns, which had been traveling in a perpendicular direction and traveled through a red light.  The plot thickens when it is discovered that Mr. Burns was under the influence of alcohol at the time of the occurrence and had a history of substance abuse, a criminal record, and driving violations.  It also turns out that the reason that Mr. Burns drove through the red light was attributed to being in a fit of “road rage” that developed from an earlier incidend with another driver, whom he was apparently pursuing at the time of the accident.  Ms. Hendrix file a lawsuit alleging negligence and battery against Mr. Burns and alleging negligent entrustment against Burns’ wife, who was the owner of the vehicle.

Prior to trial, the court granted summary judgment in favor of Mr. Burns on the battery charge, finding that there was no intent by Mr. Burns to strike Ms. Hendrix’s vehicle, which was a required element of battery.  With the battery count out of the way, Burns’ defense team made a very wise decision:  Mr. and Mrs. Burns admitted liability on the negligence counts, then moved the Court in limine to exclude Ms. Hendrix from presenting any evidence of Mr. Burns’ intoxication, his “road rage” incident, his attempt to flee the scene, or his prior unflattering history.  Had the jury been permitted to hear this evidence, despite liability already having been established, it would have created the possibility that the jury’s award be less of an effort to fairly compensate Ms. Hendrix and more of an effort to penalize Mr. Burns.  The Court agreed and precluded the testimony. Read more

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