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Aug 21

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

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

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

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

Mar 30

EEOC Issues Final Regulations Explaining “Reasonable Factors Other Than Age” Defense

“Equality,” I spoke the word
As if a wedding vow
Ah, but I was so much older then
I’m younger than that now

– “My Back Pages”, Bob Dylan

Yesterday, the EEOC published its “Final Regulation on Disparate Impact and Reasonable Factors Other than Age” as it relates to the Age Discrimination in Employment Act of 1967 (ADEA).  According to the EEOC’s press release, the final rule explains the meaning of the Reasonable Factor Other than Age (RFOA) defense and “strikes the appropriate balance between protecting older workers from discriminatory, unreasonable business decisions and preserving an employer’s ability to make reasonable business decisions.”

Pursuant to the ADEA, an employer with 20 or more employees cannot discriminate against any employee or applicant who is 40 years of age or older.  Although most people think of discrimination as an intentional act, discrimination can occur even when there is no intent to discriminate, such as when the employer has a policy or practice that has an unintended effect of harming older workers more so than younger workers.  In these instances, the policy or practice is said to have a “disparate impact” on the protected class of older workers and are prohibited by the ADEA, unless the employer can defend the practice by demonstrating that the disparate impact is based upon RFOAs.

Read more

Mar 8

Hurry Up and Wait

The waiting is the hardest part
Every day you see one more card
You take it on faith, you take it to the heart
The waiting is the hardest part

“The Waiting”
Tom Petty and the Heartbreakers

Contrary to popular myth, this classic Tom Petty song was not written about attorneys, but you cannot blame litigators for often feeling that the song applies to them.   A litigator spends hours preparing for an important hearing or trial, has dreams (or nightmares) of presenting his argument to the court.  Then the day finally comes, and the lawyer gets in his car 20 minutes early to account for traffic, only to find out that traffic is running 25 minutes behind.  The adrenaline is kicking in.  He rushes to the courtroom just as the clock strikes the scheduled start time and then… Read more

Feb 20

Maryland House Passes Same-Sex Marriage Bill

Late Friday, the Maryland House of Delegates, in a close vote, passed a same-sex marriage bill, which will now be forwarded to the State Senate.  If passed by the Senate, Gov. O’Malley will sign it, and Maryland will join a number of states and Washington, D.C. that allow some form of gay marriage or civil union.  Although I am sure that the politics that have gone on publicly and behind the scenes are fascinating, this is not a political blog site, and I have no interest in making it one.  The gay marriage issue, though, is nothing if not headline-making, so it merits a brief look at how legalizing same sex unions may affect tort and insurance issues in Maryland.  Ultimately, the impact will probably be minimal, but a few items immediately come to mind:

1.  “Resident Relative” Coverage: In many personal liability policies, coverage is generally available to the “resident relative” of the named insured.  Currently, a same-sex partner would not fall into that category, but if the partner were to become a spouse, then presumably, he or she would become an insured by definition under the policy and be entitled to a defense and indemnity if an applicable tort claim was brought against the person.

2.  Loss of Consortium: A loss of consortium claim exists in favor of the spouse of a personal injury plaintiff for loss of affection, companionship, services, and the like.  Juries often have a difficult time placing a whole lot of value on loss of consortium claims, given the whole “in sickness and in health” thing, but just think of some of the debates that may go in inside of a jury room when the loss of consortium claim involves a same-sex couple.

3.  Joint Marital Assets: When an individual is sued in tort and a judgment is obtained, the prevailing plaintiff has many avenues of collecting if the judgment is not timely paid, including attaching bank accounts and placing liens on real property.  However, there is a catch – the judgment creditor can only go after the debtor’s personal property and generally has no rights to jointly held property.  With same-sex marriage, gay couples will likely accumulate and maintain more joint property than if there were no legal recognition of the union.  The family home, for example, will likely automatically be joint property of the spouses regardless of how it is titled, thus protecting the property from lien.

Feb 17

Reactions to Lead Paint Ruling Beginning to Surface

To every action there is always an equal and opposite reaction.

                                                         –         Sir Isaac Newton’s Third Law of Motion

In October, the Maryland Court of Appeals issued a very disappointing ruling in the lead paint case of Jackson v. Dackman Co., which nullified a long-standing Maryland statute that granted qualified immunity from lead paint liability to $17,500.00 for rental property owners who took legislatively mandated steps to ensure that their properties were lead free.  The Court’s decision was clearly inspired by the opinion that the compensation amount in the immunity provision was too low, but it failed to give any regard for the fact that the immunity only applied to owners who had substantial measures to ensure that their properties were lead free, and that owners who had not acted reasonably to eliminate lead paint from their properties were entitled to no immunity.  The action taken by the Court in deciding the Dackman case set off a firestorm of debate, and it was only a matter of time before property owners, legislators, and other interested entities reacted to the decision with new ideas to protect property owners who complied with lead paint abatement laws.  Read more

Feb 15

Protect Yourself When Settling a Minor’s Claim

                         The whole world is asleep
                         You can look at it and weep
                         Few things you find are worthwhile
                         And though I don’t ask for much
                         No material things to touch
                         Lord, protect my child

                                               “Lord Protect my Child” – Bob Dylan

One of the few universally accepted social mores in our country is that we, as a society, have an interest and duty to protect our children. This idea of protection is not limited simply to protecting children from physical harm, but rather to promote their overall welfare and best interests.  Not surprisingly, many laws have been enacted for the sole purpose of establishing safeguards to ensure that the best interests of a minor child are preserved when necessary.   Because a minor child lacks the legal capacity to take full advantages of the court system, specific emphasis has been placed on making sure that the rights of minors are adequately protected when their interests require involvement in the legal system. Read more

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