No Loitering on Bridge Sign

Having a case decided by a jury is one of the best features offered by the legal system in the US. The domain of the judge is to determine the law. The domain of the jury is to hear the facts of the case and assess the credibility of the witnesses. If the jurors believe you and your witnesses more than the opposing lawyer and her witnesses, you will prevail.

Except when you don’t…

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Bike Lane 4

Most of the time, a person drives her own car. But occasionally, a vehicle owner lends her car to a friend or relative. When this happens, the friend or relative is a permissive driver. If that friend or relative injures someone else while driving the car, the driver is liable for the person’s injuries. But what about the vehicle owner? Is she liable to the injured person too? Figuring out a legal puzzle involving permissive drivers and vehicle owners can be a little like watching Abbot and Costello doing “Who’s on First?” It is made more complex by the multi-jurisdictional nature of the Washington, DC area. The following statutes and cases will help you get the ball rolling.

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Potomac Trail 1

Recently, I read a unique article in the New York Times about what it is like to be a pedestrian run over by a vehicle. The author was run over by a delivery truck while in a crosswalk in 2007. She recounted her injuries, anecdotes from her recovery, and the challenges she continues to face 7 years after the incident. She also tells the stories of three of her coworkers who were also pedestrians struck by motor vehicles. While each individual story differs in some respect, there is significant similarity in each person’s response to the trauma. Unless you have been injured in an accident yourself, I think it is difficult to understand the challenges, difficulties, and memories that an injured person faces.

While reading this article, and because of some questions I’ve gotten from my friends and family lately, I think it is useful to discuss the types of damages that an injured person can recover from a wrongdoer.   It is critical to note that money is not a cure for any injury. People I’ve met who were injured in accidents invariably would prefer to have not been injured as opposed to receiving financial compensation. A wrongdoer’s payment for the injuries he causes is an imperfect remedy at best. However, in trying to quantify the damages resulting from an accident, these are the categories that a wrongdoer can be legally liable for:

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L and NH 1

In the last two months, appellate courts in Maryland issued three opinions arising out of Maryland Insurance Code § 19-511.  This statute, enacted nearly 20 years ago, lays out a procedure for allowing an injured person to receive the proceeds from a settlement with an automobile liability insurer while still reserving the right to make a uninsured motorist insurance (UIM) claim against her own insurer.  The legal interplay between making a liability insurance claim and making a UIM claim can be very tricky.  But the procedure in § 19-511 contains minimal legalese and is relatively straightforward to follow.  The overwhelming message for lawyers from these recent appellate decisions is to become very familiar with the process laid out in § 19-511.  Follow its language and you and your client may safely pursue the UIM claim.  Deviate from its instruction, and you and your client will suffer serious consequences.

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Rock Cr Pk Trail 1

Spring is slowly arriving to the Washington, DC area.  If you haven’t already, it’s time to dust off your bicycle, pump up the tires, and start riding again.  An issue that continually comes up is whether bicyclists can ride in the street, or on a sidewalk, or both.  The simple answer is yes to all three (though it might be impossible to do “both” at the same time).  There are a few caveats to this, but there is far more confusion among pedestrians, motorists, police officers, judges, and lawyers over this than there should be.  Since I like to dig down to the source, the following references provide the legal foundation for whether bicyclists can ride on streets or sidewalks around the DC metropolitan area.

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 Whitehouse 1

Open enrollment for health insurance offered by the Affordable Care Act (“ACA”) recently wrapped up.  Initial reports indicate 7.1 million people have signed up for health insurance through the exchanges since the ACA enrollment started.  Many personal injury lawyers, myself included, are curious to see what effect the ACA will have on our clients.  Back when open enrollment first started, I made a number of practical predictions about how the ACA will affect our clients and practice.  Last week, the nonprofit, nonpartisan RAND Corporation issued a new report predicting the effect the ACA will have on different types of liability insurance, such as automobile insurance.  While some of the information in the report is insightful, much of the analysis has limited application to the DC metropolitan area.

Before I start summarizing the report, it is important to remember that healthcare costs are like a long balloon that a magician uses to make animal shapes.  The balloon contains a specific amount of air.  Squeezing one segment can make it smaller, but it simultaneously makes another segment larger.  For healthcare costs, the segments are (a) consumers, (b) medical care providers, (c) health insurance companies, (d) liability insurance companies that pay for injuries, and (e) the government.  Giving one segment a benefit will impose a cost on at least one other segment.  For example, reducing the price that consumers pay for a doctor’s visit causes the doctor’s revenues to decline.  Broadly speaking, the RAND report discusses how the ACA will inflate, or deflate, the liability insurance segment of the healthcare cost balloon.  Deflating the liability insurance segment does not mean that the costs disappear, just that they are borne by another balloon segment.

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Chuck Berry, one of the pioneers of rock-and-roll, used to say, “Don’t let the same dog bite you twice.”  Although he probably wasn’t referring to legal liability, the quote closely resembles the common law “One Bite Rule.”  The rule says that the owner of a dog isn’t liable for injuries caused when the dog bites someone, so long as the dog had never bitten anyone before.  Put another way, every dog gets one free bite.  Until a dog bites someone, so the logic goes, the dog’s owner has no reason to think the dog would bite someone.  Last week, the Maryland legislature passed a new law that makes it much harder for any Maryland dogs to get a free bite.

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No Idling 3

Numerous factors go into determining the value of an injured client’s case.  Initial injuries, cost and duration of medical care, long-term injuries, and the limitation of a person’s activities are just a few of the factors to consider in determining the value of a personal injury claim.  How about the injured person’s FICO credit score?  It’s not a factor that we consider.  However, the insurance industry is adopting new methods to search for just this kind of unconventional connection.  They call it predictive modeling and it is Big Data’s latest promise to the insurance industry.  Since most personal injury cases involve insurance adjusters and defense attorneys hired by insurers, predictive modeling will have a significant impact on the future of personal injury law.

What is Predictive Modeling?

Predictive modeling is the process of using statistical methods and large sets of data to look for hidden connections in the data.  The idea is that the hidden connections may be useful predictors of an individual customer or claim outcome.  For example, an insurer can collect data on an individual driver through a telematics device, look for predictors of the likelihood of claims within that data, and then set the price of the policy.  The same method can be applied to claims too.  As data becomes easier to collect and analyze, insurers are learning to search for anything that would allow them to predict the outcome of claims quickly or reduce costs.

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 President Signs 2

Numbers have a strong pull on our judgment.  If a law says, “Don’t drive a car unreasonably fast,” it is difficult to know exactly what that means.  Every person on earth could argue at length justifying their own definition of “unreasonably fast.”  But change that law to say, “Don’t drive a car faster than 70 miles per hour,” and all judgment collapses to the single question of whether a car’s speed exceeds 70 mph.  Call it simplicity, efficiency, or laziness, but we love rules based on numbers.  They make decisions easy.  Because numbers mesmerize us, when a law incorporates both a number element and an extra “reasonableness” element, it’s easy to focus on the number part and forget about the rest of the rule.

Take punitive damages, for example.  In State Farm v. Campbell, 538 U.S. 408 (2003), the U.S. Supreme Court laid out just such a mixed rule for the ratio between compensatory and punitive damages:

We decline again to impose a bright-line ratio which a punitive damage award cannot exceed.  Our jurisprudence and the principles it has now established demonstrate, however, that, in practice, few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process. Id. at 425.

Even though couched as a non-rule, the Supreme Court effectively stated that punitive damages should not exceed a 9:1 ratio with compensatory damages, unless there is some good reason for a higher ratio.  For example, the Court says that larger ratios may be proper when “a particularly egregious act has resulted in only a small amount of damage.”  Id. But that phrase “single-digit ratio” has been stuck in everyone’s mind ever since.

Recently, the Virginia Supreme Court decided Coalson v. Canchola, a case that highlights the allure of the “single-digit ratio” part of this punitive damage rule, and the disinterest received by the other, less easily quantified factors.

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Sunderland 1

Following my post last week on Hubb v. State Farm, I’ve been thinking about how complicated PIP and MedPay claims can get in the Washington, DC, Maryland, and Virginia area.  It’s not complicated because the laws themselves are complex, but rather, it’s complex because each jurisdiction’s laws are different and many accidents involve more than one jurisdiction (e.g. a DC accident involving a Virginia resident).  One of the issues we face in deciding whether to file a PIP claim for one of our clients is whether the insurer has subrogation rights (and/or the right to be reimbursed) for PIP benefits.  This post will explain how each jurisdiction treats PIP or Med Pay subrogation.

First, a note about terminology.  Personal Injury Protection (“PIP”) and Medical Payments (“Med Pay”) coverage under an automobile insurance policy are very similar in a lot of ways.  Both are intended to cover medical expenses of the policyholder.  There are some differences between the two, but they are not important for this article.  Each jurisdiction’s statutes deal only with one of the two (so the rules for the other type depend solely on the policy language).  DC law deals only with PIP.  Virginia has no provisions for PIP, but policies may offer Med Pay.  Maryland requires PIP to be offered, but has no statutory guidance about Med Pay.  Likewise, the terms “subrogation” and “right of reimbursement” are related concepts that have different definitions.  The differences are not too important for this article.  Courts and legislators sometimes don’t respect the different meanings, anyway.  For this discussion, consider both terms to mean that an injured person has to repay her own insurance company for the PIP benefits received.

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