Last week, the DC Court of Appeals decided Hubb v. State Farm, a case involving subrogation of personal injury protection (“PIP”) benefits under Washington, DC law. The Court held that PIP insurers in DC have the right to subrogate (or be reimbursed) from the proceeds received by an injured person from the wrongdoer. This is not a groundbreaking result. In fact, I think even if the Court had adopted Hubb’s argument in this dispute, there was not going to be a repeatable benefit for other injured people in the future. But what is noteworthy about Hubb v. State Farm is the reasoning employed to derive the result. It turns out statutory construction, like statistics, can be used to prove almost anything.
Back when I was an undergraduate, my friends and I sometimes took spontaneous road trips. Three or four of us would pile into a car with an odd assortment of backpacks, snack foods, and musical instruments. Since these trips often involved hundreds of miles through multiple states, paying for gas became a group responsibility. Though the rule was unwritten, everyone in the car seemed to instinctively agree that each should pay a share of the gas money. We didn’t spend a lot of time discussing this because it just struck everyone as the fairest way to take a road trip. Each of us felt obligated to pay a share for the benefit that was being provided by the car.
Nearly every personal injury case includes claims, in addition to the injured person’s, for the money recovered from the wrongdoer. You can think of these claimants as the passengers of a vehicle on a road trip. Everyone in the car is trying to get to the same place; a successful settlement or judgment for the injured person. Sometimes these claimants are other insurance companies. For example, companies that provide health coverage or personal injury protection coverage. Other times there are unpaid medical bills or unpaid expenses, and doctors or hospitals claim the right to be paid from the proceeds of the case. These claims can arise because of language in a contract, a state statute, or because of equitable principles in the law.
No matter how the claim for payment arises, or what it is called, the claimant expects to be paid from a settlement or trial verdict in favor of the injured person. In fact, in many cases, the claimant has no way to be repaid except through money recovered from the wrongdoer. In these situations, it seems fair that each claimant should share in paying attorney’s fees in proportion to the amount each is owed. The common fund doctrine is the legal principle that anyone who benefits from a settlement or verdict (which includes both the injured person and the claimants) proportionally share in the cost of the attorney’s fees required to get the settlement or verdict.
The Supreme Court of Missouri recently decided Nevils v. Group Health Plan, Inc., holding that FEHBA does not pre-empt Missouri’s anti-subrogation law. Google informs me that Jefferson City, Missouri, where the Supreme Court of Missouri is located, is roughly 930 miles away from the Washington DC area. Despite the distance, Nevils could have a significant impact in our area, both for Virginia residents and for federal employees. This is not to say that the analysis laid out in the Nevils decision is new. In fact, I think the Missouri Supreme Court just said what we’ve all been thinking (or, at least, what many local lawyers who routinely have to deal with FEHBA liens have been thinking).
Ridesharing services such as UberX, Lyft, and Sidecar have been getting a lot of attention in the press lately. Ridesharing services are essentially just taxi services with a technological twist without the regulations ensuring passenger safety. They utilize smartphone apps to connect car owners (usually amateur drivers) with people looking for a ride. The potential passengers drop a pin showing their location, and any drivers logged into the app respond, pick up the potential passenger, and ferry them to their destination.
These ridesharing services only started operating in the D.C. area early last year, but have quickly gained a strong following of city-dwellers who have sworn off traditional cabs completely. Because of the open questions surrounding the service’s liability, it would benefit anyone utilizing these services, or anyone representing someone injured in a collision involving s ridesharing vehicle to pay attention as these questions are answered.
It’s somewhat rare to have breaking news in the world of personal injury law. But this week, we have something close to it. On Monday, the Department of Transportation announced that it intends to move forward with laws that enable cars to talk to each other on the road. The program, currently dubbed Vehicle-to-Vehicle Communication Technology (“V2V”), promises to make driving safer, eliminate traffic, save the environment, and boost the economy. This probably overstates the program’s benefits, but I do get the distinct feeling that this program is going to fundamentally change the way Americans drive.
Your Car is a Know-It-All Back-Seat Driver
The first wave of V2V safety applications are intended to allow a vehicle to send and receive information about itself to other nearby vehicles. So your car will constantly broadcast its own speed, position, and direction as you drive along. Your car will also listen for other cars broadcasting speed, position, and direction information. Your car will take this information and try to determine whether there is an imminent threat of collision with nearby cars. If your car determines that there is a collision threat, it will warn you. There is no short-term plan to have the car take action itself, only to present some kind of visual or audio warning to the driver.
When I think January, I think bone-chilling temperatures, snow days, and gyms packed with people fulfilling New Years resolutions. But January in the Washington DC metropolitan area also means the beginning of new legislative sessions in both Virginia and Maryland. Every year, starting on the second Wednesday in January, the General Assemblies of both Maryland and Virginia convene for their respective legislative sessions. Here is a brief overview of proposed legislation affecting bicyclists and pedestrians. While these bills are not yet laws, as you will see, the topics of the proposals represent leading-edge conflicts between cyclists, pedestrians, and motorists.
Is a fetus a “patient”? Normally, a question like this would signal the opening salvo of a discussion about abortion. But here it’s leading to a discussion about what happens when a fetus is negligently injured by a Virginia doctor. You might naturally find yourself falling into one of two schools of thought on the issue. Either, (a) the fetus is just part of the mother and therefore not a separate “patient” from the mother, or (b) the fetus is a distinct entity from the mother and is a completely separate “patient”.
The Virginia Supreme Court recently faced this exact question in the case of Simpson v. Roberts. In Solomonic fashion, the court’s majority split the legal baby: the fetus is a “patient” if it is later born alive, but if it dies before birth, then it’s not a separate “patient” from its mother. Prior to either birth or death in the womb, there is no clear answer to whether a fetus is a “patient”.
Last night after I got home from work I stumbled across a Washington Post article about the human toll of worldwide traffic accidents. The article is actually part of the Roads Kill project by the Pulitzer Center on Crisis Reporting, spearheaded by journalists Tom Hundley and Dan McCarey. The series focuses on the huge number of lives lost each year due to motor vehicle accidents (1.24 million worldwide) and how these losses are disproportionately borne by poor countries (“It’s costing on average between 1 and 3 percent of GDP.”). In addition to traditional articles, there is an excellent map of the world where you can quickly compare rates of traffic fatalities between countries. In addition to these excellent facts and reporting, I learned that in 2010, the United Nations called for a Decade of Action for Road Safety in an effort to reduce worldwide traffic fatalities.
After perusing the interactive map for a while, I was somewhat startled to realize that the US is nowhere near the top in fewest motor vehicle deaths. The US has 11.4 fatalities per 100,000 people per year. This rate is on par with Turkey and Uzbekistan, but considerably worse than most of Europe, Canada, Australia, and Japan. According to the National Highway Traffic Safety Administration (NHTSA), there were 33,561 traffic fatalities and 2,362,000 traffic-related injuries in the US in 2012. That comes out to 92 deaths and 6,471 injuries per day due to motor vehicles in the US.
In handling personal injury claims, there are many cases where justice and efficiency are best served when we know the amount of insurance coverage available. This is especially true in cases when a person is seriously injured. If an injured person’s medical expenses, out-of-pocket costs, and pain and suffering vastly exceed the amount of available insurance, the insurance company usually throws in the towel. But the problem is that insurance companies don’t want to reveal the amount of money available to pay for a person’s injuries. In fact, it is usually not until a lawsuit is filed that an injured person’s lawyer learns what the insurance policy’s limits are.
Fortunately, in the last few years, Washington, DC, Maryland, and Virginia have all passed laws allowing injured people and their lawyers to know the wrong doers insurance policy limits without having to file a lawsuit. The three statutes promote the public policy that for people who are seriously injured, disputes will be resolved much more quickly when both parties know how much insurance coverage is available. Here are the details on each statute:
The flakes began falling last night before we had left the office. All evening and through most of the night, snow fell across DC, Maryland, and Virginia. Today, we are all enduring an uncomfortable mix of frigid temperatures, strong winds, and snow and ice accumulations. Since I have safely made it to the office today, this is a perfect opportunity to talk about the snow clearing laws in the area.
DC law requires any person in control of a building to clear snow from the sidewalk around the building within 8 hours from daylight after the snow stops falling. DC Code § 9-601. Even though the language of this statute seems to impose a clear duty on landowners in DC, this law does not say that failing to clear the sidewalk makes the landowner liable to someone injured on the icy sidewalk. So when a building owner or manager fails to clear the sidewalk, only the DC government can do anything about it. The DC government has the duty to clear the sidewalks and then stick the building owner with the bill. See DC Code §§ 9-605 and 9-606.
Regarding people injured from a slip and fall in icy conditions, DC courts have held on a number of occasions that no one has a duty to keep the “front of one’s premises free from ice and snow.” Therefore, landlords need not fear lawsuits from natural snow and ice accumulations on the sidewalks. However, it may be a problem if the landlord does something to make conditions more dangerous. While the DC Court of Appeals has not formally permitted this “increased danger” argument to be an exception to the rule, it certainly seems receptive to hearing the argument. See Murphy v. Schwankhaus, 924 A.2d 988 (DC 2007).