Miscellaneous Automobile Accident Issues

DIMINUTION IN VALUE 

      In some instances it is appropriate to try to obtain a diminution in value award for property damage to a vehicle involved in an accident.  We have used Reed Appraisers, 301-946-6116 in Silver Spring.  See Maryland Practice Jury Instruction-Civil 10:21.  See also Fred Frederick Motors, Inc. v. Krause. 

Enhanced Standard of Care-School Zone

There is case law that suggests there is an enhanced duty to be observant in a school zone. See Lavine v. Beebe 238 MD 365.

Skidding Cases

To deal with issues involving vehicles that skid see Larkin v. Baltimore Transit, 249 MD 305.  Billmeyer v. State F/U/O. Whiteman 191 MD 418;Wolf v. State F/U/O Brown 173 MD 103;  Trusty v. Wooden 251 MD 294. 

A Fog Enhancing the Standard of Care

For one of the cases involving fog and enhanced standard of care, see Peoples Drugstores v. Windham, 178, MD 172. 

EMERGENCY VEHICLES 

      In order for an emergency vehicle to be deemed an emergency vehicle, it must be on an emergency run.  It must have its lights operating and its siren operating.  If there is a high-speed chase and it is deemed an emergency service, then the officer is personally immune from suit absent malice or gross negligence.  See Maryland Code Section 5-639 (b) of Courts and Judicial Proceedings Article.  The municipality, however, may be liable in simple negligence depending on circumstances.  See CJP (5-639c).  The liability of a self-insured jurisdiction is capped at the statutory minimum motor vehicle insurance limits; see CJP, section 5-639d.  If the officer was not on an emergency service mission, as section 19-103(a)(3) of the Transportation Article defines the term, then section 5-639 would not apply.  The county would also not be liable if the officer was not operating the vehicle within the scope of his employment.  See Sawyer v. Humphries. 322 MD 247 (1991) and Wolfe v. Anne Arundel County 374 MD 20 (2003) for discussions of when a police officer is acting within the scope of his or her employment. 

District of Columbia Police Vehicles-Emergency Runs

      In DC, hot pursuit of other vehicles requires that the officer have a genuine belief that someone in the vehicle has committed a serious felony.  All emergency equipment must be activated and the police dispatcher be notified by radio.  The statute speaks only to the officer’s perceived need to proceed expeditiously and does not require any type of pursuit in order to qualify as an emergency run.  If an accident occurs on such a run, the District is protected by qualified immunity from tort liability as to ordinary negligence.  Only gross negligence, which must be shown by the higher standard of clear and convincing evidence, can result in tort liability during an emergency run.  Although a police officer’s intent prior to such a pursuit is to be considered in determining whether there was an emergency, the facts and actions of the situation may otherwise be determinative. The pertinent statute requires a broad and expansive interpretation and under appropriate circumstances, the court may determine as a matter of law that such a pursuit constitutes an emergency run.  If so, the jury might be instructed that the gross negligence and clear and convincing evidence standards govern its interpretations.  (See District of Columbia v. Chambers, D.C.C. A. No. 07-CV-173, decided February 19, 2009.  See also MPD General Order 301.3, “Operation of Emergency Vehicles, Fresh Pursuit and Vehicular Pursuit.”  See also DC Code, Section 2-411(4) which defines emergency run). 

TOWING AND STORAGE OF VEHICLES 

      A towing/storage facility has an obligation to mitigate damages.  There comes a time when they have the right to sell a vehicle, satisfy their billing, costs of sale and give any excess to the owner.  Moreover, under Commercial Law Article Section 16-207 (f) (1) and related sections, the maximum storage charge is discussed.   

SUDDEN EMERGENCY 

      See Haney v. Gregory, a Court of Special Appeals opinion issued November 30, 2007.  In this rear-end collision the defendant claimed a sudden emergency and got such an instruction.  The court held that the evidence did not support the giving of the instruction. 

UNINSURED MOTORISTS CARRIER CLAIMING PIP PAYMENT OFFSET 

      See Lewis v. Allstate Insurance Company, 368 MD 44 (2002).  Uninsured motorist coverage is not entitled to an offset for PIP payment. 

UNDERINSURED MOTORIST CARRIER CONSENTS TO PERMIT UNDERLYING CARRIER TO SETTLE UNDER WAIVER OF SUBROGATION 

      In the event an uninsured or underinsured carrier has waived subrogation, it waives any liability defense including the defense of contributory negligence and the only remaining issues are causation and damages.  See Maurer v. Pennsylvania National Mutual, 131, September term, 2006 in the Court of Special Appeals of Maryland.  If the UIM carrier is willing to waive subrogation and agrees to allow the plaintiff to accept the underlying carrier’s liability limits, the UIM carrier can only defend on causation and damages. 

INSURANCE COMPANY WARNING ABOUT STATUTE OF LIMITATIONS 

      Under the Insurance Article, section 31.15.07.04, The Standards for Prompt Investigation of Claims, the insurer must notify a first party claimant (if neither an attorney nor represented by an attorney) that there may be an applicable statute of limitations which bars the claimant’s rights in the future. 

DRUNK PASSENGER 

      See Maurer v. Pennsylvania National Mutual, 131, September term, 2006 in the Court of Special Appeals of Maryland.  It would be improper for a court to instruct a jury under the motor vehicle provisions of the Maryland Code regarding driving while intoxicated or impaired as it relates to a passenger and suggest that it is evidence of contributory negligence.  Moreover, showing a violation of the relevant statute is not actionable unless it is proximate cause of the harm, see Atlantic Mutual v Kenny, 323 MD 116 (1991). Similarly, Maurer’s use of his false identification was not the proximate cause of his injuries in this case.  

                        DRUNK DEFENDANT 

Although punitive damages are not available to the Plaintiff because of a drunk driver defendant usually unless an intent to injure is proven. One might consider pleading in the facts alcohol and reckless and wanton conduct to avoid a contributory negligence defense to prevent any judgment from being dischargeable in bankruptcy. It also could lead to an admission of liability. See Section 523(a) of the bankruptcy code which states that debts are non dischargeable “for death or personal injury caused by the debtor’s operation of a motor vehicle if such operation was unlawful because the debtor was intoxicated from using alcohol, a drug or other substance.  

MULTIPLE COLLISIONS 

      For the plaintiff’s burden of proof, see Seites v. McGinley, 84 MD. App. 292 (1990) and Mayer v. North Arundel Hospital, 145 MD. app 235 (2002). 
 

REDLIGHT CAMERA TICKETS 

      In order to determine if there was a redlight camera at an intersection, one must 1) Go to website http://www.photoenforced.com, 2) You need the tag number of the vehicle; 3) Request a certified copy of the vehicle’s violations from the MVA in Glen Burnie; 4) Ascertain the county in which the violation occurred and then call the county’s enforcement division and give them the violation number you obtained from the MVA. They will send you the actual photo.  The photo has the speed of the defendant’s vehicle at the time of impact.  It can also tell whether a person is telling the truth as to the color of the light when they went through it. 

Traffic Control Devices

In the event an issue arises regarding proper placement of traffic control devices of any kind, one should look at the US Department of Transportation Federal Highway Administration Manual on Uniformed Traffic Control Devices (MUTCD).  This defines the standards used by road managers nationwide to install and maintain traffic control devices on all streets and highways.  It is published by the federal highway administration under 23 Code of Federal Regulations (CFR) Part 655, Sub-Part F.)  The electronic version of the MUTCD 2003 edition with Revisions One and Two Incorporated is the most current edition on the MUTCD website and is the official FHWA publication. 
 

SERVICE OF PROCESS-MOTOR VEHICLE ADMINISTRATION AS AGENT FOR NON-RESIDENT DRIVER 

      Under Senate Bill 413, an Amendment to Courts and Judicial Proceedings Article Section 6-313, provided that the vehicle driven by a non-resident driver in which the non-resident driver is named as a party, that service of process is sufficient service on an non-resident driver if service is made by personal delivery or by serving of a copy of the process, with a certification of the last known address of the non-resident driver, with the Motor Vehicle Administration.  MVA is entitled to a fee for the service of process and must file an Affidavit of Compliance with the Clerk of the Court in the action that is pending and provide a copy of the Affidavit to the party seeking service.  The party seeking service then shall send it by certified mail, return receipt requested, a coy of the Affidavit of Compliance to the motor vehicle insurer of the non-resident driver.  This provision took effect on October 1, 2008. 

TRUCKS STOPPED ON SHOULDER 

      If a truck, illegally parked or fails to place warning lights or triangles, and this had nothing to do with the driver’s losing control of the vehicle, then there probably is not proximate cause.  It would just mean he was in the wrong place at the wrong time, see Myers v. Bright, 327 MD 395 (1992).  See also Schwarz v. Hathaway, 82 Md App 87 (1990).  The Court of Special Appeals found that a person was not guilty of contributory negligence as a matter of law when he was straddling a motorcycle on a mini-shoulder of the Baltimore Beltway.  There was conflicting evidence as to whether he was stationary or walking the motorcycle but that was not material.  No part of his body was on or over the adjacent travel lane of the Beltway.  A pick-up truck drifted on to the mini-shoulder and struck and killed him.  Relying on the Court of Appeals decision in Bloom v. Good Humor Ice Cream Company, 179 MD 384 (1941) the Court indicated that even if the decedent had been negligent by being on the mini-shoulder, in spite of the proximity of fast moving vehicles, that negligence was at best merely passive and potential.  By contrast, the negligence of the driver of the truck was the moving and effective cause of the decedent’s death.  In Matthews v. Amberwood Associates Limited Partnership, Inc., 351 MD 544 (1998), the Court of Appeals said that subsequent opinions of the Court had limited the passive negligence language in Bloom and indeed have limited the holding in that case to the type of factual situation there involved.   

BOULEVARD RULE 

      See Barrett v. Nwaba decided October, 2006 which discusses the rights of a person entering a right lane of a multi-lane road when another vehicle moves into that lane that was already on the road. The boulevard rule is discussed at length in the case of Dunnil v. Bloomberg, 228 Md. 230, 179 A. 2d 371, 374 (1962). The court stated that only in rare instances is it proper to submit to the jury the issue of negligence or contributory negligence on the part of the favored driver. Nor does the fact that the favored driver was exceeding the speed limit somewhat of itself constitute negligence or excuse the defendant’s negligence. See also Covington v. Gernet, 280 Md. 322 (1977);  Schwier v. Gray, 277 Md. 631 (1976); Brown v. Ellis, 236 Md. 487 (1964); Dean v. Redmiles, 280 md. 230 (1977); Harper v. Higgs, 225 Md. 24 (1961); Kopitsky v. Boyd, 277 Md. 491 (1976). Many of these cases suggest it is not appropriate to try to make precise calculations  about speed which cannot be expected of a reasonably prudent favored driver when immediately confronted by an intrusion upon his right of way.  

      See John Grady, et al v. Darin Donell Brown, No. 85, September Term, 2008. In this case, the defendant stopped and yielded the right of way. It was not error to deny the Motion for Judgment Notwithstanding the Verdict. The boulevard rule instruction given to the jury was appropriate and the defendant was not guilty as a matter of law.   

PIP AND UNINSURED MOTORIST COVERAGE FOR BUSES AND TAXICABS 

      See Maryland Code Insurance Article Section 19-501 B 2.  See also Maryland Automobile Insurance Fund v. Sun Cab Company, 305 MD 807 (1986).  Taxicabs and buses are not required to have PIP or UM coverage. 

PIP WAIVERS 

      If a client is a listed driver on a policy where there is a PIP waiver, the waiver would apply to him.  See Maryland Code, Insurance Article, section 19-506 (d) (2) (ii).  Otherwise, the waiver would not apply.  If stepchild or any person is a “family” member, the family member must reside in the first named insured’s household in order to be subject to the waiver.  See Maryland Code, Insurance Article, section 19-506 (b) (2) (iii).   
 

UNINSURED MOTORIST’S BURDEN OF PROOF 

      See Courts and Judicial Proceedings Article, section 10-921 (c) (2) (i), and (ii).  A plaintiff who seeks to rely on sub-paragraph (b) (2), (c) (2) must satisfy all three prongs of them in order to prove uninsured motorist.  The intent is for the plaintiff to show that insurance could not be found from all of the reasonably accessible sources where it could be expected to be found.  If the MVA records say that the defendant was insured with GEICO, a written statement that the defendant gave at the scene of the accident lists his insurer as Liberty Mutual and the police report says the defendant was insured by Travelers, then the plaintiff must introduce denial of coverage letters from GEICO, Liberty Mutual, and Travelers.  On the other hand, if there is no police report, the words “if any” are important in the Statutue.  Therefore, if there was no police report for the accident, the plaintiff may use the defendant’s written statement, if there was one and the MVA records.  In other words, one must use all three of the prongs if available but it is not fatal to the case that not all of them are available.  In other words, if any also apply to any out-of-state motor vehicle regulatory agency, to make the language harmonious through the statute.   

VEHICLE MARKET VALUE/EVIDENCE 

      NADA books and Kelly Blue Book are not public agencies.  Thus Rule 5-902 (5) does not apply.  5-902 involves authentication and does not address the hearsay issue.  Rule 5-803 (b) (17) provides an exception to the hearsay rule for “market quotations, tabulations, lists, directories and other published compilations, generally used and reasonably relied on by the public or by persons in particular occupations.”  Section 7-202 (d) of the Estates and Trusts Articles allow these guides to be used to appraise a motor vehicle in connection with the preparation of an inventory for a decedent’s estate. 

      AUTOMOBILE ACCIDENTS ON ICE 

See Trusty v. Wooden, 251 Md. 294, 247 A. 2d 382 (1968) discusses this issue and causes concern for plaintiffs.  

            FILING A LAWSUIT WHILE BANKRUPTCY IS PENDING 

It may well be contempt of court to file an action against a defendant while a bankruptcy is pending. See also 11 U.S.C. Section 108 (c) regarding the time allowed to file a claim after the bankruptcy is concluded. One should file for a lift of the automatic stay alleging there is insurance available and you will limit the claim to the applicable insurance.  

                  VALID DRIVER’S LICENSE 

See Davis v. Gordon, 183 Md. 129, 36 A.2d 699 for a discussion of this issue. Generally the issue of whether the person had a valid driver’s license does not necessarily matter regarding the negligence issue.  

Rented or Leased Vehicles-Responsibility of Owner

The owner of a rented or leased vehicle is not liable just by reason or renting or leasing the vehicle for injuries arising out of the rental providing there was no independent act of negligence. See Motor vehicle Safety Provisions in SAFETEA-LU enacted August 10, 2005 P.L. 109-59, Title X-Miscellaneous Provisions, Section 10208. 

Sled, Skateboard, Bicycle as a Vehicle

See Valerie Wooldridge, et al. v. Linda Price, et al., Filed march 5, 2009. Skateboard is a vehicle and needs to comply with the Transportation Article of the Annotated code of Maryland. Dicta indicates that bicycles and sleds are also vehicles under the statute because each is a means of transporting people. In the Wooldridge matter, the skateboard violated the boulevard rule.  

PEDESTRIAN IN CROSSWALK ON RED LIGHT

See Schweitzer v. Brewer, 280 Md. 430 (1977) where the pedestrian was found at fault even though in a cross walk because he entered on a red light.