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    Miscellaneous Insurance Issues

    WAIVER OF PIP 

          Waivers of PIP must comply with Insurance Article Section 19-506 (d).  An important point would be checking whether the waiver was in 10-point bold face type.  If the waiver is suggested to have occurred on an electronic PIP waiver, it would be important to check the waiver’s appearance on the client’s computer screen to see whether the disclosures were in such 10-point bold face type.  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).   

    PIP FOR A MOTORCYCLE

    An insurer may exclude PIP for motorcycles or offer the benefits. There is no requirement they obtain a waiver as with regular PIP coverage. See Md. Code, Insurance Article, Section 19-505.

    PASSENGER’S PIP COVERAGE EXCEEDS HOST’S PIP COVERAGE 

    If a passenger has higher PIP coverage on passenger’s own policy than what is provided under the driver’s host’s policy, the passenger is entitled to the difference from what the host paid and passenger’s policy.

    PIP AND UNINSURED MOTORISTS 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. 

    ATTORNEY’S FEES FOR PIP LAWSUITS 

          A plaintiff who claims that a PIP insurer did not act in good faith in processing a PIP claim, may file suit in the District Court and may include a lack of good faith claim in that lawsuit.  See CJP section 3-1701 (e).  A prior complaint to the Maryland Insurance Administration is not necessary.  First party property and casualty insurance claims with a value of $5,000.00 or less and claims under a first party commercial property and casualty insurance policy with a coverage limit of more than $1,000.00 are subject to the new lack of good faith law.  They are not subject to the exhaustion of administrative remedies requirement under which the plaintiff would have to file a complaint with the Maryland Insurance and go through the process before being able to go to court.  See Maryland Code Section 3-1701 (c) of the Courts and Judicial Proceedings Article Section 27-1001 (c) of the Insurance Article. 

    D.C. PIP / D.C. ACCIDENT

          If an accident occurs in DC and the owner of a car is a DC resident, and a passenger is a Maryland resident, the DC PIP statute only applies to the DC residents.  Under those circumstances, the DC resident would have to make a choice between PIP and liability unless there are extenuating circumstances regarding permanency.  Since DC PIP election is required within sixty days, the passenger should probably allow sixty days to expire and then make the PIP claim on the Maryland policy.  

    DISTRICT OF COLUMBIA PIP STATUTE

    If an accident occurs in the District of Columbia and there is a District of Columbia insurance policy involved for the plaintiff, the plaintiff must elect between D.C. PIP and a liability claim unless the threshold is met where both claims can be made. Even if the lawsuit is filed in Maryland because the defendant resides in Maryland, the Maryland courts would apply substantive D.C. law under the theory of lex loci dilecti. See Jacobs v. Adams, 66 Md. App. 779 (1986). The fact that the accident occurred in D.C. distinguishes the case from Sherrod v. Achir, 149 Md. App. 640 (2003).

    Election of PIP Benefits and Filing Suit Under D.C. and Maryland Law

    D.C. PIP is found in D.C. Code, Section 35-2405 (b). Ward v. Nationwide Automobile Insurance Co, 328 Md. 240, 614 A. 2d 1992 stands for the proposition that when interpreting the meaning and enforceability of contract provisions, the Court will apply the law of the jurisdiction where the contract was made (lex loci contractus). Thus, D.C. law will apply where the insurance contract was made in D.C. The accident in this case occurred in Maryland. In Ward, the policy did not expressly preclude a third party’s entitlement to PIP. Id at 248. Second, the Court further concluded that the D.C. Cod regulating PIP coverage did not preclude the plaintiffs from both filing suit and claiming PIP benefits as long as they had put the insurance company on notice within 60 days of the accident of their election to receive PIP benefits. Id. at 250. Further the Court explained that while the applicable D.C. provision “restricts tort lawsuits by a victim who elects to receive PIP benefits, it doe not state that a covered person who has timely elected PIP benefits is not entitled to PIP benefits if that person pursues a tort liability claim against the wrongdoer. Id at 250. Because the accident occurred in Maryland, the choice of forum was Maryland. The substantive law of Maryland would apply, not barring a liability claim. If the accident had occurred in D.C.  a valid tort defense would have applied under 31-2405. The case of Sherrod v. Achir, 149 Md. App. 640, 817 A. 2d 951 also stands for the proposition that where an accident occurs in Maryland and the claimant is a D.C. resident with a D.C. insurance policy, the D.C. resident could still maintain a liability claim in Maryland. Maryland will apply the substantive tort law of Maryland which would allow such a lawsuit(lex loci delicti). In a related case in the Court of Special Appeals of Maryland, it was determined that Section 32-2105(b) of the D.C. Code was part of the substantive law of D.C. Jacobs v. Adams, 66 Md. App. 779, 505 A. 2d 259 (1986). 

    Accordingly, a D.C. resident can collect PIP benefits in D.C. and still pursue a liability claim in Maryland for an accident which occurred in Maryland.   On the other hand, if the accident occurs in Maryland but becomes an uninsured motorist claim, this is a contract issue and one could not claim both uninsured motorist damage unless one of the exceptions for substantial injury applied for a liability claim, provide the insurance contract had this prohibition. This result comes from the case of Allstate Insurance Company v. Hart, 327 Md. 526 (1992). Maryland would honor the contract provisions of the D.C. policy if the policy prohibited claiming both PIP and uninsured motorist benefits. If the policy was silent as to uninsured motorist benefits and PIP benefits or if the policy allowed the claimant to recover what was legally entitled, it is likely Maryland would be entitled to recover both Pip and uninsured benefits.  

    D.C. PIP / MARYLAND ACCIDENT 

          A DC resident who is rear-ended in an automobile accident in Maryland can make a PIP claim.  A bodily injury claim cannot be made unless it meets the substantial injury threshold under the DC law.  The insured may not make an uninsured motorist bodily injury claim unless one or both of the exceptions to the no-fault election in Section 31-2405 (b) of the DC code is applicable, see Lee v. Jones, 632 (a) 2d 113 (DC 1993). 

    Election of PIP Benefits and Filing Suit Under D.C. and Maryland Law

          D.C. PIP is found in D.C. Code, Section 35-2405 (b). Ward v. Nationwide Automobile Insurance Co, 328 Md. 240, 614 A. 2d 1992 stands for the proposition that when interpreting the meaning and enforceability of contract provisions, the Court will apply the law of the jurisdiction where the contract was made (lex loci contractus). Thus, D.C. law will apply where the insurance contract was made in D.C. The accident in this case occurred in Maryland. In Ward, the policy did not expressly preclude a third party’s entitlement to PIP. Id at 248. Second, the Court further concluded that the D.C. Cod regulating PIP coverage did not preclude the plaintiffs from both filing suit and claiming PIP benefits as long as they had put the insurance company on notice within 60 days of the accident of their election to receive PIP benefits. Id. at 250. Further the Court explained that while the applicable D.C. provision “restricts tort lawsuits by a victim who elects to receive PIP benefits, it doe not state that a covered person who has timely elected PIP benefits is not entitled to PIP benefits if that person pursues a tort liability claim against the wrongdoer. Id at 250. Because the accident occurred in Maryland, the choice of forum was Maryland. The substantive law of Maryland would apply, not barring a liability claim. If the accident had occurred in D.C.  a valid tort defense would have applied under 31-2405. The case of Sherrod v. Achir, 149 Md. App. 640, 817 A. 2d 951 also stands for the proposition that where an accident occurs in Maryland and the claimant is a D.C. resident with a D.C. insurance policy, the D.C. resident could still maintain a liability claim in Maryland. Maryland will apply the substantive tort law of Maryland which would allow such a lawsuit(lex loci delicti). In a related case in the Court of Special Appeals of Maryland, it was determined that Section 32-2105(b) of the D.C. Code was part of the substantive law of D.C. Jacobs v. Adams, 66 Md. App. 779, 505 A. 2d 259 (1986). 

    Accordingly, a D.C. resident can collect PIP benefits in D.C. and still pursue a liability claim in Maryland for an accident which occurred in Maryland.   On the other hand, if the accident occurs in Maryland but becomes an uninsured motorist claim, this is a contract issue and one could not claim both uninsured motorist damage unless one of the exceptions for substantial injury applied for a liability claim, provide the insurance contract had this prohibition. This result comes from the case of Allstate Insurance Company v. Hart, 327 Md. 526 (1992). Maryland would honor the contract provisions of the D.C. policy if the policy prohibited claiming both PIP and uninsured motorist benefits. If the policy was silent as to uninsured motorist benefits and PIP benefits or if the policy allowed the claimant to recover what was legally entitled, it is likely Maryland would be entitled to recover both Pip and uninsured benefits.  

    DC PIP Primary Insurance Denial

    See Carter v. State Farm.  If there is health insurance, you can only collect co-pays and deductibles for in-network providers.  DC PIP covers nothing for out-of-network providers. If you have Kaiser, it pays nothing.  PIP usually need not be carried for medicals if the insured also has health insurance, but they can cover wages and funerals.  Medical PIP with health insurance is a frequently considered a waste of money.  These issues come up when a carrier refuses to pay PIP benefits because the client’s health insurance is primary. 

    DC PIP Maryland Bodily Injury

    A person with a DC policy and therefore DC PIP has an accident in DC with a Maryland registered vehicle and MD resident driver.  The plaintiff may not collect DC PIP and also make a tort claim even in a Maryland Court unless the threshold for doing both under the District of Columbia compulsory no-fault vehicle insurance act are satisfied. The key is that the accident occurred in the District of Columbia.  A Maryland Court applying the rule of lex loci deliciti would apply DC substantive law to the case and that would include the DC PIP election and injury threshold laws.  The Court of Special Appeals of Maryland so held in Jacobs v. Adams, 66 Md. App. 779.  The accident’s occurrence within the District of Columbia distinguishes the case from Sherrod v. Achir 149 Md. App. 640.   

    UNINSURED MOTORISTS CLAIMING PIP PAYMENT OFFSET 

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

    SETTLEMENT/RELEASES 

          If someone is pregnant at the time of an accident and an x-ray is taken at the emergency room because the plaintiff is unaware that she is pregnant, any release signed by the plaintiff would not bar the after born child’s future, personal injury claim.  But in such a claim, a child could not claim medical expenses incurred before attaining the age of eighteen unless the child shows that his or her parents are unwilling or truly unable to pay them.  See. Garay v. Overholtzer, 332 MD 339 (1993).   

          It is generally accepted that if third parties, who may be liable to an party for a loss, effect a settlement with the latter and obtain a release from all liability with knowledge of the fact that an insurer has already paid the amount of its liability to an insured, the settlement and release will not bar the assertion of the insurer’s right of subrogation.  The reasoning seems to be that such release is a fraud on the insurer and constitutes no defense against it in an action to enforce its rights of subrogation.  It is recognized, however, that if a settlement is effected before the claim is paid, the subrogee has lost its cause of action.  Cleveland v. Chesapeake and Potomac Telephone Company of Maryland , 225 MD. 47 (1961).   

    Releases

    There are generally two types of Joint Tortfeasor Releases, a Jones Release and a Swigert release. If it is a Jones release, the settling party is stated in the Release to be a joint tortfeasor and non settling parties are automatically protected to a full share of the money paid as a dollar credit. If it is a Swigert Release, the settling party is likewise protected. However, the non settling defendant must prove liability of the settling defendant to get a credit for share or dollars. If it is a Swigert release, one may wish to require the settling defendant to allow Plaintiff the right to defend the settling defendant since the Plaintiff is the real party in interest and has every reason to make sure the settling defendant is not found liable as a joint tortfeasor. If the plaintiff is successful in defeating the cross claim such that the settling defendant is not found jointly liable, the money received from the settling defendant becomes a windfall and there is no credit to the remaining defendant(s). If a joint tortfeasor release is signed, regardless what happens at trial, the settling defendants will not have to pay anything to the plaintiff or to the non settling defendant for contribution. See Section 3-1404 of Courts and Judicial Proceedings and the Maryland Uniform Contribution Among Joint Tortfeasors Act.

    If a Swigert release is signed, the settling defendant still has an interest at trial. Since a Swigert release denies liability by the settling defendant, this requires the non settling defendant to prove at trial that the settling defendant was a joint tortfeasor in order to obtain any reduction in the damage verdict (section 3-1404). If the jury does not find the settling defendant was a joint tortfeasor, then the non settling defendant must pay the entire verdict without any reduction or credit for the plaintiff’s prior settlement recoveries. Thus, the settling defendant still has an interest in the trial outcome and should be permitted to participate because they may have an interest, for example, in protecting their own reputation since no liability was agreed to by them. It could harm their future business if found liable. Moreover, the plaintiff may not want to press against the missing, settling defendant for fear it may take away from the non settling defendant’s liability.  

    An excellent presentation of release issues can be found in the Maryland Institute for Continuing Professional Education for Lawyers. Inc. lecture regarding Joint Tortfeasor Releases in 1994. Most of the following language is taken directly from that lecture and materials handed out therein. There are numerous examples of different releases and the impact of each release in different scenarios that are very educational.

    For example, if a claimant wants to pursue claims against non settling defendants the release should include the following language: “The undersigned agrees the is not releasing any claim or demand arising out of the Occurrence which has accrued or which hereafter may accrue against anyone other than the Released parties”.  

    If the Claimant wants to pursue claims against non settling defendants and desires to utilize a pro tanto release and allow the trier of fact to determine the liability of a joint tort feasor the language should include : “ That the undersigned agrees that all damages recoverable by him against anyone other than the Released Parties is hereby reduced under the provisions of the Uniform Contribution Among Tortfeasors Act by the amount of consideration paid for the Release”.  

    If a claimant wishes to pursue a claim yet settle with a party on a pro rata basis and have the trier of fact determine the joint tortfeasor status, the release language should include: “ That the undersigned agrees that all damages recoverable by him against anyone other than the Released Parties are hereby reduced under the provisions of the Uniform Contribution Among Tortfeasors Act to the extent of the statutory pro rata share of each of the released parties”.   

    Finally, if the claimant wishes to pursue the claim yet settle with a party on a contractual pro rata release basis where joint tortfeasor status does not need to be determined by the trier of fact, the language should include: “That the undersigned agrees that all damages recoverable by him against anyone other than the Released Parties are hereby reduced under the provision of the Uniform Contribution Among Tortfeasor Act to the extent of the statutory pro rata share of each of the Released parties, and agrees that each of the Released parties is to be considered a joint tortfeasor with any other tortfeasor liable to the undersigned for damages arising out of the occurrence to the same extent as if each of the Released parties was adjudicated to be a joint tortfeasor by a final judgment of a court of record after trial on the merits”.  

    Calculating a pro rata reduction can be difficult when involving a reduction to be made for a pro rata clause in a release. Essentially, the amount of the reduction is the greater of the consideration paid for the release or the pro rata share of the settling defendant. Again, there are numerous examples in the above cited lecture that are of great assistance to the attorney looking for appropriate language in the release.  

    A Swigert release would require the remaining defendant to prove the released defendant was negligent to obtain a 50% reduction of the verdict under the joint tortfeasor statute. A pro tanto release releases Plaintiff’s direct claim, but does not release contribution claims,. Therefore the payor must defend against the contribution claim but is on same page as Plaintiff.

    GENERAL RELEASES THAT INCLUDE RELEASES FROM MEDICAL MALPRACTICE OR UNDERINSURED MOTORIST CLAIMS 

          See Courts & Judicial Proceedings Article, 5-401.1(d) and the joint tortfeasor statute which is 3-1401.  

    Subsequest Medical Malpractice/Offset by Settlement with Original Tortfeasor

    See Morgan v. Cohen.

    VOIDING RELEASES 

    See Courts & Judicial Proceedings Article 5-401.1(a). 

    RELEASES WITH INDEMNIFICATION FOR MEDICARE 

          State Farm, Allstate and Nationwide are now taking the position they bear responsibility for any lien and have begun placing the name of the lienholder on checks, including Medicare. 

    Insurance Coverage for Commercial Vehicles

    The Federal Department of Transportation Regulations that apply to interstate trucking require $750,000 in liability coverage.   

    INCLUDING SPOUSE’S NAME ON A SETTLEMENT CHECK 

          Sometimes an insurance company wants to put the spouse’s name on the Release and the check.  However, under Travelers v. Corneleson, a consortium claim in Maryland can only be brought jointly. If one spouse releases the tortfeasor, a consortium claim may not later be brought under Maryland law. In D.C., on the other hand, consortium claims are not joint claims. 

    First Party Bad Faith Statutes

    See Maryland Insurance Volume, Section 27-1001. 

    STACKING UNINSURED MOTORIST COVERAGE 

          See Maryland Code, section 19-509 (a) (2) (g) of the Insurance Article.  Stacking of UM coverage is generally not allowed unless a payment was reduced by payments to other persons in connection with the same accident to an amount less than the underlying UM policy.   

    STACKING 

          Section 19-513 B of the Insurance Article provides that a person may not recover benefits under the coverage described in 19-504, 505. 509 and 512 of the subtitle from more than one motor vehicle liability insurance policy or insurer on a duplicative or supplemental basis.  Intra policy stacking is not permitted in Maryland.  See Howell v. Harleysville Mutual Insurance Company, 305 MD 435 (1986).  Similarly, an insured cannot stack the uninsured motorist coverage limits for each of their own two vehicles insured on a single policy and turn UM coverage of 300/500 into 600/1 million.   

          One always needs to look at the language of the liability policies to determine if stacking is allowed. The order is usually (1) the insurance on the at fault vehicle, (2) the insurance on the driver’s vehicle is excess if he is a named insured. It would likely not be subject to exclusions such as if the other vehicle is a work vehicle.  

    FELLOW EMPLOYEE EXCLUSION 

          See Wilson v. Nationwide Mutual Insurance Company, 2006 MD. Lexis 753 (MD 2006).  The plaintiff was seriously injured in a collision that occurred while he was a front seat passenger in a vehicle being driven by a co-worker.  The Wilson case established that as long as an employer meets the minimum statutory automobile liability insurance amount, the employer can exclude coverage above the mandatory minimum for their employees.  Therefore, when a business has a fellow employee exclusion clause in their policy, it will only be found invalid if it provides less than the minimum statutory liability coverage.  The only recourse for an employee who is injured by a fellow employee’s negligent action and has injuries that exceed the statutory minimum is through worker’s compensation benefits.  The fellow employee exception is a valid and enforceable contractual provision in an insurance policy but the employer must have that provision written into its policy in order for it to apply.  If the policy does not have required language as indicated in the Wilson case, then this restriction would not apply.   

    Fellow Employee Exclusion

    If a business has a fellow employee exclusion clause in their policy, that clause will only be found to be invalid if it provides less than the statutory minimum liability coverage. Stearman v. State Farm Ins. Co. 381 Md. 436, 849 A 2d. 539 (2004) the Court of Appeals held that even if a policy had more than the statutory minimum coverage, the policy could  limit coverage to the statutory minimum for household members. After January 1, 2005 all policies had to offer the same coverage for family members but the contract could be negotiated for less coverage for family members and household exclusions.  

    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. 

    UNDERINSURED MOTORIST CLAIMS / SETTLEMENTS WITH LIABILITY CARRIER AND MULTIPLE PLAINTIFFS 

    In order to be able to make an underinsured motorist claim where there are multiple Plaintiffs sharing in the liability policy limits, one needs to be careful that the splitting of the liability coverage is fair. It would be best to get the underinsured carriers consent to settle before doing so. See. Waters v. U.S. Fidelity & Guaranty Co., 328 Md. 700, 616 A. 2d 884 (1992). 

    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. 

    UNINSURED MOTORIST COVERAGE CREDIT

    Md. Cod (2006 Repl. Vol.) Insurance Article, Section 19-513(e) allows an insurer to calculate the benefits payable under and uninsured/under-insured policy by deducting all monies paid to the insured by a worker’s compensation carrier, not merely the amount repaid by the insured that was necessary to satisfy the worker’s compensation lien. See Case No. 210, Sept. term, 2008, Blackburn et al v. Erie insurance Group.


    UNDERINSURED MOTORIST CARRIER CREDIT FOR WORKERS’ COMPENSATION BENEFITS 

          One needs to read the UIM policy carefully.  There are cases which state that the UIM carrier may not get full credit for workers’ compensation benefits or any credit.  For example, workers’ compensation provides no benefits for pain and suffering or loss of consortium and only pays two-thirds for wage loss.  Thus, there is no “match-up” when looking to offset certain benefits.  These principles apply when the uninsured motorist policy uses language denying benefits in the event of payment of elements of damage or loss by a workers’ compensation or other payer. 

    PIP/WORKER'S COMPENSATION/THIRD PARTY CLAIMS-BEST PROCEDURE 

    Generally it is best to do PIP first, worker's comp second and 3rd party last. PIP does not have a right of subrogation against a third party recovery (Ins. Art. Section 19-507(d)). Worker's comp carrier does have a right to be reimbursed minus its proportionate share of attorney fees out of the third party recovery for benefits it has paid (Md. Code, Lab. & Emp. Art. Section 9-902(e) and (f). Thus, if PIP is presented first the client gets paid twice for the same thing. If Worker's comp is done first, it will be difficult to use PIP to fill in the gap between 66 2/3% and 85% because PIP gets a credit for all that worker's comp pays. 9 (See Smelser v. Criterion Insurance Co., 293 Md. 384).

    Uninsured Motorist Offset of Worker’s Compensation Benefits

    The uninsured carrier does get a credit for worker’s compensation benefits but never gets any of the proceeds of the uninsured claim. See Erie v. Curtis. 

    CREDIT FOR WORKERS’ COMPENSATION PAYMENTS UNDER UM COVERAGE 

          The amount of workers’ compensation benefits paid would be a set-off for any UM coverage.  See Maryland Code, Insurance Article Section 19-513 (e). 

    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 Statute.  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 appies to any out-of-state motor vehicle regulatory agency, to make the language harmonious through the statute.   

    THIRD PARTY BAD FAITH IN MARYLAND 

          See Sweeten, Administrator v. National Mutual Insurance Company, 233 MD 52, 55 (1963).  See also State Farm v. White, 248 MD 324 (1967)  The court said in Sweeten that all authorities seemed to agree that the liability is in tort not in contract, although arising out of a contractural undertaking.  In State Farm v. White, the court set forth a standard of liability.  In order for the insurer not to be responsible for the full amount of the verdict, the insurer’s action in refusing to settle must consist of an informed judgment based on honesty and diligence.  Futhermore, the insurer’s negligence, if there is any, is relevant in determining whether or not they acted in good faith.  If the insurer later offers a policy limits to the plaintiff after a deadline is set, it would not necessarily take the insurer off the hook for bad faith.  If under all the circumstances the deadline was reasonable and the insurer did not act appropriately with an informed judgment based on honesty and diligence and the insurer thereby misses the opportunity to protect its insured from personal liability, then the insurer may be responsible for the full verdict.  See Grumbling v. Medallion Insurance Company, 392 F.Supp. 717 (D. OR. 1975).  See also Southern General Insurance Company v. Holt, 416 S.E. 2d, 274 (GA 1992).  See also Howard v. State Farm Mutual Automobile Liability Insurance Company, 236 N.W. 2d, 643 (WIS. 1975).  See also Maryland Code, Courts and Judicial Proceedings, Article section 3-2 A-O8A.  Plaintiff, however, may not set up a bad faith claim by giving an insurer an arbitrary and unreasonably short deadline that is insufficient for the insurer to complete a reasonable investigation.  See American Mutual Insurance Company of Boston v. Bittle, 26 MD App 434.  Although at times the insurance company may require the Plaintiff to file suit, that is not always necessary in order to have a bad faith claim.  In Grumbling, the court stated “it is common at various stages of litigation and indeed occasionally even before litigation is commenced, for offers to be made with time limits attached.  Sometimes in the middle of a trial of a lawsuit, an offer may be made with a very short time limit which requires virtually immediate response.  The sequence of events, the stage of the proceeding at which the offer is made, and all other circumstances will determine whether duty requires a response to be made within a given time period. 

    STATUTE OF LIMITATIONS FOR MAKING UNINSURED MOTORIST CLAIM 

    See Nationwide v. Lane. Generally the statute runs three years from the denial of the claim. 

    LANGUAGE FOR FULL AND FINAL WORKER’S COMPENSATION SETTLEMENT AND FUTURE SOCIAL SECURITY CLAIM 

    There is a set off when a party gets social security resulting from an accident and also get worker’s compensation benefits. The language one can use is “The lump sum is compensation for impairment that will affect the claimant for the rest of his life. The claimant’s life expectancy is __ years. Therefore, even though the claimant is being paid a lump sum of $____________, the claimant’s benefits should be considered approximately $ _______________________ a month for _______ months beginning as of _______________.

    Virginia Medical Payment Statute

    See Virginia Code Section 38.2-2201 for provisions for payment of medical expense and loss of income benefits as a result of an automobile accident in Virginia.

    COBRA Requirements

    Unless there is gross misconduct, an employer with 20 employees has to provide COBRA coverage for employees that are let go after March 17, 2009 at a reduced rate for 90 months.  

    Benefits of Structured Settlements

    At least as of 2008 and prior thereto, the benefits of a structured settlement include: (1) no tax at any level (local, state or federal) per IRS code for these benefits, (2) no notice requirements, (3) no filings by the annuity company for form 1099, (4) no exceptional accounting requirements, (5) totally self administered so there are no management fees or brokerage fees, (6)  truly spendthrift with protection from outside sources invading the asset since assets cannot be pledges or advanced, (7) lifetime benefits, (8) provides security with highest rated life companies with state guarantee fund that backs the product. 

          The case of Macumber et al. v. travelers Property and Casualty Corporation, 2002 Conn., LEXIS 345 addresses many of the issues involved when insurance companies try to steer structured settlements to their own brokers.  

          An alternative to a structured settlement is a Qualified Settlement Fund under Treas. Reg. Section 1.468B-1. 

    Uninsured Motorist Fund in District of Columbia

    See D.C. Code, Sec. 35-211 which establishes the fund, eligibility for compensation, claims requirements and administration of the fund.  

    Insurance Company Trying to Claim Credit for MedPay in Liability Settlement

    See Blocker v. Sterling, 251 Md. 55, 246 A 2d 226 (1968). Generally, under Maryland law, Medpay is not mandatory. Therefore, insurance companies are allowed to have in their policies subrogation language for Medpay in premises liability situations. However, they are not allowed to subrogate for motor vehicle medical payments. See 19-109 of the Insurance Article of the Maryland Code. Maryland does not have a “roll through” statute so its financial responsibility requirements do not apply to out of state vehicles. Allstate Insurance Co. v. Hart, 327 Md. 526 (1992). Accordingly, Section 19-109 of the Insurance Article does not apply to foreign state vehicles. Another state can allow subrogation for motor vehicle PIP payments and that would not be contrary to Maryland law since the vehicle was not principally garaged in Maryland. 

    D.C. No Fault PIP Secondary To Health Insurance

    Carter v. State Farm et al. District of Columbia Court of appeals, October 3, 2002 stands for the proposition that a person who has health insurance must exhaust benefits under the health insurance policy before being eligible for PIP benefits. This confirms the ruling in Carter v. State Farm and reverses the ruling in State Farm v. Tindle. Essentially, it means that medical PIP with health insurance could be considered a waste of money. D.C. Pip does not cover anything for out of network providers. If one has health insurance, they only collect deductibles and co-pays from PIP for in network providers. If one has Kaiser, D.C. PIP will pay nothing for medicals.  

    State Not Required to Have Uninsured Motorist Coverage

    State owned vehicles are not required to have uninsured motorist coverage. Nationwide Mut. Ins. Co., v. United States Fidelity & guaranty Co., 314 Md. 131, 550 A. 2d 69 (1988). 

    Uninsured Motorist Carrier Authorizing Acceptance of Liability Limits and Waiving Subrogation Amounts to Waiver of Liability Arguments

    See Maurer v. Penn National, 404 Md. 60, 945 A. 2d 629 (2007).

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