Miscellaneous Damage Issues

CAUSATION AND DAMAGES

In cases where it is difficult to prove causation, the plaintiff may rely on whether an injury was a substantial factor in causing the subsequent treatments and/or surgery. This would appear to be supported by the case of Bartholomee v. Casey, 103 MD 34 (1994). The Court indicated that a plaintiff could recover damages that are proved with reasonable certainty to have resulted as the natural, proximate and direct effect of the tortuous misconduct, citing Jones v. Malanoski, 299 MD 257 (1984). The Court went on to say that where the conduct of the defendant was a substantial factor in bringing about the suffering of an injury, such conduct will be deemed to have caused the injury. See W. Page Keeton, et al., Proser and Keeton on Torts, Section 41 et 266-68 (5th Ed. 1984 and sup. 1988). This is also adopted or embodied in the Restatement Second Torts, Section 431. See also Reed v. Campagnolo, 332 MD 226 (1993); Owens-Illinois v. Armstrong, 326 MD 107 (1992); Dominion Construction, Inc. v. First National Bank of Maryland, 271 MD 154 (1974).

DAMAGES, MULTIPLE COLLISIONS, APPORTIONMENT

If there are multiple collisions, it is up to the defendants to establish who is responsible for the injuries. The defendant cannot benefit from his own negligence by trying to shift the burden as to which accident caused the injuries. See Seites v. McGinley, 84 Md. App. 292 (1990) and Mayer v. North Arundel Hospital, 145 Md. App. 235 (2002). Also see the Restatement section 434(1) et seq. If liability of a defendant is assumed or proved and there is only a question of apportionment of damages the relevant principles are as follows: Where there are two or more causes of harm and only one defendant, and indivisibility is apparent, he court shall decide that apportionment is not appropriate. Restatement, Section 434(1). In that situation, the fact finder shall compensate the plaintiff for the entire harm. If there are two or more causes of harm and one defendant and indivisibility is not apparent, the plaintiff has the burden of producing evidence to show that the harm is not divisible or, if it is, some evidence to show that the harm was produced by each cause, and the nature of the harm. If the plaintiff’s evidence of showing indivisibility is not capable of a reasonable conclusion to the contrary, assuming the defendant has not introduced conflicting evidence, the court shall decide the harm is not divisible. In that situation, the fact finder shall compensate plaintiff for the entire harm. Where the plaintiff’s evidence is capable of different conclusions, the plaintiff has the burden of persuasion with respect to indivisibility or, if it is divisible, as to the extent of the harm caused by the negligent act. If the plaintiff’s evidence is capable of different conclusions, the fact finder shall determine if the harm is capable of apportionment and, if so, apportion the damages. If the fact finder determines the harm was not capable of apportionment, the fact finder shall compensate the plaintiff for the entire harm.

DAMAGES-SUBSTANTIAL FACTOR

See Maryland Practice Jury Instruction-Civil 19:10. If there are multiple factors that combine to cause an injury, each person whose negligent act is a cause of an injury is responsible. See also Bartholomee v. Casey, 103 Md. App. 34 (1994) and Johnson & Higgins v. Hale Shipping, 121 Md. App. 426 (1998).

MARYLAND’S CAP ON NON ECONOMIC DAMAGES

In a wrongful death case where a plaintiff also has a personal injury claim, there are two separate caps that would apply. See Md. Cts. & Jud Procs. Code Ann. Section 11-108 (b). There is a distinction between a wrongful death claim and a personal injury claim. See United States v. Streidel, 329 Md. 533 which held that the non economic damages cap in actions for personal injury had no application to a wrongful death claim. The cap for a wrongful death claim applies to all wrongful death beneficiaries measured by Section 11-108(b)(3)(ii). The caps do not merge.

FAIR MARKET VALUE OF SERVICES

If a child is injured and a family member provides services, for example, that normally a licensed nurse might provide, the child's could include the fair market value of the services provided, subject to adequate proof of the value of the services. See Plank v. Summers, 203 Md. 552.

DAMAGES-MEDICAL MALPRACTICE AFTER PERSONAL INJURY

A defendant who injures a plaintiff is responsible for forseeable damages. This includes not only medical care resulting from the injuries but also damages that may be caused by negligent medical care received for the injuries. See Treichman v. Eaton.

Suing the Expert

Attorneys do sometimes get asked by clients whether they can sue their own expert for opinions rendered. See Green v. Otenaske 267, Md. 9 for controlling case law. In that case, the doctor flatly refused to cooperate. There have been successful claims against experts for consequential damages. See Spalding v. Hussain. 551 A.2nd, 1022; Kranz v. Tiger, 914, A 2nd, 854. See also Maryland Code, Section 9-201 b of the Courts and Judicial Proceedings Article.

EMOTIONAL TRAUMA WITHOUT PHYSICAL INJURY

A person can complain of emotional distress as a result of observing another person’s injury if the jury is persuaded that it resulted in physical injury or any objective manifestation. For example, a person who physically pulled dogs off of a child, there could be a recovery for emotional distress. See Beynon v. Montgomery County CableVision L.P. 351 MD 460, 497 (1998). Damages for emotional distress or mental anguish are recoverable in Maryland provided it is proximately caused by the wrongful act of the defendant and it results in a physical injury or is capable of objective determination. See also Bowman v. Williams, 164 MD 397 (1933) Where a person observed a truck going out of control on a street and crashing into the basement below him where his two children were. The plaintiff was not physically injured but suffered a severe emotional injury. In this case, the person was found to be in the “zone of danger”. See also Scott v. John H. Hampshire, Inc., 246 MD 171 (1967); Boddie v. Scott 124 MD App 375 (1999). For an eloquent discussion by Justice Cardozo, see Wagner v. International Railway Company, 133 N.E. 437 (N.Y. 1921). There is a distinction, however, that there can be no recovery for emotional distress caused by negligently inflicted damage to a person’s property. The key in this case is whether a person is in a zone of danger and therefore may very possibly suffer injury.

Zone of Danger

See Resavage v. Davies also.

EVIDENCE/EXPERT TESTIMONY REGARDING INJURY

Although normally required, there is case law that suggests expert testimony is not needed to prove a causal link between the plaintiff’s banging her head on a car’s sun visor during an accident and a bruise and subsequent loss of pigmentation of her skin. See Wilhelm v. State Traffic Safety Commission, 230 MD 91 (1962).

Proving Lost Earnings and Impaired Earning Capacity

PRE-EXISTING INJURY

The case of Seites v McGinley, 84 MD App 292 (1990) speaks to the apportionment issue for a pre-existing injury versus a new injury. It is the plaintiff’s burden to prove the apportionment.

FEDERAL EXPERT TESTIMONY REGARDING MALINGERING

The Fourth Circuit precedent in favor of exclusion of this testimony is found in United States v. Cecil, 836 F 2d, 1431,1441. Federal Rules of Evidence 704 permits an expert to testify on ultimate issues if the District Judge finds such evidence helpful but that principle has never been extended to the right of a psychiatrist to give an opinion on the credibility of a witness. Determination of credibility is one strictly for the jury.

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.

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

RECOVERABLE COSTS

Deposition transcript costs may be recoverable, particularly if a party denies a request for admission and it is later proven by way of deposition. See Rule 2-424 (e).

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 client. Moreover, under Commercial Law Article Section 16-207 (f) (1) and related sections, the maximum storage charge allowed is discussed. One must also look at various County ordinances if applicable.

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.

CLAIMING MEDICAL BILLS DISCHARGED IN BANKRUPTCY IN THIRD PARTY CLAIM

The right to recover the value of medical care provided gratuitously should be argued also as the basis for using medical bills discharged in bankruptcy. Similarly, the plaintiff can rely on the collateral source rule case of Plank v. Sommers, 203 MD 552 (1954). In this case, the Court of Appeals adopted the rule that where the hospital and medical services are furnished gratuitously to the injured party, he can recover the value of those services from the tortfeasor. One could also argue that the authorization and assignment prepared and signed by the plaintiff requires the medical bill to be paid out of any recovery and therefore it should be permitted in evidence. Similarly, that result would be consistent with the philosophy of bankruptcy. Hernandez v. Southern Hospital Association, Inc., 319 MD 226 also suggests that a patient’s obligation to the health care providers for expenses where an executed assignment has been provided is not discharged in bankruptcy. The reason is that the assignee of it chose in action acquires an equitable lien upon the outcome which, unless disallowed or voided, survives the bankruptcy.

SURVIVAL AND WRONGFUL DEATH CLAIMS

Although each is a separate cause of action to determine liability, they are derivative actions of one another for insurance coverage purposes. Less than a 100/300 policy, the most you could get for both claims together is 100.

CLAIM AGAINST DECEASED DEFENDANT’S ESTATE

See Greentree v. Fertita, 338 MD. 621, 659 a 2d, 1325. Judge Eldridge distinguishes between the period required to file a claim against an estate that is not covered by insurance and the application of the statute of limitations under 8-104 (e) for claims covered by insurance. In the case, it is stated that to the extent a successful claim will be satisfied by the proceeds of an insurance policy, rather than by the assets of the estate, Section 8-104(e) makes inapplicable certain procedural requirements which would generally apply to limit claims against the estates. On the other hand, a claim with a value greater than the amount of insurance coverage may be made against the assets of the estate, provided the claim was made within the shorter statutory period for filing such a claim. In order to perfect a bad faith claim, one must file a claim against the estate within the shorter period of time.

SETTLEMENT FOR MINOR IN DISTRICT OF COLUMBIA

See the DC Code 21-120, indicating approval of any minor settlement and a guardianship for whenever the minor receives proceeds that exceed three thousand dollars ($3,000.00).

IRS CLAIMING TAX ON PERSONAL INJURY CLAIM

There are various IRS guidelines that are helpful in this regard. See http://www.irs.gov/businesses/page/0,,id%3D7050,00.html#Settle2. Although this should not be relied on by clients, generally speaking many CPAs do suggest that compensatory damages arising from physical injury are non-taxable in our area. Since 1996, compensatory damages for emotional damages without physical injury are taxable. Wages are taxable in the year received. This generally includes back pay awards and perhaps front pay. Theoretically, such may be subject to FICA, Medicare and similar withholdings. All punitive damages, regardless of the underlying case are now included in income. This is a very tricky area and consultation with a CPA or tax attorney is essential as Foran and Foran, P.A. are not tax advisors or tax experts and do not give tax advice.

AMENDING ADDENDUM CLAUSES AFTER A VERDICT

See Falcinelli v. Cardascia, 339 MD 414 (1995). Also see Rule 2-341 (b) and the Committee note added in 1998 that states that “by leave of Court, the Court may grant leave to amend the amount sought in a demand for a money judgment after a jury verdict is returned.” See also the Committee Note to rule 2-341 of the Maryland Rules.

SMOKING AS FAILURE TO MITIGATE

See Hopkins v. Silber 141 MD App 319 (2001).

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.

A STEPCHILD’S RIGHTS UNDER A WRONGFUL DEATH CLAIM

A dependent stepchild is not recognized under the law as one who can make a wrongful death claim for a step parent. See Flores v. King, 13 Md. App. 270 (1971). See also Janice M. v. Margaret K. 404 md. 661 (2008).

Helicopter Rides for Emergency Service

If the ride is courtesy of the State police there is no charge. Send request regarding records for the trip to Maryland State Police Aviation Division 3023 Strawberry Point Road Baltimore MD 21220

Necessity of Medical Testimony in D.C.

One may not need a doctor to get medical bills into evidence in D.C. Client needs to testify the bill is from the medical provider, the bill is for services rendered as a result of the accident, the bill is a copy of the bill received. See Montgomery v. Dennis, 411 A. 2d 61; Nunan v. Timberlake, 85 F. 2d 1228; Jones v. Miller, 290 A. 2d 407, 66 App. D.C. 150; Ascher v. Gutierrez, 175 App. D.C. 100, 533 F. 2d 1235. See also Rule 43-I(a) which has been interpreted to include hospital records. See New York Life Ins. Co. v. Taylor, 79 App. D.C. 66, 147 F. 2d 297 (1945) and subsequent cases. Causation can be problematic. One can get causation to the jury if (1) the disability first emerged coincidentally with or very soon after the negligent act, or (2) the disability was the type that by its very nature reflected its cause, or (3) the cause of the injury related to matters of common experience, knowledge, or observation of laymen. Baltimore v. B.F. Goodrich, 545 A. 2d 1228 (1988); Jones v. Miller, 290 A. 2d 587 (1987).

Punitive Damages in Maryland

Owens-Illinois, inc. v. William Zenobia No. 66 September Term 1991, filed February 14, 1992, is the landmark case regarding punitive damages in Maryland. In it the Court of Appeals adopted the actual malice test as determinative as to whether punitive damages could be awarded. This opinion doomed punitive damages in cases of even gross negligence. The Court opined that the award of actual damages would only be allowed in non intentional tort cases only upon a showing of actual malice defined as conduct characterized by evil motive, intent to injure, ill will or fraud. The actual malice requires even a heightened standard of clear and convincing evidence.

Pre Impact Fright

See Section 456 of the Restatement (Second) of Torts (1965) for authority. See also Beynon v. Montgomery Cablevision, 351 Md. 460, 718 A. 2d 1161 (1998) that stands for the proposition that absent physical impact or injury resulting in injury, fright is compensable if there are objective manifestations of such injury. See also Matthews v. Amberwood Associates, L.P. Inc, 351 Md. 544, 719 A. 2d 119 (1998) where a mother who watched her son mauled and killed by a pit bull was entitled to recover for emotional distress. Se also Vance v. Vance, 286 Md. 490, 408 A. 2d 728 (1979) which stands for the proposition that medical testimony is not required to show emotional distress. Bowman v. Williams, 164 Md. 397, 165 A. 182 (1933). Hunt v. Mercy Medical Center, No. 1476 September Term, 1997, Court of Special Appeals. See also MICPEL instruction 10:10 and 10:2.

Confidentiality Agreements

Look at the Maryland Federal Local Rules, Appendix D for a very simple confidentiality agreement. One has to be careful not to violate Rule 5.6 Restrictions on Right to practice. There is aa Florida ethics case (Professional Ethics of the Florida Bar Opinion No. 04-2, January 21, 2005) where Rule 5.6 was discussed in detail. It discusses Model Rule 5.6(b) which is identical to Rule 4-5.6(b). Formal Opinion 93-371 of the ABA Ethics Committee discusses the policy provisions behind the rule. A lawyer was disciplined for violating the rule In re Mark Hager, 812 A. 2d 904 (D.C. App. 2002). Two Florida lawyers were disciplined for participating in such an agreement arising out of Adams v. BellSouth Telecomms., Inc., 2001 WL 34032759 (S.D. Fla. Jan. 29, 2001). Similarly, the D.C. Bar in Opinion 335 has opined it is inappropriate to require, as part of a settlement agreement, a prohibition that the other party’s lawyer may not disclose publicly available information about a case.

Yet another issue involving confidentiality agreements is the possibility that they may be taxable, at least the portion having to do with confidentiality. The attorney may avoid this argument if language is inserted in the settlement agreement that the amount paid is for personal physical injuries pursuant to IRC 104(a)(2).

Uncontroverted Injury to Plaintiff-Defense Verdict

See Snyder v. Cearfoss, 186 Md. 360, 46 A. 2d 607 (1946). This case provides basis for new trial.

Proving Reasonable Cost of Military Treatment

Tricare has an independent cause of action for their medical bills. Plaintiff can not use their charges in the claim under Piquette v. Stevens, 128 Md. App. 590, 739 A. 2d 905 (1999). However, if one makes a prior arrangement with Tricare, you can obtain permission to sue individually and on behalf of the United States of America and thereby claim the cost of the military medical care.

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