The previous article in this series details the various steps taken by my office after a Baltimore personal injury-causing event, as well as detailing that vial “first step” advice from an experienced personal injury attorney. Once the injured person has healed, the next step can commence.
Baltimore Personal Injury claim, Phase II: Demand and Negotiation.
When my client has reached a medical baseline, or what sometimes is called “maximum medical improvement”, the next phase in the claims process commences. When the injured person’s medical care has returned that person to their prior condition, those materials assembled throughout the investigatory phase of the claim are compiled and delivered to the insurance company along with a demand for monetary settlement. Within 30 to 60 days- I’ve found more often than not the industry standard- I will receive a response from the insurance company regarding their position on the claim. Some claims are denied, and, in my practice, these claims are moved promptly into the litigation phase discussed in more detail in the next article in this series. Other claims are “accepted” by the insurance company -at least in terms of responsibility for causing the accident. I would counsel the cautious and wary reader, who has not been through a personal injury claim negotiation with a savvy and experienced insurance claims adjuster, to observe the difference between “accepting” responsibility for causing a car accident and excepting responsibility for all claimed injuries caused by that car accident. I will assure you that just because an insurance company adjuster or attorney says “we agree” that our insured person caused this accident and is responsible for the consequences, does in no way mean that that same insurance company adjuster or attorney will not argue that none of the injuries complained of are actually related to the accident and therefore, although their insured person is responsible for causing the accident, they are not responsible for causing any injury.
After the parties exchanged their initial positions by the demand and response, there is typically a period during which negotiations occur. During this phase, in some instances, additional information in the form of medical records, or bills are obtained. In rare instances, an additional piece of evidence, such as a doctor’s opinion, or a piece of video surveillance, might change the negotiation landscape. It is true that in the arena of personal injury claims, most claims settle before trial. Indeed, perhaps most claims resolve at the pre-litigation or “pre-suit” phase. We are talking, here, about the stage at which the information needed to fully articulate and present the claim is available, and it indeed has been presented to a liability insurance company claims adjuster. This phase begins at demand and concludes before filing a lawsuit in court. If the claim can be resolved in such a fashion at this juncture- it will be. However, many insurance companies do not present reasonable settlement offers at this time [or at all]. When negotiations are not fruitful- when for example, an insurance company, adopts a patently unreasonable position and makes an offer, or series of offers, that have no chance of getting the claim resolved-that litigation is the only next step.
I’ve been handling accident and injury cases for nearly 30 years. In that time, I Attorney Eric T. Kirk have seen various mistakes -seemingly insigniﬁcant in the moment,- that can have lasting- and negative- effects on the ﬁnancial recovery in your Baltimore personal injury claim.
Call Your Insurance Company Immediately After Your Car Accident.
There are a variety of reasons you should speak to your own (as opposed to the insurance representative for the other driver) promptly: you have a duty under your car insurance policy to report an accidents, and to cooperate fully with your insurance company; you may, and likely do, qualify for beneﬁts provided by your insurance such as uninsured or underinsured motorist coverage, and well as personal injury beneﬁts; your insurance company can deny coverage to you if you do not fully, and timely, provide that information. Now, your chosen personal injury attorney may take these steps. If, however, you have not yet made, or are in the process of potentially retaining counsel, you need to do so.
If You Believe You Are Injured, Seek Immediate Medical Care
This is perhaps the classic mistake that I see in my profession. I’ve spoken to hundreds of people who have been injured in car accidents, who have delayed seeking prompt medical care. The reasons for this are varied, but I frequently encounter those who try home remedies, over the counter-medications, or good old “mother nature and father time”, after a Baltimore car accident, before seeking a professional medical opinion. I want to be clear about my advice. If you were not injured- Great! No need to be seen by a doctor. No personal injury case. If you were injured, don’t assume that it will go away, or get better. It may. It may not. What you want to avoid is one of these recurrent scenarios.
- A claims adjuster denies your claim, because you did not see a doctor even for 8 days after the accident. The insurance company takes the position that if you were really hurt, you would have seen a doctor right away. This denial would make litigation [i.e., ﬁling a lawsuit] necessary to secure a needed ﬁnancial recovery.
- At the trial of your personal injury case, a seasoned, wily and cagy defense attorney argues to the jurors that you were not hurt in the accident, because if you were, you would have gone to the doctor the day of the accident.
Do Not Give Statement to the Other Insurance Company Until You Speak to a Lawyer
Here is the rule of thumb. You should always speak to your own insurance company after a Baltimore car crash. Only in speciﬁc circumstances, should you speak to the other person’s car insurance representative. I believe you must also consult with an experienced personal injury or car accident lawyer ﬁrst. Your chosen accident attorney may opt to let you give a statement to the insurance company, or, discuss car repairs or obtaining a rental directly with them. The key point is getting the advice of counsel ﬁrst. A statement given without counsel’s presence or consent can lead to issues down the road, in litigation, or even in settlement discussions. You can be assured that the insurance company, and any personal injury attorney that company uses to defeat your case, will use any statement you have made against you. They will argue that any inconsistency should be strictly construed against you, and be taken as evidence that you are lying.
Do Not Discuss the Details of Any Baltimore Car Accident with the Other Driver.
Of course, you can communicate [and indeed have to, in most scenarios] with the other driver in the wake of a Baltimore car wreck. Certainly, you can ask if the person is ok, or needs medical care. If they are inclined to volunteer their version of events, listen carefully, and memorize key details- but do not reciprocate. You must provide your identifying and insurance information to that person. Indeed, if injury or property damage is involved, it may constitute a crime not to engage in this basis exchange. Beyond that, do not speak about the details of the accident. It perhaps goes without saying you should not ‘admit fault” or “apologize”. Your own insurance company has likely given you this advice as well. My recommendations go a little farther. I counsel against discussing any fact of the loss. I advise that you never speak with the other driver about how the accident happened, your speed, direction of travel, intentions, or the color of a light or arrow. For similar reasons, you should not discuss your physical condition with the other driver. As a practical matter, you have just been involved in a singularly traumatic event. The adrenaline is pumping. You may have sustained the type of injury that does not manifest, in terms of symptoms, for hours to days. It’s too early to tell. The situation to avoid, of course, is that other driver convincingly telling a jury that you were not injured- because you said you were not injured. To discuss the details of your specific case, reach out to Attorney Eric T. Kirk today.
Top Three Considerations For Hiring A Personal Injury Attorney
Anyone injured at the hands of another in a motor vehicle accident should retain counsel. I’ve been handling injury cases for almost 30 years. I would never contend that any lawyer has access to information that is somehow unavailable to others. Rather, a seasoned lawyer brings three key skills to the table. Knowing where to look, being able to quickly and effectively isolate critical factual information, and then legal principles to that factual information in order to fully and effectively support the claim or defense of the client. The best Baltimore injury and accident lawyers, through training and experience, have an ability to pinpoint and isolate relevant information and leverage that information to the benefit of their client. What the experienced Baltimore car accident lawyer does with the information obtained sets them apart, and, indeed, is the reason they should be hired.
An Experienced Baltimore Injury Lawyer Knows Where and How to Obtain Information
It is not a case that a lawyer would have access to a cache of information hidden from the public at large. Rather, a skilled and experienced injury lawyer like Attorney Eric T. Kirk, has the ability to quickly identify the sources of information which will benefit their client. The lawyer will sift through that information, and select the most important or most influential facts- both positive and negative -and then use the information gathered in a manner that most thoroughly advances the clients interests. A seasoned Baltimore car accident attorney is going to be immediately familiar with the likely sources of pertinent details about their client’s injury claim. In virtually any catastrophic car accident occurring in Baltimore, medical records and bills, driving records, licensing records, accident reports, police reports, insurance claim databases, location services, and of course legal documents must be consulted, analyzed and understood. These are all sources of data well known to a skilled personal injury lawyer, who does not need to reinvent the wheel for every case, but rather is familiar with who to ask, the questions to ask, and the time-frames within which to expect an answer.
A Seasoned Injury Lawyer Finds The Important Details
For the lawyer who sifts through volumes of data, it’s not really just a question of finding relevant information on a page full of information itself. It’s that, to be sure, plus also understanding how that piece of information fits into the larger picture of the legal claim or defense presented. In other words WHY the information is crucial to a case. Knowing not just what the piece looks like, but where it fits. If you have ever watched a doctor review a stack of medical records or an accountant review a stack of tax returns, you’ll know what I’m talking about.
Imagine a hypothetical scenario. An obviously injured individual presents at a lawyer’s office. That person, who did not have a lawyer before, was a pedestrian crossing a busy Baltimore street and struck by a city vehicle. Tomorrow is the first anniversary of the event, and the medical expenses incurred by the injured pedestrian are already astronomical- exceeding $100,000. The vehicle was owned by a city employee who was operating the vehicle as part of their job duties. The unfortunate pedestrian has injuries to multiple parts of their body including their neck and their back requiring multiple surgeries. The city driver is arrested at the scene and charged with being intoxicated while driving.
There are numerous facts set forth above that make this- while a tragic case – also a very significant accident case due to the nature of the injuries involved. The lawyer knows the statute of limitations to file a claim is three years. An experienced attorney would immediately recognize that the key fact in this hypothetical is whether or not the city has been placed on statutory notice within one year from the happening of the event- and, if not, that notice must be given today.
An Experienced Baltimore Accident Attorney Knows How To Use Information
Once the raw information is obtained, a skilled injury lawyer has the ability to parse through that information, identify and cull the vital factual detail and assemble this quickly and efficiently into a coherent whole, i.e. a legal claim. It is when the information is gathered and refined, the true role and need for an attorney comes to the fore. A skilled and experienced attorney is able, through a process of both factual and legal analysis, coalesce and assemble that information into a consistent and concise legal claim. An effective lawyer will then present those pertinent factual details, initially, to an insurance claims adjuster. The methods of negotiating with a large insurance company are explored in other articles on the site. Suffice it to say at the conclusion of that process, there will either be an amicable settlement of the claim-or there will not. An experienced lawyer will know if a reasonable offer is being made – or it is not. Any claim that cannot be resolved through settlement as a candidate for litigation. An experienced attorney will know where to file a lawsuit, when to file a lawsuit, how to file a lawsuit and after those initial steps have been taken, will know how to zealously, effectively and completely present those claims in a court of law.
Children under five years of age can never cause or contribute to their injuries.
Children over 5 are judged by the standard of conduct that children of similar age, intelligence and experience and development would be held to under similar circumstances.
Seasoned Baltimore personal injury lawyers know solace from the harsh application of contributory negligence principles may sometimes be found in notion of last clear chance. As attorney Eric T. Kirk will tell you, a plaintiff who caused or contributed to an accident would normally be barred from any recovery from the defendant, unless that defendant had a new opportunity – a last clear chance- and failed to prevent the harm to the plaintiff. A knowledgeable Baltimore personal injury may be able to successfully argue for and obtain a financial recovery for a negligent plaintiff using this concept. A recent case shows the “Last Clear Chance” doctrine in action. The Maryland Daily Record [volume 122/Number 151] is reporting that a Baltimore personal injury lawyer has convinced a jury that the last clear chance principle should allow a negligent plaintiff to recover for his injuries. The plaintiff, an electrician, was severely injured when a circuit breaker exploded. The insurance company for the installer of the power system argued that the plaintiff was negligent for not having shut off the power prior to repairs, and therefore was barred from recovery. Plaintiff’s personal injury attorney successfully argued that the representative of the defendant, present at the inspection, should have warned the plaintiff to turn off the power, and this was their last clear chance to avoid the injury.
* Washington DC law provides a limited exception to the harsh rule of contributory negligence. “The negligence of a pedestrian, bicyclist, or other non-motorized user of a public highway involved in a collision with a motor vehicle shall not bar the plaintiff’s recovery unless the plaintiff’s negligence is [g]reater than the aggregated total amount of negligence of all of the defendants”
I’ve handled hundreds of cases involving allegations of negligence. I offer all my client a complimentary case analysis and evaluation. Contact me today to determine if “contributory negligence” is a factor in your case, and possible countermeasures.
You can make a claim against the business or company that employs the person that caused the accident, and the responsible driver as well.
As a general rule, an employee of a business commits an act of negligence [ e.g. a car accident] that injures another, while conducting the business of that employer, an injury victim may seek to recover damages from the employee that hurt them, or, from the business itself. As attorney Eric T. Kirk will tell you, many Baltimore personal injury lawsuits are built on this principle, which the law calls respondeat superior.
The option to pursue the employer for the wrongful act of employee can take on enormous significance. Consider that most personal automobile policies issued in Maryland have coverage of only $30,000. Many commercial policies have coverage limits that exceed one million dollars.
What happens, though, if the person that commits the negligent act is not an employee of a business, but rather an independent contractor- doing work for the business, but not actually employed by the business? Some Baltimore personal injury lawyers will advise you that, as a general rule, the business that uses an independent contractor to perform work is not liable for the negligence of that contractor, or the negligence of the employees of that contractor.
However, in Appiah v. Hall, the Maryland Court of Appeals discussed two exceptions to the general rule. One, where the business using the services of a contractor is a possessor of land and allows an unsafe condition to exists on land owned by the business, the business may be liable for personal injury caused by the unsafe condition. Secondly, if the business using the independent contractor retains control over the details and methods of the work, the contractor performs that work negligently, and the very aspect of the work over which control is retained causes a personal injury, that business may be held liable for the negligence of the contractor.
Maryland law also provides that an employer may not hire or retain anyone who poses an unreasonable risk of harm to others who could foreseeably have contact with that person because of the employment. In order to prevail in this type of claim, injured person must show that the person causing the harm was actually an employee of the defendant employer; that the person causing the harm was not competent to perform the tasks of the employment; the defendant employee knew the employee was incompetent; that there was an act that caused harm, and that the defendant employer’s negligence in hiring or retaining the employee was the cause of the injury. These are typically difficult cases to prove, as the law provides that a principal, or employer, may be responsible for the negligent conduct of another, but a principal is typically not responsible for the intentional [ e.g. criminal] conduct of another, absent compelling circumstances.
If you’ve been involved in an accident with a company vehicle, it is imperative that you promptly consult with an experienced Baltimore personal injury attorney to determine your rights. Investigation into the owner of the involved vehicle, the nature of the employment, and the role of the employee/driver at the time of the accident are critical steps that must be taken quickly.
I handle cases involving company vehicles and employee negligence frequently. I extend a free case analysis and legal opinion to all my prospective client. Contact me today to arrange yours.
The insurance industry created the argument years ago that low-speed collisions or accidents where the cars are not mangled cannot lead to significant injury, and have successfully argued that position to juries and judges, repeatedly, throughout the country.
Not all doctors think so. As attorney Eric T. Kirk will tell you, “It is wrong to assume that maximum neck injury occurs in a high-speed collision; it is the slow or moderate collision that causes maximum hyperextension of the cervical spine.”1 This abnormal extension of the spine is what tears the soft tissues in the neck and back. It is whiplash. “[R]ear-end impacts of as little as five mph can give rise to significant symptoms.” Tucker, supra.
The insurance company lawyers that argue to a jury that if the cars aren’t damaged, the people cannot be are not going to produce scientific evidence that says there must be more than “X” dollars in property damage before someone can be hurt.
There isn’t any.
That same defense lawyer is not going to produce an engineer to testify that no one can be hurt if the cars are going less than “X” mph.
There aren’t any.
But even without scientific support, the skilled lawyers that the insurance industry retains – or those that work for them outright as ‘in house” counsel- to raise these arguments are adept and sophisticated advocates. These seasoned attorneys have convinced thousands of judges and jurors that someone simply cannot be injured in a case where there is no significant property damage. The prudent, informed injured person, takes steps to counter the efforts of the insurance company to diminish and discount their claim.
If you’ve been injured, I’d be honored to personally meet with you to go through the specifics of your claim. This initial legal analysis, strategy session, and case evaluation is a complimentary service I offer to my prospective clients. Contact me today.
In an extraordinary case, you may be able to recover damages beyond those awarded for your economic [lost wages, medical bills etc.] and non-economic [pain and suffering, loss of enjoyment of life etc]. But the facts must be truly extraordinary.
Punitive damages are not available, for example, in the typical personal injury or Baltimore car accident case.
Punitive damages, which have been likened to a civil fine, are designed to punish a defendant for egregious conduct. In an extreme Baltimore automobile accident case, punitive damages may be recoverable where the defendant acted with an evil motive, ill will, or an intent to injure or defraud, rather than just garden variety negligence. As attorney Eric T. Kirk will tell you, punitive damages have been awarded in a variety of other types of cases: assault, battery, fraud, false imprisonment, defamation, invasion of privacy, and outrage, among others. What sets these types of cases apart is the presence of intentional malicious misconduct. This is the type of behavior not present in the routing, run of the mill car accident case. The jury can be instructed to consider the financial resources of the defendant in making an award. While not common, an experienced personal injury lawyer will be able to advise you if you have the type of claim where punitive damages may enter into the discussion.
If you’ve been injured, I’d be honored to personally meet with you to go through the specifics of your claim. This initial legal analysis and case opinion is a complimentary service I offer to my prospective clients.
A Dramshop Act is a law that imposes civil liability on the vendors of intoxicating liquor where, typically, that liquor is dispensed to someone who is obviously intoxicated, and that obviously intoxicated person then leaves the establishment and injures another, often in a DUI related auto accident.
Maryland is one of the states that currently do not have Drampshop legislation on the books. 1
Those injured in accidents with intoxicated drivers have asked Maryland courts to find such liability. To date, those requests have been refused.2 A proferred theory of recovery has been, that since most states, including Maryland, have laws prohibiting the sale of alcohol to an obviously intoxicated person, a violation of the statue is considered negligence, and the seller is liable. Maryland takes a different view on this. As attorney Eric T. Kirk will tell you, the law in Maryland has always been that because the sale of the alcohol does not directly injure the third person, then there can be no liability on the seller.
I have been evaluating, resolving, and litigating personal injury cases for more than 20 years. I’ve handled thousands of cases in that time. I invite all potential clients to participate in a no-cost analysis and strategy conference. Contact me today to arrange a time to meet. 410 591 2835, or simply complete the form at the bottom of the page.
An experienced Baltimore personal injury attorney will have specific recommendations about steps you need to take to protect yourself and your rights.
Your actions immediately after an automobile accident can actually impact what your case may ultimately be worth.
For years, major insurance companies have been circulating lists of post-accident advice, and many of the suggestions make sense. For example, State Farm advises that you “[d]on’t sign any document unless it’s for the police or your insurance agent; [m]ake immediate notes about the accident, including specific damages to all vehicles involved, witness information, etc; [d]on’t tell anyone the accident was your fault, even if you think it was; [and to] state only the facts, and limit your discussion of the accident to the police and your insurance agent”. While it’s hard to argue with what your insurance company tells you to do, the list is hardly exhaustive.
An experienced personal injury attorney will advise you to consider medical attention promptly. As Attorney Eric T. Kirk will tell you, even if you do not feel you or family members are seriously injured, it is always a wise idea to let a medical professional make that determination for you. Obviously, if you were not hurt, it makes no sense to have a doctor tell you that you were, in fact, not hurt. No one should be responsible for needless medical expenses. I’ve had enough clients, perhaps in the 1000s of individuals, tell me that although they felt “shaken” after an accident, they did not immediately think they sustained an injury that would require medical attendance. The following day they were in pain, stiff, sore, swollen, and without their usual range of motion. The had a headache, and generally felt they’d been beaten. It’s a very common progression, and I’ve seen and heard it countless times. If you think you been injured, it just makes sense to have a medical professional look at you. If you begin to feel worse in the days after an accident and believe you need medical attention, seek it promptly.
Secondly, take pictures of everything: the tags on the vehicles; the vehicles themselves-being careful to note any damage; the other drivers; the accident scene- noting stoplights, lane markings, direction of travel etc. Note the presence of police, city or commercial cameras. With 8 million cameras in the country, more and more things are recorded on video.
I also recommend that their clients that have sustained serious injury keep a “pain diary”. A “pain diary” is a chronology of the days, weeks, and possibly months after the accident, detailing daily social, work or household activities that are made more difficult, or impossible, by the injuries from the accident. In some instances, an injury victim is not asked to recall the nature of their injuries until months, or years, later. The diary can be an invaluable document for recreating the process of healing and recuperation.
I also suggest you call the police, even if you believe that accident is minor, or will not be contested. I’ve seen it enough to know that things change and that someone who apologizes at the scene may later deny responsibility.
I frequently answer my phone for most hours of the day or night. If you have been involved in an accident do not hesitate to call me even if it is just to answer a question. I’m happy to help.
If you’ve been injured, I’d be honored to personally meet with you to go through the specifics of your claim. This initial legal analysis and case opinion is a complimentary service I offer to my prospective clients. 410 591 2835.
Yes, if you sustained an injury, you do. Because, by definition, you were on a bus, and don’t have damage to your vehicle, it is unlikely, but perhaps not inconceivable, that you would have any type of property damage claim. But certainly, if you sustained an injury in an accident that., again by definition, could not have been your fault because you were not driving, you would be entitled to monetary compensation for your injuries. As attorney Eric T. Kirk will tell you.The accident may be determined to be the fault of the bus driver, or the driver of the other involved vehicle, or both.
The Maryland Transit Administration is considered a “common carrier” [one who engages in public transportation for a fee].
A common carrier owes a duty to its passengers of safe transport, and reasonably safe ingress and egress from the conveyance. The obligation begins when the passenger enters property owned or controlled by the carrier. A common carrier owes an obligation to its passengers to use the highest degree of care.
I’ve handled many claims involving city buses colliding with other cars, other buses and city trucks.
What about a situation where there is no accident with another vehicle, but someone claims personal injury due to a sudden start or stop? In this instance, a personal injury attorney must prove that the movement caused by the start or stop was “unusual or extraordinary” , and must show the start or stop created some “definite factual incident” that is “abnormal and extraordinary”. In making out their case, the injured person cannot rely on mere “adjectival descriptions of the nature of the stop” to prove his or her case. WMTA v. DJAN, 979 A.2d 194 .
There might be a common perception that any time a bus makes contact with another vehicle or with an intimate object, the occupants of the bus are entitled to monetary compensation. That is not the law. If the occupants sustain verifiable personal injury as demonstrated by the multiple video recordings of the interior of MTA buses, then they would be entitled to collect both economic if any, and non-economic damages resulting from their injuries.