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.

As Attorney Eric T. Kirk personal injury clients sometimes ask, in addition to their medical bills, pain and suffering and the cost of repair of their vehicle, if they can recover for the diminished value of their car?

In Maryland, it is possible to file a diminished value claim.

The Insurance Information Institute defines as diminished value as “[t]he idea that a vehicle loses value after it has been damaged in an accident and repaired.” The argument is that, in the future, you decide to sell that previously wrecked car, but can’t get what you believe fair market value because the car has been “wrecked and repaired”.

What is A Diminished Value Claim? Is My Car Worth Less Because It Has Been Wrecked?

That’s Diminution in Value / Diminished Value. Of course it makes sense that the purchaser of a used car wants one that hasn’t been wrecked, but are there any objective reasons supporting the concept? A variety of reasons are typically offered for why diminution in value occurs: every car loses value after being wrecked and repaired; the insurance company approved body shop used inferior parts, or, uses improper repair techniques. [Diminished Value, Harry Hitzeman, Insure.com 2010.] Imagine a scenario where someone else hit you, and they-or their insurance company- is responsible for the loss. This is typically referred to a “third-party” claim – you make it against someone else’s insurance company. Should that insurance company pay for the loss in value due to the wreck, at the time of the repairs, as part to the claim? In many states, the answer is “NO”. However, An experienced Baltimore personal injury lawyer will tell you the answer in Maryland is “YES”

“[I]f the plaintiff can prove that after repairs his vehicle has a diminished market value from being injured, then he can recover in addition to the cost of repairs the diminution in market value, provided the two together do not exceed the diminution in value prior to the repairs.” Fred Frederick Motors, Inc. v. Krause, 12 Md.App. 62, 277 A.2d 464 (Md. App., 1971)

The last clause in the quote is significant. Every car sustains ‘diminution in value’ as it ages. One cannot recover this lessened value simply because there was an accident. The measure of damage is rather, what would that car, considering it’s age and any other defects, fetch on the open market the day before the accident, contrasted with the market value the day after the repairs.

Of course,  careful documentation is vital, and an appraisal from a professional to prove the loss in value might be necessary. Typically these appraisals run in the neighborhood of $400.00. In some instances, it may be a cost-benefit analysis for the injury victim looking to recoup some lost value. Is it worthwhile to spend $400 in appraisal fees, and more in attorney’s fees, to collect an additional $1,000 in diminished value? LIkely, it is not. That thought process is likely much different if the diminished value is $5,000.

What if there is no other insurance company? Say for example, you crash your car into a tree. Your insurance company agrees to pay for the repairs. This is typically referred to a “first-party” claim – you make it against your insurance company. The question becomes, in that scenario, should your insurance company make good on my loss. i.e. pay for this diminished value. In most states, the answer is again “No”. Id. However, if your vehicle is insured in Maryland, coverage for diminished value may be available under your policy. Be sure to mention it to your adjuster and get something in writing from them if they tell you such coverage is not available.

Be sure to discuss the possibility, and viability, of a diminished value claim with your Baltimore personal injury attorney, as part of your claim. I offer a free legal opinion and case analysis. Call me if you’d like to discuss a diminished value claim. 410 591 2835.

While not necessarily a direct factor used in determining the value of your personal injury claim, an experienced Baltimore personal injury lawyer will tell you:

The amount of your uninsured or underinsured motorist coverage is a direct factor in determining the amount you may be able to recover in a car accident case.

Let’s say you have the misfortune of being injured in an automobile accident, and you sustain personal injuries, incur medical bills, and experience wage loss. As attorney Eric T. Kirk will tell you, in an ideal situation, the amount of liability insurance carried by the at-fault-driver would be sufficient to cover your losses. What if the at-fault-driver had only 30,000 in coverage, and your losses well exceed that amount? What if the at-fault driver had no coverage at all?

How Do I make a Claim for Uninsured Motorist Insurance Coverage ?

In the scenario where the at-fault driver did not have enough coverage, you would look to your insurance company and your [first party] coverage for “underinsured motorists” as an additional source of funds for you to recover. In the scenario where the at-fault driver had no coverage, you would again look to your insurance company and your coverage for “uninsured motorists” as an additional source of funds for you to recover. Some states may categorize these two distinct scenarios as falling under distinct policy provisions [i.e. uninsured v. underinsured]. Due to the working of the Maryland law dealing with these benefits, both situations are handled by the same type of Maryland insurance coverage.

Maryland has also recently enacted provisions dealing with “enhanced” uninsured / underinsured motorist insurance coverage. The steps, procedures, considerations, and pitfalls of dealing with your uninsured/underinsured motorist carriers are explored in other chapters of elsewhere on this page. An experienced Baltimore personal injury attorney can provide you with guidance to ensure you fully recover your losses. If you have a claim that involves an application for underinsured motorist coverage benefits, call me today to arrange a complimentary discussion on the best course of action.

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.

Let’s say you have the misfortune of being injured in an automobile accident, and you sustain personal injuries, incur medical bills, and experience wage loss. What if the at-fault-driver had the statutorily mandated minimum coverage of just $30,000?  In a more ominous situation, what if that at-fault-driver had no coverage at all?

You’ll need the expertise of an experienced Baltimore personal injury lawyer to guard your rights.

As attorney Eric T. Kirk will tell you, in the scenario where the at-fault driver did not have enough coverage, you would look to your insurance company and your [first party] coverage for “underinsured motorists” as an additional source of funds for you to recover. In the scenario where the at-fault driver had no coverage, you would again look to your insurance company and your coverage for “uninsured motorists” as an additional source of funds for you to recover.

What if your insurance company refuses to pay you?

My Insurance Company Won't Pay or Denied my Uninsured Motorist Insurance Claim

You may legitimately ask “why did I pay those premiums all those years?” You may also want to sue them. An experienced personal injury attorney will tell you that you have a few options. One is a procedure under 3-1701 of the Courts and Judicial Proceedings Article. You must first file an administrative action with Insurance Administration. The Administration is to determine if your insurance company breached its obligations to you, what is should pay you, and if it acted in bad faith [failed to act with honesty or diligence, or made a decision without supporting evidence]. If you’re not happy with the final result, you can file an action in Circuit Court, and request a trial by jury on these issues of 1] whether coverage exists under your policy 2] the amount your insurance company should pay you for your personal injuries 3] whether your insurance company acted in bad faith by not paying you. If they failed to act in good faith, you can recover for your attorney’s fees, litigation costs, and interest. You have other options as well, but the procedures can become mind-boggling. These are the types of claims that invariably call for the assistance of counsel. You should consult an experienced Baltimore personal injury lawyer to ensure you obtain the full measure of the recovery you’re due. I offer all prospective client a complimentary case analysis and strategy session. Please feel free to call me today.  410 591 2835.

 

I’ve assisted countless clients in obtaining their uninsured or underinsured motorist insurance coverage benefits over the years. Sometimes I’m able to amicably resolve the claim without initiating litigation. In other cases, a lawsuit may be necessary.  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.

Many major insurance companies allow a computer to determine how much injury victims should collect. This may come as shock to many, but more than ten years ago, most insurance companies began using computer software to determine the amounts they would pay to a victim of negligence.

Does the Insurance Company Use A Computer to Determine How Much I Get for my Personal Injury?

The maker of “Colossus” -Computer Sciences Corporation- realizes enormous profits [10 billion in revenue 10 years ago] and says of its product:” Your adjusters can quickly interpret medical reports and look up definitions of injuries, treatments, complications and permanent impairments using AMA 5th edition data. As attorney Eric T. Kirk will tell you, through a series of interactive questions, Colossus guides your adjusters through an objective evaluation of medical treatment options, degree of pain and suffering, degree of permanent impairment to the claimant’s body, and the impact of the injury on the claimant’s lifestyle. At the conclusion of a Colossus consultation, a summary of the claim is provided, including a recommended settlement range”

While the notion that a computer is going to determine what your personal injury it worth to you may seem frightening – it gets worse.

The insurance company of course if free to not offer the ‘Colossus number’ if they think it is too high.

Not surprisingly, many victims of personal injury causing events, typically motor vehicle collisions have questioned the “objectivity” of the process.  More ominously, the ‘Colossus number’ can be artificially decreased by inputting incorrect or misleading information. The Consumer Federation of America (CFA) a non-profit association of 300 consumer groups, reports  “…any insurer who buys a license to use Colossus is able to calibrate the amount of ‘savings’ it wants Colossus to generate…If Colossus does not generate sufficient ‘savings’ to meet the insurer’s needs or goals, the insurer simply goes back and ‘adjusts’ the benchmark values until Colossus produces the desired results.” citing “From Good Hands to Boxing Gloves – How Allstate Changed Casualty Insurance in America,” Trial Guides, 2006, Berardinelli, Freeman and DeShaw, pages 131, 133, 135.

I routinely try cases involving disputed issues involving the extent of loss from an accident, wherein issues of damages and proper valuation can become complex. I am honored to extend a complimentary meeting, strategy session and case analysis to you. Contact me today to arrange a time. 410 591 2835.

Make no mistake, an insurance company will frequently seize on any prior mishap, accident or injury, no matter how slight or remote.

Can the Insurance Company Say My Injury is Pre-Existing ?

That insurance company may argue that any current complaints from the injury victim are related- not to the event for which this insurance company bears financial responsibility, but rather to some, or any, prior incident relating to the same body part. It certainly not uncommon for a person, past a given age, to have had some form of “injury” to several parts of their body. As attorney Eric T. Kirk will tell you, this could result from accidents, congenital conditions, sport injuries, or any other happening.

“…..I hurt my back once before. Now I got in an accident, and feel a lot worse.”

Consider someone who sustained a back injury a decade ago as a result of a work-related injury, and assume that same person is today involved in an automobile accident and has back pain. Can there be a financial recovery for pain and suffering for the new automobile accident? Won’t the insurance company say the injury and pain is “preexisting”? The law provides that the effect that any injury might have on a given individual- who might be predisposed to injury because of age, general health, or a particular medical condition- should not affect the damages recovered.

The law also provides that a person who had a particular condition before the accident can recover for an aggravation, exacerbation, or worsening of that underlying condition.

Can the Insurance Company Say My Injury is Pre-Existing ?

An experienced personal injury attorney can assist you in proving that aggravation, exacerbation, or worsening. To be sure, the insurance company will always argue that your injury and pain come from any source under then sun other than the accident for which you are making a claim. An experienced personal injury attorney can help you document, quantify, and prove through medical evidence the precise nature and extent of the aggravation, exacerbation, or worsening of an underlying condition.

Aggravation and exacerbation cases can be very nuanced, and are often litigated. Insurance companies often use the label “preexisting” to deny claims outright. I’ve successfully handled these type of cases. Give me a call today for a free legal analysis of your case.

Maryland drivers are charged with the obligation of using reasonable care to avoid car accidents, and generally for the safety of others when driving. However, the nature of that duty may change depending on the circumstances.

A driver faced with a sudden and real emergency situation, not a result of that driver’s misconduct, is required only to use the care and caution that a reasonable driver would, under those exact circumstances.

Personal injury defense lawyers have successfully argued, that drivers, due to weather, tire blowouts or other circumstances, are not responsible for car accidents that they were involved in.

The Insurance Company Denied My Claim Saying it was an Emergency

The argument goes, that, if a person has done what any reasonably cautious prudent person would do when confronted with an emergency, then they are not negligent, even though there was a car accident, and even though that accident injured one or more individuals. I attorney Eric T. Kirk will tell you, it is difficult concept to grasp for those individuals who may find themselves injured as a result of an accident caused by an emergency situation. These injured individuals may be seeking monetary recovery because of the accident, and may be unwilling to accept that without a finding of legal responsibility for causing an accident, they are not entitled to receive anything. It can be a bitter pill, but fact finders in personal injury trials can be persuaded by these “emergency” arguments, which necessarily ignore concepts of driving too fast for conditions, failing to control a vehicle or failing to reduce speed to avoid an accident.

Insurance companies have no shortage of reasons to deny claims. 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.

Personal injury lawyers have heard this argued one more than one occasion. Whether it is phrased in terms of “act of god”, “unavoidable accident” or some strain of “sudden incapacity of a driver”, lawyers representing the insurance companies have been known to argue to juries that:

“although there was an accident, and although there were injuries, no one should be held responsible”

It’s just not anybody’s fault. Or, so goes the argument. In order to recover for an automobile accident, the negligence of that at-fault driver must be what the law calls the “proximate cause” of the collision. [there is more material on proximate cause in other chapters of this volume]. The notion that some other mechanism –other than negligence- caused the accident lies at the core of all of these defenses. For example, the presence of ice on the roadway, it could be argued, is an unforeseeable circumstance, making a collision between vehicles on that roadway inevitable, and something that could not be prevented. But, in that circumstance, the inquiring personal injury attorney may ask, should the driver causing the accident used additional caution, or not have ventured out at all? We’ve also seen the claim that “the driver of the other car had a heart attack, or a seizure”, or some other medical calamity. Attorney Eric T. Kirk will advise you, a defendant claiming this type of incapacity has the burden of proving that there is no way they could have foreseen it coming. For example- a person suffering from a seizure disorder controlled by medication may have a reason to anticipate a seizure if they neglected to take that medication.

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.

What Reasons Can The Insurance Company Use to Deny My Claim?

In theory, the reasons that an insurance company can use to deny a claim are as limitless as the imagination of the creative adjuster.  So long as there is some factual basis for the denial, there are no limitations. Most insurance companies are huge entities with massive resources that dwarf those of the individuals with whom they have a dispute. As Attorney Eric T. Kirk will advise you.

There is a code of conduct for insurers regarding the claims practices. Maryland law provides that it is an “unfair claim settlement practice” to: refuse to pay a claim for an arbitrary or capricious reason; misrepresent pertinent facts or policy provisions; or to fail to provide a basis for denials.

Unfortunately for the injury victim, the remedy for a violation of these rules is typically the imposition of an administrative fine against the insurer. That does little to help with injury victim who may be out of work with massive and mounting medical bills.

I’ve made a career of battling insurance companies, to ensure fair compensation for those I represent. I’d be happy to take a complimentary look at your claim and offer my opinions and advice. Feel free to contact me today to schedule a discussion.

Almost any Baltimore personal injury lawyer Attorney Eric T. Kirk will tell you that PIP benefits are ‘no-fault’, ‘first-party’ insurance benefits.

What is Personal Injury Protection Under Maryland Insurance Law?

‘No-fault’ means that if you get injured in an automobile accident, then no matter what the cause of the accident is, you receive the benefits.  Now, you can’t collect if you intentionally caused the accident, or if you were committing a felony that led to the accident. But if you run off the road and hit a tree, or strike the rear end of the car in front of you, or are hit by another vehicle, the result is the same: you get the benefits you purchased with your premiums.*  ‘First-party’ means that it is your insurance.

  • The minimum coverage is $2500 and your insurer has to offer it to you
  • You must decline it in writing if that is your choice
  • You can buy more coverage
  • The coverage pays your reasonable and necessary medical expenses, up to the limit, and/or
  • The coverage pays 85% of your lost wages, up to the limit

Most insurers tend not to challenge the wage loss benefits but frequently refuse to pay, or reduce, the medical charges of some medical providers.

*The Assembly has recently enacted a change in this process. Marylanders now have the option of carrying less insurance. An insured may now reject personal injury protection altogether, under specific circumstances. See Insurance Article, Md. INSURANCE Code Ann. § 19-506.1.

I extend a case review, claim evaluation and legal opinion on a no-cost basis to my clients. Contact me today to arrange a meeting. 410 591 2835.