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.

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.

NO TAX /BANKRUPTCY/ESTATE PLANNING ADVICE: Eric Kirk does not handle tax, bankruptcy or trust and estate matters, and does not render legal opinions pertaining to those issues. Please consult a qualified professional in these disciplines.

I’m Attorney Eric T. Kirk not a tax attorney. I do not handle tax cases, and I do not render tax advice. Having said that, here is a common question:

You just got your personal injury award check. Do you get to keep all of it?

Without rendering any opinions, I can point the interested reader to the IRS publication.

  • “Personal physical injuries or physical sickness. If you receive a settlement for personal physical injuries or physical sickness and did not take an itemized deduction for medical expenses related to the injury or sickness in prior years, the full amount is non-taxable”
  • “If you receive a settlement for personal physical injuries or physical sickness, you must include in income that portion of the settlement that is for medical expenses you deducted in any prior year(s) to the extent the deduction(s) provided a tax benefit.”

Do I Have to Pay Taxes on My Personal Injury Settlement or Award

  • “Emotional distress or mental anguish • The proceeds you receive for emotional distress or mental anguish originating from a personal physical injury or physical sickness are treated the same as proceeds received for Personal physical injuries or physical sickness above.If the proceeds you receive for emotional distress or mental anguish do not originate from a personal physical injury or physical sickness, you must include them in your income.”

I have made it my habit and practice to fully advise my clients on every aspect of their personal injury claim to the best of my ability and experience. In fact, I extend a complimentary case evaluation and strategy planning session to all new clients. When it comes to tax law, however, I recognize the extent of my knowledge ends quickly. I  always suggest my client with tax and financial planning professionals to fully determine their obligations and options.

If you’re injured by the negligence of another the law recognizes your right to recover.

What if you are married, and your injury affects the nature and quality of your relationship with your spouse?

Attorney Eric T. Kirk says as for your medical expenses, lost wages and pain and suffering, an experienced Baltimore personal injury lawyer can advise you when, and if damages for this type of injury are recoverable. But that is not the extent of potential recovery.

After the Accident I Can't Have Sex With My Wife/Husband, or Have It as Often

The law recognizes the ways an accident can damage a marriage.

Loss of Consortium “…means the loss of society, affection, assistance and conjugal fellowship. It includes the loss or impairment of sexual relations.” Deems v. Western Maryland Ry. Co., 231 A.2d 514, 247 Md. 95 (Md., 1967).

A lot of people will tell you this claim only concerns the lost or diminished ability to have sex.

That’s part of it, to be sure, but there are  more components to the loss as well. “[T]he two aspects of a claim for loss of consortium have been described as the economic “loss of services that … [have been performed] though they are of a type that can be rendered by hired help,” in contrast to the noneconomic “loss of household and other services that are of such a character that they cannot be rendered by hired help and on which, by reason of their character, no market value can be placed.” [citations omitted] The noneconomic component of a claim for loss of consortium has also been described as “intangible elements [that] are generally described in terms of ‘affection, society, companionship and sexual relations.’ ” [citations omitted]. Connors v. Oaks, 642 A.2d 245, 100 Md.App. 525 (Md. App., 1993).

One spouse cannot bring the claim separately. “When either husband or wife claims loss of consortium by reason of physical injuries sustained by the other as the result of the alleged negligence of the defendant, that claim can only be asserted in a joint action for injury to the marital relationship. That action is to be tried at the same time as the individual action of the physically injured spouse.”  Deems.

Consortium claims are textured and nuanced. Each is as different as one marriage is to another. It is important to consult with a seasoned personal injury attorney early in the process, to begin laying a foundation for the consortium claim.

I have been evaluating, resolving, and litigating personal injury cases for more than 20 years.  I’ve handled thousands of cases in that time. Not all cases involved lost consortium claims, but, in appropriate circumstances, it is something your family should be aware of. 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.

Do I Have to Repay Medical Bills from My Personal Injury Settlement

Many injured people are fortunate enough to have insurance, and their Personal Injury Protection [PIP]*, health, employer, private disability insurance, or any combination of those sources pay for some past or future lost wages, or some past or future medical care. IN some instances, a federally funded insurance substitute such as Medicare or Medicaid makes a payment related to a personal injury event. As attorney Eric T. Kirk will tell you, an experienced Baltimore personal injury lawyer will insure that your jury is specifically instructed that it “may not reduce the amount of or your award because you believe or infer that the plaintiff has received or will receive reimbursement for or payment of proven medical expenses or lost earnings from persons or entities other than the defendant” such as insurance. [MPJI 10.8]. That’s called the collateral source rule. Although juries are instructed not to consider collateral sources, that does not mean that medical providers or other insurers [but not PIP] cannot be reimbursed for expenditures they make in the wake of a Baltimore car accident. Indeed, in most cases, those insurance carriers will assert a claim or a “lien” on any amount you are awarded. Medicare and Medicaid have a claim for reimbursement as a matter of law. There are many legal arguments that an experienced personal injury litigator can make in an effort to get these claims for reimbursement reduced.

 

One of the most important roles your Baltimore personal injury attorney should fill is as a negotiator of these liens.

An experienced Baltimore personal injury attorney often will be successful in getting the amounts claimed by medical providers, and in some instances, insurers who have paid medical bills in the wake of an automobile accident, reduced- meaning more money in your pocket.

*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 conduct these complimentary reduction negotiations routinely as part of the package of services offered to my personal injury clients. I extend, also on a complimentary basis, an initial analysis and legal opinion to all my clients. Call me today to arrange a meeting.

Maryland, through it legislature, has chosen to limit the amounts recoverable by those injured by the negligence of others.

Experienced Baltimore personal injury lawyers are all too aware that “in an action for personal injury, pain, suffering, inconvenience, physical impairment, disfigurement, loss of consortium, or other nonpecuniary injury…”and “[i]n an action for wrongful death, mental anguish, emotional pain and suffering, loss of society, companionship, comfort, protection, care, marital care, parental care, filial care, attention, advice, counsel, training, guidance, or education in which the cause of action arises on or after October 1, 1994, an award for noneconomic damages may not exceed $500,000.

Is There A Limit On How Much I Can Recover In A Personal Injury Case ?

Note that “Noneconomic damages” do not include punitive damages. As attorney Eric T. Kirk will tell you, punitive damages are discussed in a separate article. Discuss your claim with a Baltimore personal injury attorney to determine if you are entitled to punitive damages. A different calculation applies if there is more than one claimant in a wrongful death action, and in medical malpractice actions.  The initial limitation has been increased and will continue to be increased by $15,000 on October 1 of each year. The new limit applies to injuries occurring between October 1 of that year and September 30 of the next year. For example: if you were injured between 10/1/2008 and 9/30/09, your maximum recovery would have be $710,000.00; if you were injured between 10/1/2009 and 9/30/10, your maximum recovery would be $725,000.00. For injuries that occur between 10/1/18 and September 30th of this year, the cap is $860,000.

Most injury claims resolve by settlement or verdict for a mere fraction of the upper limits. However, the application of cap has come as a monumental shock to those who are paralyzed, horribly maimed, or have lost a parent or spouse to the negligent acts of others.

That’s not to say some individuals and families have not challenged the legality or constitutionality of the provision. They have, albeit unsuccessfully. In fact, Maryland’s high court has systematically rejected all challenges to the cap, including the most recent one. I analyze, evaluate and develop a strategy for all my client on a complimentary basis during our initial meeting. Contact me today to arrange yours.

The drivers of motor vehicles on Maryland roadways have a duty to use ordinary care to prevent car accidents and injury to others, and those crossing Maryland streets owe a duty to use ordinary care for their own safety. Crosswalks have some associated special rules.

A crosswalk may be marked or “unmarked” [i.e. within the prolongation or connection of the lateral lines of the sidewalks].

Does a Pedestrian in a Crosswalk Have the Right of Way?

If there is no traffic signal, a driver of a motor vehicle must stop if a pedestrian is in a crosswalk on the half of the roadway where the vehicle is traveling, or, if they are approaching from an adjacent lane on the other half of the roadway. As attorney Eric T. Kirk will tell you, if a traffic control signal that does not contain special ‘walk’ or ‘don’t walk’ commands is operating, then, a driver faced with a circular solid green, must yield to anyone lawfully inside any crosswalk when going straight, right or left.

A pedestrian in this circumstance is “lawfully” in the crosswalk when they begin their crossing facing any green signal other than a turn arrow.

If a traffic control signal that does contain special ‘walk’ or ‘don’t walk’ commands is operating, then, a pedestrian facing a ‘walk’ signal is to be given the right of way by any driver. Pedestrians can assume that operators of vehicles will obey the rules. Obviously, that does not always happen. This isn’t necessarily by design, but often the product of mistake, oversight or neglect. In other words, negligence. The obligation to protect others runs both ways.

Of course, a pedestrian must always use due care for their own safety, and cannot blindly cross traffic, even with the right of way, without first checking to make sure it is safe.

Maryland is one of the few states adhering to the ancient concept of contributory negligence. In the context of pedestrian v. car accidents, the insurance company lawyer will frequently argue that the pedestrian caused, or contributed, to the accident, in even the most minor fashion, and should be barred from recovery.

It’s generally stated that the motorist has the right of way between crosswalks, but, that does not mean that a pedestrian crossing outside of a crosswalk is necessarily negligent as a matter of law. Harris V. Bowie, 249 Md. 465 [1968].

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.

I slipped on the ice. Can I sue? Does it matter if it was “black ice”?

As discussed in other articles, Maryland employs the archaic doctrine of “contributory negligence” which bars any financial recovery to a Baltimore accident victim if they bear even the slightest responsibility for contributing to their injury. Baltimore personal injury lawyers are often confronted with a similar, related defense, employed by insurance companies -“assumption of the risk”.

“In Maryland, it is well settled that in order to establish the defense of assumption of risk, the defendant must show that the plaintiff: (1) had knowledge of the risk of the danger; (2) appreciated that risk: and (3) voluntarily confronted the risk of danger.” Allen v. Marriott, 961 A.2d 1141, 183 Md. App. 460 (Md. App., 2008).

Slipped on Black Ice. Can You Sue for your Injuries?

When dealing with falls in an icy parking lot, walkway, or sidewalk, in many instances “[t]he risk is that of slipping on ice. The required knowledge is not knowledge that ice is actually present. It is the appreciation of the reasonable likelihood that, under the weather conditions and other circumstances, ice might well be present. As attorney Eric T. Kirk will tell you, the assumed risk is not that of stepping on ice per se. The assumed risk is that of stepping onto an unknown surface with an awareness that it might well be icy. With white ice, you see it is there. With black ice, you infer the likelihood that it may be there.” Id.

So, the question is not whether ice was present, but, rather, in light of the weather conditions, history, and other circumstances, ice might be present. “Either establishes the element of awareness.” Id. If the plaintiff is aware of the danger, there is no recovery. I’ve seen some truly horrific injuries that result from ‘sliding’ on the ice. While the injuries can be devastating,  these are some of the most difficult cases in which to prevail due to the array of defenses available to the insurance company.  If you’ve been injured in a fall on snow or ice, consult an experienced Baltimore personal injury attorney to explore any possible defenses the at-fault party may have.

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.

I’m missing work. I lost my job. Can I recover my lost wages? What about future wages?

These are all difficult and trying realities confronted by those injured in car accidents, or other personal injury-causing events. Of course, the answer is “Yes”. As attorney Eric T. Kirk will tell you, if you are injured by the negligence of another and are kept out of work by a doctor, the wages you’ve lost are recoverable.

Can I Recover Past or Future Lost Wages/Income in a Personal Injury Case?

For less severe injuries, I frequently see situations wherein the injured person is able to return to or keep working, within limitations on lifting or other activity. If you are given a “light duty” or part-time duty restriction by your doctor, you’re entitled to recover the difference between what you actually make, and what you would have made working full duty. An experienced Baltimore personal injury lawyer can assist you in recovering your lost wages. But it is not always easy. A similar, but more complex situation is presented where someone is seriously injured, and can no longer return to their former employment for medical reasons, or were terminated from their job? The burden of proof is higher, and the evidentiary requirements are more stringent, but

….in appropriate circumstances, a significantly injured plaintiff may recover for a loss of future earning capacity.

Can I Recover Past or Future Lost Wages/Income in a Personal Injury Case?

The nature of this claim is explored in another chapter in this series. In this situation, a personal injury attorney will always have a discussion with his or her client about the obligation to diligently look for work and keep records. “The duty to mitigate damages serves to reduce the amount of damages to which a plaintiff might otherwise have been entitled had he or she used all reasonable efforts to minimize the loss he or she sustained as a result of a breach of duty by the defendant.” Hopkins v Silber [Md. App., 2001] [citations and internal quotations omitted].

In the context of lost wages, this concept means that an injured plaintiff looking to recover future lost wages, if and when healed, must almost always look for work that is available to them within any limitations imposed by there injury.

Lost wage claims can become intricate. I would encourage any injury victim wanting to pursue this type of claim to consult an experienced personal injury attorney to determine the amount of the lost wage claims, and what will be necessary to prove it.

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.

Past lost wages are generally a straightforward matter.

In a serious personal injury action, though, the injured person’s future earnings must be considered.

This occurs in two ways. If that injured person will be incapacitated for a period of time after the trial and was working prior to the injury, a reasonable measure of damages is the average wage earned prior to the incapacity, projected over the length of the incapacity.

Can I Recover for my Future Lost Wages in a Personal Injury Claim?

“In an action for personal injuries, a plaintiff may recover for loss of future earnings which will reasonably and probably result from the tort. Monias v. Endal, 330 Md. 274, 623 A.2d 656 (Md., 1992). Alternatively, “[a] tort victim suing for damages for permanent injuries is permitted to base his recovery on his prospective earnings for the balance of his life expectancy at the time of his injury undiminished by any shortening of that expectancy as a result of the injury.” Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 595, 94 S.Ct. 806, 819, 39 L.Ed.2d 9, 26 (1974).

What if the person is not working at the time of the injury, or, has just started a new career that is expected to yield income, but has not yet? Consider that this person cannot any longer work in that new field because of their injuries. That is a different type of claim.

Under Maryland Law. A loss of earning capacity claim is different than a claim for a loss of future wages claim.

“There is a distinction between loss of earnings and loss of earning capacity. A person is entitled to compensation for the lost capacity to earn, whether he would have chosen to exercise it or not.

Can I Recover for my Future Lost Wages in a Personal Injury Claim?

As attorney Eric T. Kirk will tell you, most courts which have discussed the subject have held that it is not necessary to show either the plaintiff’s earnings prior to the injury or decrease in earnings after the injury in order to establish the fact of loss of earning capacity.” Monias v. Endal, 330 Md. 274, 623 A.2d 656 (Md., 1992) How does one prove what their “earning capacity” is? “Essentially, an accident victim is entitled to be compensated to the extent his or her power to work in an activity that produces income has been reduced by the injury. There is no fixed rule by which the amount of damages for diminution or impairment of earning capacity may be definitively measured. Instead, all relevant facts on the issue must be considered. The prevailing proper measure of lost earning capacity is the difference between the amount that the plaintiff was capable of earning before his injury and that which he is capable of earning thereafter. Essentially, the plaintiff must establish the disparity between the market value of his services before and after the injury.” Anderson v. Litzenberg, 694 A.2d 150, 115 Md.App. 549 (Md. App., 1996).

As you might imagine, these types of cases can become complex. Typically, the expert testimony of one or more economists, vocational experts, or those practicing in other related disciplines, is needed to prove the claim. It is a virtual certainty that if the Plaintiff employs an expert to demonstrate their lost capacity, the insurance company will hire one or more experts to diminish, deny or defeat that 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 and case opinion is a complimentary service I offer to my prospective clients.