In articles I and II in this series, I’ve explored what should happen in the immediate wake of an accident or personal injury-causing event. This culminating entry details the final phase when a personal injury “claim” evolves into a personal injury case [i.e. a lawsuit].
Baltimore Personal Injury claim, Phase III: Litigation.
Where an insurance company has denied all responsibility for a claim outright or has made a singular, or a series of unrealistic and unacceptably low settlement offers, I file a lawsuit. The endgame here is a trial, where responsibility and compensation will be determined. In this scenario, the filing and prosecution of a lawsuit in the court of the appropriate jurisdiction is the only next step that must be taken on the road to making the injured individual whole and complete in light of their injuries. I suggest only a seasoned and experienced personal injury attorney has the training, background and experience necessary to successfully complete such cases. It’s a significant move forward as the personal injury lawyer has agreed to advance the costs of litigation. Commencing litigation also changes the fee structure in the retainer agreement.
Litigation involves, initially, the filing of legal documents with the court, which will in turn issue official court process, that is then served on the at-fault individual themselves. Ultimately that person’s insurance company will become involved in the lawsuit and either retain or refer the matter to counsel of their choosing. Let me say at this juncture, many insurance companies in Baltimore, and certainly GEICO, State Farm, Allstate, Liberty Mutual, and Nationwide all utilize what is known as the “in-house counsel” model. In other words, the attorney is- although they nominally work in a separately named law firm- actually an employee of the insurance company itself. The attorneys employed by the major insurance companies in Maryland are typically skilled and outstanding lawyers, as well as ferocious litigators and adversaries in court proceedings.
After the lawsuit is commenced- depending on the court in which the claim is filed, a sometimes lengthy process will commence. The flow of cases differs depending on the court in which a case is filed. A district court case has fewer steps in the process to a personal injury financial recovery. A state court circuit court case has more steps in the process to compensation for injury, but the endpoint, no matter the court system or the process, is a trial. At trial, a group of jurors, or a district court judge, would be asked to decide who is responsible for the injury-causing event, and what should be done about it. In other words what “damages” are appropriate. The concept of “damage” generally is a legal term for money awarded to compensate someone for their losses. In a Baltimore personal injury trial, a court will consider both economic losses- that is to say, things such as the payment of medical expenses, as well as the recovery of lost wages and out-of-pocket expenditures. The court will also consider noneconomic damages. This is a concept individuals sometimes, or perhaps, even frequently colloquially call “pain and suffering”. Certainly, the effective attorney will argue that concept, and although the components of such a claim or myriad, certainly any emotional or physical turmoil, distress, consternation or difficulty encountered in the wake of a serious Baltimore personal injury-causing event must be considered by a jury to fully compensate the victim of injury.
During the last 25 years or so of handling automobile accident claims, I have found that a frequently and commonly asked question -perhaps the most common- is: “What are the next steps in this process?” And of course, it’s perfectly understandable that a person, who has just been injured in a Baltimore car accident might be somewhat confused, uncertain, or indeed, even bewildered about their legal rights, responsibilities, and what the future may hold. When the personal injury causing event is a significant or catastrophic injury, these fears, concerns, and the anxiety is seemingly doubled, tripled, or increased by an order of magnitude. The phases in the claim process are discussed in some additional detail, below.
Baltimore Personal Injury claim, Phase I: Recuperation and Investigation
My standard advisory, to essentially every other person involved in a personal injury claim, a work related injury claim, or any type of potential legal claim or case that could involve injury to any part of the human anatomy, is simple, straightforward and unhesitating:
- Get prompt, competent medical care
- Adhere to the advice of your chosen doctor, or medical professional, in each of its particulars
The first step, always, is to begin the process of recuperation and recovery from ones injuries. The unique thing about this advice is that it’s simple. It’s uniform. It applies in every case, and there’s just no common sense reason not to follow it. While this is my standard advice to anyone who finds themselves in this situation, I understand that there are always competing concerns, and other concerns held by the injured person:
- Who pays for the car damage after an accident?
- Who pays for the medical bills after a car accident?
- If I’m hurt in a car accident and I have to miss work, am I entitled to collect my lost wages?
There are others to be sure. Of course, the ultimate frequently asked question is: “How much am I going to get?” The follow-up is “When?” So, the next steps in any personal injury case necessarily include what is needed, and what should be done to ensure that the injured person gets back on their feet as quickly as possible.
As outlined above, the initial phase is one of prompt medical care, attendance, treatment, and recovery. While the process of recuperation is unfolding, I collect information about the automobile accident. This would typically be a police report, ambulance records, emergency, and EMT records, if available. Potentially, secondary evidence such as body worn camera, or CCTV footage, and even more infrequently, but possibly video surveillance footage, captured on a device or system owned by a private person might be available. I collect information regarding the other driver and significantly- their insurance company. I collect information regarding the injured individual’s insurance company for purposes or pursuing a separate personal injury protection insurance claim. I assemble and collect photographs, vehicle estimates, medical bills, wage loss documentation, photographs of the injured individual and any other information that might be pertinent to the case. There are no hard and fast rules, it can typically take two months -or a range of six weeks to three month-s for most otherwise reasonably healthy individuals to recover from significant, but not serious injuries that occur in most automobile accidents. Most automobile accidents involve injuries to the muscles, ligaments tendons, and other connective tissues in our bodies that hold our bones and joints together and enable our body to move. It’s these types of injuries that typically will resolve, or at least get back to their pre-injury baseline if that is the course within that six weeks to three month timeframe.
I Attorney Eric T. Kirk often get last minute calls from personal injury clients who’ve misplaced the court notices I’ve sent to them. It’s understandable. As an accident and injury attorney practicing in Maryland, I routinely appear in the courts of this state for trial. An unfortunate injury victim, who may very well have no prior experience with the court system, has no reason to know where those courts are located. There is a wealth of information available to the general public about the court system generally, as well as about specific cases active within the system.
This service “provides public access to the case records of the Maryland Judiciary”, including court dates, times, locations, and docket entries. A useful instruction and FAQ page for this service appears here: http://mdcourts.gov/casesearchhtml/faq/
The second type of last-minute call, usually coming during the winter months, involves whether or not a previously scheduled personal injury trial will be held due to potential inclement weather. A useful page regarding these issues can be found here.
Often, I am Attorney Eric T. Kirk approached by clients that have a dispute with a business. Perhaps a used car broke down soon after it left the lot, and the dealer is refusing to repair it, or a hair salon is refusing to redo a botched dye job. I’ve also seen personal injury claims where someone has a minor injury that doesn’t require medical care and attendance but was clearly caused by someone else’s negligence. I’ve found that these are legitimate claims that would be recognized in a court of law without question.
However, due to the nature of the complaint, sometimes the costs of litigation may outweigh the benefits of a successful lawsuit, or the amount of damages recovered.
I find myself in these situations having to decline a case. Notice what is happening here. This is a business decision honed by 25 years as a practicing attorney. If I am approached a by a prospective client, who has a legitimate claim to recover $1,000, but it will cost them $1500 in attorney’s fees to recover that $1,000- I’m going to present them with this assessment, and let the client decide if this something they wish to pursue. It may be, or it may not be. Sometimes vindication of a trampled right is the aim. Notice also these are cold, hard business observations that have nothing to do with the merits, or likelihood of success of a claim.
Hiring a lawyer is not the only choice in these situations. The Maryland Attorney General’s office operates a Consumer Protection Division which, according to the office “provides mediation services to consumers to help resolve complaints against businesses and health insurance carriers; provide[s] information about complaints that have been filed against businesses; tell[s] you if your new home builder or health club is properly registered, and provide[s] publications to help you make good decisions in the marketplace”.
Attorney General / Consumer Protection Division
While you should always discuss your legal rights with an experienced attorney, if you wish, there may be alternatives to litigation that best suit a particular need.
I have been evaluating 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.
It absolutely does. The insurance industry’s approach to cases in which the property damage is less than $1000 is explored in other guides. For the purposes of this discussion, note that a low property damage number may mean the insurance company will refuse to pay you anything at all. Several years ago, 70 of the nations largest insurance companies began to use a program called “Colossus” [or an analog e.g. Claimsearch] to determine the amounts they would pay to a victim of negligence. As attorney Eric T. Kirk will tell you, these programs incorporate property damage estimates into the formula to evaluate the value of the case. Lower property damage estimates lead to lower overall valuation of the claim. The insurance company logic here is that if the car wasn’t damaged significantly, the occupants were not hurt, or not seriously hurt.
The hard reality is that there is no scientific or medical evidence that supports the contention that one cannot sustain a significant personal injury where the vehicle in which they were riding did not sustain a significant amount of property damage.
There is no scientific evidence finding a correlation between high property damage and the seriousness of an injury, either. But the insurance industry employs dedicated, skilled advocates, to argue their cases in court, and these attorneys have been quite successful in convincing jurors that someone just can’t get hurt where there is not a lot of visible property damage, or the repair estimate does not add up to a lot of money.
Here is where it gets interesting. Those same insurance companies that are going to pay you less money if you have low property damage, are the ones that are determining how much your property damage is. At least one major insurance company has purchased and directly owns auto repair facilities.
“The Allstate Corporation said yesterday that it had acquired Sterling Collision Centers for an undisclosed amount, making it the first major auto insurer to move into the car repair market….Sterling, which operates 39 car repair shops in seven states and has about $100 million in annual revenue.” New York Times, May 9, 2001. Other major insurers have contractual relations with a network of “authorized providers” or “preferred providers”. These are auto repair facilities that derive income from, and in some cases are paid incentives for, participating in the insurer’s “network” of repair facilities. And these auto repair facilities determine what the amount of the property damage.
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.
When one is injured on the property of another [ e.g in someone’s home or on their land, or in business premises like a story or theater] the claim for personal injury that may ensue is typically referred to as a “premises liability claim”. As attorney Eric T. Kirk will tell you, the outcome may depend on the injured person’s reasons for being on the property, as the duty, and responsibility for injury, of a landowner, possessor or manager of land or a building depends on the legal status of the person who was injured. Maryland law recognized four classes of visitors.
- An “Invitee” is someone on the property for purposes related to the owner’s business and is owed a duty of reasonable care to keep the property safe.
- A “Social Guest” is on the property not for any business purposes, but as the guest of the owner, and is owed a duty of reasonable care to keep the property safe, and is also entitled to be warned of any latent dangers they could not discover on their own.
- A “Bare Licensee” is on the property, with permission, but for his or her own business purposes.
- A “Trespasser” is, well, a Trespasser, and neither a trespasser of Bare Licensee are owed any duty at all.
There are some other specific rules, e.g. for Landlords, that are explored in other chapters. If you’ve been injured while on another’s property, consult an experienced Baltimore personal injury attorney to determine if you have a claim.
I offer all prospective clients the opportunity to meet in person an discuss the specific facts of their claim and application of the law to those facts. I provide this initial legal analysis and opinion free of charge.
A landlord must take reasonable measures to ensure the safety of his or her tenants.If the landlord knew or should have appreciated the likelihood of crimes against tenants or their property because such activity has taken place before, then he or she must take reasonable steps to ensure that it does not occur again. As attorney Eric T. Kirk will tell you, a landlord also has an obligation to keep “common areas” such as exterior walkways, paths, stairways and facilities free from dangerous and defective conditions. A landlord is not generally responsible for dangerous or defective conditions inside of a leased premises. An experienced personal injury can help you in analyzing whether you can assert a claim against your landlord.
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.
Of course if you sustain a serious physical injury due to the negligence of another, and there is accompanying emotional distress, recovery for that distress is not normally in question.
What if there is no direct physical impact, just fright, fear, nervousness or the like that result from someone’s negligent conduct?
“[I]n earlier times, courts did not recognize a specific duty to refrain from the negligent infliction of emotional distress and that, as a result, recovery of damages solely for mental distress was not permitted. As attorney Eric T. Kirk will tell you, instead, damages for mental distress had a parasitic status; recovery was dependent upon an immediate physical injury accompanying an independently actionable tort.” [internal quotations omitted] Hoffman v. Stamper, 385 Md. 1, 867 A.2d 276 (Md., 2005). Over time, courts changed the older rule, adopting instead the “modern rule,” which permitted recovery for negligent infliction of mental distress if a physical injury resulted from the commission of the tort, regardless of [an] impact” which caused immediate physical injury. Id. A physical injury for which recovery is allowed does not have to be of the type typically or traditionally associated with car accidents, e.g. whiplash, contusion, abrasions, lacerations, and the like. Some “physical injuries” resulting from negligently inflicted emotional or mental distress that have been recognized by the courts include:
- emotional upset
- loss of appetite
- loss of weight
- extreme irritation, and
- “nervous prostration”1
These types of cases are extremely complex, and can be difficult to prove. An experienced personal injury attorney can evaluate if you have such a claim, and help you document, quantify, and prove it. Contact me today for a complimentary case analysis.
It goes without saying that everyone has the obligation to look and listen for a train before crossing a track. Experienced Baltimore personal injury lawyers Attorney Eric T. Kirk know that both the operator of the train, as well anyone crossing the rails, have the duty to use reasonable care to avoid an accident. But what about an injury that occurs on the railroad’s property, or on their right-of-way, but does not involve a train or a car accident. Unless the individual has permission to be on the property, they are considered trespassers, or what knowledgeable Baltimore personal injury lawyers know are called “bare licensees” under Maryland law. The railroad owes no duty of reasonable care to these individuals. The railroad would only be liable for injuries that it or its employees intentionally or wantonly caused. Vehicle accidents on at train crossings are relatively rare. Non-employee railroad accidents are perhaps rarer still.
I routinely try cases involving various theories of recovery for a personal injury. I am honored to extend a complimentary meeting, strategy session and case analysis to you. Contract me today to arrange a time. 410 591 2835.
Experienced Baltimore personal injury lawyers have likely brought claims under 20-601 of the Transportation Code. If one is hit by an uninsured, disappearing or unidentified driver of a motor vehicle, and sustains an injury, a claim may be made against MAIF. As Attorney Eric T. Kirk will tell you, there are many pitfalls. The notice must be timely given. Typically, in these situations, one would look to their own uninsured/underinsured motorist coverage. There are many classes of individuals who cannot bring claims [e.g. one operating a car that itself has no uninsured motorist coverage]. So that drivers who did not ensure their car would not be eligible, but a passenger, or pedestrian, if no vehicle is involved, may. If the statutory qualifications are satisfied, then a claim for personal injury or property damage may be made against the fund. Due to the intricacies of these claims, you should always consult a knowledgeable Baltimore personal injury lawyer early on regarding your rights under this section.