Jonathan Turley writes a good post about the insanity of the cap on liability provided by the Maryland Local Government Tort Claims Act.

The case involves a car accident that resulted from a Montgomery County, Maryland police officer doing what a noticeable minority of police officers do in police cars: drive at excessive speeds. This police officer was doing 56 miles per hour in a 30 mile per hour zone. When we see this on the road, no one even complains about it. It is just something we accept. Police officers drive at a speed of their choosing, even off-duty. That is, until an accident like this happens.

Originally posted at Maryland Injury Lawyer Blog. Please visit http://www.marylandinjurylawyerblog.com/.

Certainly, the title is a little hyperbolic. But at the Maryland Court of Appeals Rules Committee meeting this morning, a memorandum was issued from Chief Judge Robert M. Bell requesting a study of how other jurisdictions have dealt with the comparative negligence doctrine.

Just a study, mind you. But this memo jumps right to the heart of the matter.

If the Court were to consider replacing the doctrine of contributory negligence, a common law doctrine in Maryland, with some form of comparative negligence with some sort form of comparative fault:

(a) whether in the Committee's view, the Court could effect that change by Rule, as opposed to judicial decision.

(b) if the Court were to consider the adoption of such a Rule, what form and content of the Rule should be; and

(c) what related legal principles, such as joint and several liability, would need to be considered concurrently.

Well thank you for not beating around the bush, Judge Bell. There is also a specific request for the consideration of views of the Maryland Defense Counsel, the Maryland Association for Justice, and the Maryland State Bar Association.

Timely, I wrote about the interplay between joint and several liability and comparative negligence this week. In terms of what position these groups take, I think it will all depend on joint and several liability. If joint and several liability remains unchanged, Maryland plaintiffs' lawyers would support comparative negligence and Maryland defense attorneys would be obligated to make a big stand in opposition (although that is a lot of show, many self-interested defense lawyers get that more opportunities for plaintiffs' is more opportunities for them). But if it is a swap of comparative for abolishing joint and several liability, this becomes a more, for lack of a better word, nonpartisan issue where fractions are going to split off within the interest groups.

Originally posted at Maryland Injury Lawyer Blog. Please visit http://www.marylandinjurylawyerblog.com/.

When you die in a fatal accident in Maryland, two claims arise: a wrongful death action and a survival action. Wrongful death claims are for the suffering and economic loss for surviving family members on their own behalf. The survival action is brought by the estate, which means it is actually the only claim the person who died really brings for themselves, in their own name for their own loss of life.

If you die instantly in a Maryland accident - or there is no proof of conscious pain and suffering - defense lawyers argue there is no survival action or no claim for the decedent for their death.

Maybe I think this stuff through a little too much, which makes me wonder if I can keep this job until retirement. But it just seems ludicrous to me that a person has no cause of action in their own right because we can't prove they suffered before they died. A trial court in Maryland recently took this a step further, ruling that there is no conscious pain and suffering when a five year-old boy drowns in a pool because there was no "evidence" of conscious pain and suffering. The Maryland Court of Appeals thankfully reversed the trial court on this point because it is obviously more likely than not that the poor child suffered. (I would love to be wrong about this and I try to make myself feel better by thinking it was not that long a period of time. But it does not make me feel better.)

Originally posted at Maryland Injury Lawyer Blog. Please visit http://www.marylandinjurylawyerblog.com/.

Last week, I wrote one of my most read Maryland Injury Lawyer Blog posts in the last four years, thanks to a Twitter link from the authors of Freakonomics. I love Freakonomics and Superfreakonomics to the point where I would put the Twitter link on my bio if it would not make me so obviously pathetic.

Anyway, the subject of the post was the ignored risks of pedestrians and alcohol which cause a remarkable number of deaths and injuries (and car accidents) every year in this country. To underscore this point, I read as I do every Monday, Norman Chad's syndicated column in the Washington Post. At the end of his column, he does a little question and answer:

Q: Re: Colts punter Pat McAfee. Have you ever been arrested shirtless, soaking wet and reeking of alcohol? — Brian King, Carmel, Ind.
A: Too much is made of public intoxication; in a simpler America, I believe you should be allowed to walk home drunk. Plus punting’s a part-time job with Peyton Manning’s Colts — I wouldn’t begrudge McAfee a midweek cocktail.

People should be allowed to walk home drunk? Now imagine if he had said the same thing about drinking and driving. I think the blogosphere would probably explode. Norman Chad must apologize to the families of everyone killed in a drunken pedestrian accident. He should be suspended from his job at ESPN and his column should be taken down for three months. He should be made to write 1000 times, "I will not make light of the serious public health issue of drunk pedestrians ever again." Norman Chad should be caned.

No, wait! That is the idiot's reaction, trying to beat an apology out of another public figure, particularly from a humorist who is just uninformed like everyone else on the real risks caused by drunk pedestrians. We need the public to pay more attention to issues that matter and less to the useless apologies beaten out of people who are trying in good faith to be honest or harmlessly funny.

But this is a teachable moment (yes, I'm sending my $2 to Obama for the copyright) about the associated risks of pedestrians and too much alcohol. I'm not saying we need a national movement running television commercials - an important issue does not have to be the most important issue - but it is a serious public health problem we need to take seriously. There may not be the same moral imperative to stop pedestrians as there is to stop drunk drivers but there needs to be enough public awareness so that someone like Norman Chad (and his editors) feels compelled to pass on a laugh to help save lives (and to avoid the risk of a public backlash).

Originally posted at Maryland Injury Lawyer Blog. Please visit http://www.marylandinjurylawyerblog.com/.

In Maryland, if an uninsured motorist insurer waives subrogation against the at-fault driver in an underinsured motorist case, it also waives its liability defenses. Depending upon who you ask, this has either always been the law in Maryland (as Maryland high court tells us in Maurer v. Penn National), or is a completely new law (as every Maryland accident lawyer or insurance company seems to think).

State Farm has seemingly responded to this new law by refusing to waive subrogation in just about every case where the at-fault driver tenders the policy limits. It is a fair tactic. But what State Farm is doing is cutting side deals with the at-fault driver's insurance company to waive subrogation to the extent of the UM coverage which allows the defendants to work together in preparing for and trying accident claims.

Two take home messages for the Maryland car and truck accident lawyer. First, add in a discovery question to uncover these side deals so you know the score in advance. Second, make sure you argue at trial that the defendants' interests are aligned and they should not both get jury strikes.

The latter issue is a big deal. Giving both insurance companies strikes - particularly if they are working together - is going to give you a very different jury.

Originally posted at Maryland Injury Lawyer Blog. Please visit http://www.marylandinjurylawyerblog.com/.

ESPN is running a story about an NFL player who was arrested last night for public intoxication. I think if public intoxication was a regularly enforced crime, we would need to start building more jails.

But I was interested in something the player reportedly said to police: "I know I am drunk, but does that mean I cannot walk home?"

I think the first reaction to this report is that we are all glad that he made the choice to walk and not get behind the wheel. But walking while drunk is one of the great unmentioned public health problems in this country. According to the journal Injury Prevention, almost 60 percent of fatally injured pedestrians were legally drunk.

In SuperFreakonomics, the authors argue that walking while drunk may actually be deadlier than driving drunk. On a per-mile basis, a drunk walker is eight times more likely to get killed than a drunk driver, and walking drunk leads to five times as many deaths per mile as driving drunk. (Of course, walkers are covering a few less miles than drivers.)

We care less about drunk walkers than drunk drivers, relatively speaking, for an obvious reason: they put us at less risk than drunk drivers do. But drunk walkers do cause serious auto accidents that often result in chain reaction colissions that lead to injuries and deaths beyond that of the pedestrian. Moreover, people behaving stupidly matter, too.

Originally posted at Maryland Injury Lawyer Blog. Please visit http://www.marylandinjurylawyerblog.com/.

Medicare liens are the bane of personal injury lawyers trying to reach a settlement. Settlements don't and can't parse out pain and suffering damages for medical bills. What goes to the wrongful death claim? What goes to the survival action? If you get a verdict at trial, this all gets resolved. But with undifferentiated settlements it is hard to determine what money would have gone where.

Usually, the bigger problem is not that Medicare won't reasonably reduce its lien. It is the cart before the horse logistics - it is virtually impossible to settle the lien before the case resolves, leaving clients up in the air and at Medicare's mercy as to what their actual recovery will be. It would help settle personal injury cases with Medicare liens if clients could have a more clearly ceiling as to what the lien amount might be. The 11th Circuit Court of Appeals provided a little help on this with a recent opinion.

The case was a Florida nursing home bed sore wrongful death case that settled for $52,500. (This was apparently the nursing home's policy limit, which makes no sense to me.) Medicare had paid the medical bills so the plaintiff's nursing home attorneys invited Medicare to participate in the settlement. Medicare did what I would not expect it to do in Maryland, claimed the entire amount. It also declined to participate in the probate hearing to divide up the settlement. So the trial judge moved along, valued the case over $2.5 million and cut Medicare's lien to $787.50.

The 11th Circuit ruled that Medicare does not have the right to claim full reimbursement from an undifferentiated settlement. The court found that Medicare must participate in any state-authorized process to prorate its lien claim or accept the result when it refuses to participate.

Originally posted at Maryland Injury Lawyer Blog. Please visit http://www.marylandinjurylawyerblog.com/.

According to one study, driving distracted kills 5,500 people in car and truck accidents every year in this country. Don't let the title of this blog fool you. It is beyond dispute that texting while driving is a growing part of this problem. The Baltimore Sun reports that 25% of teenaged drivers admit to texting while driving a car, and almost half say they've been in cars with someone who sent text messages. But kids are not the only problem. Adults that rolled their eyes at texting just a few years ago are now textaholics who read and write text messages while driving. The phenomenon is causing serious injuries and deaths on our nation's highway. And the perpetrators are not degenerate criminals but people just like you.

This all makes sense. The anti-texting advocates have me. But this is where they lose me: "Texting and driving is worse than drinking and driving."

First, the statement is ridiculously misleading. Maybe, if some studies are true, you can better avoid an accident with a .08 blood level than you can in the middle of a text message. But you are drunk the whole time you are driving, not for an instant of receiving or sending a text message. So I'd rather be on the other side of a double yellow line of someone who sent a few texts than someone who is drunk any day.

But my larger criticism is the message the "worse than drunk driving" slogan sends. It is like we can't say Heidi Klum is pretty without saying she is more attractive than Gisele Bundchen or complementing LeBron James without pointing out what he can do that Michael Jordan couldn't.

Originally posted at Maryland Injury Lawyer Blog. Please visit http://www.marylandinjurylawyerblog.com/.

Maryland's new no cellphones while driving law has been in effect since Friday. I'd be curious to know how much cellphone use in the car has gone down with the threat of a $40 fine hanging over the head of Maryland motorists. Assuming, of course, that they have committed some other violation for which they have been pulled over because Maryland police have to have a primary reason to make the stop.

You can find answers to all of your questions about Maryland's new cellphone law on the Maryland Accident Lawyer Blog.

Originally posted at Maryland Injury Lawyer Blog. Please visit http://www.marylandinjurylawyerblog.com/.

On our website, we break down virtually every jurisdiction in Maryland and analyze virtually all of the insurance companies our accident lawyers deal with on a regular basis in Maryland car accident cases.

If you have anything you think we should add or subtract from our analysis, let us know.

Originally posted at Maryland Injury Lawyer Blog. Please visit http://www.marylandinjurylawyerblog.com/.