Maryland Personal Injury Blog

Maryland Court of Special Appeals Rules Defendant’s Lack of Insurance Admitted in Error, Reverses Jury Award

August 23, 2015 | by Foran & Foran, P.A.

In a case published earlier this year, Asphalt & Concrete Servs., Inc. v. Perry, 108 A.3d 558 (2015), the Maryland Court of Special Appeals decided the question of whether evidence of a defendant’s lack of liability insurance is admissible for purposes of establishing a negligent hiring claim.

The plaintiff sustained serious injuries after being struck by a dump truck while crossing an intersection. The dump truck was not covered by liability insurance at the time of the accident, as required by Maryland law. The plaintiff then brought a personal injury suit against the defendants, which included a claim of negligent hiring against ACS, the business that hired the trucking company to haul its materials. The jury verdict was in favor of the plaintiff, and he was awarded damages in the amount of $529,500. ACS appealed, claiming that the trial court erred in allowing evidence of the driver’s lack of insurance at trial.

Although lack of insurance is generally inadmissible to prove that a person acted negligently, it may be used for other purposes if it is relevant to the elements of the claim. For a negligent hiring claim, the court looked to whether the lack of insurance rendered the driver incompetent to do the job, and whether it was the proximate cause of the plaintiff’s injuries. The court stated that the lack of insurance coverage could be relevant to the first issue of the driver’s competence, depending on the job he performed. Since ACS was not allowed to have truck operators who did not produce insurance, the fact that the driver was uninsured did relate to his competence to transport materials on state highways. The driver’s lack of liability insurance, therefore, was relevant to whether the business employed a competent person.

Maryland Court Allows Plaintiff to Bring Wrongful Death Suit Based on Same Conduct as Prior Personal Injury Case

August 21, 2015 | by Foran & Foran, P.A.

The Maryland Court of Special Appeals recently filed an unreported opinion in the case of McQuitty v. Spangler, Md. Ct. Sp. App. (2015), in which they decided the issue of whether the decedent’s survivors could bring a wrongful death action for the same conduct as the underlying personal injury action, after the decedent won the personal injury action.

The decedent was born in 1995 with severe cerebral palsy. In 2001, the parents of the decedent brought a personal injury action against the doctors on his behalf, alleging medical malpractice and breach of informed consent. After a jury trial, the decedent received a judgment in his favor in 2006, which was affirmed after several rounds of appeal. The decedent died in 2009, and his estate recovered money damages from the defendants in satisfaction of the judgment in March 2012.

On May 17, 2012, the decedent’s survivors brought a wrongful death action against the same parties, based on the same conduct that brought about the medical malpractice suit. The defendants filed a motion to dismiss, arguing that the principle of res judicata barred the survivors from bringing essentially the same suit against them. The circuit court granted the defendants’ motion to dismiss, and the survivors appealed to the Court of Special Appeals.

Maryland Court of Appeals Rules Medical Malpractice Suit Barred by Statute of Limitations

August 20, 2015 | by Foran & Foran, P.A.

In a recently published opinion, the Maryland Court of Appeals examined the issue of whether or not the statutory savings clause for medical malpractice actions applies to a voluntary dismissal by stipulation between the parties. The court in Wilcox v. Orellano clarified that the exception to the limitations period does not apply to any voluntary dismissal, including one filed pursuant to stipulation, and held that the plaintiff was barred from re-filing her claim.

In Maryland, the Health Care Malpractice Claims Act (HCMCA) governs actions against a health care provider for a medical injury. A plaintiff must first file the claim with the Health Care Alternative Dispute Resolution Office (HCADRO), and within 90 days, file a certificate of a qualified expert along with a report of the attesting expert. The plaintiff may then arbitrate or file a claim in circuit court.

In Wilcox, the plaintiff filed a claim against her doctor with HCADRO and subsequently filed a certificate of qualified expert, but not a report. The plaintiff choose to proceed with her claim in circuit court, where the defendant-doctor moved to dismiss for failure to include the required report. Since the defendant had already filed an answer, the plaintiff voluntarily dismissed the action by stipulation of both parties. The plaintiff filed a second claim with HCADRO and again chose to proceed in circuit court. However, while the plaintiff’s first action was filed within the period of limitations, her second action was not.

Maryland Court of Special Appeals Addresses Discovery Issue in Lead Paint Suit

July 31, 2015 | by Foran & Foran, P.A.

In a recent opinion, the Maryland Court of Special Appeals decided whether a trial court erred in refusing to allow plaintiff’s lead-paint inspection of a non-party’s home. In Johnson v. Franklin, the plaintiff had filed a lead-paint poisoning suit against a defendant property company that had previously owned the house. The plaintiff alleged that he suffered severe and permanent injuries from exposure to lead-based paint. The plaintiff sought to test the house, currently owned by a non-party to the suit, for lead-based paint. The Court of Special Appeals vacated the decision of the trial court denying the plaintiff’s request and remanded the case for further proceedings.

The plaintiff first contacted the non-party by letter, requesting her permission to conduct environmental testing of her house for the presence of lead-based paint. When the non-party failed to respond, the plaintiff filed a complaint in circuit court, seeking a court order permitting the inspection, which is known as an equitable bill of discovery. The non-party responded that she had already tested her house for lead paint, that the state and federal governments had approved it, and that she had provided those results and copies of the paperwork to the plaintiff. The trial court subsequently denied the plaintiff’s request.

On appeal, the Court of Special Appeals provided an explanation of how one may obtain an equitable bill of discovery, and the standard of review for the grant or denial of one—an issue that had never before been discussed by the court.

Maryland Court Rules in Favor of Insurance Company in Car Accident Settlement Case

July 30, 2015 | by Foran & Foran, P.A.

A recent case decided by the Maryland Court of Appeals addressed the issues of whether an insurance company may waive its right to receive written notice of a settlement offer from a motor vehicle insurance liability insurer, as required under Md. Code Ann., Ins. § 19-511, and whether the insurance company must demonstrate prejudice in order to deny uninsured/underinsured (UM/UIM) motorist coverage to its insured in cases where it did not consent to the settlement offer.

Woznicki v. GEICO Gen. Ins. Co., 115 A.3d 152 (Md. 2015) involved two car accident cases with the same issues presented to the court. In the first case, Woznicki received an offer from the at-fault driver’s insurance company for its policy limits ($20,000), in exchange for her release of all liability claims against it and its insured. Pursuant to the terms of her insurance policy, as well as Md. Code Ann., Ins. § 19-511, Woznicki was required to notify GEICO in writing of any settlement offer and obtain consent from GEICO before agreeing. While Woznicki’s attorney did provide written notification to GEICO of the settlement and request for consent, it was sent on the same day that Woznicki had signed the release accepting the settlement offer from the liability insurer. Woznicki argued later at trial that her attorney had obtained an oral consent to settle when he spoke with a GEICO claims representative on the phone. Nevertheless, although Woznicki’s policy with GEICO provided UM/UIM coverage of $300,000, GEICO denied her claim because of her failure to obtain its consent to settle with the at-fault driver’s insurance company. The second case also involved a plaintiff who accepted the tortfeasor’s liability coverage before her insurance company consented to the offer.

Maryland Court of Special Appeals Rules for Student’s Family in Wrongful Death Pedestrian Accident Case

July 15, 2015 | by Foran & Foran, P.A.

In a decision published this spring, Davis v. Board of Ed. for Prince George’s County, Md. Ct. Sp. App. (2015), the Maryland Court of Special Appeals made a ruling following a granting of a motion for Judgment Not Withstanding the Verdict (JNOV).

In the case, a 13-year-old student was hit by a car as she was crossing the street to board a school bus. She died as a result of her injuries two weeks following the car accident. Her parents sued the school board for wrongful death, negligence, and other related claims. They alleged that the Board owed their daughter a duty of care to provide a bus stop on her side of the street, that they breached that duty, and that as a result, they proximately caused the girl’s injuries and death.

Maryland Court Allows Habit Evidence of Doctor in Medical Malpractice Action

July 15, 2015 | by Foran & Foran, P.A.

A newly issued decision from the Court of Special Appeals of Maryland addresses the admissibility of testimony regarding a doctor’s customary practice in a medical malpractice suit. The court held that the trial court acted within its discretion in admitting habit evidence regarding an emergency room physician’s procedures when examining a patient on a backboard.

In Rosebrock v. Eastern Shore Emergency Physicians, LLC, the patient was taken to the emergency room on a backboard, complaining of knee, hip, and lower back pain following a slip and fall accident. She was diagnosed by the attending physician as having knee and hip contusions, and she was discharged. Continuing to experience back pain, the patient sought medical attention from several other doctors. Subsequent medical tests revealed that the patient, in fact, had a fractured vertebrae, which required surgery. As a result of an infected surgical wound, the patient then suffered anoxic brain injury, which left her in a vegetative state until her death seven years later.

At issue on appeal in the medical malpractice case was whether the attending emergency room physician, who could not remember treating the patient specifically, could testify as to her usual procedure of examining patients on a backboard.

Maryland Court of Special Appeals Affirms Summary Judgment in Slip and Fall Case

July 15, 2015 | by Foran & Foran, P.A.

In a recent slip and fall case, Zilichikhis v. Montgomery County, Md. Ct. Sp. App. (2015), the Maryland Court of Special Appeals had before it a case arising out of an 82-year-old man’s slip and fall inside a parking garage owned and operated by a governmental agency.

The plaintiff had been attempting to walk to his car, which was parked in a parking garage. As he approached his vehicle, he slipped and fell twice. Shortly thereafter, he started complaining of a severe headache. He was taken to the hospital to seek emergency medical treatment, where he was diagnosed with a subdural hematoma that required immediate surgery. The plaintiff continues to suffer various impairments as a result of his traumatic brain injury.

After he filed suit, the county claimed immunity from suit as a governmental agency, and also a lack of liability due to the fact that it was not on actual or constructive notice regarding the presence of the alleged oil. They cited to the fact that the plaintiff had claimed he had not seen the oil on the ground the night before, when he parked his car, and also that he claimed it smelled fresh when he fell and he had gotten it onto his hand.

Maryland Court of Special Appeals Rules Against Co-Worker Liability in Garbage Truck Injury Case

July 15, 2015 | by Foran & Foran, P.A.

In a recent workers’ compensation case, Blue v. Arrington, Md. Ct. Sp. App. (2015), the Maryland Court of Special Appeals had before it the issue of an individual attempting to seek compensation due to the alleged negligence of his co-worker in causing his personal injuries suffered while on duty.

The case arose out of an incident in which the plaintiff, Stinyard Blue, was working for Baltimore City. He was performing his duties as an aide on a garbage truck. As such, he was “side mounted” on the outside of the garbage truck that his co-worker was driving. Then, while reportedly on a cellphone, the co-worker turned the vehicle, crushing the plaintiff’s legs and midsection between a fence and a brick wall. Following the incident, the plaintiff filed a claim under the Maryland Workers’ Compensation Act, for which he received benefits for lost wages, medical expenses, and permanent disability.

Court of Appeals of Maryland Finds Underinsured Motorist Policy Applicable in Single Vehicle Car Accident Settlement Case

July 15, 2015 | by Foran & Foran, P.A.

The Court of Appeals of Maryland recently had before it an appeal stemming from a single-vehicle car accident. In the case, Brethren Mutual Ins. v. Buckley, 86 A. 3d 665 (2014), the plaintiff was a front-seat passenger in a vehicle driven by her boyfriend that was involved in an accident, causing the plaintiff to suffer a personal injury.

The driver of the vehicle had an insurance policy with a limitation of $100,000 worth of coverage. Even though the plaintiff had medical bills in excess of $200,000, she agreed to settle the claim with the driver’s insurance, and she signed a release of claims related to that acceptance. She then attempted to pursue coverage for the remainder of her expenses under her uninsured/underinsured motorist (“UM”) policy with her insurance provider, Brethren.

Brethren attempted to enforce the release on the grounds that, since all parties had been released in regards to the claim, that included the company. The trial court agreed with Brethren and granted its motion for summary judgment on the basis of the terms of the release.