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insurance defense law and insurance coverage law in Maryland, D.C., and Virginia.

Wednesday, November 6, 2013

MARYLAND: Liability Insurer Must Inform the Plaintiff of the Insured Defendant’s Last Known Home and Business Addresses

MARYLAND: Liability Insurer Must Inform the Plaintiff of the Insured Defendant's Last Known Home and Business Addresses.

Md. Courts and Judicial Proceedings Code Ann. § 6-311 allows a plaintiff to obtain a defendant's last known home and business addresses from the defendant's insurance company. That statute provides:

§ 6-311 - Disclosure of last known Address Information
  • (a) "Person" defined. -- In this section, "person" has the meaning stated in Rule 1-202 of the Maryland Rules.
  • (b) Applicability. -- 
    • (1) This section applies to an action against a person who had applicable insurance coverage under an insurance policy or self-insurance plan at the time the alleged liability that is the subject of the action was incurred.
    • (2) Subject to paragraph (1) of this subsection, this section applies to a person who is a defendant subject to a complaint, counterclaim, cross-claim, or third-party complaint.
  • (c) Information provided by insurer or person with self-insurance plan; no civil or criminal liability. -- 
    • (1) Subject to subsections (d) and (e) of this section, on written request of a plaintiff to the action, an insurer or a person that has a self-insurance plan shall provide to the plaintiff the defendant's last known home and business addresses if known.
    • (2) An insurer or a person that has a self-insurance plan, and their employees and agents, may not be civilly or criminally liable for the disclosure of information required under this subsection.
  • (d) Plaintiff certification -- Contents. -- Subsection (c)(1) of this section applies only if the plaintiff files a certification that states that the defendant:
    • (1) Had applicable insurance coverage at the time the alleged liability was incurred; and
    • (2) Is evading service of process or the whereabouts of the defendant are unknown to the plaintiff.
  • (e) Plaintiff certification -- Service. -- A plaintiff shall file a certification described under subsection (d) of this section with the clerk of the court in which the case is filed and serve the certification on the insurer or the person that has the self-insurance plan, as provided in the Maryland Rules.
  • (f) Defendant's consent. -- A defendant who is subject to the provisions of this section is deemed to have consented to the disclosure of the information described in this section.
Rule 1-202 of the Maryland Rules defines "person" as follows:

"Person" includes any individual, general or limited partnership, joint stock company, unincorporated association or society, municipal or other corporation, incorporated associations, limited liability partnership, limited liability company, the State, its agencies or political subdivisions, any court, or any other governmental entity.

Tuesday, October 29, 2013

D.C. Court Denies Summary Judgment in Pedestrian Crosswalk Case; Payment of Traffic Ticket Does Not Establish Negligence Per Se

On June 11, 2008, Isabel Stehn crossed Pennsylvania Avenue and 19th Street in Washington, D.C. and was struck by the Defendant’s vehicle. The crosswalk at that intersection was controlled by a pedestrian walk signal which displayed a 25-second countdown. For the first 7 seconds, the signal displayed a flashing white graphic of a walking pedestrian, indicating to pedestrians that they may lawfully begin to cross the intersection. The signal then changed to 18 seconds of an orange hand indicating to pedestrians that they may no longer cross the intersection. Pedestrians who had begun to cross in the first 7 seconds continued to have the right-of-way for those 18 seconds. When the 18 seconds had elapsed, the display changed from a flashing hand to a solid orange hand. As Ms. Stehn proceeded through the crosswalk, she was struck by the Defendant’s car which was turning left at a green light onto Pennsylvania Avenue. At his deposition, the Defendant testified that, prior to turning, he did not see any pedestrians crossing the street. He also indicated that at the time he turned, the flashing orange hand signal was displayed, and that Ms. Stehn was not lawfully in the crosswalk at that time. The Defendant received, and paid, a ticket for "failing to yield the right-of-way to a pedestrian." 

Plaintiff Stehn filed a motion for summary judgment as to liability, alleging that she left the sidewalk and entered the crosswalk as soon as she was permitted. The Court denied the motion on the grounds that there was a genuine dispute over whether Ms. Stehn stepped into the crosswalk while the white walk signal was displayed or after the flashing orange hand appeared. To the extent Ms. Stehn stepped into the crosswalk after the orange hand appeared, she could be deemed contributorily negligent – a complete bar to recovery in D.C.

The Court also held that a driver’s payment of a traffic fine for "failure to yield right-of-way to pedestrians" does not establish negligence per se, since there are many reasons to pay a traffic fine without intending to concede guilt, such as convenience and expediency. 

Wednesday, September 4, 2013

MARYLAND: Four new Judges for District Court of Maryland for Baltimore City

Maryland Governor Martin O’Malley recently appointed four new judges to the District Court of Maryland for Baltimore City.  The new judges will be: Martin Dominic Dorsey of the Office of the Public Defender for Baltimore City; Nicole Pastore Klein, an administrative law judge with the Office of Administrative Hearings; Mark Franklin Scurti, an attorney at the Towson-based firm of Pessin Katz Law specializing in bankruptcy and consumer protection law; and Kevin Michael Wilson, an assistant state’s attorney in Baltimore.  The current bench of the District Court of Maryland for Baltimore City is conservative and usually awards plaintiffs only minimal amounts for pain and suffering in personal injury cases.

Monday, August 12, 2013

Maryland Bar Held not Liable for Death Caused by Drunk Patron

On July 25, 2013, the Maryland Court of Appeals – the highest Court in Maryland – held that Maryland bars are not liable for injuries or deaths caused by their drunk patrons after they leave the bar. The Court’s ruling was four-to-three. 

In August of 2008, a ten-year-old girl, Jazimen Harris, was killed when a drunk driver, Michael Eaton, violently rear-ended the car in which she was a passenger. The girl’s grandparents, Rev. William Warr, Jr. and his wife, Angela Warr (both of whom were injured in the crash), subsequently sued Dogfish Head Alehouse, a bar in Gaithersburg, Maryland that served Eaton 21 drinks before he left. Those drinks included 17 beers and several shots of hard liquor.

After leaving the bar, Eaton proceeded to drive between 88 and 98 miles per hour on Interstate 270 and rear-ended the Warrs’ vehicle. He was sentenced to eight years in prison for manslaughter. The Maryland Court of Appeals ultimately held that Dogfish Head is not liable for the girl’s death.

In forty-three states and Washington, D.C., alcohol vendors can be liable (in at least some circumstances) for accidents that occur after they serve drinks to a customer who is "visibly intoxicated." Maryland and Virginia lack these so-called "dram shop liability" provisions in their statutes.

The Court’s dissenting opinion, authored by the Honorable Sally Adkins, noted that public opinion "has changed greatly" since the last time the Court of Appeals considered the issue of dram-shop liability (i.e. in 1981) and that as many as 14 lives in Maryland could be saved each year by such a provision.

Friday, August 2, 2013

D.C.: Can a Medicare Patient/Plaintiff Claim the Portion of Medical Bills Not Paid by Medicare?

Judge Laura Cordero of the D.C. Superior Court recently embraced a Defendant’s argument that the Plaintiff in a personal injury case should not be permitted to claim the uncovered portion of medical bills partially paid by Medicare.  A health care provider who provides services to a Medicare patient is not permitted to recover from the patient any portion of the provider’s charges not covered by Medicare.  Consequently, a Defendant could argue that, when the Plaintiff’s medical bills have been partially paid by Medicare, the unpaid portion of the medical bills are not actually incurred by the Plaintiff and, therefore, are not recoverable in the Plaintiff’s lawsuit.  Judge Laura Cordero of the D.C. Superior Court is the most recent D.C. judge to find this argument persuasive.

Wednesday, July 24, 2013

MARYLAND: Health Care Provider’s Acceptance of Workers’ Compensation Insurer’s Payment of Medical Bills Is Not Prima Facie Evidence of the Fairness and Reasonableness of the Medical Bills

In the case of Brethren Mutual Insurance Co. v. Kenneth Suchoza, (No. 1787 - 2011 Term), the Court of Special Appeals of Maryland rejected an argument that payment made by a workers’ compensation carrier to a Plaintiff’s health care provider, and the healthcare provider’s acceptance of the payment, establishes that the payment amount is the fair and reasonable portion of bill.  Brethren argued that a healthcare provider’s acceptance of the workers’ compensation insurer’s payments demonstrated that the amounts of the partial payments were the fair market value for the medical services rendered.  The Court rejected this argument, noting that health care providers accept partial payments for many reasons not having to do with the fair compensation for the services, and were not necessarily indicative of market value of the medical services provided, and Brethren had failed to properly raise the issue, as it did not proffer the testimony of an expert witness or other competent witness who would testify that the workers’ compensation payments were fair and reasonable.

Monday, July 15, 2013

MARYLAND: Court of Appeals Upholds Contributory Negligence Standard

On Tuesday, July 9, 2013, in the case of Coleman v. Soccer Assoc. of Columbia, the Court of Appeals of Maryland refused to change the defense of contributory negligence in Maryland.   In the 5-2 ruling, the Court of Appeals declined to change the existing contributory negligence defense in Maryland, which defense is that a plaintiff cannot recover damages from a negligent defendant if the plaintiff’s negligence was a cause of the incident which resulted in harm to the plaintiff.  Retired Judge John Eldridge, writing for the majority, found: “[f]or this court to change the common law and abrogate the contributory negligence defense in negligence actions, in the face of the General Assembly’s repeated refusal to do so, would be totally inconsistent with the court’s long-standing jurisprudence.”  This decision by the Court of Appeals puts the fate of the contributory negligence defense back in the hands of the Maryland state legislature.  In the past, the legislature has been unwilling to change from contributory negligence to comparative negligence, and it is unlikely that the legislature will abandon the contributory negligence defense any time soon.  Therefore, contributory negligence remains a viable tort defense in Maryland.

For More Information:
Maryland court upholds contributory negligence law,” Associated Press, The Washington Post, July 9, 2013