Can Insurance Defendants Lay Low at Trial?

Insurance companies hate being named in an uninsured motorist case. Why? Because unlike most car accident trials, if the jury knows an insurance company is paying the damages, jurors become less concerned that the defendant is footing the bill themselves. Jurors intuitively expect there is insurance available to cover the verdict but they are never quite sure. On several occasions, I have had jurors ask me after trial if the defendant has to pay the verdict. “That nice Mr. Smith does not have to pay this personally, does he?”

In Maryland, the law is clear that in a straight uninsured motorist case without the tort defendant participating in the trial, the insurance company may be named. The definitive case on this is King v. State Farm. In that case, a pedestrian Plaintiff appealed an unsatisfactory jury verdict in Baltimore City in an underinsured motorist case where the tort defendant had offered their policy limits (the verdict was less than the underlying policy). The Maryland Court of Special Appeals reversed because the trial judge did not allow the Plaintiff to identify the fact that the defendant was an insurance company.

The unknown issue in Maryland is whether the underinsurance carrier can be named if the defendant driver who caused the accident remains as a defendant in an an uninsured or underinsured motorist case. I think the answer to the question is pretty obvious because the exact same logic and rationale largely applies.

One of our accident lawyers, however, recently lost this argument on a case that went to verdict. The judge bought the argument that mentioning the underinsurance carrier might lead the jury to think that there must be a lot of insurance which might lead them to award more than they should. Is this possible? Sure. But it seems equally possible the jury would feel sorry for the defendant with so little insurance. Besides, what separates an insurance company from any other large defendant who the jury also knows has a lot of money?

My opinion: when you balance this uncertainty against the insanity of having lawyers representing unidentified parties, it seems like a pretty easy call. It seems to me that the legal system artificially keeps enough from jurors as it is.

New Court of Appeals of Maryland Opinions

I summarized two new Court of Appeals of Maryland opinions elsewhere last week: Benway v. Maryland Port Authority and Darby v. Marley Cooling . Benway deals with a procedural issue with respect to when a party can file a summary judgment motion. Darby deals with an interesting Maryland workers' compensation issue (that I did not fully understand because I have never handled a workers' comp claim).

I think this is the first time on this blog I ever used "Court of Appeals of Maryland" instead of "Maryland Court of Appeals." The former is technically correct but it just sounds strange to me. I'm heading back to Maryland Court of Appeals.

Fighting Hate Since 1970: Morris Dees is Honored by Chicago’s Decalogue Society of Lawyers

Morris Dees, the co-founder and lawyer of the Southern Poverty Law Center, was honored at the Union League Club of Chicago by the Decalogue Society of Lawyers. The event held on March 2, 2010 at the Union League Club of Chicago was attended by Cook County judges, elected officials and members of the Decalogue Society of Lawyers, the Union League Club of Chicago and the Southern Poverty Law Center.

The Decalogue Merit Award was awarded to Mr. Dees for his tireless work in fighting hate groups ranging from the Klu Klux Klan to the White Aryan Resistance. Mr. Dees was responsible for numerous victories against hate groups, including a $6 million judgment that bankrupt the Aryan nations, a $12.5 million jury verdict against the California-based White Aryan Resistance for the death of a black student, and a $26 million verdict against the Carolina Klan for burning black churches.

However, these victories did not come without a price. In 1983, the Klansman burned the Southern Poverty Law Center's offices. And while the arsonists were convicted, their leader almost successfully fulfilled a plot to kill Mr. Dees. Over the years, more than 30 men have been imprisoned for plots to harm Morris Dees or destroy the Southern Poverty Law Center property. This continued threat requires a high degree of security during public appearances.

Wyeth v. Levine Used to Reverse Pre-Emption of Chicago Pharmaceutical Litigation Case Against Glaxo Smith Kline (GSK)

An Illinois prescription drug case that originally had been dismissed due to issues of federal preemption, has been reinstated by the 7th Circuit Court of Appeals in Chicago. This case, Mason v. SmithKline Beecham Corp. d/b/a Glaxo SmithKline, No. 08-2265, may be the first decision that addresses preemption with respect to prescription drugs.

The original Illinois prescription drug lawsuit was brought by the parents of 23 year-old Tricia Mason after she committed suicide just two days after being started on the prescription drug Paxil. The Illinois prescription drug lawsuit alleged that Paxil increases the risk in suicide in children and young adult, which the manufacturer should have known and therefore had a duty to warn its users.

The lawsuit alleged that GSK violated Illinois law by choosing not to warn Tricia Mason on its label that Paxil increases the risk of suicide for children and young adults. Two years after the decedent's suicide, Paxil added a label warning of an increased risk of suicide among children taking the drug.

Personal Injury Settlements in Maryland: What Portion Is Marital Property?

The Maryland Court of Special Appeals addressed last week an issue that our personal injury clients in malpractice and accident cases have occasionally expressed: is my settlement or verdict my money or marital money I have to share with my spouse?

In Murray v. Murray, the court was faced with, ironically I guess, a lawyer who had reached a settlement after filing a lawsuit against her former law firm alleging that the firm engaged in discriminatory and retaliatory practices in firing her. (I would have been interested in learning more about the underlying lawsuit.) You know the rest of the story. The settlement came after she and her husband were separated but before they were divorced and the lawyer spouse wanted all of the money for herself.

The Maryland Court of Special Appeals found that the portion of a settlement that compensates a claimant spouse for lost wages or earning capacity during the marriage, medical expenses paid from marital funds, or for joint loss of consortium, is marital property subject to equitable distribution. Pain and suffering damages are not marital property.

This is an easy enough rule to formulate but there is a problem in its application. Personal injury settlements do not allocate between economic and non-economic damages. This issue is one that personal injury lawyers frequently tackle in a variety of contexts, most notably, in dealing with medical liens. How much of the settlement was for medical bills? The insurance company does not (and cannot) delineate.

The Maryland rule the court underscored in Murray is that it is for the finder of fact to determine how the settlement should be apportioned. Interestingly, the trial court rebuked the Montgomery County trial judge who found that the husband in this case did not prove any of the property at issue should be classified as martial property:

In its Opinion and Order, the court found that the settlement agreement did not “delineate what the $550,000 represents, other than a settlement.” Ironically, it blamed [Defendant] for failing to carry his “burden to identify and value the [proceeds] he seeks to classify as marital,” concluding “there simply is no credible evidence from which the court can conclude that this sum is marital.” [Defendant] complains that his cross-examination into the status of the settlement funds was unduly restricted. We agree.

The take home message for Maryland personal injury lawyers advising clients is that you cannot give them a definitive answer as to how much their spouse will get out of their settlement. But you can tell them that the spouse gets half of any part of a settlement that is determined to be for (1) present or future lost wages that were incurred during the marriage, (2) medical bills, and (3) joint loss of consortium. The plaintiff spouse does get to keep their own pain and suffering damages, which should be the largest portion of most personal injury settlements. How to apportion what part of a settlement falls into what category is a subject of argument until it gets to a finder of fact who is required to engage in the difficult task of apportioning the settlement.

You can find the full case here.

Fatal Chicago Bus Accident Reaches Settlement in Wrongful Death Case

While crossing a Chicago west side intersection with her sister, an 18-year-old woman was struck by a bus. The woman’s estate filed suit against the bus driver and the private bus company for the wrongful death of the decedent.

In any wrongful death case certain criteria must be met. Negligence must be established on behalf of the defendant and the death must be determined to be the result of the defendant’s actions. Furthermore, if the decedent left behind dependents and the dependents suffered monetary damages as a result of the death, then a wrongful death case may be filed.

After the Chicago bus accident, the decedent required life support for about five months before her death. She was survived by six siblings.

Fatal Chicago Bus Accident Reaches Settlement in Wrongful Death Case

While crossing a Chicago west side intersection with her sister, an 18-year-old woman was struck by a bus. The woman’s estate filed suit against the bus driver and the private bus company for the wrongful death of the decedent. It is the driver of any vehicle to exercise due care while crossing an intersection and to be cautious and mindful of any pedestrians attempting to cross the street.

In any wrongful death case certain criteria must be met. Negligence must be established on behalf of the defendant and the death must be determined to be the result of the defendant’s actions. Furthermore, if the decedent left behind dependents and the dependents suffered monetary damages as a result of the death, then a wrongful death case may be filed.

After the Chicago bus accident, the decedent required life support for about five months before her death. She was survived by six siblings.

Fatal Chicago Bus Accident Reaches Settlement in Wrongful Death Case

While crossing a Chicago west side intersection with her sister, an 18-year-old woman was struck by a bus. The woman’s estate filed suit against the bus driver and the private bus company for the wrongful death of the decedent.

In any wrongful death case certain criteria must be met. Negligence must be established on behalf of the defendant and the death must be determined to be the result of the defendant’s actions. Furthermore, if the decedent left behind dependents and the dependents suffered monetary damages as a result of the death, then a wrongful death case may be filed.

In Illinois, and in many other states, a pedestrian in the crosswalk always has the right of way. This means that drivers must always stop for pedestrians in crosswalks, even if the light is red and the pedestrian is walking against the light. Therefore, it is important that the driver of any vehicle exercise due care while crossing an intersection and be cautious and mindful of any pedestrians attempting to cross the street.

Illinois Chemical Accident at Construction Site Leads to Worker’s Death: Illinois Jury Finds For Worker’s Estate

Illinois construction companies have an obligation to provide a safe work environment for their employees and do what they can to avoid Illinois construction site accidents. Because of this duty on the part of construction companies, Illinois construction workers can generally assume that the equipment and materials at a construction site are safe and hazard-free.

However, sometimes this is not the reality, in which case an Illinois construction site injury can result from the failure of a construction company to provide a safe and healthy work environment. Consider the case of Diaz v. Archer Daniels Midland Company, 07 L 142 (Ill., Macon County), in which a 26 year-old construction worker was fatally injured as a result of an Illinois construction site accident.

At the time of his Illinois construction site injury, Francisco Garcia was working for a contractor who had been hired to perform work at the Archer Daniels Midland (ADM) Bioproducts plant. Garcia was busy insulating pipes 15 feet in the air while harnessed to a scissors lift. While Garcia was working, a nearby waste compression system over-pressurized, spraying him with scalding steam, toxic chemicals and boiling water.

Union League Club of Chicago’s Civic & Arts Foundation Hosts 2010 Jazz Competition at Buddy Guy’s Legends

The Union League Club of Chicago’s Civic & Arts Foundation hosted the 2010 jazz improvisation competition at Buddy Guy's Legends on February 17, 2010. From high school kids to semi-professionals beginning to make a splash on the Chicago jazz scene, the breadth of talent exhibited at Buddy Guy's Legends was incredible.

At the competition, twelve performers ranging in age from 14-27 competed for a total of $17,000 in prize money. And although this was a competition for a cash prize, it was also a safe venue for emerging young musicians to showcase their unbelievable talents.

The competing performers were divided into three divisions according to their age. The first division included the 14 to 17 year-old musicians, second the 18 to 22 year-olds, and the last the 23 to 27 year-old musicians. One of the divisions' first place winners received a Grand Prize, while two other winners received People's Choice Awards that the live audience voted on by submitting ballots.

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