Serious Personal Injury Lawyers Blog

When you purchase automobile insurance, you do so not only to protect yourself in the event that you caused or contributed to an accident that resulted in an injury to another, but also to receive benefits in case you were injured as a result of the carelessness of another.

One of the protections you may have purchased in your insurance policy results in payment of your property damage, less a deductable, caused to your car as a result of the carelessness of another. Perhaps the biggest benefit of collision coverage, is that you personally do not have to argue with the wrongdoer’s insurance carrier in the event that they are denying that their insured was the exclusive cause of the accident contributing to the property damage. Instead, if you have collision coverage, you can call your insurance carrier and they will have your car repaired in accordance with the terms of that coverage. Additionally, if you purchased collision coverage, you most likely also have rental car coverage. This coverage would require your own insurance company to provide payments to permit you to rent a car during the time period that your vehicle is being repaired.

Other “first party” coverages available to you in the event of an automobile collision are personal injury protection (PIP) or Medical Payment coverage (Medpay). Personal injury protection coverage ordinarily provides benefits for medical services provided as well as wages lost as a result of the collision. Medical Payment coverage is exactly as it sounds. This coverage provides reimbursement for medical bills incurred as a result of damages sustained in the collision. Both PIP and Medpay coverage payments are made by your own insurance carrier and do not affect your right to recover for the very same medical bills and lost wages from the wrongdoer.

by Ira Sherman

Uninsured motorist coverage protects you in the event that you were injured as a result of carelessness of a totally uninsured motorist. However, what most people do not realize is that uninsured motorist coverage converts to “underinsured motorist coverage” when you are injured as a result of the carelessness of an individual who has less insurance than your uninsured/underinsured motorist coverage. For instance, if a careless individual with a $25,000 insurance policy causes a significant injury to you and you have a $100,000 of uninsured/underinsured then your own insurance carrier would be responsible to pay the difference between the wrongdoer’s insurance coverage ($25,000) and your $100,000 underinsured motorist coverage, or $75,000. Therefore, uninsured motorist coverage provides a double benefit – one if injured by an uninsured driver and a second if injured by someone with less insurance that you own underinsured motorist coverage.

by Ira Sherman, Esq.

We have previously explained the concept of a fiduciary duty. To summarize, a fiduciary duty is a duty that arises when there is a special relationship. There is a fiduciary duty between an insurance company and their insured. One of the fiduciary duties that an insurance company has to their insured is to make sure that the insured is not exposed to a verdict that could result in the payment out of their own pocket. In other words, if Chaikin, Sherman, Cammarata & Siegel, P.C. files a lawsuit for an amount greater than the available insurance (which is often the case), there is a risk to the wrongdoer that Chaikin, Sherman, Cammarata & Siegel will receive a verdict greater than the amount of insurance. The defendant would then have to pay the amount of the verdict that is in excess of their insurance out of their own personal assets. An insurance carrier is required to protect their insured from an excess verdict by offering to settle the case within or at policy insurance limits when liability and damages in the case demonstrate that the risk of an excess verdict is real.

by Ira Sherman, Esq.

Jurisdictions that have comparative negligence laws permit a plaintiff to recover even though they caused or contributed to their accident. In the District of Columbia, Maryland and Virginia, if you caused or contributed to the occurrence of the incident and the injuries which resulted to any degree, you cannot recover. In a comparative negligence state, the jury would be permitted to compare the carelessness of each party and issue based on the comparative fault of the parties. For instance, if you were a pedestrian walking outside of the crosswalk and struck by an inattentive driver and the jury concluded you were 50% at fault, you would be awarded 50% of the total jury verdict. The state of Maryland Legislature has been considered adopting comparative negligence but has not done so to date. In the opinion of Chaikin, Sherman, Cammarata & Siegel, P.C., comparative negligence is a much more fair way of compensating an individual for injuries sustained. It is unfair to an often severely injured individual for an error in judgment that minimally contributed to the accident and injuries sustained. The plaintiff should be permitted to recover to the extent of his innocence and the defendant would only be required to pay that amount equal to the degree of their fault. A more fair system cannot be devised.

by Ira Sherman, Esq.

Many people call asking, “Do I have a case?” The purpose of this blog is to assist in the evaluation of that question. There are three simple questions you can ask yourself to determine if you have a case. The first question is, “Did the other party do anything wrong?” If the answer to the question is “yes”, the other party was careless, and then you can go to the next question. If the answer was “no, no one did anything careless”, you will not have a claim. The second question is, “Was I careless or did I knowingly assume a risk of becoming injured?” If the answer to that question is no – that you were not careless and that you did not assume the risk then, again, you have answered the question in a way that would preserve your right to file a claim. If you were careless or assumed a known risk, you will not be able to file a claim. The third and final question to ask yourself is, “Was I injured as a result of the other party’s carelessness?” People occasionally call angry at the carelessness of another party, believing that the other party could have “hurt or killed them.” However, in order to make a claim for money, you have to have actually suffered a physical injury due to the negligence of another. So, if you have been physically injured by the carelessness of another, you have all three components of a claim and you would ordinarily have a right to recover money damages.

by Ira Sherman, Esq.

The District of Columba, Maryland and Virginia are virtually the only three jurisdictions in the entire country that have a system of civil law called “Absolute Fault”. The other states have “Comparative Fault” systems. An “Absolute Fault” system requires the plaintiff to prove that the defendant was completely, 100%, at fault for causing the accident and the injuries claimed. If the Plaintiff caused or contributed to the accident, in any way, to any degree, then the Plaintiff cannot collect. Contributory negligence means that the plaintiff failed to exercise reasonable care to protect themselves from injury. In an “Absolute Fault” jurisdiction, if the plaintiff was careless, to any degree, even if the Defendant was negligent, then the plaintiff cannot recover. For instance, if a pedestrian was walking outside of the crosswalk and was struck by an automobile being driven by an inattentive driver, the pedestrian will be unlikely to recover because the pedestrian, like the inattentive driver of the automobile, did not act in a careful, prudent way by crossing at the corner, at the crosswalk, on a green or walk signal. Assumption of the risk is different than contributory negligence. Contributory negligence is a concept that means that you were unintentionally careless and that a reasonable person would have been more careful to protect themselves. When you assume the risk, you are aware of the danger and confront it anyway. Even if the defendant was negligent, if you undertake a danger knowing there is a risk of harm, you cannot recover for your injury despite the defendant’s negligence. For instance, if you go to a hockey or baseball game and get hit by a puck or ball, you “assumed the risk” if that taking place and you cannot recover for any injuries sustained.

by Ira Sherman

For those of you who have been reading this blog, you understand and appreciate that the difference between an accident and a claim that the law recognizes as a civil wrong, is whether somebody failed to comply with a duty owed to another. In other words, for purposes of review, an individual could slip and fall on a floor made wet by the last customer that walked in front of the injured person only a few seconds earlier. Because this did not permit the supermarket personnel to have the opportunity to inspect the floor and clean up the dangerous condition, the slip and fall would likely be considered an “accident.” The duty to protect a customer arises when there is an opportunity to learn that a danger existed in sufficient time to warn the public of the danger by posting a "Wet Floor" sign or by eliminating the danger. Sufficient time must exist to inspect the premises from the time the danger arose and to clean up or warn passersby before the incident can take place. A violation or breach of that duty, which the law considers “reasonable care” (assuming an injury and the absence of contributory negligence), results in a negligence case. There are other duties called “fiduciary duties.” A fiduciary duty arises when there is a special relationship between an individual and another individual or an individual and an entity, such as an insurance company, a doctor, a hospital, an attorney, or a clergyman. When a fiduciary duty arising from a special relationship exists, the standard of care is higher to protect the individual from harm. Failure to comply with a fiduciary duty can result in a bad faith claim against the insurance company.

We have previously described the content and format of a “complaint”; the document that is utilized to begin a lawsuit. When the clerk of the court receives the complaint, with the filing fee, the complaint is now ready to be issued from the court in a form that can be “served” on the defendant. The complaint is served with a summons which is issued by the clerk of the court ordering the defendant to provide an Answer to the complaint within a certain period of time. The period of time to answer the complaint can vary depending on who the defendant is. For instance, an individual may have 20 or 30 days to answer the complaint, depending on the jurisdiction, while a corporation, an out-of-state defendant, or a governmental agency may have 60 days to answer the same complaint. When the defendant receives the complaint, known as being “served with the complaint”, an affidavit of service is filed with the court to notify the court of the date on which the defendant’s obligation to file an answer begins to run. The defendant’s answer sets forth their response to each of the factual allegations in the complaint and asserts their own defenses such as, contributory negligence or assumption of the risk. When a defendant files the answer with the court and serves it on the plaintiff, the parties have now been legally engaged and the case is considered “at issue”. The legal wrangling can now begin.

by Ira Sherman

A civil action – a claim for money damages – is begun by the filing of a complaint with the court. A complaint is simply a statement advising the person who was sued, “the defendant”, what they did wrong and the injury caused by the wrong. In a civil case, you have to prove and set forth in the complaint what are known as the “elements” of a cause of action in the complaint and explain why the case belongs in that court in that state or jurisdiction. The “elements” of a civil action for negligence, for instance, requires a statement of a duty, e.g. to stop at a red light, a breach of a duty e.g. that the defendant went through the red light, and, a statement of damages, e.g. a broken leg, back and neck pain. The statement permitting the case to be in that state or jurisdiction would describe that the incident took place in that state or jurisdiction and/or that the wrongdoer lives in that jurisdiction. Once the complaint is properly drafted, it has to be filed with the court and the clerk of the court puts it into a format which can be used to “serve” the defendant.